STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. Anthony Buckhardt, 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.
Anthony
Buckhardt (Respondent) owns the project site located at 6387 County Road 64, Saint Joe, DeKalb County,
Indiana (the “Site”). The Parcel Number for the Site is 11-11-22-400-006.
3.
Respondent
does not possess a Section 401 Water Quality Certification (WQC) or an approval
under the Section 401 WQC for the Regional General Permit for the placement of
dredged material into a wetland at the Site.
4.
Pursuant
to Section 404 of the Clean Water Act (33 USC 1341), which provides for IDEM to
administer its own 401 Water Quality Certification Program for the discharge of
dredge or fill material into a wetland, the Section 401 WQC outlines
compensation requirements for the loss of wetland use including the mitigation
success criteria, deed restriction, and a Monitoring Plan.
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, IDEM
issued a Notice of Violation (NOV) via Certified Mail/personal service to:
Anthony Buckhardt |
6387 County Road 64 |
Saint Joe, Indiana 46785 |
7.
During an investigation, conducted
by a representative of IDEM, violations were found, as described below.
8.
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 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 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;
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.
As noted during the inspections, IDEM staff observed and
documented dredging of an emergent wetland and subsequent placement of the
dredged material into an adjacent wetland at the Site without authorization.
Respondent impacted waters of the state without obtaining a Section 401 WQC as
required, in violation of IC 13-18-4-5, IC 13-30-2-1(1), and 327 IAC
2-1-6(a)(1).
9.
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 Paragraph 8 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 30 days of the Effective
Date, Respondent shall apply, using the “Application for Authorization
to Discharge Dredged or Fill Material to Isolated Wetlands and/or Waters of the
State” (the Form), for after-the-fact (ATF) 401 Water Quality Certification
(WQC) and the United States Army Corps of Engineers (USACE), for impacts to the
wetland area.
5.
The Form and mitigation plan are
subject to IDEM review and approval. In the event IDEM determines the Form or
plan submitted by Respondent are deficient or otherwise unacceptable,
Respondent shall revise and resubmit the Form or plan to IDEM in accordance
with IDEM’s notice. After three submissions of such Form or plan by Respondent,
IDEM may seek civil enforcement of this Agreed Order.
6.
Within 60 days of the Effective
Date, Respondent shall record a Conservation Easement to preserve the remaining
wetlands on the Site and, once recorded, provide a copy to IDEM.
7.
Within 90 days of the Effective
Date, Respondent shall purchase and provide proof of purchase of 0.69 acres of
credit from The Openings Mitigation Bank.
8.
All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
Grant Chaddock, 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 Three Thousand Five Hundred Dollars ($3,500). 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 apply for an
after-the-fact (ATF) certification within 30 days of Effective Date. |
$500 per week late |
5 |
Failure to comply with any or all
of the requirements of this paragraph. |
$500 per week late |
6 |
Failure to record and provide a
copy to IDEM of the Conservation Easement. |
$500 per week late |
7 |
Failure to purchase mitigation
bank credits within 90 days of Effective Date. |
$1000 per week late |
7 |
Failure to provide proof of
purchase of mitigation bank credits within 90 days of Effective Date. |
$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 2019-25914-Q of this action and shall be mailed to:
Indiana Department of
Environmental Management |
Accounts Receivable |
IGCN, Room 1340 |
100 North Senate Avenue |
Indianapolis, IN 46204 |
13.
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.
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 his
obligation to comply with the requirements of his applicable permits or any
applicable Federal or State law or regulation.
18.
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.
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 Notice of Violation.
20.
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.
21.
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 |
Anthony
Buckhardt |
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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 March 4, 2020 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |