Commissioner, Indiana Department of Environmental Management,
Case No. 2002-11819-W,
v.
Tanner’s Creek Properties, LLC,
Lawrenceburg,
2011 OEA 122, (05-W-E-3558)
[2011 OEA 122, page 122 begins]
OFFICIAL SHORT CITATION NAME: When referring to 2011 OEA 122 cite this case as
&=
nbsp; Tanner’s Creek Properties, LLC,
2011 OEA 122.
TOPICS:
erosion cont=
rol
fill materia=
l
Engagement A=
greement
Notice of In=
tent
five acres
Rule 5
site inspect=
ion
off-site sed=
imentation
Agreed Order=
Requests for
Admission
Notice of Ba=
nkruptcy
Pro se litig=
ants
moderate ext=
ent of
deviation
moderate pot=
ential
for harm
days of
noncompliance
base civil p=
enalty
aggravating =
factors
mitigating f=
actors
Notice of Vi=
olation
(NOV)
Civil Penalty
Policy, Doc. 99-0002-NPD
National Pollution Discharge Elimination
System (NPDES)
Notice and O=
rder of
the Commissioner (CO)
Ind. Trial R=
ule
Procedure 36
327 IAC 15-5=
327 IAC 15-5=
-7
I.C. §
13-30-2-1(1)
I.C. §
13-18-4-5
PRESIDING JUDGE:
Mary L. Davidsen
PARTY REPRESENTATIVES:
IDEM: = ; April D. Lashbrook, Esq.
Respondent: = ; Mark E. Shere, Esq.
ORDER ISSUED:
August 26, 2011
INDEX CATEGORY:
Water
FURTHER CASE ACTIVITY:
[none]
[2011 OEA 122, page 123 begins]
STATE OF
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nbsp; OF
ENVIRONMENTAL ADJUDICATION
IN THE MATTER OF: =
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COMMISSIONER, INDIANA DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, &=
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Case No. 2002-11819-W, =
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nbsp; Complainant, &=
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; v. &=
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nbsp; CAUSE
NO. 05-W-E-3558
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TANNER’S CREEK PROPERTIES, LLC,
Lawrenceburg,
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nbsp; Respondent &=
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FINDINGS OF FACT,
CONCLUSIONS OF LAW AND FINAL ORDER
=
; This
matter is before the Office of Environmental Adjudication (“OEA”=
; or
“Court”) on the Final Hearing held on October 8, 2009. At issue at Final Hearing was the =
amount
of civil penalty which should be imposed on Tanner’s Creek Properties, LLC (“TannerR=
17;s
Creek) liability for the environmental law violations concerning erosion
control, as found in the Court’s May 9, 2009 Order on Summary Judgmen=
t,
which is incorporated into this Final Order by reference. The Chief Environmental Law =
Judge
(“ELJ”) having considered the petitions, testimony, evidence, a=
nd
pleadings of the parties, now finds that judgment may be made upon the
record. The Chief ELJ, by
substantial evidence, and being duly advised, now makes the following findi=
ngs
of fact and conclusions of law and enters the following Order:
FINDINGS OF FACT
1. =
As=
the
Court’s May 9, 2009 Order on Summary Judgment, held in enumerated
Findings of Fact 1 through portions of 11, Tanner’s Creek Properties =
LLC
(“Tanner’s Creek”), initiated development of a commercial=
and
multi-family residential Site located on the north and south sides of U.S. =
50,
approximately 1 mile west of the State Highway 48 intersection, in
Lawrenceburg, Dearborn County, Indiana (the “Site”). In 1998, Tanner’s Creek bega=
n a
project, in conjunction with LMS Contracting, Inc. (“LMS”), to
remove fill material for construction of a building pad for a proposed power
plant at the Site. Tanner’s Creek Response to
IDEM’s Motion for Summary Judgment Exs. 1, 4. (“Tanner’s Creek Response”). The first page of an Excavation
Agreement between Tanner’s Creek and LMS provides:
&=
nbsp; Owner
and Contractor agree as follows:
[2011 OEA 122, page 124 begins]
1. Engagement Owner (Tanner’s
Creek) hereby allows Contractor (LMS) to remove fill from Owner’s
property for the purpose of preforming (sic) the work for the scope of the
Project. Contractor is an
independent contractor and not an employee of the Owner. Contractor further agrees to hold
harmless and defend the Owner in any dispute arising from injury, safety
violations, civil criminal charges or other claims or liability in connecti=
on
with the work involved in this Contract.&n=
bsp;
Contractor is responsible f=
or all
costs associated with the remo=
val of
the fill as directed by Owner, including but not limited to clearing, erosion control, permits, surveying,
blasting, bonding, insurance etc./Owner will provide engineering to
determine areas from which fill will be taken.
Tanner’s
Creek Response Ex. 8 (=
only
first page provided).
=
2. =
Ta=
nner’s
Creek did not have a general National Pollution Discharge Elimination System
(“NPDES”) permit prior to initiating land disturbing activities=
at
the Site.
=
3. =
On
November 11, 1998, Tanner’s Creek submitted a Notice of Intent for the
Site (NOI) to disturb five (5) or more acres of land on November 11, 1998.<=
span
style=3D'mso-spacerun:yes'> IDEM approved Tanner’s
Creek’s NOI on December 14, 1998.&nb=
sp;
IDEM’s Motion, Ex. A;
Tanner’s Creek Response Ex, p. 4.
=
4. =
Si=
te
inspections were conducted by Mark Goldsmith, Indiana Department of Natural
Resources (“DNR”), Division of Soil Conservation Stormwater
Specialist. In summary judgme=
nt
briefing, Respondent Tanner’s Creek asserted that Mr. Goldsmith’=
;s
written reports contradicted his spoken statements made to Tanner’s C=
reek
representatives. Mr.
Goldsmith’s December 16=
, 1998
report noted his observations that land-disturbing activities had been
initiated at the Site. IDEM Motion Ex. E, On-Site Evaluation for Erosion and Sediment Control
(“OEESC”) inspection report of December 16, 1998; IDEM Motion, =
Ex.
F, Aff. of Randy Braun. M=
r.
Goldsmith reported that earthwork in process exposed large areas of soil on
both the north and south sides of U.S. 50.=
=
5. =
Fr=
om
March 1, 2001 through August 8, 2002, Mr. Goldsmith performed five routine
and/or follow-up Site inspections. <=
/span>IDEM’s Motion, Ex. G, OEESC inspection reports of Mar=
ch 1,
2001, April 16, 2001, February 7, 2002, March 14, 2002, and August 8, 2002;
IDEM Motion, Ex. F. Multi=
ple
elements of the site erosion and sediment control mechanisms were rated
primarily as either marginal or unsatisfactory in each of the OEESC report
during Mr. Goldsmith’s Site inspection reports. IDEM’s
Motion, Ex .G. All eight =
(8) of
the OEESC
[2011 OEA 122, page 125 begins]
reports compiled by Mr. Goldsmith durin=
g this
period indicated that the Site conditions presented a high potential for
off-site sedimentation.
Significant runoff and erosion problems
persist at the site. Substant=
ial
runoff controls will need to be designed and implemented to handle the
excessive runoff from the current state of the development. It is not acceptable to leave the =
site
in this poor condition.
Id at p. 14. Mr. Goldsmith reported further tha=
t the
case would be turned over to IDEM for formal enforcement action, due to the
“continued non-compliance and general lack of effort” of
Tanner’s Creek,
=
6. =
ID=
EM
issued a Notice of Violation and Proposed Agreed Order to Tanner’s Cr=
eek
(“NOV”) on March 7, 2003, citing violations of Rule 5. IDEM
Motion, Ex. H, NOV. The NOV stated that Tanner’s=
Creek
did not comply with 327 IAC 15-5-7(b) and (c) because it failed to minimize
runoff and sedimentation leaving the Site and because it failed to implement
and maintain sediment and erosion control measures at the Site. Id at
p. 2. The NOV provided fu=
rther
that Tanner’s Creek did not adequately protect disturbed areas of ear=
th,
implement appropriate perimeter sediment control measures, stabilize or pro=
tect
conveyance channels, properly install or maintain erosion and sediment cont=
rol
measures, protect storm drain inlets, or keep roadways clear of accumulated=
or
tracked soil.
=
7. =
Af=
ter
referral to IDEM, Mr. Goldsmith performed a March 13, 2003 Site inspection.=
IDEM Motion, Ex. I, March 19, 2003 OEE=
SC
inspection report. Mr.
Goldsmith’s report stated that he observed sediment laden runoff from=
the
Site running uncontrolled over the U.S. 50 road bank, causing excessive
erosion.
=
8. =
Af=
ter
IDEM issued the NOV and an Agreed Order for Tanner’s Creek’s co=
nsideration,
the parties’ attempted but did not succeed at negotiating mutually
acceptable terms for the Agreed Order. On June 1, 2005, IDEM’s
Commissioner issued a Notice and Order (“Commissioner’s
Order”) pursuant to I.C. § 13-30-3-4. IDEM
Motion, Ex. J, Commissioner=
217;s
Order.
=
9. =
The
Commissioner’s Order required Tanner’s Creek to cease and desist
any further land-disturbing activities until it submitted the documents and
plans required by Rule 5.
[2011 OEA 122, page 126 begins]
were working properly. Id
at p. 4. The Commissioner’s Order req=
uired
Tanner’s Creek to pay civil penalties of $35,000 for the violations.<=
span
style=3D'mso-spacerun:yes'>
=
10. As part of the litigation of this cause=
, IDEM
filed the Commissioner’s First Set of Discovery Requests, including
Requests for Admission on January 10, 2006 (“Discovery Requests”=
;). IDEM MSJ Ex. B. Request for Admission 11 stated,
“The civil penalty contained in the Notice and Order of the Commissio=
ner
in this case is not arbitrary and capricious.” IDEM
Motion, Ex. B, p. 5. IDEM’s March 1, 2006 Not=
ice to
the Court Concerning Discovery noted that Respondent Tanner’s Creek h=
ad
not responded to IDEM’s January 10, 2006 Discovery Requests, that the
Court had not issued discovery response deadlines, therefore the Requests f=
or
Admission were deemed admitted per Ind. Tr. R. 36. IDEM
Motion, Ex. C. In its Aug=
ust
30, 2007 Status Report, Tanner’s Creek states that outstanding discov=
ery
issues “can be resolved cooperatively and information exchanged over a
sixty day period, assuming the discovery remains relevant following the
Superior Court’s decision” concerning a statutes of limitation
issue raised in another IDEM enforcement case. IDEM
Motion, Ex. D. TannerR=
17;s
Creek did not respond to IDEM’s discovery requests.
=
=
11. Respondent Tanner’s Creek’s
Motion for Summary Judgment was filed on March 30, 2008; Complainant
IDEM’s Motion for Summary Judgment was filed on July 27, 2008. The Court held in IDEM’s fav=
or in
its May 29, 2009 Non-Final Order, stated above. At the October 8, 2009 Final Heari=
ng, the
parties presented testimony.
=
12. At Final Hearing, the parties supplemen=
ted
their evidence presented on summary judgment with witness testimony and
exhibits. After the final hearing setting the parties submitted briefs and
Proposed Findings of Fact, Conclusions of Law and Order in support of their
positions.
CONCLUSIONS OF LAW
1.&n=
bsp; =
;
The Indiana Department of Environmental Management
(“IDEM”) is authorized to implement and enforce specified
2.&n= bsp; = ; This is a final Order issued pursuant to I.C. § 4-21.4-3-27. Findings of Fact= that may be construed as Conclusions of Law and Conclusions of Law that may be construed as Findings of Fact are so deemed.
[2011 OEA 122, page 127 begins]
3. =
This Court must apply a de novo standard of
review to this proceeding when determining the facts at issue.
all issues are to be determined anew, based solely upon the evidence adduced at that hearing and independent of any previous findings.
Grisell
v.
4.&n=
bsp; =
;
OEA is required to base its factual findings on
substantial evidence. Huffman v. Office of Envtl. Adjud., 811 N.E.2d
806, 809 (Ind. 2004)(appeal of OEA review of NPDES permit); see also
I.C. § 4-21.5-3-27(d).
“Standard of proof generally has been described as a continuum
with levels ranging from a "preponderance of the evidence test" t=
o a
"beyond a reasonable doubt" test. The "clear and convincing
evidence" test is the intermediate standard, although many varying
descriptions may be associated with the definition of this intermediate
test.” Matter of
<=
b>
5.&n= bsp; = ; Tanner’s Creek’s June 17, 2005 Petition= for Review objecting to IDEM’s June 1, 2005 Commissioner’s Order was filed in a timely manner. Aft= er prior litigation and decision by this Court of the applicable limitation of action and other procedural matters in this cause (incorporated in full her= ein by reference), and an earlier decision dated May 29, 2009, on IDEM’s Motion for Summary Judgment, the remaining the issues for consideration con= cern the appropriate amount of civil penalty to be assessed.
6.&n= bsp; = ; Indiana Rule of Trial Procedure 36 deals with Reque= sts for Admissions. A request for admission is deemed admitted if not answered within thirty (30) days under Trial Rule 36(A), which states: “The matter is admitted unless, within a period designated in the request, not less than thirty [30] days a= fter service thereof or within such shorter or longer time as the court may allo= w, the party to whom the request is directed serves upon the party requesting = the admission a written answer or objection addressed to the matter, signed by = the party or by his attorney.”
<= o:p>
[2011 OEA 122, page 128 begins]
<= o:p>
7.&n= bsp; = ; Indiana Rule of Trial Procedure 36(B) states: ̶= 0;Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”
<= o:p>
8.&n= bsp; = ; Tanner’s Creek did not respond to IDEM’s January 10, 2006 Requests for Admission in such as way, so that the Court is required to deem the requests for admissions admitted in accordance with Indiana Trial Rule 36.
<= o:p>
9.&n= bsp; = ; 327 IAC 15-5 is frequently referred to as “Ru= le 5”, and regulates specified land disturbing activities. 327 IAC 15-5-7 requires several er= osion control measures to be met on all sites during the period when land-disturb= ing activities occur. The require= ments include: detaining sediment-laden water from reaching streams, keeping sedi= ment off roadways, protecting storm drains from sedimentation, protecting existi= ng storm water drainage channels from the land-disturbing activities, and controlling soil run-off through appropriate erosion control measures. 327 IAC 15-5-7(b).
<= o:p>
10.&= nbsp; This Court, in its May 29, 2009 Order, determined t= hat Tanner’s Creek violated 327 IAC 15-5-7 as a matter of law. This Court further found that Tanner̵= 7;s Creek violated I.C. § 13-30-2-1(1) and I.C. § 13-18-4-5.
<= o:p>
11.&=
nbsp;
The May 29, 2009 Order established that, as a matte=
r of
law, Tanner’s Creek is subject to civil penalties for violating
Indiana’s environmental management laws and water pollution control
laws. “Any person who
violates any provision of environmental management laws [or] water pollutio=
n control
laws… is liable for a civil penalty not to exceed twenty-five thousand
dollars ($25,000) per day of any violation.” I.C. § 13-30-4-1. Tanner’s Creek vio=
lated
<=
span
style=3D'color:black'>
12.&= nbsp; The Commissioner’s Order was issued to Tanner’s Creek for its failure to implement erosi= on control measures. To calculat= e the amount of civil penalty, IDEM used its Civil Penalty Policy Non-Rule Policy Document when calculating the penalty of $35,000 described in the Commissioner’s Order. IDEM Motion for Summary Judgment, Ex. = J, p. 6.
<=
span
style=3D'color:black'>
[2011 OEA 1=
22, page
129 begins]
<=
span
style=3D'color:black'>
13.&=
nbsp;
At hearing, IDEM
representative Edward Judson testified regarding the civil penalty policy,
civil penalty worksheet, and the decisions IDEM made when calculating the
penalty, as he determined from reviewing the case file in the matter.[1] Mr. Judson further testified as to=
the
factors IDEM typically uses to calculate a civil penalty in Rule 5 cases.
<=
span
style=3D'color:black'>
14.&= nbsp; Mr. Judson testified th= at a “moderate” potential for harm was chosen because this was a very hilly site, multiple inspection reports showed that there were no or minimal efforts toward sediment control, and sediment traveled uncontrolled over the road bank. Complainant’s witness, Tanner’s Creeks Craig Hilsinger testified that he had worked= in site development in multiple states for numerous years, but had not heard of Rule 5, or of many of the requirements described under Rule 5 at final hearing. Mr. Hilsinger further stated that the Rule 5 requirements described in IDEM’s evidence was = not a correct statement of requirements present in other states. As for the Tanner’s Creek Si= te, Mr. Hilsinger testified that sediment controls had been installed by 2003.<= span style=3D'mso-spacerun:yes'> However, this fact does not mitiga= te the potential for harm that occurred from the violations of the rule in 2000, 2= 001, and 2002, as documented in several inspections.
<=
span
style=3D'color:black'>
15.&= nbsp; Mr. Judson testified th= at IDEM chose a moderate deviation from the rule because the inspection reports showed that sediment flowed into waters of the state. During the 2000-2002 time period, Tanners Creek did make some, albeit inadequate, efforts to comply with the rule. For these reasons, substantial evidence exists to show that a moderate deviation from the rule= is appropriate.
<=
span
style=3D'color:black'>
16.&= nbsp; Mr. Judson testified th= at choosing the middle of the cell for a moderate/ moderate violation is IDEM’s practice when there are no aggravating or mitigating factors indicating a different choice should be made. The middle of the matrix penalty of $8,750 for a violation assigned a moderate potential from harm and moderate deviation from the rule is appropriate, as there was no evidence presented = of mitigating or aggravating factors. <= /span>
<=
span
style=3D'color:black'>
17.&=
nbsp;
Mr. Judson testified to=
a
number of reductions that were built in to IDEM’s calculation of a to=
tal
civil penalty. These reductio=
ns
included merging the violations, including 6 inspections instead of 7 in the
penalty calculation, and reducing the 6 inspections to 4 violation days.
<= o:p>
[2011 OEA 122, page 130 begins]
<= o:p>
18.&= nbsp; I.C. § 13-30-4-1 authorizes the IDEM to assess= a penalty of $25,000 per day per violation.&= nbsp; The IDEM used the Civil Penalty Policy[2] to determine the appropriate penalty in this matter. IDEM’s determination t= hat the applicable civil penalty complies with I.C. § 13-30-4-1. However, this matter is to be determined de novo by the Court= . The Court’s duty to perform = de novo review is not abrogated by Tanner’s Creek’s Request for Admission that it IDEM’s civ= il penalty calculation was not arbitrary and capricious, as that is not the applicable standard for this Court to apply in conducting a de novo review.
<= o:p>
19.&= nbsp; According to this policy, a civil penalty is calcul= ated by “(1) determining a base civil pen= alty dependent on the severity and duration of the violation, (2) adjusting the penalty for special factors and circumstances, and (3) considering the econ= omic benefit of non-compliance.” The base civil penalty is calculated taking into account two factors= : (1) the potential for harm and (2)= the extent of deviation.
<= o:p>
20.&= nbsp; The policy states that the potential for harm may be determined by considering “the likelihood= and degree of exposure of persons or the environment to pollution” or “the degree of adverse effect of non-compliance on statutory or regulatory purposes or procedures for implementing the program”. There are several factors that may= be considered in determining the likelihood of exposure. These are the toxicity and amount = of the pollutant, the sensitivity of the human population or environment exposed to the pollutant, the amount of time exposure occurs and the size of the viola= tor.
<= o:p>
21.&= nbsp; The policy further states that the extent of deviat= ion relates to the degree to which the requirement is violated. A moderate extent of deviation is defined as “The violator significantly deviates from the requirements of the regulation, permit, or statute or only some of the requirements are implemented”.
<= o:p>
22.&=
nbsp;
OEA allocation of potential for harm, for extent of
deviation, and for the matrix range point, is fact-sensitive. For example, in McClure Oil, 2009 O=
EA
126, a petroleum release from an UST was deemed a minor potential for harm,
based on lack of evidence that the release had migrated off-site. In Landers,
2009 OEA 109, violations based on a large quantity of construction waste we=
re
deemed to constitute a moderate extent of deviation, and the penalty was
selected from middle of the matrix range.&=
nbsp;
In Scherb, 2006 OEA 16, viola=
tions
based on a manure spill from a confined feeding operation into a stream
resulted in moderate/moderate, and the lowest matrix amount was selected.
<= o:p>
[2011 OEA 122, page 131 begins]
<= o:p>
the Court selected minor potential for harm and a minor deviation, with the lowest point in the matrix applied.
<= o:p>
23.&= nbsp; In this case, the Court’s analysis of the pot= ential for harm and of the extent of deviation, and the number of violation “days” is in full agreement with IDEM’s analysis, that the violations may be merged into one violation, that the potential for harm for the violations was moderate and that the extent of deviation was also moder= ate, and that 4 violation “days” should be assessed. The Civil Penalty Policy sets the = range for a violation of moderate potential for harm and moderate extent of devia= tion at $7,500 to $10,000.
<= o:p>
24.&= nbsp; The aggravating factors in this instance are that t= he IDEM has been working with the Respondent for several years to bring the Si= te into compliance. To a certain extent, this has been successful as shown by the numerous portions of the S= ite which were still eroding after compliance was attempted, or not maintained. However, Site ero= sion did obstruct U.S. 50. The Site’s hilly topography makes it difficult to stabilize. While Tanner’s Creek testifi= ed that the site is in compliance, substantial evidence presented by witnesses= for IDEM and concurred with by Tanner’s Creek’s witness that erosion control was not always in compliance with the regulations.
<= o:p>
25.&= nbsp; Both parties presented substantial evidence that Tanner’s Creek had attempted cooperation at times. Otherwise, there are no mitigating factors.
<= o:p>
26.&= nbsp; The ELJ concludes that the potential for harm is moderate because of the length of time that the Respondent has been out of compliance. Further, the exte= nt of deviation is moderate because the Respondent made attempts to comply with t= he regulations.
<= o:p>
27.&= nbsp; The (lack of) aggravating and mitigating factors, a= nd a review of all of the factors relevant to calculation of Civil Penalty in th= is cause, support selecting a penalty from the lowest point of the penalty ran= ge ($7,500).
<= o:p>
28.&= nbsp; The IDEM presented substantial evidence of 1, for 4 days. Therefore, the appropri= ate penalty is $30,000 ($7,500 x 1 violation x 4 days =3D $30,000).
<= o:p>
29.&= nbsp; Based on the parties’ testimony about site conditions and property ownership, the Site requires no further corrective = action.
=
FINAL ORDER
[2011 OEA 122, page 132 begins]
=
; For
all of the foregoing reasons, IT IS THEREFORE ORDERED, ADJUDGED AND DECR=
EED
that: the Respondent, Tanner’s Creek, LLC, violated I.C. §
13-30-2-1(1), I.C. § 13-18-4-5, and 327 IAC 15-5-7. Respondent, Tanner’s Creek, =
LLC is
subject to civil penalties of Thirty Thousand Dollars ($30,000) for violati=
ng
=
; You
are further notified that pursuant to provisions of I.C. § 4-21.5-7-5,=
the
Office of Environmental Adjudication serves as the ultimate authority in
administrative review of decisions of the Commissioner of the Indiana
Department of Environmental Management.&nb=
sp;
A party is eligible to seek Judicial Review of this Non-Final Order =
as
stated in applicable provisions of I.C. § 4-21.5, et seq. Pursuant =
to
I.C. § 4-21.5-5-5, a Petition for Judicial Review of this Non-Final Or=
der
is timely only if it is filed with a civil court of competent jurisdiction
within thirty (30) days after the date this notice is served.
&=
nbsp; IT
IS SO ORDERED in
=
; &n=
bsp; =
; &n=
bsp; =
; &n=
bsp; =
; Hon.
Mary L. Davidsen
&=
nbsp; Chief
Environmental Law Judge
[2011 OEA 122: end of decision]
2011
OEA 122 in .doc format
2011
OEA 122 in .pdf format
&nbs= p; &= nbsp;
[1] Mr. Judson was not the assigned case manager when the penalty was calculate= d, but testified from his knowledge of the case file and knowledge of how IDEM typically calculates civil penalties in Rule 5 cases.
[2] IDEM’s Civil Penalty Policy is a non-rule policy document, ID No. Enforcement 99-0002-NPD, originally adopted on April 5, 1999 in accordance = with I.C. § 13-14-1-11.5.
Commissioner, Indiana Department of Environmental Management,
Case No. 2002-11819-W,
v.
Tanner’s Creek Properties, LLC,
Lawrenceburg,
2011 OEA 122, (05-W-E-3558)