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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-1949
                            )
                            )
ALLEN CORPORATION,                 )
d/b/a MEMPHIS TRAVEL PLAZA        )
        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 (hereinafter referred to as "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 Allen Corporation (hereinafter referred to as "Respondent"), which owns and operates Memphis Travel Plaza located at 13615 Blue Lick Road, in Clark County, Memphis, Indiana. The Facility operates its own wastewater treatment plant (WWTP) under NPDES Permit No. 0053961.

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 September 16, 1996, IDEM issued a Notice of Violation (NOV) via Certified Mail to:            
                    
                    Mr. David L. Allen, President
                    Allen Corporation / Memphis Travel Plaza
                    565 Fulton St.
                    Sellersburg, Indiana 47172
                    
5.    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.

6.    IC 13-7-4-1 (now IC 13-30-2-1) requires, in substance, 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 rules, standards, or discharge of emission requirements adopted by the appropriate board pursuant to this article.

7.    327 IAC 5-2-8, states in substance, that the following conditions apply to all NPDES permits and shall be incorporated into the permits either expressly or by reference:

    1.    A permittee shall comply with all terms and conditions of its NPDES permit; any permittee non-compliance constitutes a violation of the Clean Water Act (CWA) and the Environmental Management Act (EMA) and is grounds for enforcement action;

    2.    the permittee shall take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with the permit;

    3.    the permittee shall at all times maintain in good working order and efficiently operate all facilities and systems (and related appurtenances) for collection and
        treatment which are necessary for achieving compliance with the terms and conditions of the permit;

    4.    the permittee shall comply with monitoring, recording, and reporting requirements established in accordance with 327 IAC 5-2-13, 327 IAC 5-2-14, and 327 IAC 5- 2-15.

8.    On January 9, 1995, April 13, 1995, and April 25, 1996, IDEM representatives conducted inspections of the WWTP at Memphis Travel Plaza. During these inspections it was noted that sludge had been discharged from the WWTP to an unnamed ditch that connects to Silver Creek, in violation of the Permit, 327 IAC 2-1-6 and IC 13-7-4-1
    (now IC 13-30-2-1).     

9.    On January 9, 1995, IDEM representatives conducted an inspection of the WWTP and noted the following violations of the Permit and 327 IAC 5-2-8:

    a)    the high level flow alarm at the lift station was not in operation,

    b)     solids were bulking over the weir in the secondary clarifier,

    c)    wastewater from the treatment plant was being bypassed around the polishing ponds to the creek, and

    d)    sludge was found in the chlorine contact tank.

10.    On April 13, 1995, IDEM representatives conducted an inspection of the WWTP and noted the following violations of the Permit and 327 IAC 5-2-8:

    a)    The pond was full of sludge,

    b)    Return activated sludge was too thin in the aeration tank.

    c)    Sludge was going over the weir in the secondary clarifier.

11.    On December 18, 1995, IDEM representatives conducted an inspection of the WWTP and discovered that the mixed liquor in the aeration tank was too thin, and the secondary clarifiers had heavy straggler floc, in violation of the Permit and 327 IAC 5-2-8.


12.    On April 25, 1996, IDEM representatives conducted an inspection of the WWTP and noted the following violations of the Permit and 327 IAC 5-2-8:

    a)    loose solids were in the secondary clarifier and going over the weir,

    b)    a large amount of sludge was noted in the pond,

    c)    sludge was found in the chlorine contact tank, and

    d)    poor settling in the aeration tank.

13.    Part II. Paragraph 5. of the Permit states that, all waste collection, control, treatment and disposal facilities shall be operated in a manner consistent with the following:

    a.    at all times, all facilities shall be operated as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants.

    b.    the permittee shall provided an adequate operation staff which is duly qualified to carry out operation, maintenance, and testing functions required to insure compliance with the conditions of this permit.

    c.    maintenance of treatment facilities that results in degradation of effluent quality shall be scheduled during noncritical water quality periods and shall be carried out in a manner approved by the Commissioner.

14.    On January 30, 1996, IDEM representatives reviewed records of the WWTP and noted the following violations of the Permit and 327 IAC 5-2-8:

15.    Part I A. 1. of the Permit states, in part, that the permittee is authorized to discharge from Outfall 001. The discharge shall be limited and monitored by the permittee in accordance with the specific concentration limitation for Total Suspended Solids (TSS), as cited below. The Memphis Travel Plaza reported the following values for TSS in violation of Part I. A. 1. of the Permit and 327 IAC 5-2-8(1) for the following months:

TOTAL SUSPENDED SOLIDS
Date   Monthly Mass Average Limit (3.9 lbs./day)   Weekly Mass Average Limit (5.9 lbs./day)   Monthly Concentration Average Limit (18.0 mg/l)   Weekly concentration Average Limit
(27 mg/l)  
5/31/95   18.3   22.0   110.0   110.0  
6/30/95   9.5   18.3   44.0   76.0  
7/31/95   54.9   36.3   244   128.0  
8/31/95   27.5   72.0   108.0   287.0  
9/30/95   5.1   8.7   28.0   40.0  
10/31/95   *****   6.0   *****   36.0  
Total Violations = 6  
***** indicates no violation

16.    Part I A. 1. of the Permit states, in part, that the permittee is authorized to discharge from Outfall 001. The discharge shall be limited and monitored by the permittee in accordance with specific concentration limitation for Carbonaceous Biochemical Oxygen Demand (CBOD) as cited below. The Memphis Travel Plaza reported the following values for CBOD in violation of Part I. A. 1. of the Permit and 327 IAC 5-2-8(1) for the following months:


CARBONACEOUS BIOCHEMICAL OXYGEN DEMAND
Date   Monthly Mass Average Limit (Winter 5.5, Summer 3.3 lbs./day)   Weekly Mass Average Limit (Winter 8.8, Summer 4.9 lbs./day)   Monthly Concentration Average Limit (Winter 25.0 mg/l, Summer 15 mg/l)   Weekly concentration Average Limit
(Winter 40.0 mg/l, Summer 22.5 mg/l)  
03/31/95   *****   *****   28.9   44.0  
05/31/95   *****   *****   27.0   *****  
06/30/95   17.1   30.0   79.0   124.0  
07/31/95   10.8   24.3   48.0   86.0  
08/31/95   8.7   22.7   40.0   91.0  
Total Violations = 5  
***** indicates no violation    

17.    Part I A. 1. of the Permit states, in part, that the permittee is authorized to discharge from Outfall 001. The discharge shall be limited and monitored by the permittee in accordance with specific concentration limitation for Total Residual Chlorine (TRC) as cited below.

The Memphis Travel Plaza reported the following values for TRC in violation of Part I. A. 1. of the Permit and 327 IAC 5-2-8(1) for the following months:

TOTAL RESIDUAL CHLORINE
Date   Daily Concentration Minimum Limit (0.5 mg/l)   Daily Concentration Maximum Limit (1.0 mg/l)  
04/30/94   0.2   *****  
05/31/94   0.1   *****  
06/30/94   0.2   2.5  
07/31/94   0.3   *****  
Total Violations = 4  
***** indicates no violation

18.    On October 15, 1996, IDEM representatives met with the Respondent's representatives to discuss the violations that were noted in the NOV. During the meeting, Respondent's representatives stated that the Reynold's Group had been hired to perform the operation and maintenance of the facility. The Respondent is reviewing the possibilities of transporting the wastewater generated from the travel plaza to a different wastewater facility. The Respondent also noted that the consultant has fixed the flow meter and the high level station alarm system.

19.    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 thirty (30) days from the Effective Date of this Order, the Respondent shall submit to IDEM for its approval a Compliance Plan (CP) which addresses the deficiencies and violations noted herein. The CP is subject to the approval of IDEM. If the plan is deemed inadequate by IDEM, a revised plan shall be submitted within fifteen (15) days of receipt of notice from IDEM of the inadequacies thereof. If after submission of the revised document(s) IDEM still finds that the document(s) are inadequate, then IDEM may require further modification of the CP as necessary to meet IDEM's requirements. If further modification does not meet IDEM's approval, IDEM will suggest appropriate modification to be undertaken by Respondent within specified time frames. If such modification is not timely undertaken or an alternative plan timely submitted by the

Respondent is not approved by IDEM, the Respondent will be liable for stipulated penalties. Respondent, upon written notification by IDEM, shall immediately implement the approved plan, including the dates for completion of the schedule. The approved plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.     
    
    The CP shall include, but not be limited to, a schedule for completion of the following items:

        a.    elimination of all illegal bypasses.

        b.    performance of an Infiltration/Inflow (I/I) study of the collection system and follow up on the areas that need to be fixed.

        c.    removal of sludge from the polishing ponds.

3.    Respondent shall develop a Standard Operation Procedures (SOP) manual for each operational unit of the WWTP, and submit a copy of the SOP manual to IDEM for approval within forty-five (45) days of the Effective Date. After the manual has been approved by IDEM, the Respondent shall implement the manual within fifteen (15) days of the approval date.
    
4.    Respondent shall develop a Preventive Maintenance (PM) manual which addresses, at a minimum, the WWTP, lift stations, and the collection system. Respondent shall submit a copy of the PM manual to IDEM for approval within forty-five (45) days of the Effective Date. After the manual has been approved by IDEM, the Respondent shall implement the PM manual within fifteen (15) days of the approval date.
    
5.    Respondent shall develop a Sludge Management (SM) plan which address, the type of sludge, the amount of waste, methods of sludge disposal, and the proper disposal of sludge. Respondent shall provide a copy of the SM plan to IDEM for approval within (45) days of the Effective Date. After the manual has been approved by IDEM, the Respondent shall implement the plan within fifteen (15) days of the approval date.
    
6.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

                Brett DeBusk, Environmental Scientist
                Office of Enforcement
                Indiana Department of Environmental Management
                100 N. Senate Avenue, Room 1315
                P. O. Box 6015
                Indianapolis, IN 46206-6015


7.    Respondent is assessed a civil penalty of Seven Thousand Five Hundred Forty Five Dollars ($7,545). 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 unless Respondent chooses the option presented in Paragraph 8.

8.    In lieu of payment of the entire civil penalty from paragraph 7 and submission of the plans and manuals described in paragraph 2, 3, 4, and 5 of this Order, Respondent may choose to perform a Supplemental Environmental Project (SEP) by closing the Memphis Travel Plaza wastewater treatment plant and connecting the collection system to the Henryville Membership Sanitation Corporation. Six Thousand Thirty-six Dollars ($6,036) of the Civil penalty will be offset upon successful completion of the SEP. If this option is chosen, Respondent must notify IDEM at the address in paragraph 6 of this Order within 30 days of the Effective Date, along with remitting the reduced cash civil penalty amount of One Thousand Five Hundred Nine Dollars ($1509). The Respondent will need spend at least Twelve Thousand Seventy-two Dollars ($12,072) for connecting to the Henryville WWTP and document this expense to IDEM. All SEP work must be completed and IDEM notified of such completion within one year of the Effective Date. Respondent will notify IDEM of permanent closure and request that its NPDES Permit be voided within fifteen (15) days after permanent closure.

9.    If Respondent chooses to perform the SEP, Respondent is responsible for the proper closure of the facility according to guidelines for the best management practice available. The Respondent agrees that if pollution, health hazards, or nuisance conditions develop or are created at the closed site, Respondent shall notify IDEM in writing and take immediate corrective action. Permanent closure of the facility's WWTP is to be completed within One (1) year of the Effective Date.

10.    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                    $500 per week for failure to timely submit CP, Revised CP, or Modified CP (if needed).
        
                                $500 per week for each construction and/or improvement milestone in the CP not met within the specified dates.
        Paragraph 3                    $500 per week for late SOP manual.     
        Paragraph 4                    $500 per week for late PM manual.

        Paragraph 5                    $500 per week for late SM plan.

11.    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 13-30-4-1.

12.    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 46206-7060

13.    In the event that the civil penalty required by paragraph 7 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. In the event that Respondent chooses to perform the SEP specified in Paragraph 8 but does not timely complete the project and notify IDEM as described in Paragraph 8, the remaining Six Thousand Thirty- six Dollars ($6,036), and interest from the Effective Date, shall be immediately due and payable to IDEM. The interest shall continue to accrue until the civil penalty is paid in full.

14.     "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite 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 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 within three (3) calendar days and by writing no later than seven (7) calendar days after 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 their claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude 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. Said decision shall be communicated to the Respondent.

    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 attributable to the event constituting the force majeure.

15.     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.

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. 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 Respondent has complied with all terms and conditions of this Agreed Order.


TECHNICAL RECOMMENDATION:        RESPONDENT:
Department of Environmental Management

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

                                 ________________________

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 ____________________, 1997.

                            For the Commissioner:

                            Signed on October 23, 1997
                            David J. Hensel
                            Director
                            Office of Enforcement

Converted by Andrew Scriven