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. 2000-9260-W
)
KARNES, KARNES & COCKRELL, L.L.C., D/B/A )
GREENE COUNTY SUBDIVISION )
)
)
Respondent. )
AGREED ORDER
The Complainant and the 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.
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. Respondent is Karnes, Karnes & Cockrell, L.L.C., d/b/a Greene County Subdivision, (ARespondent@), which has developed approximately twenty (20) acres of a total parcel consisting of one hundred (100) acres that the Respondent owns at the site, located at T8N R3W of Beech Creek Township, Greene County.
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 on August 15, 2000 via Certified Mail to:
Mr. Greg Karnes, Mr. William "Tex" Cockrell
General Partner/CEO General Partner
Karnes, Karnes, & Cockrell, L.L.C. Karnes, Karnes, & Cockrell, L.L.C.
D/B/A Greene County Subdivision D/B/A Greene County Subdivision
2235 North Industrial Drive RR#2
Bloomington, IN 47403 Springville, IN 47462
5. Pursuant to 327 IAC 15-5-1, persons who engage in construction activities disturbing five (5) or more acres are required to take necessary actions to reduce pollutants, principally sediment as a result of soil erosion, in storm water discharges into surface waters of the state.
6. 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.
7. The Greene County Subdivision project involves construction activity of more than five (5) acres of total land area and therefore is regulated by a general permit pursuant to 327 IAC 15-2-3 and must comply with 327 IAC 15-5.
8. Pursuant to 327 IAC 15-2-5, any person subject to the requirements of this article shall submit a Notice of Intent (NOI) letter by the time specified under 327 IAC 15-3.
9. Pursuant to 327 IAC 15-5-5, in addition to the NOI letter requirements of 327 IAC 3, additional information, including certification by the operator that the erosion control measures in the erosion control measures comply with applicable state, county, or local erosion control requirements, the erosion control measures will be implemented in accordance with the plan, and verification that an appropriate state, county, or local erosion control authority and the soil and water conservation district office have been sent a copy of the plan for review.
10. Pursuant to 327 IAC 15-5-6, a NOI and additional information shall be submitted to the Commissioner prior to the initiation of land disturbing activities.
11. During an inspection conducted by IDNR at the Greene County Subdivision project site on May 22, 1997, it was observed that land disturbing activities had been initiated. A record review indicated that an erosion control plan for the development had not been submitted to IDNR or the Greene County SWCD and a NOI letter had not been submitted to IDEM.
12. A recent record review indicates that a preliminary erosion control plan for the Greene County Subdivision project was received by the Greene County SWCD, in July of 1997. Upon review, the IDNR and the Greene County SWCD determined that the erosion control plan did satisfy the minimum requirements and intent of 327 IAC 15-5. Amended information regarding the erosion control plan was submitted during August of 1998, and on August 31, 1998, the IDNR and the Greene County SWCD determined that the amended erosion control plan satisfied the minimum requirements and intent of 327 IAC 15-5. The record review indicates that a NOI letter was received by IDEM on August 27, 1998. Both the erosion control plan and the NOI letter for the Greene County Subdivision project were submitted after the initiation of land disturbing activities in violation of 327 IAC 15-5-6.
13. Pursuant to 327 IAC 15-5-7, general conditions for construction activity erosion control measures, 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.
14. Pursuant to 327 IAC 15-5-10(a), the commissioner and/or designated representative may inspect any site involved in land disturbing activities regulated by this rule at reasonable times. The erosion control plan must be readily accessible for review at the time of the inspection.
15. 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.
16. During inspections conducted by IDNR and the Greene County SWCD on September 14, 1998, December 18, 1998, February 24, 1999, March 22, 1999, March 26, 1999, May 20, 1999, June 10, 1999, July 8, 1999, March 24, 2000, and May 9, 2000, it was noted that erosion control measures were inadequately implemented and maintained, in violation of 327 IAC 15-5-7.
17. During inspections conducted by IDNR and the Greene County SWCD on September 14, 1998, December 18, 1998, March 22, 1999, March 26, 1999, May 20, 1999, June 10, 1999, March 24, 2000, and May 9, 2000, it was noted that off-site sedimentation was reaching Richland Creek, in violation of 327 IAC 15-5-7.
18. A settlement conference was held on September 20, 2000, at which Respondent initiated efforts to reach compliance and to negotiate terms of this Agreed Order. Respondent asked IDNR for assistance in identifying needs, and implementing the ESCP so that the site could be returned to compliance. IDNR and the Respondent conducted a meeting at the site on October 4, 2000 for fall season compliance purposes. A follow-up site inspection was conducted by IDNR on October 20, 2000 and the site was found to be in improved condition that will be acceptable at least until Spring, 2001.
19. 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 approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. Within 7 days of the Effective Date, the Respondent shall submit an amendment to the current ESCP to reflect changes in project scope that have occurred at the Greene County Subdivision project site to update the approved erosion control plan as provided by 327 IAC 15-5.
3. The Respondent shall inspect the Greene County Subdivision project site on a weekly basis and after rainfall events to 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. The weekly inspections shall be maintained in a log for documentation and review purposes. These provisions shall remain in effect until the Respondent submits notification of completion of the construction activity as provided by 327 IAC 15-5-11 and IDEM approves the adequacy of the remaining erosion control measures as provided by 327 IAC 15-5-8(b).
4. Respondent is assessed a civil penalty of $11,322. Said penalty amount shall be due and payable to the Environmental Management Special Fund in twelve consecutive monthly installment payments. The first installment payment of $1,422 shall be due within thirty days of the Effective Date of this Agreed Order. Each of the following eleven installment payments of $900 thereafter is due within thirty days of the preceding month's due date.
5. In the event the following terms and conditions are violated, the Complainant may assess, and the Respondent shall pay, a stipulated penalty in the following amounts:
Violation Penalty
Paragraph 2; $500 per week for failure to timely submit an amendment to the approved erosion control plan, as required.
Paragraph 3; $500 per week for failure to inspect the Greene County Subdivision project site 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 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 Respondent receives 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 Respondent 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 Respondent's 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, Respondent 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 Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's 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 Respondent 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 Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights to the project 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.
12. This Agreed Order shall remain in effect for a period of one (1) year and until Respondent have complied with the requirements of paragraphs 2 through 4 of this Agreed Order and Complainant issues a Resolution of Cause letter.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: _________________________ By: _________________________
Mark W. Stanifer, Section Chief Printed: ________________________
Office of Enforcement By: _________________________
Printed: ________________________
Date: _______________ Date: _______________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: _____________________
Sierra L. Cutts
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2001.
For the Commissioner,
Signed 4/2/01
Felicia A. Robinson
Assistant Commissioner of Enforcement