STATE OF INDIANA

)

 

BEFORE THE INDIANA DEPARTMENT

 

)

SS:

OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

)

 

 

 

 

 

 

COMMISSIONER OF THE DEPARTMENT

)

OF ENVIRONMENTAL MANAGEMENT,

)

 

 

)

 

Complainant,

)

 

 

)

 

v.

)

 

 

)

Earl krieger, Owner

)

 

)

 

And

)

Case No. 2004-13921-W

 

)

elizebeth krieger, Owner

)

 

)

 

Respondents.

)

 

 

AGREED ORDER

 

The Complainant and the Respondents 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.

 

 

I. FINDINGS OF FACT

 

1.                  The Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

 

2.                  The Respondents are Earl Krieger and Elizabeth Krieger (collectively, the “Respondents”), owners and or operators of the sanitary sewer construction project at Pine Croft Subdivision (the “Site”).  The Site is located at East Curry Drive, approximately ¾ mile west of Carlisle Road, in Terre Haute, Vigo County, Indiana.

 

3.                  The Indiana Department of Environmental Management (“IDEM”) has jurisdiction over the parties and subject matter of this action.

 

4.                  Pursuant to IC 13-30-3-3, on November 9 , 2004, IDEM issued a Notice of Violation via Certified Mail to the Respondents at the addresses below:

 

Earl Krieger, Owner
Pine Croft Subdivision
724 East Curry Drive
Terre Haute, Indiana 47802

Elizabeth Krieger, Owner
Pine Croft Subdivision
724 East Curry Drive
Terre Haute, Indiana 47802

 

5.                  Pursuant to 327 IAC 3-2-1, 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.

 

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

 

7.                  On or about July 2000, the Respondents installed approximately 545 feet of 8-inch sanitary sewer and three manholes.

 

8.                  On or about September 2000, the Respondents installed approximately 564 feet of 8-inch sanitary sewer and four manholes.

 

9.                  On January 16, 2004, IDEM’s representative received a construction permit application from the Respondents for the sanitary sewer project at the Site.  The construction permit application included design flow for seven single-family homes, with a total average flow of 2,450 gallons per day to the sanitary sewer and wastewater plant owned and operated by the Terre Haute Sanitary Sewer District.

 

10.             On February 2, 2004, IDEM’s representative sent a notice of deficiency (NOD) to the Respondents for failure to submit a complete construction permit application prior to commencing construction activity, including a capacity certification/ allocation letter from the receiving WWTP, and a new certification from the registered professional engineer or land surveyor who designed, stamped and submitted the plans.  The NOD noted that construction plans needed to be revised to reflect that the sanitary sewer for which the construction permit application was submitted to IDEM had already been constructed.  Also, the Respondents were required to submit, to IDEM, a separate construction permit application for future sanitary sewer construction projects at the Site.

 

11.             On February 27, 2004, IDEM’s representative sent a second NOD to the Respondents, which required that the Respondents provide manhole testing results for the previously constructed sewer at the Site.

 

12.             On March 25, 2004, IDEM’s representative sent the Plans and Specifications Review “As-Built” letter notifying the Respondents that since construction had commenced, IDEM could not issue a construction permit for the Site.  Instead, cursory review of the “as-built” plans indicated that they were acceptable.  The “as-built” plans submitted by the Respondents involved the installation of approximately 1,109 feet of 8-inch diameter PVC sanitary sewer to serve seven single-family homes.

 

13.             The Respondents commenced construction of the sanitary sewer project for the Site prior to obtaining a construction permit, in violation of 327 IAC 3-2-1 and 327 IAC 3-2-2(d).

 

14.             In recognition of the settlement reached, the Respondents waive 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 approved by the Complainant or his delegate, and has been received by the Respondents.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  The Respondents shall maintain compliance with all requirements of 327 IAC 3 and all other applicable rules and statutes.

 

3.                  The Respondents jointly and severally are assessed 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 of this Agreed Order.

 

4.                  In the event that the civil penalty required by Order Paragraph 3, is not paid within 30 days of the Effective Date of this Agreed Order, the Respondents shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101.  The interest shall continue to accrue until the civil penalty is paid in full.  The Respondents' liability for interest due shall be joint and several.

 

5.                  The Civil penalty is payable by check to the Environmental Management Special Fund.  Payments shall include the Case Number 2004-13921-W, of this action and shall be mailed to:

Indiana Department of Environmental Management
Cashiers Office-Mail Code 50 - 10C
100 N. Senate Avenue
Indianapolis, IN 46204-2251

 

6.                  This Agreed Order shall apply to and be binding upon the Respondents, their successors and assigns.  The Respondents' signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent.  No change in ownership, corporate, or partnership status of the Respondents shall in any way alter their status or responsibilities under this Agreed Order.

 

7.                  In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

 

8.                  This Agreed Order is not and shall not be interpreted to be a Permit, or a modification of an existing Permit, nor shall it in any way relieve the Respondents of their obligation to comply with the requirements of its applicable construction permit or with any other applicable federal or state law or regulation.

 

9.                  The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondents' compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, its construction permit, federal or state law.

 

10.             The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.  The Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

11.             This Agreed Order shall remain in effect until the Respondents have complied with Order Paragraphs 3 through 5 of this Agreed Order and IDEM has issued a close-out letter to the Respondents.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENTS:

Department of Environmental Management

 

Earl Krieger, Owner
Elizabeth Krieger, Owner

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

Earl Krieger, Owner

 

Water Enforcement Section

 

 

 

 

Office of Enforcement

 

 

 

 

Department of Environmental Management

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Elizabeth Krieger, Owner

 

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Joseph H. Merrick, Attorney

 

Printed:

Mark Shere, Attorney

 

Office of Legal Counsel

 

 

 

 

Department of Environmental Management

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 200

 

.

 

 

For The Commissioner:

 

 

 

Signed on April 28, 2005

 

Matthew T. Klein

 

Assistant Commissioner for

 

Compliance & Enforcement