STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT
                )    SS:    OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT            )
OF ENVIRONMENTAL MANAGEMENT,            )
                                    )
        Complainant,                    )
                                    )
            v.                        )    CAUSE NO. B-1654
                                    )
TOWN OF MT. ETNA,                        )
                                    )
        Respondent.                        )

2.    Respondent is the Town of Mt. Etna (hereinafter referred to as "Respondent"), which is currently unsewered but is constructing municipal wastewater treatment facilities in Huntington County, Indiana. The Respondent was issued NPDES Permit No. IN 0058963 (the "Permit"), on April 30, 1997, which, upon completion of the wastewater treatment facilities, will authorize the Respondent to discharge to receiving waters named the Salamonie River in accordance with effluent limitations, monitoring requirements, and other conditions set forth in the Permit.

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

4.    Pursuant to IC 13-7-11 (currently IC 13-30-3-3), on June 16, 1994, IDEM issued a Notice of Violation via Certified Mail to:

            Mr. Raymond New, President
            Town Council of Mr. Etna
            5930 South 588 West
            Huntington, IN 46750

5.    IC 13-1-3-8 (currently IC 13-18-4-5) states, in substance, that it is unlawful for any person to throw, run, drain, or otherwise dispose into any waters of the state, or to cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters, any organic or inorganic matter that shall cause or contribute to a polluted condition of any waters; and that shall be deleterious to the public health.

6.    IC 13-7-4-1 (currently IC 13-30-2-1) states, in part, that 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 would violate rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant to this article.

7.    327 IAC 2-1-6(a)(1) states, in substance, that all waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil or scum attributable to municipal, industrial, agricultural, and other land use practices or other discharges:

    a.    that will settle to form putrescent or otherwise objectionable deposits;

    b.    that are in amounts sufficient to be unsightly or deleterious;

    c.    that produce color, odor or other conditions in such degree as to create a nuisance;

    d.    which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

    e.    which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses."

8.    327 IAC 5-2-2 states, in substance, that any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

9.    Investigations by IDEM determined that the Respondent has discharged raw sewage through the Respondent's drainage system (storm sewers), in violation of IC 13-1-3-8, IC 13-7-4- 1, 327 IAC 5-2-2, and 327 IAC 2-1-6.

10.    The Respondent has no type of wastewater treatment, except for septic tanks. As stated by the Huntington County Department of Health ("the County") in correspondence dated November 2, 1993, there are only a few properly working systems in town, with the majority being failed ones, and which are hooked into the drainage system. All such discharges then go to the Salamonie River. The above referenced septic systems that discharge directly into the Respondent's drainage system caused a polluted condition of the environment, which is in violation of IC 13-1-3-8, IC 13-7-4-1, 327 IAC 5-2-2, and 327 IAC 2-1-6.

11.    Samples and photographs taken at four discharge points by the County on June 16, July 21, August 4, and 12, September 8 and 29, 1993, revealed levels of Biochemical Oxygen Demand (BOD5), Total Suspended Solids (TSS), and Escherichia coli (E. coli), far above the minimum water quality standards. E. coli samples at most sites revealed values from 2,500/100 ml to 1,900,000/100 ml. These values exceed the maximum value of 248/100 ml allowed by the water quality standards. This is in violation of IC 13-1-3-8, IC 13-7-4-1, 327 IAC 5-2-2, and 327 IAC 2-1-6.

12.    Dye testing performed at the fire station/town board building on September 29, 1993 by the County, revealed that the Town Hall's toilet was discharging directly into the Salamonie River, causing a polluted condition of the environment, in violation of IC 13-1-3-8, IC 13-7-4-1, 327 IAC 5-2-2, and 327 IAC 2-1-6.

13.    An application for a construction permit for wastewater collection and treatment facilities was submitted by the Respondent on October 11, 1996, with additional information submitted on November 21, 1996, and December 2, 12, and 19, 1996.

14.    A final NPDES Permit, No. IN 0058963, was issued by IDEM to the Respondent on April 30, 1997.

15.    As of July 31, 1998, the Respondent had substantially completed construction of the sewage collection system and was to begin construction of the sewage treatment plant in August of 1998.

16.    In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

2.    On or before October 31, 1998, the Respondent will substantially complete construction and initiate operations of the wastewater treatment plant.

3.    On or before December 31, 1998, the Respondent will use its best efforts to assure that all sewer laterals are connected into the sewage collection system.

4.     Upon initiation of operations of the wastewater treatment plant and connection of all laterals into the sewage collection system, the Respondent shall be under a performance period during which it shall maintain its monthly average concentration for CBOD₅ and Total Suspended Solids (TSS) effluent limits contained in its NPDES permit. The performance period will last until the Respondent demonstrates six (6) consecutive months compliance with the monthly average limits contained in its NPDES permit, or one (1) year, whichever comes first, and IDEM issues a letter of completion of the performance period. Should Respondent fail to demonstrate six (6) consecutive months of compliance with monthly average CBOD₅ and TSS concentration limits within one (1) year, then IDEM, at its discretion, may initiate an additional enforcement action for continuing violations.

5.     Within 10 days of completion of each requirement contained in paragraphs 2, 3, and 4, of this Order, the Respondent shall submit written notice of completion of the requirement to IDEM with reference to the specific requirement completed, the date of completion, and the cause number of this Agreed Order.

6.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
                Terry A. Ressler, Case Manager
                Water Enforcement Section
                Office of Enforcement, 1315 IGCN
                Indiana Department of Environmental Management
                100 N. Senate Avenue
                P. O. Box 6015
                Indianapolis, IN 46206-6015

7.    In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

         Violation                        Penalty
    
        Paragraph 2:        $200 per week for failure to substantially complete construction and initiate operations of the wastewater treatment plant on or before October 31, 1998.

        Paragraph 3:        $200 per week for failure assure that all sewer laterals are connected into the sewage collection system on or before December 31, 1998.

        Paragraph 4:        $200 per week for failure to submit written notice of completion of any requirement to IDEM within 10 days of completion of each requirement contained in paragraphs 2, 3, and 4, of this Order.

8.    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.

9.    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

10.    This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, 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.

11.    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.

12.    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.

13.    This Agreed Order shall remain in effect until Respondent has completed the requirements of paragraphs 2 through 5 of this Agreed Order and IDEM issues a Resolution of Cause letter to Respondent.

By:     _________________________        By:     _________________________
    Mark W. Stanifer, Section Chief
    Office of Enforcement            Printed: ________________________

                            Title:     ________________________

Date: _______________                Date:     _______________

COUNSEL FOR COMPLAINANT:        COUNSEL FOR RESPONDENT:
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 ____________________, 1998.

                            For the Commissioner:

                            __Signed 11/16/98_______
                            Felicia Robinson George
                            Assistant Commissioner of Enforcement