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September 17, 2007 Tape #020

The White County Drainage Board convened at 10:35 A.M. in the Commissioners’ Room of the White County Building, Monticello, Indiana, with Board Members Ronald Schmierer and Steve Burton, Attorney George W. Loy, Surveyor Dennis Sterrett, Drainage Assistant Mary Sterrett and Secretary Jamie Rozzi in attendance. Board Member John Heimlich was not present.


Landowner Don Pauken, County Engineer Todd Frauhiger, and Mrs. Frauhiger were also in attendance.


Chairman Schmierer opened the meeting asking for approval of the minutes for the September 4th, 2007 meeting. Board Member Burton so moved. Chairman Schmierer seconded the motion. The minutes were approved unanimously.


The next item on the agenda is the Rangeline Properties, Inc IDEM approval letter. Surveyor Sterrett explained that he received a letter on September 6th, 2007 from Dellinger’s Law Office. The letter is from IDEM (Indiana Department of Environmental Management) dated August 14th, 2007. Surveyor Sterrett read a portion of the letter which follows:


Dear Mr. Wheeldon,

Rangeline Properties, Inc., is hereby granted a minor modification to solid waste facility permit FP 91-05 pursuant to IC13-15-1-3, IC 13-15-7-1, 329 IAC 11-9-4[c] and 329 IAC11-11-6. This decision is based on the minor permit modification application submitted to the Indiana Department of Environmental Management (IDEM) on May 14, 2007, and all subsequent amendments and addenda to the application.

This minor permit modification allows Rangeline Properties, Inc., to provide additional drains to the facility building and to extend the facility boundary to include vehicle access and a storm water detention basin as proposed in the application and its subsequent amendments and addenda, subject to the terms of this letter. This letter also approves, in accordance with IC 13-19-4-8(e), the transfer of ownership or Rangeline Properties, Inc., to Jeffrey T. Van Wheelden and accordance with 329 IAC 11-11-14, solid waste facility permit FP 91-05 as amended by this minor modification, does not authorize: any injury to any person or private property; the invasion of other private rights; the infringement of federal state, or local laws or regulations; nor preempt any duty to comply with other state of local requirements.

The solid waste facility referenced above is located at 3054 East Division Road, Monticello and contains approximately 1.78 acres permitted for processing.

Pursuant to IC4-21.5, a Petition for Review of this minor permit modification letter may be initiated by you, as applicant, or by an “aggrieved or adversely affected person.” This decision becomes quite effective once all applicable time periods for petitioning for Stays of Effectiveness have expired, unless you are notified in writing by an Environmental Law Judge that the minor permit modification has been further stayed. As discussed in our enclosed Notice of Decision, if you wish to challenge this decision, you must file a Petition for Review with the Office of Environmental Adjudication within 18 days from the date that this letter was mailed, pursuant to IC4-21.5-3-7.


(Please see official copy of letter in Rangeline Properties, Inc. Surveyor’s File.)


“Is this just a formality letter, George (Attorney Loy)?” Chairman Schmierer asked.


“I haven’t seen it. It is for our information, a notice so that if for some reason we would want to object…but this is the plan that they have had throughout. The Drainage Board granted, as I recall a Consent to Encroach and approved the drainage plan,” Attorney Loy stated.


Surveyor Sterrett replied, “Yes, the Drainage Board approved the drainage plan and then re-approved the drainage plan.”


“But this isn’t changing anything that we have approved, right?” Board Member Burton asked.


Attorney Loy answered, “No, I don’t think so. I don’t know. I haven’t seen the letter. Todd should take a look at that letter also.”


“If I remember right, wasn’t the approval contingent upon getting an IDEM permit letter?” Engineer Frauhiger asked.


“Yes, I believe so,” Attorney Loy replied.


Surveyor Sterrett stated, “This letter is just that, their IDEM permit letter, and that is why I brought it before the board.”


“The original plan that was submitted to IDEM did not have the drainage improvements on it. He had to do a minor modification to get approval from IDEM to be able to put the drainage facilities on. It sounds like that is what has been done,” Engineer Frauhiger explained.


Chairman Schmierer addressed Don Pauken who was in attendance.


Don Pauken stated, “I had requested back in April that maybe the Drainage Board should go back and look at the permit because of the Health Department problem of driving over the septic and drainage field; of course, that goes right over the Diener Tile. I know there are weasel words in that particular letter, this is not to say that you can violate the state and local laws; however, IDEM and the State Health Department had been notified that they are going to be driving over the septic and leech field and that is not permitted by the State Health Department Code. The additional problem is that when that breaks down, where does that break down to, where does the sewage go—the Diener Tile goes underneath that. I know that it has been ignored for 3 ½ years now. I just want to let you know that it is still a problem.”


“I don’t think it has been ignored. We have been out there and the Diener Tile has been checked,” Board Member Burton stated.


Don Pauken continued, “I understand that. I talked to the State Health Department and they said that they really can’t do too much about it until he drives over it! I questioned why they let them have the permit to build the facility and put this impervious driveway in there and then say that it is against the law, they aren’t going to make him stop after he does that.”


Board Member Burton replied, “But, at the point in time, the Health Department can take steps.”


“Right, I suggested that they talk to IDEM. They have the permit as it is being held up and tell them that they shouldn’t issue the permit because of this potential problem. It is in violation. It shows it right on the prints. They did contact IDEM and IDEM would have egg on their face if they said ‘well, we have a problem here’ when they didn’t catch it before. It has been going around in a circle and nothing is really being done about that specific problem. And again, it’s a potential problem, but it’s still against the law to put the driveway across the septic and leech field. The county health department has no jurisdiction because it is a commercial property.” Don Pauken said.


“Do we have the right to tell him where to put the driveway?” Chairman Schmierer asked.


“No,” Attorney Loy stated.


“There is an assumption on where the leech bed is,” Board Member Burton explained.


“If it isn’t there, then it is underneath a building. We know where the septic is, it is shown right on the prints and they are putting the driveway over the septic,” Don Pauken stated.


Engineer Frauhiger explained, “It appears that the existing leech field is currently under a portion of the gravel parking lot. We think that because the last time Surveyor Sterrett and I went out there some work had been done and there was some clay tile that was on the surface. There is an air well upstream and downstream of the site so we were able to check both air wells to see if there was any difference in odor or if there had been any sanitary sewage smell coming from the clay tile. There was none at that particular time. I think that your comment was exactly right, no one is exactly sure where the leech field is, but if there is damage to the leech field in the future it will be noticed very quickly because that air well is right by the road and the sanitary sewer smell will come out of that air well. So, we will know immediately if there is a problem and if there needs to be a correction.”


“If YOU want to object to the IDEM permit, you may. I mean YOU may,” stated Attorney Loy.


“Well, the time span as far as the permit…I have already objected to it. They know that. They have a letter stating that, but as far as approving the modification, I could not respond to that because of the wording in the letter. I didn’t see that letter, but as far as their notice that was put in the newspaper, anytime there is a modification like this they have to publicize it. They did publicize it and you had 15 days to respond,” Don Pauken continued.


Attorney Loy stated, “You are welcome to a copy of that letter.”


“Thank you. I would like a copy of that letter,” replied Don Pauken. Don Pauken was given a copy of the letter from IDEM.


The next item on the agenda is the Esther Fraser Bid Bond. Surveyor explained that the Esther Fraser is scheduled to be cleaned. The estimate is for $56,731.12. Surveyor Sterrett wanted to verify with the Drainage Board if we need to ask for a bid bond or performance bond for this project.


According to IC 36-9-27-79.1:

Not withstanding Sections 77 and 78 of this chapter, the following provisions apply whenever the board estimates that the amount of the contracts to be let is not more than seventy-five thousand dollars [$75,000]:

(1) The board need not advertise in the manner provided by Section 78 of this chapter. If the board does not advertise, it shall mail written invitations for bids to at least three [3] persons believed to be interested in bidding on the work. The invitations shall be mailed at least seven [7] days before the date the board will receive bids, and must state the nature of the contracts to be let and the date, time and place bids will be received.

(2) The board may authorize the county surveyor to contract for the work in the name of the board.

(3) The contracts may be for a stated sum or may be for a variable sum based on per unit prices or on the hiring of labor and the purchase of material.

(4) The contracts shall be let in accordance with the statutes governing public purchase, including IC 5-22.

(5) The board may for good cause waive any requirement for the furnishing by the bidder of a bid bond or surety and the furnishing by a successful bidder of a performance bond.

Surveyor Sterrett explained that his question was whether the Drainage Board wanted to waive that requirement or whether they want to require a bid bond for this project.


“Do we want to require a bid bond and/or a performance bond?” Chairman Schmierer asked.


Attorney Loy replied, “From my standpoint, I would recommend both, but the cost of the bond is just passed on in the total amount of the bid.”


“If we get a performance bond, aren’t we covered?” Chairman Schmierer asked.


Attorney Loy continued, “Yes, you are covered for the performance of the contract. If you had your choice between the two, it would be the performance bond, but that is the costly one. For a bid bond, they just submit a certified check in the amount of 5%, which they typically get and they get it back no matter what, so that is not a big deal. However, a performance bond is usually costly. What do you estimate this contract for?”


Surveyor Sterrett replied, “$56,000.”


“A performance bond is probably $5,000,” explained Chairman Schmierer.


Attorney Loy replied, “I don’t know how much the premium would be, that depends…”


“I think we lose some bids on it because we require that,” explained Surveyor Sterrett.


“I definitely want a bid bond because that is not really a big issue,” continued Attorney Loy.


“What is the purpose of the bid bond?” asked Surveyor Sterrett.


“If a contractor is awarded the contract and then they say ‘We underbid the project, we aren’t going to sign a contract’, then they forfeit that bid bond,” explained Attorney Loy.


“Then do we go get bids again?” asked Surveyor Sterrett.


“No, you can go to the next higher bid OR you can rebid it, but the lower bidder would forfeit their bid bond because they refused to sign the contract,” explained Attorney Loy.


“What is the purpose of a performance bond?” asked Surveyor Sterrett.


“If the bid is $70,000 it’s a performance bond in that amount so if they get half way through and they go bankrupt, just aren’t doing their job, leave, or whatever…then there is a bonding insurance company that will pay us to hire someone new to finish the job,” continued Attorney Loy.


“You think it hurts us because we require a performance bond?” asked Chairman Schmierer.


Drainage Assistant Mary Sterrett said, “On the A.K. Ruth we had a performance bond and we only had 2 bidders after sending 5 invitations.”


“I don’t know if requiring the performance bond is what turned them away, but…” Surveyor Street added.


“How pressing is this? One thing you could do is solicit the three quotes, have a bid bond and a performance bond as a condition and see what kind of bids you get. Then, if you don’t like them, or you don’t get any, then rebid it and change your specs by deleting the performance bond,” explained Attorney Loy.


“With that being as large of a project as it is, to protect the landowners and the county, we almost need to require a performance bond,” stated Chairman Schmierer.


“Again, I would prefer a performance bond regardless of the size of the project,” continued Attorney Loy.


“If they don’t want to bid on it because it requires a performance bond, then I would prefer that they just don’t bid on it,” continued Chairman Schmierer.


“We have had problems in the past. Every once in a while we’ve had some projects…not often,” Attorney Loy stated.


“We’ve had some that did not finish up their job. If we would have had a performance bond we would have been better off. I don’t know about you Board Member Burton, but I say let’s require the performance bond,” Chairman Schmierer stated.


“When they submit their bid that should be part of their total cost,” Board Member Burton stated.


“If everyone is required to do it, then their bids will show that,” Surveyor Sterrett explained.


Attorney Loy stated, “Yes, there is an extra cost associated with it, but it should be included in the cost of the project; it’s just the cost of doing business.”


“I would much rather have the bid come in $5,000 over and guarantee that they are going to finish the job than to see it come under and get it ¾ done and a poor job,” Chairman Schmierer said.


“The bid bond should be the same for everyone, correct?” Board Member Burton asked.


“Yes, that is typically 5 percent,” Attorney Loy replied.


“They can show the cost of the project and then show the cost of the performance bond above that if they feel they need to,” Board Member Burton stated.


“Well, they won’t see the $56,000 estimate. We don’t give them the estimates do we?” stated Chairman Schmierer.


Surveyor Sterrett replied, “Yes, we have been giving the estimate to them.”


“We didn’t used to,” Chairman Schmierer stated.


“A bid bond for one company might be significantly more than for another company based upon their loss experience. If they have had problems in the past or not,” Attorney Loy added.


“I think we should require both a bid bond and a performance bond. If we don’t get enough bids we’ll reconsider,” Chairman Schmierer stated.


“I think I recall that Gutwein’s left us a certified check the last time. We had to hang on to it. I don’t remember how much it was for, but it was quite a bit. Do we accept that?” Surveyor Sterrett stated.


“I will discuss that with you,” Attorney Loy stated.


“You do not need to advertise, just inform them that they are required to have a bid bond and a performance bond when you solicit for quotes,” Chairman Schmierer stated.


“A bid bond is typically 5 percent,” Attorney Loy added.


Next on the agenda was VeraSun who had called Surveyor Sterrett to come to make a site visit. Engineer Todd Frauhiger and Surveyor Sterrett visited their site.


Surveyor Sterrett explained, “VeraSun is draining their excess water into the Fraser Ditch—it does not look very good.”


Engineer Todd Frauhiger continued, “Basically what happened was that a little over a week ago they received a very heavy rainfall on the site. It was a Friday and they received approximately 3 ½ to 4 inches of rain. The entire site flooded to the point that construction stopped in most of the other locations and to dry the site out a number of the subcontractors starting pumping water into what storm sewer they did have installed, which dumps into the Esther Fraser Ditch. The Surveyor’s Office was contacted by a subcontractor that said we should get up there and take a look because there is a problem.”


Engineer Frauhiger explained several photos that were taken of the site at the time of their visit.


“You can tell that about as far upstream as you can see that the site is flooded. There is a tremendous amount of silt going into the ditch. You can see the upstream portion of the ditch coming in where the water is clear and you can see downstream where the water looks like cream coffee. After the initial meeting, there was no sedimentation treatment put into place. So, we came up with a small sedimentation basin. Looking upstream there is an 18-inch pipe which is coming out of the manhole and terminates. A hole 40x40 was opened with rip-rap lining it and a check dam was put in to slow the water down which was put in last Wednesday. On Thursday, I was back at the site with Charlie (Van Voorst). Charlie had called me to let me know that they had the check dam put around the outlet pipe, but that it was not working yet. We had told them before they put it in that this was just a shot, because we didn’t know if it was going to work or not. After my conversation with Charlie on Thursday he said that they want to be very cooperative and they will do anything we can think of to try and get the silt out of the ditch. I also indicated to them that depending on what kind of damage we have to the ditch downstream, it might take removing some sedimentation from the ditch itself. The problem is that the flow time from this point down to the lake is about 14 hours. Last week Surveyor Sterrett collected a sample from the ditch and it took approximately 24 hours to settle out. There is about 1/8” of sediment in the bottom of the cup just from that volume of water. I’m afraid that much of this is going to end up in the lake. It is not going to settle in the ditch, it’s going to settle when it gets down to the lake and it slows down. The purpose of today was to bring the Drainage Board up to speed and let them know that there is a problem there, and that we (Engineer Frauhiger and Surveyor Sterrett) are working with VeraSun to figure out a way to correct it. It was bad the initial day that we were there and it was, unfortunately, just as bad the day after we got the temporary sediment basin put in place,” Engineer Frauhiger explained.


“Is that entirely surface water?” Attorney Loy asked.


“Yes, well it is surface water, but…They have put in a very extensive tile system in underneath the plant site, approximately every 50 feet they have tiles running under the plant site. One of the subcontractors informed us that the entire system is filled up right now and that it isn’t working,” Engineer Frauhiger stated.


“Is this something that we are going to fight all the time?” Chairman Schmierer asked.


“I think once we get construction completed and get some cover back on the site it will be better. Unfortunately, we have a long way to go before we get to that point,” Engineer Frauhiger replied.


Surveyor Sterrett added, “County Line Tiling/Excavating is running sub-surface drains around where the railroad is going to be, so they are pumping that in there too. According to Mike Ezra, they were going to come in and pump the manhole out because it was full of sand.”


“What we understand is that the tile system is pretty full right now too. They are talking about having to go in and jet all of the tile they put in,” Engineer Frauhiger added.


“They are saying that the guy either installed the tile backwards or it’s full of sand,” Surveyor Sterrett stated.


“Where does it stand now? Are they doing some engineering to submit to you?” Attorney Loy asked.


Engineer Frauhiger replied, “We are working at both directions. What I told them was that if IDEM is contacted and they start tracing it upstream, they will probably shut the whole site down. They are working very diligently to try to prevent that from happening. They are willing to cooperate fully. I am kind of surprised that Charlie (Van Voorst) isn’t here this morning, but he said that they will do anything in their power to get that silt stopped. One thing they were going to try was to cover the check dams with filter fabric to see if they could hold it back some. There is another item that Surveyor Sterrett mentioned, a silt bag that actually goes over the end of the outlet pipe. I am doing some research on that. You have to install it with an excavator and take it out, but basically it filters the water as it comes out of the pipe before it goes into the ditch. Then, when it fills up you take it off and put a new one on. To complicate matters, there are temporary concrete barrier walls that indicate where a high pressure gas main crosses the site. Originally, we wanted the hole made bigger, but they didn’t want to go any closer to the gas main with the hole.”


Engineer Frauhiger further explained that at the rate it is draining that it will take weeks before they can get rid of all the water. Surveyor Sterrett commented that he had gone by there Friday evening and it didn’t look like the water had gone down at all.


“What caused all of the water to stand?” Chairman Schmierer asked.


“Since they have taken off all of the ground cover, they pretty much had full run off from that 4 inch rain. We are hoping that once the rest of the dentition ponds are put in and we get ground cover established that this problem will go away,” Engineer Frauhiger explained.


“How long is that going to be?” Attorney Loy stated.


Engineer Frauhiger replied, “I don’t know what the construction schedule is. I guess we just wanted the Drainage Board to know that we are working on it. We know there is a problem and VeraSun knows there is a problem and we are going to come up with a way to fix it.”


Engineer Frauhiger continued, “We also looked at the proposed county road that you wanted us to look at. There is about 1,600 feet of side ditch that would go off into the private tile that you were concerned about. So, that issue still has to be addressed. I know the engineering firm mentioned in their drainage report that an upgrade to that private tile might be required to get that amount of water down to the ditch.”


“Who owns that private tile?” Chairman Schmierer asked.


“It is on Kleyla’s property. There is an air well on her property about 50 feet from her property line. It looks like it goes toward the ditch across Allen’s property. There are two large catch basins on both sides of 100 North,” Surveyor Sterrett explained.


Engineer Frauhiger continued, “It looks like it’s probably about a 10 or 12 inch tile. Where the road comes in, probably right along the section lines, there is about 800 feet of side ditch on both sides which will come down and cross over to get to that tile. Unfortunately, they are bucking too much grade to try to take it the other way.”


“Is there anything that we expect them to be doing that they are not doing or that we should confirm by letter?” Attorney Loy asked.


Engineer Frauhiger replied, “I think what is going to happen is that they are going to have to come up with a plan to make sure that this property owner is happy and that this pipe has sufficient capacity to be able to carry the water away.”


“Kline’s had sent me a letter, I didn’t bring it with me this morning, stating the problems that they were having and wanted some kind of input,” Surveyor Sterrett stated.


Surveyor Sterrett pointed out the telephone switching station and said that the road will be to the left of it. He described the location of the catch basin that Surveyor Sterrett believed that the County Highway installed. Surveyor Sterrett stated that he did not know who installed the tile to the ditch. Engineer Frauhiger mentioned that there are grates over the basins made out of sign posts.


“So you have a letter from Kline’s inviting us to respond?” Attorney Loy asked.


Surveyor Sterrett replied, “Yes.”


Engineer Frauhiger explained, “What is going to be interesting is that this ditch will have to be improved regardless, because of the amount of water that will be flowing through it. There is a 15 inch pipe underneath the road that carries half of the ditch, so you are talking probably a 15 to 18 inch pipe to get the water down.”


“Do our road improvements start there and go west on 100 North?” Board Member Burton asked.


“Yes, I believe that is the plan. I can’t remember what size of pipe is underneath the driveway at the telephone station, but there is one there. It isn’t big enough though, because there is evidence of water flowing across the driveway right now. That is another issue that will have to be worked out also,” Engineer Frauhiger replied.


“What are our options as far as making that private tile into a county tile from our right of way to the ditch?” Board Member Burton asked.


“Where is the private tile?” Attorney Loy asked.


“The private tile runs north and south and enters the ditch. There are two catch basins on each side of the road,” Engineer Frauhiger explained.


“Did we know the existence of that private tile prior to this project?” Attorney Loy asked.


“No, it’s just mentioned in the letter. They mentioned three areas where they have drainage problems. They gave us solutions for two of them, one of them is VeraSun agreeing to put in some additional piping and then this one that they left hanging because I think they aren’t exactly sure what to do,” Engineer Frauhiger explained.


“Does that private tile go over land still owned by the Allen’s or is that VeraSun?” Attorney Loy asked.


Engineer Frauhiger replied, “No, that property is still owned by Allen’s.”


“The private tile is on Allen then and not Kleyla,” Chairman Schmierer stated.


“Yes, it is on Allen's, but there is a section on Kleyla. It drains that property also,” explained Engineer Frauhiger.


“What are all of our concerns pertaining to the private tile?” asked Attorney Loy


“When the new road is constructed, there is 800 feet of side ditch on both sides of the new road which is designed to flow north up to 100 North and then come east over to the inlet and use the private tile as an outlet,” explained Engineer Frauhiger.


“They actually showed the culvert under the highway and I assume it’s going to take the water here and take it under the road like it goes now,” Surveyor Sterrett pointed out.


Attorney Loy added, “So we would like to assume jurisdiction over that tile if we can. Do you know what kind of tile and what size it is?”


“It looks like a 10 or 12 inch right now and clay, so it’s pretty old,” Engineer Frauhiger stated.


“Will it likely need to be replaced regardless or size or condition?” Attorney Loy asked.


“Engineer Frauhiger thinks so,” Surveyor Sterrett replied.


“I think it will need to be replaced because of size. There is a small portion of the VeraSun property that currently comes down to this corner and it will continue to come down to this corner even after, and that was taken into account in the drainage report,” Engineer Frauhiger explained.


“Why wouldn’t you be just better off putting in a new tile?” Chairman Schmierer asked.


“We could do that too. We could make a new alignment and put a new tile in and stay away from that private one totally. That would be the best solution,” Engineer Frauhiger stated.


“That is a better solution because the other tile doesn’t have the capacity, why should we even bother with it,” Chairman Schmierer stated.


“We know no matter how good we make it, someone will claim that we restricted their flow,” Engineer Frauhiger added.


“That is a better plan anyway. Does Allen own to the left of that property?” Attorney Loy asked.


“Yes,” replied Surveyor Sterrett.


“We’ll probably have to buy the right of way to go across there with that tile,” Chairman Schmierer stated.


“Although, if it’s a regulated drain isn’t that prescribed?” Engineer Frauhiger asked.


“I think that is our answer Counsel, rather than try to take over a private tile that isn’t going to work and try to make it work,” Chairman Schmierer stated.


Attorney Loy commented, “I’m sure Ron Allen will be cooperative. It’s not a ditch; it will be an underground tile.”


“So, would that be a county expense since it is a county road that we are draining?” Surveyor Sterrett asked.


“If the county road is draining into it, we would bear a portion of the cost, not all of it necessarily, that depends on the watershed,” Attorney Loy stated.


“There is another incidence where VeraSun has agreed to put 450 feet of tile to drain this county road also,” Engineer Frauhiger commented.


“Does this need to be acted upon today?” Board Member Burton asked.


“No, I think that the plans are very preliminary at this point and they have not finalized anything,” replied Engineer Frauhiger.


“This is just informational for our purposes at this point,” Board Member Burton stated.


Attorney Loy asked that a copy of the letter from Kline be given to himself and the Drainage Board Members.


Chairman Schmierer asked for anything further for the Drainage Board.


Chairman Schmierer then adjourned the meeting.