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.

Mosaic apartments llc,

Respondent.

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Case No. 2019-25950-W

 

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.             Mosaic Apartments LLC (Respondent), owns/operates a newly constructed apartment complex, located on a 17.77 acre parcel (Parcel No. 32-07-36-110-001.000-031) at the corner of Dan Jones Road and CR 200 N, Avon, Hendricks County, Indiana (the Site).

 

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

 

4.             Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail/personal service to:

 

Jay Kellogg

Jeffrey L. Kittle, Registered Agent

Mosaic Apartments LLC

500 East 96th Street

500 East 96th Street, Suite 300

Suite 300

Indianapolis, IN  46240

Indianapolis, IN  46240

 

5.             During an investigation conducted by a representative of IDEM, violations were found, as described below.

 

6.             Pursuant to 327 IAC 3-2-1.5, no person shall cause or allow the construction, installation, or modification of any water pollution treatment/control facility or sanitary sewer without a valid construction permit issued by the commissioner.

 

Pursuant to 327 IAC 3-2-2, construction shall not commence until all necessary state approvals and permits are obtained.

 

In the fall of 2018, a sanitary sewer project was completed by Respondent prior to the issuance of a Construction Permit.  On October 25, 2018, a Non-Objection Letter, entitled Plans and Specifications Review, As-Built Sanitary Sewer, was issued to Respondent as a result of the unpermitted construction project. The construction of sanitary sewers without a permit is in violation of 327 IAC 3-2-1.5 and 327 IAC 3-2-2.

 

7.             On April 27, 2017, a sanitary sewer construction permit application was submitted by Respondent to IDEM. On May 11, 2017, a Deficiency Notice was issued by IDEM to Respondent.  A response was received on May 24, 2017, but was deemed incomplete. On August 1, 2017, the construction permit application was withdrawn by Respondent from IDEM’s construction permitting process.  A second sanitary sewer construction permit application was submitted on August 8, 2018, with an explanation that the sanitary sewer was constructed without a permit. On September 13, 2018, another Deficiency Notice was issued by IDEM.  On October 25, 2018, a Non-Objection-Letter was issued, which was issued by IDEM due the completed construction of the sanitary sewers. In the Non-Objection Letter, IDEM indicated it has no objection to the use of the completed sanitary sewer based on the fact that a review of the plans and specifications and submitted tests result on the completed sanitary sewer appear to be acceptable.

 

8.             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 6 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.             Respondent is assessed and agrees to pay a civil penalty of Three Thousand Four Hundred Dollars ($3,400). 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.”

 

4.             Civil penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2019-25950-W 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

 

5.             This Agreed Order shall apply to and be binding upon Respondent, 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.

 

6.             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.

 

7.             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.

 

8.             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.

 

9.             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 permits or any applicable Federal or State law or regulation.

 

10.         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.

 

11.         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.

 

12.         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.

 

13.         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

Mosaic Apartments 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 July 8, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality