NOTICE OF VIOLATION
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Via Certified
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Via Certified
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Mr. Sammy J. Emmert, General Partner |
Ms. Joyce E. Emmert, General
Partner |
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Emmert Family Limited Partnership |
Emmert Family Limited Partnership |
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d/b/a Emmert Development |
d/b/a Emmert Development |
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Case No. 2002-12431
Based on an investigation, the Indiana Department of Environmental Management (IDEM) has reason to believe the Emmert Family Limited Partnership d/b/a Emmert Development (Respondent) has violated environmental rules and statutes. The violations are based on the following:
1.
The Respondent owns and operates a property development
company, having its main business office located at
2.
The Respondent is developing 45.2 acres of a 54.9
total acre residential and commercial subdivision known as Thomas Farms, located
in the northwest corner of the intersection of
3.
Pursuant to 327
Indiana Administrative Code (IAC) 15-5-5(4), the operator must certify that the
erosion control measures in the erosion control plan, (also known as an erosion
and sediment control plan or ESCP) comply with applicable state, county, or
local erosion control requirements; the erosion control measures will be
implemented in accordance with the plan; and that an appropriate state, county,
or local erosion control authority and the soil and water conservation district
office have been sent a copy of the plan for review.
4.
Pursuant to 327 IAC
5. Based on inspections conducted by representatives of the Indiana Department of Natural Resources (IDNR) and/or the Clay County Soil and Water Conservation District (SWCD), Respondent failed to implement the ESCP, and therefore failed to assure that the erosion control measures were maintained and that off-site sedimentation did not occur, according to the approved ESCP at the Site during the period of construction activity and/or active land disturbing activity, in violation of 327 IAC 15-5-(4) and 327 IAC 15-5-7(a).
6.
Pursuant to 327 IAC
i.
Sediment-laden water
shall be detained on-site by erosion control practices that minimize
sedimentation in the receiving stream.
ii.
Appropriate measures
shall be taken to minimize or eliminate wastes or unused building materials
being carried from the site by run-off.
iii.
Sediment tracked from
the site onto public or private roadways shall be
minimized.
iv.
Public and private
roadways shall be kept clear of accumulated sediment.
v.
All on-site storm
drains shall be protected against sedimentation by appropriate and acceptable
methods.
vi.
Storm water drainage
from adjacent areas that naturally pass through the site shall either be
diverted from disturbed areas or the existing channel must be protected or
improved to prevent erosion and sedimentation from
occurring.
vii.
Run-off from a
disturbed area shall be controlled by either appropriate vegetative practices,
the implementation of an erosion control plan that includes appropriate erosion
control measures, or both.
7.
Pursuant to 327 IAC 15-5-7(c), during the period
of construction activity at a site, all erosion control measures necessary to
meet the requirements of 327 IAC 15-5-7 shall be maintained by the operator.
8.
Pursuant to 327 IAC
15-5-7(d), all erosion control measures required to comply with this rule shall
meet the design criteria, standards, and specifications for erosion control
measures established by the department in guidance documents similar to, or as
effective as, those outlined in the Indiana Handbook for Erosion Control in
Developing Areas (now titled Indiana Stormwater Quality Manual) from the Division of Soil Conservation, IDNR and the Field Office Technical Guide from the
Natural Resource Conservation Service (NRCS).
9. Based on site visits and inspections conducted by representatives of IDNR and/or the Clay County SWCD, Respondent failed to assure that erosion control measures, according to the approved ESCP, were implemented and maintained at the Site and assure that off-site sedimentation did not occur during the period of construction activity and/or active land disturbing activity, in violation of 327 IAC 15-5-7(b), (c), and (d).
10. Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and at all places, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges:
(1) that will settle to form putrescent or otherwise objectionable deposits;
(2) that are in amounts sufficient to be unsightly or deleterious;
(3) that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;
11. Pursuant to Indiana Code (IC) 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.
12. Pursuant to IC 13-30-2-1, no person may discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form which causes or would cause pollution which violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant to IC 13.
13. Site inspections conducted by representatives of IDNR and/or the Clay County SWCD during the period of construction activity and/or active land disturbing activity, revealed that Respondent caused or allowed the discharge of sediment into the Mill Creek waterway, a water of the state, that settled to form objectionable deposits and/or in an amount sufficient to be unsightly or deleterious, in a manner that caused a polluted condition, in violation of 327 IAC 2-1-6(a), IC 13-18-4-5, and IC 13-30-2-1.
In accordance with IC 13-30-3-3, the Commissioner herein provides notice that violations may exist and offers an opportunity to enter into an Agreed Order providing for the action required to correct the violations and for the payment of a civil penalty. The Commissioner is not required to extend this offer for more than 60 days.
As provided in IC 13-30-3-4, an alleged violator may enter into an Agreed Order without admitting that the violations occurred. IDEM encourages settlement by Agreed Order, thereby resulting in quicker correction of the environmental violations and avoidance of extensive litigation. Timely settlement by Agreed Order may result in a reduced civil penalty. Also, settlement discussions will allow the opportunity to present any mitigating factors that may be relevant to the violations.
If an Agreed Order is not entered into within 60 days of receipt of this Notice of Violation, the Commissioner may issue a Notice and Order under IC 13-30-3-4 containing the actions that must be taken to correct the violations and requiring the payment of an appropriate civil penalty. Pursuant to IC 13-30-4-1, the Commissioner may assess penalties of up to $25,000 per day for each violation.
Please contact Ms. Stacie Tucker, Environmental Manager, at 317/234-0411 within 15 days after receipt of this Notice to discuss resolution of this matter.
For the Commissioner:
Date Signed:
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs
cc: U.S. EPA, Region 5, Office of Water
Clay
Sharon Hall, Indiana Department of Natural Resources
Dale