STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
COMMISSIONER OF THE DEPARTMENT )
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. )CAUSE NO. 1998-4717-W or
B-2426
)
L & G PROPERTIES, INC. & )
BRUCE GUNSTRA BUILDERS, INC., )
)
Respondents. )
2. Respondents are L & G Properties, Inc., and Bruce Gunstra Builders, Inc., Bruce A.
Gunstra, President and Resident Agent ("Respondents"), which own and have developed Walnut
Estates Subdivision, Section XIV, Lot 86, Legends of Wildcat Creek Apartment Complex
development (the "Subdivision"), located in Howard 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, on July 26, 1999, IDEM issued a Notice of Violation via
Certified Mail to:
Susan L. Long, President and to: Bruce A. Gunstra, President
and Resident Agent and Resident Agent
L & G Properties, Inc. Bruce Gunstra Builders, Inc.
983 S. Creasy Lane 2150 Market Square
Lafayette, Indiana 47905 Lafayette, Indiana 47904
5. The Subdivision falls under the applicability requirements of 327 IAC 15-5-2 in that five
(5) or more acres of total land area are involved in construction activity. The construction
activity at this site is not covered by an NPDES permit under 327 IAC 15-2-6, but meets the
general permit rule applicability requirement under 327 IAC 15-2-3. The development is
therefore categorized as a point source discharge of stormwater and is required by 327 IAC 15-2-
5(c) to submit a Notice of Intent (NOI) letter.
6. 327 IAC 15-5-5 includes additional NOI letter requirements for storm water run-off
associated with construction activity, including the requirement that the NOI include written
certification that the erosion control measures included in the erosion control plan comply with
the requirements under section 7 and 9 of this rule and that the plan complies with applicable
state, county, or local erosion control requirements.
7. A NOI letter and an erosion control plan were submitted for the Subdivision in August of
1997. The NOI included a signature of the Operator, Bruce Gunstra, certifying, among other
things, that the erosion control measures would be implemented in accordance with the plan. On
October 14, 1997, IDEM issued a Notice of Sufficiency letter that included a copy of the NPDES
General Permit for Storm Water Runoff Associated with Construction Activity, and informed the
Respondents that they must comply with all of the requirements of this rule. The letter also
informed the Respondents that, in accordance with 327 IAC 15-5-10, the Respondents are
required to implement the Soil Erosion Control Plan, maintain the erosion control structures until
the project is complete, and amend the NOI as dates or other facts are altered.
8. 327 IAC 15-5-7(b) pertains to general conditions for construction activity erosion control
measures. It states, in substance, that the following requirements shall be met on all sites during
the period when active land disturbing activities occur:
(1) Sediment-laden water which otherwise would flow from the site shall be detained
by erosion control practices appropriate to minimize sedimentation in the
receiving stream. No storm water shall be discharged from the site in a manner
causing erosion in the receiving channel at the point of the discharge.
(2) Appropriate measures shall be taken by the operator to minimize or eliminate
wastes or unused building materials from being carried from a site by run-off.
(3) Sediment being tracked from a site onto public or private roadways shall be
minimized.
(4) Public or private roadways shall be kept clear of accumulated sediment. Bulk
clearing of accumulated sediment shall not include flushing the area with water.
Cleared sediment shall be returned to the point of likely origin or other suitable
location.
(5) All on-site storm drain inlets shall be protected against sedimentation with
barriers meeting acceptable design criteria, standards, and specification for that
purpose.
(6) The following items apply during the time construction activity is taking place:
(A) Storm water drainage from adjacent areas that naturally pass through the
site shall be controlled by diverting it around the disturbed area.
(B) Run-off from a disturbed area shall be controlled by one or more of the
measures required under this section.
(C) 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.
(D) All erosion control measures required to comply with this rule shall meet
the design criteria, standards, and specifications for erosion control
measures established by the IDEM in guidance documents. The erosion
control plan shall include, but is not limited to, a site map, a plan of final
site conditions and a site construction plan, all as detailed in 327 IAC 15-
5-7(d).
9. On-Site Evaluation for Erosion and Sediment Control reports for inspections conducted at
the Subdivision by IDNR staff and/or the SWCD staff on July, 8, 1998, July 15, 1998, July 23,
1998, August 5, 1998, August 14, 1998, August 24, 1998, September 4, 1998, November 10,
1998, December 18, 1998, March 30, 1999, April 30, 1999, and May 23, 1999, indicate the
Respondents have violated provisions of 327 IAC 15-5-7, as follows:
10 inspection reports noted that disturbed areas had not been satisfactorily protected
through seeding or other appropriate erosion and sediment control measures;
9 inspection reports noted that appropriate perimeter sediment control measures had not
been satisfactorily implemented;
8 inspection reports noted that the conveyance channels had not been satisfactorily
stabilized or protected with appropriate sediment control measures;
10 inspection reports noted that the erosion and sediment control measures were not
satisfactorily installed properly;
6 inspection reports noted that the storm drain inlets had not been adequately protected;
9 inspection reports noted that the existing erosion and sediment control measures were
not being satisfactorily maintained;
3 inspection reports noted that the public and private roadways were not being kept clear
of accumulated sediment or tracked soil;
2 inspection reports noted that the erosion and sediment control measures had not been
satisfactorily installed and maintained on individual building sites;
10 inspection reports noted that the site conditions presented a high potential for off-site
sedimentation; and
9 inspection reports noted that there was evidence of off-site sedimentation.
10. 327 IAC 15-5-10(b) provides that any person violating any of the provisions of this rule
shall be subject to enforcement and penalty under IC 13-15-7 (formerly IC 13-7-10-5), IC 13-
30-3 (formerly IC 13-7-11), IC 13-14-10 (formerly IC 13-7-12), 327 IAC 15-1-4, or any
combination thereof.
11. 327 IAC 15-5-10(c) states that 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.
12. An On-Site Evaluation for Erosion and Sediment Control report for an inspection
conducted at the Subdivision by IDNR staff and the SWCD staff on July 27, 1999, indicated that
disturbed areas had not been satisfactorily protected through seeding or other appropriate erosion
and sediment control measures, and that appropriate perimeter sediment control measures had
not been satisfactorily implemented. An inspection conducted on August 16, 1999, indicated that
appropriate perimeter sediment control measures had not been satisfactorily implemented and
that the erosion and sediment control measures were not satisfactorily installed properly. An
inspection conducted on September 8, 1999, indicated no areas of construction site management
for erosion and sediment control were evaluated as unsatisfactory.
13. In recognition of the settlement reached, Respondents waive any right to administrative
and judicial review of this Agreed Order.
2. The Respondents shall inspect the Subdivision on a bi-weekly basis and within a
reasonable time not more than three (3) days after significant rainfall events. The Respondents
shall also 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. These provisions shall remain in effect until the
Respondents submit 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).
3. Respondents are assessed a civil penalty of Six Thousand Seven Hundred Twenty Dollars
($6,720). 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.
4. 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 to inspect the Subdivision on a
bi-weekly basis and within a reasonable time not more than
three (3) days after significant 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.
5. 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.
6. 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
7. In the event that the civil penalty required by paragraph 3 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.
8. 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.
9. 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.
10. 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.
11. This Agreed Order shall remain in effect until Respondents have complied with the
requirements of paragraphs 2 and 3 of this Agreed Order.
TECHNICAL RECOMMENDATION: RESPONDENTS:
Department of Environmental Management L&G Properties, Inc.
By: _________________________ By: _________________________
Mark W. Stanifer, Section Chief Bruce A. Gunstra
Office of Enforcement President
Date: _______________ Date: _______________
Bruce Gunstra Builders, Inc.
By: _________________________
Bruce A. Gunstra
President
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 3/10/00_____________
Felicia A. Robinson
Assistant Commissioner of Enforcement
Converted by Andrew Scriven