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

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
            Complainant,        )
                            )    
                v.            )    CAUSE NO.     B-1960
                            )
                            )
HOSTS, INC.                    )
                            )
            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 this Agreed Order does not constitute an admission of any violation contended herein.

I. FINDINGS OF FACT

1.    Complainant is the Commissioner ("Complainant") of the Indiana Department of Environmental Management (IDEM), a department of the State of Indiana created by IC 13-13-1-1.

2.    Respondent is Hosts, Inc., which owns and operates the Holiday Inn of Angola wastewater treatment plant (WWTP), located in Angola, Steuben County, Indiana.

3.    The IDEM has jurisdiction over the parties and subject matter of this action.

4.    Pursuant to IC 13-7-11-2(b) (now IC 13-30-3-3), IDEM issued a Notice of Violation (NOV) on March 15, 1996 via overnight express to:

            Mr. Timothy Hasselman, Registered Agent
            Hosts, Inc.
            Holiday Inn of Angola
            3855 North State Road 127
            Angola, Indiana 46703

    The NOV issued on March 15, 1996 serves as IDEM's only formal notice for any and all violations addressed and resolved in this Agreed Order.

5.    The WWTP does not have a National Pollutant Discharge Elimination System (NPDES) permit. The disposal of wastewater and digested sewage sludge generated at the wastewater treatment plant is to be accomplished through land application, for which IDEM issued a Land Application Permit, No. IN LA 000483 (the "Permit") to the Holiday Inn of Angola, which became effective on October 6, 1993.

6.     327 IAC 2-6-1 defined "spill" as "...abnormal, or unapproved dumping, leakage, drainage,     seepage, discharge or other loss of ...[an] otherwise objectionable substance which enters or     threatens to enter the waters of the state."

7.    327 IAC 2-6-2 required, in substance, that in the event of a spill of such volume or mass as to cause or threaten to cause damage to the public health, safety or welfare, aquatic biota, animal life, plant life or recreation, domestic, commercial, industrial or agricultural water uses, the responsible party must:

        a.    Immediately communicate a spill report on said spill to IDEM.

        b.     Immediately, whenever possible, notify the nearest downstream water user.

        c.    Immediately contain said spill or cause the same to be done.

        d.     Either immediately after or during the containment..., whichever is most practicable, clean-up said spill or cause the same to be done.

        e.     Submit to IDEM reports on said spill.
        
8.    IC 13-7-4-1 ( now IC 13-30-2-1) requires, in substance, that no person 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.

9.    On September 12, 1995, designated representatives from the Steuben County Health Department and the IDEM, Office of Water Management (OWM) Inspections, conducted a site visit at the Holiday Inn of Angola, at which representatives of the Holiday Inn were present. During the inspection, the state and county representatives found that the WWTP was not being operated effectively, based on their determination that the irrigation system used for land application purposes was not functional, as the spray nozzles for this system were not functional at the time of the inspection. In addition, the lift station which pumps the WWTP effluent to the irrigation field reportedly had been overflowing intermittently during the preceding two (2) day period.

10.    On October 3, 1995, a designated representative from the IDEM observed that both aeration tanks at the WWTP were overflowing. IDEM observed what it reasonably believed to be grey sewage from this overflow on a hillside leading to a ditch, leading to Lake Charles East. The overflow of the aeration tanks and the sewage in the ditch, as well as the general condition of the WWTP has been documented with photographs. IDEM had not been notified about the spill, no effort had been made to contain and clean up the spill, or to notify downstream water users about the spill, which IDEM contends is in violation of IC 13-7-4-1 (now IC 13-30-2-1) and 327 IAC 2-6-2.

11.    327 IAC 6-2-6(b), requires, in substance, the permittee to submit an annual report regarding application rates and site conditions.

12.    327 IAC 6-2-6(c) requires, in substance, the permittee to record the monitoring results and information required by subsections (a) and (b) and to retain the records for three years or longer, if requested by the Commissioner. The monitoring requirements are set forth in detail in the land application permit which requires records to be retained for five years after the expiration of the permit (Part IV, A4).

13.    On September 19, 1995, the Land Application Group of OWM, sent a certified letter to the Holiday Inn of Angola. The letter specified concerns with the land application system that had been identified during an inspection conducted on September 15, 1995, and notified the Holiday Inn of Angola that a plan detailing a schedule for compliance with permit conditions needed to be submitted to the Land Application Group within fifteen (15) days of receipt of the letter. No response was received by the IDEM, however, Respondent allegedly took action in response to the letter.

14.    On February 26, 1996, a second certified letter was sent requesting a schedule for compliance and an annual report for 1995. The annual report, due on January 31 of each year, as required by Land Application Permit No. LA 000483 Part IV, A3, had not been received by the IDEM by January 31, 1996, which IDEM contends is in violation of 327 IAC 6-2-6(b) and the Permit.

15.    During site visits on September 15, 1995 and October 17, 1995, to the Holiday Inn of Angola, IDEM representatives requested to examine these records and were informed by

the Holiday Inn representatives that these records have never been compiled, which IDEM contends is in violation of 327 IAC 6-2-6(c) and Land Application Permit No. IN LA 000483.

16.    Part I.A.12., of Land Application Permit No. IN LA 000483, requires the permittee to mark visually the boundaries of the required buffer zones prior to any application of wastewater or sludge.

17.    On the site visit on September 15, 1995, IDEM representatives determined that the spray irrigation field was not marked with any boundary markings, which IDEM contends is in violation of the Permit. Upon notification by IDEM representatives, Hosts, Inc. allegedly responded to IDEM concerns regarding boundary markings.

18.     Subsequent to the issuance of the NOV, IDEM's Office of Water Management sent a     letter to Respondent on March 21, 1996 which described a fish kill in Lake Charles East     purportedly caused by observed wastewater overflows from the WWTP. A subsequent     review of IDEM records demonstrated that IDEM representatives did not sample or      otherwise obtain sufficient information to determine whether, or conclude that, the alleged overflows caused the fishkill, although such sewage overflows in proximity to the waters of the state could result in such damage.

19.    Subsequent to the issuance of the NOV, a settlement conference was held between IDEM and the Respondent on April 18, 1996.

20.    On January 10, 1997, the IDEM Emergency Response Branch received a phone call from the Holiday Inn of Angola to report a release of treated sewage to a concrete ditch which discharges to Lake Charles. The release occurred from the header of the leach bed. In a January 13, 1997 report from the Steuben County Health Department, it was estimated that between 8,000 to 10,000 gallons of effluent could have been released.

21.    In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of the terms of this Agreed Order. IDEM and Respondent reserve their rights to enforce the terms of this Agreed Order. Respondent retains the right to review under IC 4-21.5 of any final determination made by IDEM.

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. This Agreed Order resolves all violations of the Respondent contended herein by IDEM.

2.    Respondent has submitted to the IDEM an Operations and Maintenance (O &M) Plan that addresses the violations contended and deficiencies noted herein. IDEM has accepted the Plan as submitted on November 15, 1996. Respondent shall immediately implement the approved plan. The approved plan shall be attached and incorporated into the Agreed Order as Attachment 1 and shall be deemed an enforceable part thereof.

3.     Within thirty (30) days of the Effective Date of this Order, Respondent shall submit to      IDEM for its approval a spill contingency plan relating to any spill from its WWTP. The plan shall include, but not be limited to, provisions for notification of a spill to IDEM, Office of Environmental Response; to downstream users, and to any other affected parties. The plan shall also include provisions that specifically detail steps to be taken for spill containment, recovery, and cleanup. The plan is subject to the approval of IDEM. If the plan is deemed inadequate by IDEM, a revised plan shall be submitted within thirty (30) days of receipt of notice from IDEM of the inadequacies thereof. If after submission of revised plans, IDEM still finds the plan to be inadequate, IDEM may require further modification of the plan 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 alternate plan timely submitted by Respondent is not approved by IDEM, the Respondent will be liable for stipulated penalties. IDEM approval of a spill contingency plan shall be solely a requirement of this Agreed Order and in no way relieves the Respondent of his obligation to comply with all applicable rules or statutes. The approved plan shall be deemed an enforceable part of this Agreed Order. Respondent may satisfy the requirement of submitting a proposed spill contingency plan or complying with an approved spill contingency plan by providing written notice to IDEM that it has ceased using its existing WWTP and connected up to the Fremont, Indiana sewage treatment facility.

4.    Respondent is assessed a Civil Penalty of Twenty-Two Thousand Dollars ($22,000) . Said penalty amount shall be due and payable in three (3) installments to the Environmental Management Special Fund according to the following schedule:

Civil Penalty Payment Schedule  
Payment   Amount   Due Date  
Payment #1   $8,000   Within 30 days of the Effective Date of the Agreed Order  
Payment #2   $7,000   Within 120 days of the Effective Date of the Agreed Order  
Payment #3   $7,000   Within 180 days of the Effective Date of the Agreed Order  

5.    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    Failure to adequately implement         $1,000 per reported incident                                                                         approved O & M plan                                                                                    
                                    

    Paragraph 3    Failure to timely submit spill plan,          $200 per week late
             revised spill plan, or notification
             of connection to Fremont

6.    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 Respondents for violation of the Agreed Order. In lieu of assessment of the stipulated penalty given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondents violation of this Agreed Order, or Indiana law.

7.    Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number (B-1960) of this action and shall be mailed to:

                Cashier
                IDEM
                100 N. Senate Avenue
                P.O. Box 7060
                Indianapolis, Indiana 46206-7060.

8.    In the event that the civil penalty required by paragraph 4 is not paid in accordance with the payment schedule described above, 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 on the unpaid balance until the civil penalty is paid in full.

9.    This Agreed Order shall apply to and be binding upon the Respondent, and 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 party 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.

10.    In the event that any terms of this 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.

11.    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.

12.    This Agreed Order shall remain in effect for one year after Respondent has accomplished all of the following: (1) commenced implementation of the approved Operation & Maintenance Plan described in Paragraph 2 of the Order and (2) complied with the requirements of Paragraphs 3 and 4 of the Order.


TECHNICAL RECOMMENDATION            RESPONDENTS

By: _________________________                By: _________________________
    Mark W. Stanifer, Chief                    
    Water Enforcement Section                    
    Office of Enforcement                Date: _______________
    Department of Environmental
     Management

                                By: _________________________
                                    

Date: _______________                    Date: _______________

LEGAL RECOMMENDATION            COUNSEL FOR RESPONDENTS

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 January 28, 1998
                            David J. Hensel
                            Director

Converted by Andrew Scriven