STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2018-25375-Q |
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hamilton
county commissioners, |
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Respondent. |
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AGREED ORDER
Complainant and
Respondent desire to settle and compromise this action without hearing or
adjudication of any issue of fact or law, and consent to the entry of the
following Findings of Fact and Order. Pursuant to Indiana Code (IC) 13-30-3-3,
entry into the terms of this Agreed Order does not constitute an admission of
any violation contained herein. Respondent's entry into this Agreed Order shall
not constitute a waiver of any defense, legal or equitable, which Respondent
may have in any future administrative or judicial proceeding, except a
proceeding to enforce this order.
I. FINDINGS OF FACT
1.
Complainant
is the Commissioner (Complainant) of the Indiana Department of Environmental
Management (IDEM), a department of the State of Indiana created by IC
13-13-1-1.
2.
Hamilton
County Commissioners (Respondent) operates the Crawford property drainage
project, located at 21222 North Cumberland Road, in Noblesville, Hamilton
County (the Site).
3.
The
Site consists of agricultural field and a .25 acre Palustrine, Forested, Class
II Isolated Forested Wetland, as defined by IC 13-11-2-25.8(a)(2)
and IC 13-11-2-221.5.
4.
327
Indiana
Administrative Code (IAC)
17-3-1 establishes procedures and criteria for the review of applications for
wetland activity permits for significant impacts to Class I State Regulated
Wetlands.
327
IAC 17-4-1 governs the issuance of wetland activity individual permits and
establishes procedures and criteria for the review of applications for wetland
activity individual permits in Class III and certain Class II wetlands.
5.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
6.
Pursuant
to IC 13-30-3-3, on September 11, 2018, IDEM issued a Notice of Violation (NOV)
via Certified Mail to:
Christine
Altman, President |
Hamilton
County Commissioners |
1 Hamilton
County Square, Suite 157 |
Noblesville,
Indiana 46060 |
7.
During
an investigation, conducted by a representative of IDEM, violations were found,
as described below.
8.
Pursuant to 327 IAC 2-1-6(a)(1), all surface
waters at all times and at all places, including 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 will settle to form
putrescent or otherwise objectionable deposits, that are in amounts sufficient
to be unsightly or deleterious, that produce color, odor or other conditions in
such degree as to create a nuisance, which 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 Indiana Code (IC) 13-18-4-5,
a person may not: (1) throw, run, drain, or otherwise dispose; or (2) cause,
permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise
disposed; into any of the streams or waters of Indiana any organic or inorganic
matter that causes or contributes to a polluted condition of any of the streams
or waters of Indiana.
Pursuant to IC 13-30-2-1, it is unlawful
for any person to discharge, emit, cause, or allow any contaminant or waste,
including any noxious odor, either alone or in combination with contaminants
from other sources in the environment in any form that causes or would cause
pollution that violates or would violate rules, standards, or discharge or
emission requirements adopted by the appropriate board under the environmental
management laws.
During
an inspection on February 1, 2017, a representative from IDEM observed the
discharge of fill material into a State Regulated Wetland. Specifically, the
IDEM representative observed and documented the mechanical clearing of a 0.25 acre,
Palustrine, Forested, Class II Isolated Forested Wetland, as defined by IC
13-11-2-25.8(a)(2) and IC 13-11-2-221.5 and the discharge of dredged or fill
into a State Regulated Wetland, resulting in objectionable deposits, which
degraded the water quality and interfered with the existing and potential uses
of the wetland at the Site, in violation of 327 IAC 2-1-6(a)(1), IC13-18-4-5,
and IC 13-30-2-1.
9. Pursuant
to IC 13-18-22-1, except as provided in subsection (b), a person proposing a
wetland activity in a State regulated wetland must obtain a permit under this
chapter to authorize wetland activity.
Pursuant
to 327 IAC 17-2-3, a person proposing a wetland activity must submit a notice
of intent to the department [IDEM] as a prerequisite to applicability of the
minimum impact general permit.
Pursuant
to 327 IAC 17-4-3, a person proposing a wetland activity is required to submit
to the department on application.
IDEM
records indicate that Respondent did not submit notice or obtain a State
Regulated Wetland Permit, in violation of IC 13-18-22-1, 327 IAC 17-2-3, and
327 IAC 17-4-3.
10. In
recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
II. ORDER
1.
This
Agreed Order shall be effective (Effective Date) when it is adopted by
Complainant or Complainant’s delegate (as evidenced by signature), and the
adopted Agreed Order has been received by Respondent. This Agreed Order shall
have no force or effect until the Effective Date. In addition to addressing the
violations cited in Paragraphs 8 through 9 of the Findings of Fact above, this
Agreed Order also addresses any additional violations of these same rules that
may have occurred subsequent to the issuance of the NOV and prior to the
Effective Date.
2.
Respondent
shall comply with rules and statutes listed in the findings above at issue.
3.
Immediately,
upon the Effective Date, Respondent shall cease further activity in wetlands at
the Site until proper authorization by IDEM has been granted.
4.
Within
15 days of the Effective Date, Respondent shall submit in writing to Order
Paragraph 8 the decision either to:
A. Restore
the wetlands on the site by removing all of the dredged/fill material from the
wetland and placing the fill in an upland location; or
B. Apply for and receive an after-the-fact
(ATF) permit.
5. If
a decision is made to restore the wetlands, within 45 days of the Effective
Date, Respondent shall submit a Restoration Plan (Plan) for review and
approval. The Plan must include:
A. A schedule of implementation with start and end
dates for all phases of the restoration activities.
B. A complete outline of activities to be
undertaken in the restoration efforts, including written information in
narrative format as to how the fill will be removed, and erosion and sediment
control measures (ESCMs) will be installed during fill removal at the Sites and
the disposal area(s).
C. Cross-Sections, layout plans, and other
necessary drawings showing restoration sites’ pre-construction contours and
proposed restoration contours.
D. Specific information on replanting,
which includes identification of wetlands that will be replanted, a complete
list of appropriate native vegetation, and information on the species and
quantities of vegetation to be replanted.
E. A plan to
monitor and submit monitoring reports.
F. Information
on the permanent disposal location of the removed fill material.
G. ESCMs shall be maintained at the Sites until the reconstructed wetlands have been completely re-vegetated and the Site is
permanently stabilized.
Any
plan required by this paragraph is subject to IDEM approval. In the event IDEM
determines that any plan submitted by Respondent is deficient or otherwise
unacceptable, Respondent shall revise and resubmit the plan to IDEM in
accordance with IDEM’s notice. After three (3) submissions of such plan by
Respondent, IDEM may seek civil enforcement of this Order.
Any
changes in the project design or scope of work that are not detailed in any
approved plan, as described above, as modified by Respondent are strictly
prohibited without first submitting a revised plan and/or certification
modification request, and obtaining IDEM’s approval prior to commencing,
restarting and/or continuing work at the Sites. Failure to submit a request and
obtain approval for any change to an approved plan, prior to starting
restoration, will subject Respondent to stipulated penalties and/or further
enforcement action.
Upon
receipt of written notification from IDEM, Respondent shall immediately
implement the approved Restoration Plan, and adhere to the schedule milestone
dates therein. The approved Restoration Plan shall be incorporated into this
Agreed Order, and shall be deemed an enforceable part thereof. Failure by
Respondent to submit the Restoration Plan by the specified date, or to meet any
of the milestones in an approved plan, will subject Respondent to stipulated
penalties as described below.
6. If
a decision is made to apply for an ATF permit, within 45 days of the Effective
date, Respondent shall complete and submit a State Regulated Wetland permit
application using the “Application for Authorization to Discharge Dredged or
Fill Material to Isolated Wetlands and/or Waters of the State.”
If
a decision is made to apply for an ATF permit, Respondent shall be responsible
for the required compensatory mitigation (2.5:1) and monitoring (5-year
monitoring contract).
7.
Upon
receipt of written notification from IDEM, Respondent shall immediately
implement the approved ATF certification and adhere to the milestone dates therein.
The approved ATF certification shall be incorporated into the Order and shall
be deemed an enforceable part thereof.
8.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Linda
McClure, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
9.
Respondent
is assessed and agrees to pay a civil penalty of Five Thousand One Hundred
Dollars ($5,100). Said penalty amount shall be due and payable to the
Environmental Management Special Fund within 30 days of the Effective Date; the
30th day being a “Due Date.”
10.
In
the event the terms and conditions of the following paragraphs are violated,
IDEM may assess and Respondent shall pay the corresponding stipulated penalty:
Paragraph |
Violation |
Stipulated Penalty |
3 |
Failure
to cease further land disturbing activity at the Site. |
$1,000
per day |
4 |
Failure
to determine and submit written documentation for chosen course of action. |
$200
per week late |
5 |
Failure
to submit the Restoration Plan and schedule within 90 days of the Effective
Date. |
$250
per week late |
5 |
Failure
to revise
and resubmit the plan as required. |
$250
per week late |
5 |
Failure
to submit a request and obtain approval for any modification to an approved
plan prior to starting restoration at the Site. |
$500
per week late |
5 |
Failure
to timely implement the approved Restoration Plan and/or adhere to schedule
milestone dates. |
$500
per week late. |
6 |
Failure
to apply for an after-the-fact (ATF) certification within 45 days of
Effective Date. |
$250
per week late. |
7 |
Failure
to implement the ATF certification and adhere to the milestone dates therein.
|
$500
per week late. |
11.
Stipulated penalties shall be due and payable no later than the 30th day after
Respondent receives written notice that IDEM has determined a stipulated
penalty is due, the 30th day
being a “Due Date.” IDEM may notify Respondent at any time that a stipulated
penalty is due. Failure to notify Respondent in writing in a timely manner of a
stipulated penalty assessment shall not waive IDEM’s right to collect such
stipulated penalty or preclude IDEM from seeking additional relief against
Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties
shall preclude IDEM from
seeking additional relief against Respondent for a violation of this Agreed Order. Such additional relief includes any remedies or sanctions available
pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
12.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25375-Q of this action
and shall be mailed to:
Office
of Legal Counsel |
Indiana
Department of Environmental Management |
IGCN,
Room N1307 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
13.
This
Agreed Order shall apply to and be binding upon Respondent and its successors
and assigns. Respondent’s signatories to this Agreed Order certify that they
are fully authorized to execute this Agreed Order and legally bind the party
they represent. No change in ownership, corporate, or partnership status of
Respondent shall in any way alter its status or responsibilities under this
Agreed Order.
14.
In
the event that the monies due to IDEM pursuant to this Agreed Order are not
paid on or before their Due Date, Respondent shall pay interest on the unpaid
balance and any accrued interest at the rate established by IC 24-4.6-1. The
interest shall be computed as having accrued from the Due Date until the date
that Respondent pays any unpaid balance. The interest shall continue to accrue
on the first of each month until the civil penalty and any interest accrued are
paid in full. Such interest shall be payable to the Environmental Management
Special Fund, and shall be payable to IDEM in the manner specified above.
15.
In
the event that any terms of this Agreed Order are found to be invalid, the
remaining terms shall remain in full force and effect and shall be construed
and enforced as if this Agreed Order did not contain the invalid terms.
16.
Respondent
shall provide a copy of this Agreed Order, if in force, to any subsequent
owners or successors before ownership rights are transferred. Respondent shall
ensure that all contractors, firms and other persons performing work under this
Agreed Order comply with the terms of this Agreed Order.
17.
This
Agreed Order is not and shall not be interpreted to be a permit or a
modification of an existing permit. This Agreed Order, and IDEM’s review or
approval of any submittal made by Respondent pursuant to this Agreed Order,
shall not in any way relieve Respondent of its obligation to comply with the
requirements of its applicable permit or any applicable Federal or State law or
regulation.
18.
Complainant
does not, by its approval of this Agreed Order, warrant or aver in any manner
that Respondent’s compliance with any aspect of this Agreed Order will result
in compliance with the provisions of any permit, order, or any applicable
Federal or State law or regulation. Additionally, IDEM or anyone acting on its
behalf shall not be held liable for any costs or penalties Respondent may incur
as a result of Respondent’s efforts to comply with this Agreed Order.
19.
Nothing
in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties
or injunctive relief under any applicable Federal or State law or regulation,
except that IDEM may not, and hereby waives its right to, seek additional civil
penalties for the same violations specified in the NOV.
20.
Nothing
in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from
communicating with the United States Environmental Protection Agency (EPA) or
any other agency or entity about any matters relating to this enforcement
action. IDEM or anyone acting on its behalf shall not be held liable for any
costs or penalties Respondent may incur as a result of such communications with
EPA or any other agency or entity.
21.
This
Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of this Agreed Order and IDEM issues a Resolution of Case
(close out) letter to Respondent.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.
TECHNICAL RECOMMENDATION: Department of
Environmental Management |
RESPONDENT: Hamilton County Commissioners |
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By:____________________________ |
By:_________________________ |
Samantha
K. Groce, Chief |
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Water
Enforcement Section |
Printed:______________________ |
Surface
Water, Operations & |
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Enforcement
Branch |
Title:________________________ |
Office
of Water Quality |
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Date:__________________________ |
Date:________________________ |
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COUNSEL FOR RESPONDENT: |
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By:_________________________ |
Date:_______________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS _____ DAY OF ______________, 201_. |
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For the
Commissioner: |
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Signed on January 2, 2019 |
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Martha Clark
Mettler |
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Assistant
Commissioner |
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Office of
Water Quality |