Complainant, )

Respondent. )

5. Inspections and records reviews were conducted by representatives of IDEM's Office of Water Quality and Office of Enforcement. The following violations were in existence or observed at the time of these inspections and records reviews:

6. On December 28, 1999, IDEM inspected the Respondent's WWTP. The following items were rated as "Unsatisfactory":

7. On February 7, 2000, IDEM issued a Warning of Noncompliance ("WONC") to the Respondent citing various violations between January 1998 and September 1999 of the Dissolved Oxygen, pH, TSS, Ammonia Nitrogen, and CBOD₅ final effluent limitations contained in the Respondent's NPDES Permit.

8. On February 25, 2000, the Respondent replied to IDEM's February 7, 2000, WONC via its legal counsel, Ice Miller. The letter confirmed an earlier telephone conversation and stated that the Respondent was in the process of having its waste handling process analyzed and evaluated for possible modifications and improvements.

9. On March 20, 2000, IDEM inspected the Respondent's WWTP. The effluent was rated as "Unsatisfactory" due to its light green color and the presence of foaming.

10. On August 3, 2000, IDEM inspected the Respondent's WWTP. The following items were rated as "Unsatisfactory":

11. On August 17, 2000, IDEM sent to the Respondent a follow-up letter to the February 7, 2000, WONC, stating that the facility was still not in compliance with its NPDES Permit and that plans for improvements and a schedule of implementation had not yet been received by IDEM.

12. On September 8, 2000, the Respondent submitted to IDEM via the Respondent's legal counsel, Ice Miller, a progress report regarding the Respondent's efforts to find a solution to the problems experienced by the Respondent's WWTP.

13. On September 19, 2000, IDEM inspected the Respondent's WWTP. The following items were rated as "Unsatisfactory":

14. On April 9, 2001, IDEM received a complaint from the Town of Austin's Utility Department that the water in Stink Ditch was black and contained sewage sludge near the Respondent's facility.

15. On April 10, 2001, the Respondent notified IDEM's Spill Hotline of a discharge of sewage from the Respondent's facility into Stink Ditch. IDEM staff, along with Indiana Department of Natural Resources ("IDNR") conservation officers, responded by visiting the Site. A blackish material was observed to be flowing out of an outfall previously used by the Respondent. IDEM staff requested that the Respondent build a dike to contain the discharge and pump it back into the Respondent's WWTP. The Respondent agreed to do so. IDEM also collected water samples from various locations in Stink Ditch to be sent to a laboratory for analysis of CBOD₅, TSS, Ammonia Nitrogen, and oil and grease levels.

16. On April 11, 2001, the Respondent determined that a sanitary sewer line that transported the sanitary waste from the Respondent's facility to the Town of Austin sanitary sewer collection system had broken. The break occurred in a storm sewer manhole through which the sanitary sewer line crossed. The contents of the sanitary sewer then flowed through the storm water sewer line to the outfall that emptied into Stink Ditch.

17. On May 10, 2001, IDEM inspected the Respondent's WWTP. The following items were rated as "Unsatisfactory":

18. In August 2001, the Respondent broke ground for the construction of a new activated sludge WWTP to replace the existing plant.

19. In March 2002, the Respondent's new activated sludge WWTP was put into operation.

20. During Summer 2003, the Respondent initiated action to staff the new WWTP on a 24-hour basis during the production week and, with assistance from PROCORP, Inc., the firm that had designed and built the new WWTP, instituted an aggressive training and testing program to ensure that all WWTP staff possessed the knowledge and ability to successfully operate the plant. In addition, the Respondent authorized PROCORP, Inc., to manage the WWTP until the new staff had been hired and trained, and to assist in developing administrative and operational procedures to improve plant operations and minimize plant disruptions.

21. Since the Respondent's new WWTP was put into operation, the WWTP has experienced several operational disruptions, mostly related to the diverse product lines the Respondent's facility processes. In addition to causing or contributing to the numeric effluent violations that have occurred since the new WWTP was put into operation, these operational disruptions have caused several overflows at various points in the system. Although none of these overflows have met the regulatory definition of a spill pursuant to 327 IAC 2-6.1, nor have any of these overflows entered waters of the state or threatened to enter waters of the state, the Respondent has reported all such overflows to IDEM as a precautionary measure.

22. Based on a review of DMRs and MMRs submitted by the Respondent for June 2002, the first month following the paperwork review period included in the NOV, through July 2003, the Respondent's WWTP has experienced the following violations of the numeric effluent limitations contained in its NPDES Permit:

This represents a 65% reduction in numeric effluent violations since the period of operation reviewed and cited for numeric effluent violations in the NOV.

23. Based on a review of DMRs and MMRs submitted by the Respondent for June 2002, the first month following the paperwork review period included in the NOV, through July 2003, the Respondent has failed to comply with a monitoring and/or reporting requirement on one occasion. Specifically the Respondent failed to collect at least one monthly grab sample for Oil and Grease during July 2003.

24. In recognition of the settlement reached, the Respondent waives any right to administrative and judicial review of this Agreed 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. The Respondent shall comply with all applicable provisions of the IC, the IAC, and any applicable permit, including, but not limited to, 327 IAC 2-1-6(a), 327 IAC 5-2-8(1), 327 IAC 5-2-8(9), 327 IAC 5-2-13, 327 IAC 5-2-15(a), IC 13-18-4-5, IC 13-30-2-1(1), and NPDES Permit Number IN0021911.

3. The Respondent shall, within 18 months of the Effective Date of this Agreed Order ("Performance Period"), demonstrate 12 consecutive months of compliance ("Compliance Demonstration") with the numeric effluent limitations contained in the Respondent's NPDES Permit. During the Performance Period, the Respondent shall be subject to stipulated penalties, as specified below, for violations of any numeric effluent limitations contained in the NPDES Permit. In the event that Respondent fails to make the Compliance Demonstration, Respondent shall, within 60 days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, an Action Plan which identifies the additional actions that Respondent will take to achieve and maintain compliance with the effluent limitations contained in its NPDES Permit. The Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

4. The Action Plan required by Section II, Paragraph 4, is subject to IDEM approval. If IDEM deems the Action Plan inadequate, a revised Action Plan shall be submitted within fifteen days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised Action Plan, IDEM still finds the plan to be inadequate, then IDEM will request further modification of the Action Plan as necessary to meet IDEM’s requirements, and require re-submittal of the Action Plan by a specific date. If the subsequently submitted second revised Action Plan does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the Action Plan and require re-submittal by a specific date. If, by the specified date, the Respondent does not incorporate the IDEM-suggested modifications into the third revised Action Plan or submit an alternative adequate Action Plan, as determined by IDEM, the IDEM-suggested modifications will be deemed incorporated into the Action Plan.

5. The Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved Action Plan and adhere to the milestone dates therein. The approved Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. Failure to achieve compliance at the conclusion of work under an Action Plan will subject Respondent to additional enforcement action.

6. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Susan Baker, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, IN 46206-6015

7. "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite the Respondent’s best efforts to fulfill the obligation. The requirement that the Respondent exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.

The Respondent shall notify IDEM by calling the case manager within three calendar days and by writing no later than seven calendar days after it has knowledge of any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting its claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude the Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM.

If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is directly attributable to the event constituting the force majeure.

8. The Respondent is assessed a civil penalty of Sixty-Seven Thousand, Eight Hundred Seventy-Five Dollars ($67,875). 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.

9. In the event the terms and conditions of the following Order paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

10. Stipulated penalties shall be due and payable within 30 days after the 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 the Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

11. Civil and stipulated penalties are 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

12. In the event that the civil penalty required by Section II, Paragraph 8, is not paid within 30 days of the Effective Date of this Agreed Order, the 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.

13. 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.

14. 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.

15. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

16. This Agreed Order is not and shall not be interpreted to be a Permit, or a modification of an existing Permit, nor shall it in any way relieve the Respondent of its obligation to comply with the requirements of any Permit or with any other applicable federal or state law or regulation.

17. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, its NPDES Permit, or state law.

18. The Respondent may request, in writing, at such time as the Respondent has complied with Section II, Paragraphs 2 through 12, of this Agreed Order, that IDEM issue a Close-Out letter. IDEM shall not unreasonably withhold said Close-Out letter.

19. This Agreed Order shall remain in effect until the Respondent has complied with Section II, Paragraphs 2 through 12, of this Agreed Order and IDEM has issued a Close-Out letter to the Respondent.