STATE OF INDIANA

STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

vs. ) Case No. 2001-10509(a)-W

)

DELAWARE COUNTY REGIONAL )

WASTEWATER DISTRICT, )

)

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 (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is the Delaware County Regional Wastewater District ("Respondent"), which was issued a construction permit, approval number L-0062R (the "construction permit") for the Royerton Area Sanitary Sewer Project (the "project"), located in Hamilton Township of Delaware County, Indiana (the "Site"). Chaffee and Associates, Inc. served as the consulting engineer for the project. Midwest Contractors of Michigan, Inc. served as the original general contractor for the project. Ralph W. Swank, Jr. d/b/a Statewide Insurance Company, and Statewide Insurance Company, served as the surety for Midwest Contractors of Michigan, Inc., and became the general contractor for the project subsequent to the Delaware County Regional Wastewater District terminating its construction contracts with Midwest Contractors of Michigan, Inc., effective on or about March 7, 2001.

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

4. Pursuant to IC 13-30-3-3, on October 22, 2001, IDEM issued a Notice of Violation via Certified Mail to:

Joe Evans, Chairman Kevin R. Chaffee, President and

Board of Trustees Registered Agent

Delaware County Regional Chaffee and Associates, Inc.

Wastewater District 204 South St.

100 West Main Street Batesville, Indiana 47006

Muncie, Indiana 47035

Todd LaCosse, President C.T. Corporation, Registered Agent

Midwest Contractors of Michigan, Inc. Midwest Contractors of Michigan, Inc.

4299 Aztec Way 36 S. Pennsylvania Street

Okemos, Michigan 48864 Suite 700

Indianapolis, Indiana 46204

and on January 16, 2003, IDEM issued a Notice of Violation via Certified Mail to:

Ralph W. Swank, Jr., d/b/a Ralph W. Swank, Jr., President

Statewide Insurance Company Statewide Insurance Company

P.O. Box 799 60079 0799 P.O. Box 799 60079 0799

329 North Genesee St. 329 North Genesee St.

Waukegan, Illinois 60085-4205 Waukegan, Illinois 60085-4205

Locke Reynolds, LLP, Registered Agent

Statewide Insurance Company

201 North Illinois St.

Suite 1000

Indianapolis, Indiana 46244

5. This Agreed Order resolves the violations set forth in the October 22, 2001 Notice of Violation solely with respect to the Delaware County Regional Wastewater District. This Agreed Order does not resolve the violations set forth in the October 22, 2001 Notice of Violation with respect to Midwest Contractors of Michigan, Inc. or Chaffee and Associates, Inc., nor does this Agreed Order resolve the violations set forth in the January 16, 2003 Notice of Violation issued to Ralph W. Swank, Jr., and Statewide Insurance Company.

6. An investigation by IDEM of the project revealed the following violations:

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 or sanitary sewer, without a valid construction permit issued by the commissioner.

Pursuant to the construction permit, the Respondent is authorized to construct the water pollution treatment/control facilities described therein, in accordance with the terms and conditions set forth in the construction permit, the accompanying approved plans and specifications, and 327 IAC 3.

Pursuant to Part II.1 of the construction permit, no significant or material changes in the scope of the plans or construction of the project shall be made unless the following provisions are met:

a. A request for permit modifications is made 60 days in advance of the proposed significant or material changes in the scope of the plans or construction;

b. A detailed statement of such proposed changes is submitted;

c. Revised plans and specifications, including a revised design summary;

d. A revised construction permit is obtained from IDEM.

IDEM investigations of the project included: site visits on April 3, May 23, and May 24, 2001; a review of the "Manhole Inspection File & Photo Log" submitted by the Respondent to IDEM in May 2001; and a review of the "as-built" plans and the "Post-Construction Inspection Report" prepared by Commonwealth Engineers, Inc., and submitted to IDEM on August 1, 2001. The IDEM investigations revealed failures to construct in accordance with the approved plans and specifications and provisions of 327 IAC 3, in violation of the construction permit and 327 IAC 3. The failures include, but are not necessarily limited to the following:

A failure to comply with Part 1.11, Section 01500 of the approved specifications, which states that excavations will be maintained free of water, and pumping equipment will be provided, operated, and maintained to maintain stability against uplift during construction.

A failure to comply with 327 IAC 3-6-20, which states that all water entering a sanitary sewer project excavation, prior to construction completion, shall be removed.

A failure to comply with Part 2.01 and Part 2.02, Section 02640 of the approved specifications and 327 IAC 3-6-16, which contain technical standards for the manhole sections, the lid and frame, the connections, and the grade rings.

A failure to comply with Part 3.04 (C), Section 02535 of the approved specifications and 327 IAC 3-6-5(b), which require, in part, all drinking water wells to be located prior to sewer main installation.

A failure to comply with Part 3.04(C), Section 02535 of the approved specifications, which requires that a minimum 10 feet (50 feet if practical) separation distance shall be maintained between private wells and pressure sewer mains and pressure sewer laterals, and further requires that a minimum separation of 50 feet shall be maintained between private wells and gravity sewer mains unless pressure sewer grade pipe is used and pressure tested in accordance with this section.

A failure to comply with Part 2.01 and Part 3.03 of Section 02316, and Part 2.01 of Section 02240 of the approved specifications, Page D, 1 of the approved plan sheets, and 327 IAC 3-6-18, which contain the specifications for sewer pipe initial backfill and subsoil backfill.

A failure to comply with 327 IAC 3-6-12, which contains the slope requirements for gravity sewers.

In addition, investigations by IDEM have indicated that significant and material changes in the scope of the plans or construction of the Royerton Area Sanitary Sewer Project have occurred during construction. These changes to the project were made without submittal of a request for permit modification, without submittal of a detailed statement of such proposed changes, without submittal of revised plans and specifications, and without obtaining a revised construction permit from IDEM, in violation of Part II.1 of the construction permit and 327 IAC 3-2-1.

7. On December 17, 2001, the Respondent submitted revised plans and specifications to IDEM for review, with additional information submitted on December 26, 2001, January 31, 2002, February 5, 2002, and February 8, 2002.

8. On February 22, 2002, IDEM issued a revised construction permit (Approval No. L-0062RR) (the "revised construction permit") to the Respondent, which applies to the construction of the proposed sanitary sewer system to be located at the Site. The Respondent has initiated construction pursuant to the revised construction permit.

9. In recognition of the settlement reached, the 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. The Respondent shall complete construction pursuant to the revised construction permit within one year of the Effective Date.

3. The Respondent shall comply with the terms and conditions of the revised construction Permit, the accompanying approved plans and specifications, and the applicable provisions of 327 IAC 3.

4. The Respondent shall, within 45 days of completion of the construction required pursuant to Paragraphs 2 and 3 above, conduct the tests specified in the construction permit, 327 IAC 3-6-19, and 327 IAC 3-6-16.

5. The Respondent shall conduct the tests required pursuant to Paragraph 4 above or the retest(s) required pursuant to Paragraph 8 below in accordance with the requirements of 327 IAC 3-6-19 and 327 IAC 3-6-16.

6. The Respondent shall provide IDEM, at least 15 days prior to conducting the test(s) required pursuant to Paragraph 4 above or the retest(s) required to Paragraph 8 below, with written notification of the date(s) and time(s) that the test(s) or retest(s) will be conducted.

7. The Respondent shall submit to IDEM, for review, written results of the tests required pursuant to Paragraph 4 above or the retest(s) required pursuant to Paragraph 8 below, within 10 days of completion of each test or retest.

8. In the event that IDEM determines that results of any of the tests or the retests submitted pursuant to Paragraph 7 above, are unsatisfactory, the Respondent shall, within 15 days of receiving notification from IDEM, make all necessary repairs and shall, within 45 days of receiving notification from IDEM, conduct a retest the sanitary sewer lines.

9. In the event that the Respondent is required to retest pursuant to Paragraph 8 above, the Respondent shall comply with the requirements and timeframes contained in Paragraphs 4, 5, 6, 7 and 8 above, and shall be subject to the stipulated penalties associated with those Paragraphs for the failure to comply.

10. The Respondent shall comply with Section 2.02(b) of the "Amended and Restated Financial Assistance Agreement," dated February 24, 2003, and shall provide to IDEM such information as may be reasonably necessary to demonstrate such compliance.

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

Don Worley, Senior Environmental Manager

Facility Construction Section, Office of Water Quality

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

12. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Delaware County Regional Wastewater District shall pay a stipulated penalty in the following amount:

Paragraph Violation Penalty

Order Paragraph 2	Failure to complete construction in the timeframe required	$500 per day late
Order Paragraph 3	Failure to conduct construction as required	$5000 per violation
Order Paragraph 4	Failure to conduct the tests in the timeframe required	$500 per day late
Order Paragraph 5	Failure to conduct the tests or retest(s) as required	$5000 per test
Order Paragraph 6	Failure to provide required written notification to IDEM in the timeframe required	$500 per test
Order Paragraph 7	Failure to submit written test or retest results in the timeframe required	$500 per day late
Order Paragraph 8	Failure to make necessary repairs within the timeframe required	$500 per day late
Order Paragraph 9	Failure to conduct the retest(s) within the timeframe required	$500 per day late

13. 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.

14. 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

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

15. 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.

16. 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.

17. 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.

18. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of paragraphs 2 through 14 of this Agreed Order and a close out letter has been issued by IDEM.

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TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management Delaware County Regional Wastewater District

By: _________________________ By: _________________________

Mark W. Stanifer Printed: ______________________

Chief, Water Enforcement Section

Office of Enforcement Title: ________________________

Date: ________________________ Date: ________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Hala K. Silvey

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:

__Signed 11/13/03_________________________

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs