STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

 

MJS Property Holdings, LLC,

Respondent.

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Case No. 2019-25911-Q

 

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.             MJS Property Holdings LLC (Respondent) owns the project site, located at West 500 North, Decatur, Adams County, Indiana (the Site).

 

3.             327 Indiana Administrative Code (IAC) 17-2-1 establishes a general permit to authorize wetland activities with minimal impact to Class I and Class II wetlands, which are State Regulated Wetlands.

 

327 IAC 17-2-3 states that a person proposing a wetland activity must submit a notice of intent to the department as a prerequisite to applicability of the minimal impact general permit.

 

327 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.

 

IC 13-18-22 states that a person proposing a wetland activity in a state regulated wetland must obtain a permit under this chapter to authorize the wetland activity.

 

4.             IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

 

5.             Pursuant to IC 13-30-3-3, on March 19, 2019, IDEM issued a Notice of Violation via Certified Mail to:

 

Mark Schieferstein, President and Registered Agent

MJS Property Holdings LLC

1881 Northwest Main Street

Decatur, IN  46733

 

6.             On December 4, 2013, IDEM staff observed and documented grading of wetlands and discharge of forested material into wetlands at the Site without authorization.

 

7.             On January 14, 2016, IDEM issued the State’s Isolated Wetland General Permit (the IWGP) (Approval No. 2015-653-01-HAP-A) to Respondent. In the IWGP, IDEM approved after-the-fact mechanical clearing, grading and filling a Class II forested wetland, and two Class I emergent wetlands, totaling 0.13 acre of impact, and to offset the impacts creation of 0.09 acre of Class II emergent wetland, and 0.08 acre of Class II forested wetland, pursuant to IC 13-18-22, 327 IAC 17-2, and 327 IAC 17-3.

 

8.             On March 9, 2016, IDEM issued an approval letter for the restoration plan (Approval No. 2013-645-01-HAP-V) (the Restoration Plan) to Respondent. In the Restoration Plan, IDEM approved Respondent to restore 6.61 acres of jurisdictional forested and scrub-shrub, and 2.76 acres of isolated wetlands at the Site.

 

9.             Pursuant to IC 13-30-2-1(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.

 

Pursuant to 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 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 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; and

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; and are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

 

On February 28, 2018, IDEM staff observed and documented that the restoration required by the Restoration Plan was not completed by Respondent, in violation of IC 13-30-2-1(1), IC 13-18-4-5, and 327 IAC 2-1-6(a)(1).

 

10.         Pursuant to 327 IAC 17-2-4(21), the recipient of the general permit shall complete all activities necessary to construct the mitigation wetland within one (1) year of the effective date of this general permit, unless the department grants a written extension upon request.

 

On February 28, 2018, IDEM staff observed and documented that Respondent failed to construct the mitigation wetland within one (1) year of the effective date (January 14, 2016) of the IWGP, in violation of IC 13-30-2-1(1), IC 13-18-4-5, 327 IAC 2-1-6(a)(1), and 327 IAC 17-2-4(21).

 

To date, IDEM is aware that Respondent has not completed the required restoration or mitigation at the Site, and therefore, remains in violation of IC 13-30-2-1(1), IC 13-18-4-5, 327 IAC 2-1-6(a)(1), and 327 IAC 17-2-4(21).

 

11.         Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5. However, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 9 and 10 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 Notice of Violation, and prior to the Effective Date.

 

2.             Respondent shall comply with rules and statutes listed in the findings above at issue.

 

3.             Within 45 days of the Effective Date, Respondent shall submit a revised Restoration Plan (the Revised Plan) for review and approval. The Revised 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 all phases of the restoration activities at the Site, 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 Revised Plan, and adhere to the schedule milestone dates therein. The approved Revised Plan shall be incorporated into this Agreed Order, and shall be deemed an enforceable part thereof. Failure by Respondent to submit the Revised 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.

 

4.             Within 180 days of the Effective Date, Respondent shall complete all activities necessary to construct the mitigation wetland at the Site and all additional conditions associated with the IWGP. The IWGP shall be incorporated into the Order and shall be deemed an enforceable part thereof.

 

5.             All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Aletha Lenahan, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 N. Senate Avenue

Indianapolis, IN  46204-2251

 

6.             Respondent is assessed and agrees to pay a civil penalty of Five Thousand, Five Hundred Twenty-Five Dollars ($5,525). 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.”

 

7.             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 submit the Revised Plan and schedule within 45 days of the Effective Date.

$250 per week late, or part thereof.

3

Failure to submit a request and obtain approval for any modification to any approved plan prior to starting restoration at the Site.

$500 per week late, or part thereof.

3

Failure to revise and resubmit the Revised Plan, as required.

$250 per week late, or part thereof.

3

Failure to timely implement the approved Revised Plan and/or adhere to schedule milestone dates.

$500 per week late, or part thereof.

4

Failure to timely complete all activities necessary to construct the mitigation wetland at the Site.

$500 per week late, or part thereof.

4

Failure to comply with any requirement of the IWGP.

$500 per violation.

 

8.             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.

 

9.             Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number

2019-25911-Q of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 N. Senate Avenue

Indianapolis, IN  46204

 

10.         This Agreed Order shall apply to and be binding upon Respondent, his 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 his status or responsibilities under this Agreed Order.

 

11.         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.

 

12.         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.

 

13.         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.

 

14.         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 his obligation to comply with the requirements of his applicable permits or any applicable Federal or State law or regulation.

 

15.         Complainant does not, by his 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.

 

16.         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 Notice of Violation.

 

17.         Nothing in this Agreed Order shall prevent IDEM (or anyone acting on its behalf) from communicating with the United States Environmental Protection Agency (US 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 the US EPA or any other agency or entity.

 

18.         This Agreed Order shall remain in effect until Respondent has complied with the 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:

RESPONDENT:

Department of Environmental Management

MJS Property Holdings, LLC

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For The Commissioner:

 

 

Signed on December 10, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality