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STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT
                )    SS:    OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT        )
OF ENVIRONMENTAL MANAGEMENT,        )
                                )
        Complainant,                )
                                )
                    v.            )CAUSE NO. 1999-4792-W or
                                ) B-2498
STEPHEN SCOTT, and                    )
EMBERTON ENTERPRISES, INC.            )
                                )
        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.    Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2.    Respondents are Stephen Scott and Emberton Enterprises, Inc., Gary Emberton, President and Registered Agent ("Respondents"), which are developing Eagle's Valley Subdivision, Section 1 & 2, located on Nineveh Road in Nineveh Township, in Johnson 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, IDEM issued a Notice of Violation via Certified Mail to:

    Mr. Stephen Scott        and to:        Mr. Gary Emberton, President and
    52277 W. 550 S.                 Registered Agent
    Trafalgar, IN 46181                Emberton Enterprises, Inc.
                            1633 South 725 West
                            Morgantown, IN 46160

.

5.    Pursuant to 327 IAC 15-2-3, a general permit rule may regulate all designated categories of point sources for which a general permit rule exists.
    
6.    Pursuant to 327 IAC 15-5-2(1), regarding storm water run off associated with construction activity, the requirements under this rule apply to all persons who do not obtain an individual NPDES permit under 327 IAC 15-2-6.

7.    Pursuant to 327 IAC 15-5-2(2), regarding storm water run off associated with construction activity, the requirements under this rule apply to all persons who meet the general permit rule applicability requirement under 327 IAC 15-2-3.

8.    Pursuant to 327 IAC 15-5-2(3), regarding storm water run off associated with construction activity, the requirements under this rule apply to all persons who are involved in construction activity, which includes clearing, grading, excavating, and other land disturbing activities, except operations that result in the disturbance of less than five (5) acres of total land area and which are not part of a larger common plan of development or sale.

9.    Pursuant to 327 IAC 15-5-7, general conditions for construction activity erosion control measures state that the operator shall develop an erosion control plan in accordance with the requirements under this section. The erosion control plan must assure that erosion control measures are implemented and maintained, and that off-site sedimentation does not occur during the period of construction activity at a site. All erosion control measures necessary to meet the requirements of this rule shall be maintained by the operator.

10.    Pursuant to 327 IAC 15-5-10(c), if maintenance of remaining erosion control measures are not properly maintained by the person operating the property, the commissioner may pursue enforcement against that person for correction of deficiencies under 327 IAC 15-1-4.
                                                
11.    The Eagle's Valley Subdivision, Section 1 & 2 development involves construction activity of more than five (5) acres of total land area and therefore may be regulated by a general permit pursuant to 327 IAC 15-2-3 and must comply with 327 IAC 15-5.

12.     Inspections of the Eagle's Valley Subdivision, Section 1 & 2 development by IDNR, Division of Soil Conservation staff conducted on March 17, 1998, September 28, 1998, January 28, 1999, March 22, 1999, April 22, 1999, May 20, 1999, June 2, 1999, August 30, 1999, and September 28, 1999 (see attachments), indicated that the Respondents have failed to develop, implement, and maintain adequate erosion control measures in violation of the above noted provisions of 327 IAC 15-5.

13.    In recognition of the settlement reached, 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 her delegate, and has been received by the Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2.     Steven Scott shall attend an erosion and sediment control training program provided by a SWCD or the IDNR within one (1) year of the Effective Date. Within seven (7) days of the Effective Date, the Respondents shall develop, implement, and initiate maintenance of adequate erosion control measures at the Eagle's Valley Subdivision, Section 1 & 2 development as provided by 327 IAC 15-5.

3.    The Respondents shall inspect the Eagle's Valley Subdivision, Section 1 & 2 development on a weekly basis and after rainfall events and insure that all erosion and sediment control measures are properly maintained, including removing accumulated sediment from behind silt fences and from storm inlets, assuring that conveyance channels and swales are stabilized, and installing additional erosion control measures if determined necessary.

4.    Respondents are assessed a civil penalty of Six Thousand Dollars ($6,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.

5.    In the event the following terms and conditions are violated, the Complainant may assess and the Respondents shall pay a stipulated penalty in the following amounts:

         Violation                        Penalty

    Paragraph 2;            $1,000 per week for failure timely attend Rule 5 training to timely develop, implement, and initiate maintenance of adequate erosion control measures,

    Paragraph 3;            $1,000 per week for failure to inspect the Eagle's Valley, Section 1 & 2 development on a weekly basis and after rainfall events and insure that all erosion and sediment control measures are properly maintained, including removing accumulated sediment from behind silt fences and from storm inlets, assuring that conveyance channels and swales are stabilized, and installing additional erosion control measures if determined necessary.

6.    Stipulated penalties shall be due and payable within thirty (30) days after Respondents receive written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondents for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions

available by virtue of Respondents' violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

7.    Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:

                Cashier
                Indiana Department of Environmental Management
                100 N. Senate Avenue
                P. O. Box 7060
                Indianapolis, IN 46207-7060

8.    In the event that the civil penalty required by paragraph 4 is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.

9.    This Agreed Order shall apply to and be binding upon the Respondents, their officers, directors, principals, agents, successors, subsidiaries, 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 its status or responsibilities under this Agreed Order.

10.    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.

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

12.    This Agreed Order shall remain in effect for a period of one (1) year and until Respondents have complied with the requirements of paragraphs 2 through 4 of this Agreed Order.


TECHNICAL RECOMMENDATION:        RESPONDENTS:
Department of Environmental Management

By:     _________________________        By:     _________________________
    Mark W. Stanifer, Section Chief
    Office of Enforcement            Printed: ________________________
                            Title:     ________________________
Date: _______________                Date:     _______________

                            By:     _________________________

                            Printed: ________________________
                            Title:     ________________________
                            Date:     _______________

COUNSEL FOR COMPLAINANT:        COUNSEL FOR RESPONDENTS:
Department of Environmental Management

By: _________________________            By: _____________________
Nancy A. Holloran
Office of Legal Counsel                
Department of Environmental Management

Date: _______________                Date: _______________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 1999.

                            For the Commissioner,

                            ___Signed 3/2/00_______
                            Felicia A. Robinson
                            Assistant Commissioner of Enforcement
                    

Converted by Andrew Scriven