STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	CASE NO. 2001-10358-S (IDEM)
					)	02-S-E-2853 (OEA)
HOLMES BROS., INC.,					)	02-S-E-2853 (OEA)
					)
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. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding, except in a proceeding to enforce this 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 Holmes Bros., Inc. ("Respondent"), which owns/operates a septic tank service business located at 2279 E. State Road 10, in Lake Village, Indiana ("Site").

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, on May 23, 2001, IDEM issued a Notice of Violation via Certified Mail to:

Howard Holmes	Harold Holmes
President	Registered Agent for
8400 W. State Rd 10	Holmes Bros., Inc.
DeMotte, IN 46310	11470 N. CR 600 E.
	DeMotte, IN 46310

5. The Notice of Violation set forth the following violations, which were in existence or observed at the time of an inspection of the Site conducted by a representative of IDEM's Office of Land Quality on February 14, 2001:

A. Pursuant to 327 IAC 7-7-1(a), no facilities for the storage of wastewater shall be constructed or installed without prior approval of the commissioner and compliance with this rule (327 IAC 7-7). Respondent installed and operated a wastewater storage facility, at the site, prior to receiving approval from the commissioner.

B. Pursuant to 329 IAC 10-4-2, no person shall cause or allow the storage, containment, processing, or disposal of solid waste in a manner which creates a threat to human health or the environment, including the creating of a fire hazard, vector attraction, air or water pollution, or other contamination. Respondent caused or allowed the open dumping of solid waste at the site.

C. Pursuant to 329 IAC 10-4-3, open dumping and open dumps, as those terms are defined in IC 13-11-2-146 and IC 13-11-2-147 are prohibited. Respondent caused or allowed the open dumping of solid waste at the site.

D. Pursuant to IC 13-30-2-1(1), no person may discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form which causes or would cause pollution which violates or which would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws. Respondent caused or allowed the deposition of septic sludge into the environment, which causes or would cause pollution which violates or which would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

E. Pursuant to 327 IAC 7-5-3(a), wastewater disposal may be by discharge into a treatment facility or process specifically designed for the treatment of wastewater. No such treatment facility or process shall be constructed or installed without the prior written approval of the commissioner. Respondent installed a process specifically designed for the treatment of wastewater without receiving approval from the commissioner.

6. The Notice of Violation included an offer to enter into an Agreed Order containing actions required to correct the violations. The Respondent declined to enter into an Agreed Order. On January 28, 2002, more than sixty (60) days after IDEM had provided the Respondent with an opportunity to enter into an Agreed Order, IDEM issued to the Respondent, a Notice and Order of the Commissioner.

7. n February 19, 2002, the Respondent filed, with the Indiana Office of Environmental Adjudication ("OEA"), a Petition for Administrative Review of the Notice and Order of the Commissioner. OEA designated the Respondent's appeal of the Notice and Order of the Commissioner as Cause No. 02-S-E-2853.

8. August 13, 2001, IDEM issued to the Respondent a denial of the Respondent's application for renewal of its Wastewater Management Business Permit. On August 14, 2001, IDEM issued to the Respondent the following: a denial of the Respondent's application for a Specific Wastewater Treatment Process Approval; a revocation of approval GS-4490 for the Respondent's eight (8) 1,000 gallon wastewater storage tanks; and a revocation of approval for the Respondent's 86,000 gallon wastewater storage tank. The denials and revocations required, in part, that the Respondent cease all wastewater management activities, cease all specific wastewater treatment process activities, remove and dispose of all liquid wastewater and wastewater sludge, and render all storage facilities unusable.

9. On August 28, 2001, the Respondent filed, with OEA, a Petition for Administrative Review of the denials and revocations listed in Finding of Fact Paragraph No. 8 above. OEA designated the Respondent's appeal of the denials and revocations listed in Findings of Fact Paragraph 8 above as Cause No. 01-W-J-2781.

10. The Respondent is currently operating under the "Order Concerning Hauling and Disposal of Waste by Holmes Brothers, Inc." and the "Order Concerning Wastewater Management Operations of Holmes Brothers, Inc.," approved by OEA Administrative Law Judge Wayne E. Penrod on November 21, 2001, and December 7, 2001, respectively.

11. 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 his delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Within seven (7) days of the Effective Date of this Agreed Order, the Respondent shall withdraw with prejudice its Petition for Administrative Review of the Notice and Order of the Commissioner of IDEM, Cause No. 02-S-E-2853.

3. The Respondent shall withdraw with prejudice its Petition for Administrative Review, Cause No. 01-W-J-2781, within seven (7) days of the date that IDEM issues to the Respondent the following:

a. a wastewater management permit; and

b. vehicle licenses for the Responden'ts 1988 Frieghtliner truck and 1993 Kenworth truck.

IDEM anticipates being able to issue Respondent the wastewater management permit and vehicle licenses within two (2) weeks of the Effective Date of this Agreed Order.

4. The Respondent shall not construct, install or operate wastewater storage structures without prior approval of the commissioner and in compliance with rule 327 IAC 7.1.

5. The Respondent shall not construct, install or operate a treatment facility or process specifically designed for the treatment of wastewater without prior approval of the commissioner.

6. Effective immediately, the Respondent shall not land apply any septic sludge or other septic waste.

7. Effective immediately, the Respondent shall cease and desist operation of its sludge dewatering and drying process.

8. Effective immediately, the Respondent shall not cause or allow any septic waste to be added to the eight (8), one thousand (1,000) gallon wastewater storage tanks.

9. Within thirty (30) days of the Effective Date of this Agreed Order, the Respondent shall pump out and properly dispose of any septic waste contained in the eight (8), one thousand (1,000) gallon wastewater storage tanks, and shall submit documentation of the removal and proper disposal to IDEM.

10. Within ninety (90) days of the Effective Date of this Agreed Order, the Respondent shall dismantle, remove, and properly dispose of the eight (8), one thousand (1,000) gallon wastewater storage tanks, including the distribution boxes, and shall submit documentation of the dismantling, removal, and proper disposal to IDEM. The Respondent shall notify IDEM, in writing, a minimum of thirty (30) days prior to removal of the aforementioned wastewater storage tanks.

11. Within thirty (30) days of the Effective Date of this Agreed Order, the Respondent shall prepare and file with the Recorder of Jasper County, a valid and effective Deed Notice for the property located at the Southeast Quarter of Section 11, Township 31 North, Range 7 West, Jasper County, Indiana, which contains the septic wastewater special disposal leach field that was used in conjunction with the eight (8) one thousand (1,000) gallon wastewater storage tanks referred to above in Paragraph No. 10. The exact language Respondent shall include in the Deed Notice is located in Attachment A, which is incorporated herein by reference. In addition, Respondent shall comply with all requirements of the Indiana Responsible Party Transfer Law at IC 13-25-3.

12. The Respondent shall not cause or allow any septic or other waste to be added to the 86,000 gallon wastewater storage tank.

13. By December 28, 2005, the Respondent shall clean out and completely remove and properly dispose of all sludge, septic waste, and other contents of the 86,000 gallon wastewater storage tank and appurtenances. Respondent shall provide all receipts of disposal to IDEM by this date.

14. By January 31, 2006, Respondent shall permanently close the 86,000 gallon wastewater storage tank by one of the following means:

a. Completely filling the tank with clean soil to the extent that the clean soil is mounded to allow for settling and to divert surface waters. To the extent possible, the areas of exposed clean soil shall be vegetated and maintained to prevent erosion; or

b. Demolishing the tank in-place and covering the entire area with a minimum of two (2) feet of clean soil that is mounded to allow for settling and properly graded to divert surface waters. In addition, the entire area of exposed clean soil shall be vegetated and maintained to prevent erosion.

Respondent shall notify IDEM, in writing, a minimum of twenty (20) days prior to beginning closure activities on the 86,000 gallon wastewater storage tank.

15. Respondent shall notify IDEM within thirty (30) days of completing the waste water storage tank closure as required by Paragraph No. 14 above.

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

Craig Henry, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

Office of Enforcement - Mail Code 60-02

100 N. Senate Avenue

Indianapolis, IN 46204-2251

17. Respondent is assessed a civil penalty of Seven Thousand One Hundred Seventy-Five ($7,175.00) Dollars. Said penalty amount shall be due and payable to the Environmental Management Special Fund in five (5) quarterly payments of One Thousand Four Hundred Thirty-Five ($1,435.00) Dollars. The first payment shall be due on January 1, 2006 and each subsequent payment shall be due every ninety (90) days thereafter, until the penalty is paid in full.

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

Violation	Penalty
Failure to comply with Order Paragraph 2	$500 per week late
Failure to comply with Order Paragraph 3	$500 per week late
Failure to comply with Order Paragraph 9	$1,000 per week late
Failure to comply with Order Paragraph 10	$1,000 per week late
Failure to comply with Order Paragraph 11	$1,000 per week late
Failure to comply with Order Paragraph 12	$1,000 per week late
Failure to comply with Order Paragraph 13	$1,000 per week late
Failure to comply with Order Paragraph 14	$1,000 per week late
Failure to comply with Order Paragraph 15	$1,000 per week late

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

20. Civil 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:

Indiana Department of Environmental Management

Cashier's Office Mail Code 50-10C

100 N. Senate Avenue

Indianapolis, IN 46204

21. In the event that the civil penalty required by Paragraph No. 17, is not paid within the time frames specified in Paragraph No. 17, 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.

22. This Agreed Order shall supercede any term or condition contained in OEA's "Order Concerning Hauling and Disposal of Waste by Holmes Brothers, Inc."and/or "Order Concerning Wastewater Management Operations of Holmes Brothers, Inc." that may be in conflict with any term or condition of this Agreed Order.

23. 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.

24. 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.

25. Notwithstanding any other provision of this Agreed Order, the Complainant reserves, and this Agreed Order is without prejudice to, the right to institute proceedings for injunctive relief, costs, civil penalty and/or remediation of environmental contamination that is discovered after the entry into the Agreed Order.

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

27. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order.

TECHNICAL RECOMMENDATION:			RESPONDENT:
Department of Environmental Management			Holmes Bros., Inc.
By:_________________________			By:_________________________
	Paul Higginbotham, Chief
	Solid Waste/UST Section		Printed: ______________________
Office of Enforcement
			Title: ________________________
Date:__________________			Date: ________________________
COUNSEL FOR COMPLAINANT:			COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:______________			By: ________________________
	Office of Legal Counsel
	Department of Environmental Management
Date:_______________________			Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF		, 200	.
			For The Commissioner:
Adopted November 28, 2005			Adopted November 28, 2005
Bruce Palin			Matthew T. Klein
Assistant Commissioner for			Assistant Commissioner
Office of Land Quality			of Compliance and Enforcement

ATTACHMENT A

Deed Record 245, Page 72

Recorded May 10, 2001

DEED NOTICE FOR PROPERTY USED AS A

COMMERICAL SEPTIC TANK SYSTEM FROM 1987 THROUGH 2003

Leachfield is a parcel of land in the Southeast One-Quarter of Section 11, Township 31 North, Range 7 West of the Second Principal Meridian, Jasper County, Indiana, being more particularly described as follows: Commencing at the Southwest corner of the Southeast One-Quarter of said Section 11; thence North 90°00'00" East along said South line (assumed Basis of Bearings), a distance of 778 feet; thence North 00°00'00" West, a distance of 295 feet to the Point of Beginning, thence North 84°30'00" West, a distance of 157 feet; thence North 05°30'00" East, a distance of 95 feet; thence South 84°30'00" East, a distance of 157 feet; thence South 05°30'00" West, a distance of 195 feet to the Point of Beginning. Containing 0.34 Acres, more or less.

Leachfield was used from 1987 through 2003 as a State Board of Health Approved, Approval Number GS-4490, Commercial Type Wastewater Treatment System for Wastewater (Septage) from Residential Septic Tanks. The eight 1,000 gallon tanks have been removed but sampling and analysis has not been performed to determine if contamination exists in the soil and/or groundwater in and around the estimated 5,400 square foot absorption field.