STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2004-13823-W

)

GATEWAY ASSOCIATES, LLC, )

)

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 (“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 Gateway Associates, LLC (“Respondent”), which constructed the Emerson Office Parke sanitary sewer project (Project No. M-15256X) located in Greenwood, Johnson County, Indiana.

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

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

Gateway Associates, LLC Gateway Associates, LLC

Ken Zumstein, Manager J. Greg Allen, Registered Agent

489 South S.R. 135, Suite C 489 South S.R. 135, Suite C

Indianapolis, Indiana 46142 Indianapolis, Indiana 46142

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, including a sanitary sewer, without a valid construction permit issued by IDEM.

6. An investigation by an IDEM representative revealed that the Emerson Office Parke sanitary sewer project located south of the intersection of County Line Road and Emerson Avenue, in Greenwood, Indiana, was constructed by the Respondent starting in June of 2003 and completed in August of 2003 without a valid construction permit. Specifically, the record review indicated:

On May 1, 2003, IDEM received a submittal intended to be plans, specifications, and a construction permit application for the Emerson Office Parke sanitary sewer project.

On May 8, 2003, IDEM sent a letter notifying the Respondent that the application had been found to be deficient.

On July 23, 2003, IDEM sent a letter notifying the Respondent that IDEM had not received the necessary information that was requested on May 8, 2003, and therefore IDEM denied the application due to incompleteness and returned the submitted plans, specifications, and application for the construction permit.

On November 17, 2003, IDEM received notification from the Greenwood Sanitation Department that indicated that the Emerson Office Parke sanitary sewer project had been completed, inspected, and approved by the Greenwood Sanitation Department.

On December 23, 2003, and January 7, 2004, IDEM received additional information to regarding the "as-built" plans for the Emerson Office Parke sanitary sewer project to allow review by IDEM. Additionally, on January 7, 2004, IDEM was informed by the project engineer that construction of the Emerson Office Parke sanitary sewer project had started in June of 2003 and was completed in August of 2003.

On January 16, 2004, IDEM sent a letter notifying the Respondent that a Construction Permit could not be issued for the Emerson Office Parke sanitary sewer project because the construction had started prior to issuance of the permit. However a cursory review of the plans and specifications by IDEM indicated that they appeared to be acceptable, and IDEM had no objection to the use of the sewers.

Therefore, the record review indicated that construction of the Emerson Office Parke sanitary sewer project occurred prior to the issuance of the construction permit by IDEM, in violation of 327 IAC 3-2-1.

7. 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. Respondent shall comply with 327 IAC 3-2-1.

3. Respondent is assessed a civil penalty of Three Thousand Four Hundred Dollars ($3,400). 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. The civil penalty is payable by check to the Environmental Management Special Fund. Checks shall include the Case 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

5. 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, 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.

6. This Agreed Order shall apply to and be binding upon the Respondent, its successors 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.

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. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.

9. This Agreed Order shall remain in effect until the Respondent has complied with the terms and conditions of Paragraphs 3 through 5 of this Agreed Order and IDEM issues a “close out” letter to the Respondent.

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TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Manag Department of Environmental Management Gateway Associates, LLC

By: _________________________ By: _________________________

Mark W. Stanifer, Chief

Chief, [Section] Water Enforcement Section Printed: ______________________

Office of Enforcement

Chief, [Section] Title: ________________________

Date: ________________________ Date: ________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Office of Legal Counsel

Date: _______________________ Date: ______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ___________, 200__.

For the Commissioner:

__Signed 8/13/04___

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs