STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. MJS Property Holdings, LLC, 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.
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 |
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By:__________________________ |
By:________________________ |
Samantha K.
Groce, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:_____________________ |
Enforcement Branch |
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Office of Water Quality |
Title:_______________________ |
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Date:________________________ |
Date:_______________________ |
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COUNSEL
FOR RESPONDENT: |
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By:________________________ |
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Date:______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS ___________ DAY OF ________________, 20___. |
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For
The Commissioner: |
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Signed on December
10, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |