EXECUTIVE SUMMARY - ENFORCEMENT MATTER

Page 1 of 2DOCKET NO.: 2009-0675-WQ-E TCEQ ID: RN105696611 CASE NO.: 37544

RESPONDENT NAME: Killeen Majestic Homes, Inc.

ORDER TYPE:

X 1660 AGREED ORDER _FINDINGS AGREED ORDER FINDINGS ORDER FOLLOWINGSOAH HEARING

FINDINGS DEFAULT ORDER _SHUTDOWN ORDER _IMMINENT AND SUBSTANTIALENDANGERMENT ORDER

AMENDED ORDER EMERGENCY ORDER

CASE TYPE:

_AIR MULTI-MEDIA (cheek all that apply) _INDUSTRIAL AND HAZARDOUSWASTE

PUBLIC WATER SUPPLY PETROLEUM STORAGE TANKS OCCUPATIONAL CERTIFICATION

X WATER QUALITY _SEWAGE SLUDGE -UNDERGROUND INJECTIONCONTROL

MUNICIPAL SOLID WASTE RADIOACTIVE WASTE DRY CLEANER REGISTRATION

SITE WHERE VIOLATION(S) OCCURRED: Five and One Addition, located at the southwest corner of the intersection of East AustinStreet and South College Avenue, Troy, Bell County

TYPE OF OPERATION: A single-family, residential construction site

SMALL BUSINESS:

X

Yes

No

OTHER SIGNIFICANT MATTERS: There are no complaints. There is no record of additional pending enforcement actions regarding thisfacility location.

INTERESTED PARTIES: No one other than the ED and the Respondent has expressed an interest in this matter.

COMMENTS RECEIVED: The Texas Register comment period expired on November 23, 2009. No comments were received.

CONTACTS AND MAILING LIST:TCEQ Attorney/SEP Coordinator: NoneTCEQ Enforcement Coordinator: Ms. Carlie Konkol, Enforcement Division, Enforcement Team 3, MC R14, (361) 825-3422; Ms.Cari-Michel La Caille, Enforcement Division, MC 219, (512) 239-1387Respondent: Mr. Dennis Johnson, President, Killeen Majestic Homes, Inc., 3000 South 31st Street, Suite 408, Temple, Texas 76502Respondent's Attorney: Not represented by counsel on this enforcement matter

execsu,W5-23-061app-26c.doc

RESPONDENT NAME: Killeen Majestic Homes, Inc.

Page 2 of 2DOCKET NO.: 2009-0675-WQ-E

VIOLATION SUMMARY CHART:

VIOLATION INFORMATION PENALTY CONSIDERATIONS CORRECTIVE ACTIONSTAKEN/REQUIRED

Type of Investigation: Total Assessed: $750 Corrective Actions Taken:Complaint

X Routine Total Deferred: $150 The Executive Director recognizes that theEnforcement Follow-up X Expedited Settlement Respondent submitted an administrativelyRecords Review complete NOI and obtained authorization

_Financial Inability to Pay under Permit No. TXR15NN95 on MarchDate(s) of Complaints Relating to this 3, 2009.Case: None

Date of Investigation Relating to thisCase: February 25, 2009

Date of NOV/NOE Relating to this Case:April 14, 2009 (NOE)

Background Facts: This was a routineinvestigation.

SEP Conditional Offset: $0

Total Paid to General Revenue: $600

Site Compliance History Classification_ High

X Average

Poor

Person Compliance History Classification_ High

X

Average

___ Poor

Major Source:

Yes

X

NoWATER

Failure to obtain authorization to dischargestorm water associated with constructionactivities. Specifically, at the time of theinvestigation, it was determined that theRespondent did not have a Notice of Intent("N 01) obtaining coverage under theConstruction General Permit TXR15NN95for storm water discharges beforebeginning construction activities at Fiveand One Addition [30 TEx. ADMIN. CODE§ 251.25(a)(4) and 40 CODE OF FEDERALREGULATIONS § 122.26(c)].

_

Applicable Penalty Policy: September 2002

Additional ID No(s).: TXR15NN95

execsumr5-23-0e1app-26c,doc

1 011 5120 09 H:IAgreed OrderslKilleenMajesticHomeslnc-2009-0675-WQ-E1Killeen Majestic Homes, Inc. (Five and One Addition) - PCW.xls

PCW Revision October 30, 2008Policy Revision2 (September 2002)

.TCEQ

Penalty Calculation Worksheet (PCW)

DATES

Assigned .20-Apr-2009PCW11-May-2009 Screenit I 11-May-2009 I EPA Due

RESPONDENT/FACILITY INFORMATIONKilleen Majestic Homes, Inc.RN1056966119-Waco Major/Minor Source 'Minor

No. of Violations 1375442009-0675-WQ-E Order Type 1660Water Quality Government/Non-Profit No

Enf. Coordinator Carlie KonkolEC's Team Enforcement Team 3

RespondentReg. Ent. Ref. No.

FaciiilSite Region

CASE INFORMATIONEnf.lCase ID No.

Docket No.Media Program(s)

Multi-Media

$10,000 lAdmin. Penalty $ Limit Minimum

$0

Maximum

Notes

The Respondent does not meet the culpability criteria.

$1,000

$0l

sot

Penalty Calculation Section

TOTAL BASE PENALTY (Sum of violation base penalties)

ADJUSTMENTS (+I-) TO SUBTOTALby multiplying the Total Base Penalty (Subtotal 1) by the indicated percentage.Subtotals 2-7 are obtained b

Compliance History 0.0%Enhancement Subtotals 2, 3, & 7

I

Culpability

Notes

Subtotal ?

No reduction or enhancement is recommended due to averageperformer classification.

Subtotal 40.0% Enhancementl

Good Faith Effort to Comply Total Adjustments

Subtotal 5

$2501

Economic BenefitTotal EB Amounts

Approx. Cost of Compliance

0.0% Enhancement*

-*Capped at the Total EB $ Amount

Subtotal 6 $01$2

$2,000

Final Penalty Amount

$750

$0

$7501

SUM OF SUBTOTALS 1-7

OTHER FACTORS AS JUSTICE MAY REQUIREI Reduces or enhances the Final Subtotal by the Indicated percentage.

Notes

0.0%

Final Subtotal

Adjustment

STATUTORY LIMIT ADJUSTMENT

Final Assessed Penalty

$750

DEFERRAL

20.0% Reduction AdjustmentReduces the Final Assessed Penalty by the indicted percentage. (Enter number only; e.g. 20 for 20%reduction.)

Notes

Deferral offered for expedited settlement.

-$150

PAYABLE PENALTY

$6001

Page 2 of 2, 1011512009, H:\Agreed Orders\KilleenMajesticHomeslnc-2009-0675-WQ-E\Killeen Majestic Homes, Inc. (Five and One Addition)--PCW,xls

Screening Date 11-May-2009

Docket No. 2009-0675-WQ-E

Respondent Killeen Majestic Homes, Inc.

Case ID No. 37544

Reg. Ent. Reference No. RNI05696611

Media. [Statute] Water Quality

Enf. Coordinator Carlie Konkol

Compliance History Worksheet>> Compliance History Site Enhancement (Subtotal 2)

Companent Number of...

PCW

Policy Revision 2 (September 2002}

PCW Revision October30, 2008

Enter Number Here Adlust.

NOVsWritten NOVs with same or similar violations as those in the current enforcement action(number of NOVs meeting criteria )

0 0%

Other written NOVs 0 0%

Orders

Any agreed final enforcement orders containing a denial of liability (number of ordersmeeting criteria )

0 0%

Any adjudicated final enforcement orders, agreed . final enforcement orders without a denialof liability, or default orders of this state or the federal government, or any final prohibitoryemergency orders issued by the commission

0 0%

Judgments

Any non-adjudicated final court judgments or consent decrees containing a denial of liabilityof this state or the federal government (number of judgements or consent decrees meetingcriteria)

0 0%

and ConsentDecrees Any adjudicated final court judgments and default judgments, or non-adjudicated final court

judgments or consent decrees without a denial of liability, of this state or the federalgovernment

0 0%

Convictions Any criminal convictions of this state or the federal government (number of counts ) 0 0%Emissions Chronic excessive emissions events (number of events ) 0 0%

A u dits

Letters notifying the executive director of an intended audit conducted under the TexasEnvironmental, Health, and Safety Audit Privilege Act, 74th Legislature, 1995 (number ofaudits for which notices were submitted)

0 0%

Disclosures of violations under the Texas Environmental, Health, and Safety Audit PrivilegeAct, 74th Legislature, 1995 (number of audits for which violations were disclosed ) 0 0%

Please Enter Yes or No

Environmental management systems in place for one year or more No 0%

Voluntary on-site compliance assessments conducted by the executive director under a No 0%Other

special assistance program

Participation in a voluntary pollution reduction program No 0%

Early compliance with, or offer of a product that meets future state or federal governmentNo 0%

environmental requirements

Adjustment Percentage (Subtotal 2) I 0%

> Repeat Violator (Subtotal 3)

NM

>> Compliance History Person Classification (Subtotal 7)

Adjustment Percentage (Subtotal 3) 0%

Average Performer

Adjustment Percentage (Subtotal 7)

0% 1

>> Compliance History Summary

No reduction or enhancement Is recommended due to average performer classification.Compliance

HistoryNotes

TotalAdjustment Percentage (Subtotals 2, & 7) _eee

0%

Page 1 of 2, 1011512009, H:'Agreed OrderslKilleenMajesticHomeslnc-2009 .0675-WO-EIKilleen Majestic Homes, Inc. (Five and One Addition) - PCW.xis

Screening Date 11-May-2oo9Respondent Killeen Majestic Homes, Inc.Case ID No. 37544

Reg. Ent. Reference No. RN105696611Media [Statute] Water Quality

Enf. Coordinator Carlie KonkolViolation Number

Rule Cite(s)1

30 Tex. Admin. Code § 231.25(a)(4) and 40 Code of Federal Regulations § 122.26(c)

Failed to obtain authorization to discharge storm water associated with constructionactivities. Specifically, at the time of the Investigation, it was determined that the

Violation Description

Respondent did not have a Notice of Intent ("NOI") obtaining coverage under theConstruction General Permit ("CGP") TXR15NN95for storm water discharges before

beginning construction activities at Five and One Addition.

Base Penalty

$10,000

Docket NQ. 2009 0675 WQ-E PCWPalloy Rev)sioe 2 (Sophn ebtrr 2002)

POW Revlsian October 30, 20ar3

>> Environmental, Property and Human iealk MatrixHarm

Release_ Major ModerateOR

ActualPotential

Minor

Percent 0%j

Percent

MatrixNotes 100% of the rule requirement was not met.

dailyweeklymonthlyquarterly

semiannualannual

single event

Number of Violation Events

Violation Events

melt on one

with yen x

E#djystme it

$9,000

$1,0001

Number of violation days

Violation Base Penalty $1,0001

One monthly event is recommended from the February 25, 2009 investigation data to theMarch 3, 2009 compliance date.

Good Faith Efforts to Comply $25025.0% piu.c{iorjBefore Nov NOV to EDPRP/Settlement Offer

ExtraordinaryOrdinary

NIA1

(mark with xi

Notes

The Respondent came into compliance on March 3, 2009.

I Economic Benefit (EB) for this violation

Estimated EB Amount $21

$750j

$7501

Violation Subtotal

Statutory Limit Test

Violation Final Penalty Total

This violation Final Assessed Penalty (adjusted for limits)

$7501

Page 2 of 2, 1011512009, H:'Agreed Orders \KilleenMajesticHomeslnc-2009-0675-WQ-EIKilleen Majestic Homes, Inc. (Five and One Addition) - PCW.x)s

Economic Benefit WorksheetRespondent Killeen Majestic Homes, Inc.Case ID No. 37544

Reg. Ent. Reference. No. RN105696611Media Water Quality

Violation No. 1

Rem Cost

Date Required

Final Date

YrsItem Description No commas or $

Percent Interest

Years ofDepreciation

50

.. 15Interest Saved Onetime.Costs EB Amount

Delayed CostsEquipmentBuildings

Other (as needed)Engineering/construction

LandRecord Keeping System

Training/SamplingRemediatlonlDlsposal

Permit CostsOther (as needed)

Notes for DELAYED casts

II II

1 0.00 $0 $0 $0I

1 1 II

1 0.00 $0 $0 $0

II

^ I

I 0.00 $0 $0 $0I I. II

7

-0.00 $0 $0 $0

] I II 0.00 $0 nla $0I II IF 0,00 $0 nra $0

I II II 0.00 $0 n/a $0

I

I I II 0.00 $0 nla $02`000 I

25-Feb-2009 I ^

3-Mar-2009 I 0.02 $2 nla $2II: II 1 0.00 $0 nla $0

Estimated cost to develop and implement a storm water pollution prevention plan ("SWP3") and obtain permitcoverage to discharge storm water at a construction site. Date Required Is the date the violation was first

documented and the Final Date is the date the Respondent came into compliance.

Avoided CostsDisposal

PersonnelInspectionlReporting(Sampting

Supplies/equipmentFinancial Assurance [21

ONE-TIME avoided costs [31Other (as needed)

Notes for AVOIDED costs

Approx. Cost of Compliance

$2,000 I

TOTAL

$2I

ANNUALIZELI] avoidedcostsbefore entering item (except for one-time avoided costs)II

$0$0

Compliance History Report

Customer/Respondent/Owner-Operator:

CN602909194

Killeen Majestic Homes, Inc.

Classification: AVERAGE

Rating: 3.01

Regulated Entity:

RN105696611

FIVE AND ONE ADDITION

Classification: AVERAGE BY

Site Rating: 3.01DEFAULT

ID Number(s):

STORMWATER PERMIT

TXR15NN95

Location:

SW CORNER OF INTERSECTION OF E. AUSTIN ST & S.COLLEGE AVE

TCEQ Region:

REGION 09 - WACO

Date Compliance History Prepared:

April 23, 2009

Agency Decision Requiring Compliance History:

Enforcement

Compliance Period:

April 23, 2004 to April 23, 2009

TCEQ Staff Member to Contact for Additional Information Regarding this Compliance History

Name: Carlie Konkol

Phone: (361) 825-3422

Site Compliance History Components

1. Has the site been in existence and/or operation for the full five year compliance period?

2. Has there been a (known) change in ownership/operator of the site during the compliance period?

3. If Yes, who is the current ownerloperator?

4. if Yes, who was/were the prior owner(s)loperator(s) ?

5. When did the change(s) in owner or operator occur?

Components (Multimedia) for the Site :A. Final Enforcement Orders, court judgements, and consent decrees of the state of Texas and the federal government.

N/A

B. Any criminal convictions of the state of Texas and the federal government.

NIA

C. Chronic excessive emissions events.

N/A

D. The approval dates of investigations. (CCEDS Inv. Track. No.)

1

04/16/2009

(737044)

E. Written notices of violations (NOV). (CCEDS Inv. Track. No.)

NIA

F. Environmental audits.

N/A

G. Type of environmental management systems (EMSs),

N/A

H. Voluntary on-site compliance assessment dates.

NIA

Participation in a voluntary pollution reduction program.

NIA

J.

Early compliance.

NIA

Sites Outside of Texas

YesNo

N/A

NIA

N/A

NIA

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

IN THE MATTER OF AN

§

BEFORE THEENFORCEMENT ACTION

§CONCERNING

§

TEXAS COMMISSION ONKILLEEN MAJESTIC HOMES, INC.

§RN105696611

§

ENVIRONMENTAL QUALITY

AGREED ORDERDOCKET NO. 20090675-WQ-E

I. JURISDICTION AND STIPULATIONS

At its agenda, the Texas Commission on Environmental Quality ("theCommission" or "TCEQ") considered this agreement of the parties, resolving an enforcement actionregarding Killeen Majestic Homes, Inc. ("the Respondent") under the authority of TEx. WATER CODEchs. 7 and 26. The Executive Director of the TCEQ, through the Enforcement Division, and theRespondent appear before the Commission and together stipulate that:

1. The Respondent owns and operates a a single-family, residential construction site at the southwestcorner of the intersection of East Austin Street and South College Avenue in Troy, Bell County,Texas (the "Site"),

2. The Respondent has caused, suffered, allowed or permitted the discharge of any waste or theperformance of any activity in violation of TEX. WATER CODE ch. 26 or any rule, permit, or orderof the Commission.

3. The Commission and the Respondent agree that the Commission has jurisdiction to enter thisAgreed Order, and that the Respondent is subject to the Commission's jurisdiction.

4. The Respondent received notice of the violations alleged in Section II ("Allegations") on or aboutApril 19, 2009.

5. The occurrence of any violation is in dispute and the entry of this Agreed Order shall notconstitute an admission by the Respondent of any violation alleged in Section H ("Allegations"),nor of any statute or rule.

6. An administrative penalty in the amount of Seven Hundred Fifty Dollars ($750) is assessed by theCommission in settlement of the violations alleged in Section II ("Allegations"). The Respondent

Killeen Majestic Homes, Inc.DOCKET NO. 2009-0675-WQ-EPage 2

has paid Six Hundred Dollars ($600) of the administrative penalty and One Hundred Fifty Dollars($150) is deferred contingent upon the Respondent's timely and satisfactory compliance with allthe terms of this Agreed Order. The deferred amount will be waived upon full compliance withthe terms of this Agreed Order. If the Respondent fails to timely and satisfactorily comply withall requirements of this Agreed Order, the Executive Director may require the Respondent to payall or part of the deferred penalty.

7.

Any notice and procedures, which might otherwise be authorized or required in this action, arewaived in the interest of a more timely resolution of the matter.

8.

The Executive Director of the TCEQ and the Respondent have agreed on a settlement of thematters alleged in this enforcement action, subject to the approval of the Commission.

9. The Executive Director recognizes that the Respondent submitted an administratively completeNotice of Intent ("NOI") and obtained authorization under Permit No. TXR15NN95 on March 3,2009.

10. The Executive Director may, without further notice or hearing, refer this matter to the Office ofthe Attorney General of the State of Texas ("OAG ") for further enforcement proceedings if theExecutive Director determines that the Respondent has not complied with one or more of theterms or conditions in this Agreed Order.

11.

This Agreed Order shall terminate five years from its effective date or upon compliance with allthe terms and conditions set forth in this Agreed Order, whichever is later.

12. The provisions of this Agreed Order are deemed severable and, if a court of competentjurisdiction or other appropriate authority deems any provision of this Agreed Orderunenforceable, the remaining provisions shall be valid and enforceable,

II. ALLEGATIONS

As owner and operator of the Site, the Respondent is alleged to have failed to obtain authorizationto discharge storm water associated with construction activities, in violation of 30 TEX. ADMIN. CODE

§ 281.25(a)(4) and 40 CODE OF FEDERAL REGULATIONS § 122.26(c), as documented during aninvestigation conducted on February 25, 2009. Specifically, at the time of the investigation, it wasdetermined that the Respondent did not have a NOT obtaining coverage under the Construction GeneralPermit TXR15NN95 for storm water discharges before beginning construction activities at Five and OneAddition.

III. DENIALS

The Respondent generally denies each allegation in Section H ("Allegations").

Killeen Majestic Homes, Inc.DOCKET NO. 2009-0675-WQ-EPage 3

IV. ORDERING PROVISIONS

1. It is, therefore, ordered by the TCEQ that the Respondent pay an administrative penalty as setforth in Section I, Paragraph 6 above. The payment of this administrative penalty and theRespondent's compliance with all the terms and conditions set forth in this Agreed Order resolveonly the allegations in Section II. The Commission shall not be constrained in any manner fromrequiring corrective action or penalties for violations which are not raised here. Administrativepenalty payments shall be made payable to "TCEQ" and shall be sent with the notation "Re:Killeen Majestic Homes, Inc., Docket No. 2009-0675-WQ-E" to:

Financial Administration Division, Revenues SectionAttention: Cashier's Office, MC 214Texas Commission on Environmental QualityP.O. Box 13088Austin, Texas 78711-3088

2. The provisions of this Agreed Order shall apply to and be binding upon the Respondent. TheRespondent is ordered to give notice of the Agreed Order to personnel who maintain day-to-daycontrol over the Site operations referenced in this Agreed Order.

3. This Agreed Order, issued by the Commission, shall not be admissible against the Respondent ina civil proceeding, unless the proceeding is brought by the GAG to: (1) enforce the terms of thisAgreed Order; or (2) pursue violations of a statute within the Commission's jurisdiction, or of arule adopted or an order or permit issued by the Commission under such a statute.

4. This Agreed Order may be executed in multiple counterparts, which together shall constitute asingle original instrument. Any executed signature page to this Agreed Order may be transmittedby facsimile transmission to the other parties, which shall constitute an original signature for allpurposes under this Agreed Order.

5. Under 30 TEX. ADMIN. CODE § 70.10(b), the effective date is the date of hand-delivery of theOrder to the Respondent, or three days after the date on which the Commission mails notice of theOrder to the Respondent, whichever is earlier. The Chief Clerk shall provide a copy of thisAgreed Order to each of the parties.

•

Killeen Majestic Homes, Inc.DOCKET NO, 2009-0675 -WQ-EPage 4

SIGNATURE PAGE

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

For the Commission

/ 0 /2_O J7Date

I, the undersigned, have read and understand the attached Agreed Order. I am authorized to agree to theattached Agreed Order on behalf of the entity indicated below my signature, and I do agree to the termsand conditions specified therein. I further acknowledge that the TCEQ, in accepting payment for thepenalty amount, is materially relying on such representation.

I also understand that failure to comply with the Ordering Provisions, if any, in this order andlor failure totimely pay the penalty amount, may result in:• A negative impact on compliance history;• Greater scrutiny of any permit applications submitted;• Referral of this case to the Attorney General's Office for contempt, injunctive relief, additional

penalties, andlor attorney fees, or to a collection agency;• Increased penalties in any future enforcement actions;

Automatic referral to the Attorney General's Office of any future enforcement actions; and• TCEQ s • eking other relief as authorized by law.In a Jdition, any falsification of any compliance documents may result in criminal prosecution.

f

Date

PLys/c/ei . 1-Name (Printed or typed)

TitleAuthorized Representative ofKilleen Majestic Homes, Inc.

Instructions: Send the original, signed Agreed Order with penalty payment to the Financial Administration Division, RevenuesSection at the address in Section TV, Paragraph 1 of this Agreed Order.