Via Certified Mail #: Via Certified Mail #:
Mr. Frank Lisa, President and Registered Agent
Mr. Frank Lisa, Individual
Kenrock Inc.
51946 County Road 109
702 Modrell Blvd.
Elkhart, Indiana 46514
Elkhart, Indiana 46514
Case No. 2003-12661-W
Based on an investigation by designated representatives of the Indiana Department of Environmental Management ("IDEM") and the United States Army Corps of Engineers (the "Corps"), Kenrock Inc. and Frank Lisa, as owners, operators and/or developers of approximately 126 acres of property, including upland and forested wetland, connected to Simonton Lake, (the "Site"), located 0.5 mile north of the intersection of County Roads 11 and 4, in Elkhart, Elkhart County, Indiana, have been found in violation of the following environmental rules and statutes:
A. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid National Pollutant Discharge Elimination System ("NPDES") permit obtained prior to discharge. 327 IAC 5-2-4(2) excludes from regulation a site for which a permit has been issued under Section 404 of the Clean Water Act.
On or about November 15, 2001, the Corps discovered that Kenrock Inc. and Frank Lisa placed fill material on approximately 0.5 acre within a wetland connected to Simonton Lake, water of the state. Kenrock Inc. and Frank Lisa discharged earthen fill material into waters of the state without a valid NPDES permit or Section 404 certification, in violation of 327 IAC 5-2-2 and NPDES permit requirements.
B. Pursuant to 327 IAC 2-1.5(8), all waters within the Great Lakes system at all times and at all places, including waters within the mixing zone, 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 that do any of the following:
(A) Will settle to form putrescent or otherwise objectionable deposits.
(B) Are in amounts sufficient to be unsightly or deleterious.
(C) Produce color, visible oil sheen, odor, or other conditions in
such degree as to create a nuisance.
(D) Are in concentrations or combinations that will cause or contribute
to the growth of aquatic plants or algae to such degree as to create a
nuisance, be unsightly, or otherwise impair the designated uses.
(E) Are in amounts sufficient to be acutely toxic to, or to otherwise
severely injure or kill aquatic life, other animals, plants, or humans.
Pursuant to IC 13-30-2-1(1), a person may not 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.
Pursuant to 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 sections 1 and 3 of this chapter.
On or about November 15, 2001, the Corps discovered that Kenrock Inc. and Frank Lisa placed fill material on approximately 0.5 acre within a wetland connected to Simonton Lake, which is located in the Great Lakes system. Kenrock Inc. and Frank Lisa caused or contributed to cause earthen fill material to be placed in the wetland area connected to Simonton Lake, a water of the state, at the Site, in violation of 327 IAC 2-1.5-8, which is a rule of the water pollution control board, and thus in violation of IC 13-30-2-1(1), and 13-18-4-5.
C. Pursuant to 327 IAC 2-1.5-4(a), for all surface waters of the state within the Great Lakes system, existing instream water uses and the level of water quality necessary to protect existing uses shall be maintained and protected. Where designated uses of the waterbody are impaired, there shall be no lowering of the water quality with respect to the pollutant or pollutants that are causing the impairment.
Kenrock Inc. and Frank Lisa caused or contributed to cause earthen fill material to enter a wetlands area connected to Simonton Lake, a water of the state located in the Great Lakes system, thus impairing its existing water uses and lowering water quality, a violation of 327 IAC 2-1.5-4(a).
In accordance with IC 13-30-3-3, the Commissioner is required to notify an alleged violator in writing that a violation may exist and offer an opportunity to enter into an Agreed Order providing for the actions 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.
To discuss this matter further, please Ms. Aletha Lenahan, Enforcement Case Manager, at (317) 232-8407, within 15 days after receipt of this notice to request a conference. If settlement is reached, an Agreed Order will be prepared and sent for review and signature.
For the Commissioner:
Date: April 12, 2004
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs