STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2003-13413-W

)

CLEANCAR AUTO WASH CORPORATION, )

)

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 (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 CleanCar Auto Wash Corporation (Respondent), which owns and operates a Class A industrial wastewater treatment plant (WWTP) located at 4600 Williamsburg Stations Road, Floyds Knobs, in Floyd County, Indiana. The Respondent discharges treated wastewater to receiving waters named Little Indian Creek, via an unnamed ditch, as authorized by NPDES permit IN 0059803 (the Permit).

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 November 14, 2003, IDEM issued a Notice of Violation via Certified Mail to:

D. Mark Jackson, President	Francis X. Marnell, Registered Agent
CleanCar Auto Wash Corporation	CleanCar Auto Wash Corporation
3483 Heathermoor Blvd.	4600 Williamsburg Station
Taylor Mill, KY 41015	Floyds Knobs, IN 47119

5. A records review conducted by IDEM’s Office of Water Quality has determined that the following violations have occurred at the Respondent's WWTP:

A. Pursuant to IC 13-30-2-1, a person may not 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 in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

Pursuant to 327 IAC 5-2-2, 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.

Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, the Respondent is required to comply with all terms and conditions of its Permit.

Pursuant to Part I.A.1 of the Permit, the Respondent is required to comply with the effluent limitations applicable to the discharge from Outfall 001.

Discharge Monitoring Reports (DMRs), Monthly Reports of Operation (MROs),

and/or letters submitted by the Respondent to IDEM for the period from May 2001 through July 2003, reveal that the Respondent failed to comply with effluent limitations applicable to the discharge from Outfall 001 as follows:

The daily maximum effluent limitation for Total Suspended Solids was violated during June and September of 2002.

The monthly average effluent limitation for Total Suspended Solids was violated during January, March, April, May, June, and September of 2002, and during May of 2003.

The daily maximum effluent limitation for Oil and Grease was violated during July of 2002, and during March of 2003.

The monthly average effluent limitation for Oil and Grease was violated during December of 2001, during May and July of 2002, and during March and June of 2003.

The daily maximum effluent limitation for Carbonaceous Biochemical Oxygen Demand (CBOD₅) was violated during May, July, August, September, October, November, and December of 2001, during February, March, May, June, July, September, and December of 2002, and during January, March, April, May, June and July of 2003.

The monthly average effluent limitation for CBOD₅ was violated during May, June, July, August, September, October, November, and December of 2001, during February, March, May, June, July, September, November, and December of 2002, and during January, February, March, April, May, June, and July of 2003.

The Respondent's failure to comply with the effluent limitations contained in the Permit is in violation of 327 IAC 5-2-2, 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part I.A.1 of the Permit, and thus violating IC 13-30-2-1(1).

B. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, the Respondent is required to comply with all terms and conditions of its Permit.

Pursuant to 327 IAC 2-1-6(a), and Part I.B. of the Permit, 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, visible oil sheen, 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; and

(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.

During an inspection of the Respondent's wastewater treatment plant conducted on January 3, 2002, an IDEM representative observed the discharge from Outfall 001, a point source regulated within the Permit, and the receiving waters for Outfall 001. The IDEM representative noted that the discharge from Outfall 001 was turbid and foamy with a strong hydrogen sulfide (H₂S) odor, and observed black solids in the receiving ditch.

The discharge observed on January 3, 2003 caused or contributed to the contamination of the receiving waters for Outfall 001 by allowing substances, materials, and oil or scum attributable to the discharge that settled to form objectionable deposits that were in amounts sufficient to be unsightly or deleterious and produced color, odor or other conditions in such degree as to create a nuisance, in violation of 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, and 327 IAC 2-1-6(a), and Part I.B. of the Permit.

6. On November 28, 2003, the Respondent submitted a response to the Notice of Violation. The response noted that since purchasing the car wash in May of 2001, it was the Respondent's intent to connect to a larger regional WWTP that was expected to be located within 100 yards of the car wash. Since that larger regional WWTP was not completed and may not be completed for a considerable time, if at all, the Respondent has taken the following steps to attain compliance with its NPDES permit:

(a) In order to improve the TSS results, the Respondent purchased new 20-micron filters and began a program of cleaning and changing the micron filter on a near weekly basis. For Oil and Grease, the Respondent purchased new oil pillows for many of its sediment pits and the Respondent inspects and cleans those pillows on a frequent basis. The Respondent noted, in substance, that it believes that it can now comply with its TSS and Oil and Grease effluent limitations.

(b) In order to improve the CBOD₅ results, the Respondent attempted to introduce artificial "bugs" for a 6 month period. The Respondent saw no real improvement in its CBOD5 compliance, so that practice was discontinued.

(c) The Respondent performed a full cleaning of all of the sediment pits, which resulted in an improvement in CBOD₅ compliance.

(d) The Respondent introduced an aeration system with diffusion stones in its process pit which also resulted in an improvement in CBOD₅ compliance.

(e) The Respondent also inserted venturi into the discharge line in order to increase the amount of oxygen mixing with the waste stream as it is discharged.

The November 28, 2003 response also included steps the Respondent was going to take in a phased manner over a 12 month period of time to assure compliance with its CBOD₅ limits. During early to mid January of 2004, the Respondent installed a system to inject compressed air directly by into the venturi as the effluent flows through the discharge line and reported that the WWTP was in compliance with the Respondent's effluent limitations during January of 2004.

7. On March 19, 2004, a proposed Agreed Order was sent to the Respondent. In early April of 2004, the Respondent communicated to IDEM that the improvements that had been made to the WWTP had not resulted in consistent compliance with the effluent limitations. The Respondent reported that effluent exceedances had occurred during February of 2004. Therefore the Respondent was proceeding with the installation of an additional above ground one thousand (1,000) gallon poly tank, with an ozonator and a re-circulation pump. This additional tank will allow for an additional minimum of 12 minutes of processing prior to discharge. The Respondent expected to complete this installation and initiate operations of the additional unit of treatment by May 1, 2004. These steps, or actions, are included in the Order section of this Agreed Order.

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

2. Respondent shall comply with 327 IAC 5-2-2, 327 IAC 5-2-8(1), IC 13-30-2-1(1), 327 IAC 2-1-6(a), and the Respondent's NPDES Permit.

3. By May 1, 2004, the Respondent shall complete the installation and initiate operations the above ground one thousand (1,000) gallon poly tank with an ozonator and a re-circulation pump, as indicated in Paragraph 7 of the above Findings of Fact.

4. Beginning on May 1, 2004, and continuing until July 31, 2004, the Respondent will take effluent samples with a minimum frequency of weekly (instead of monthly) for all the discharge limitation parameters included in the Respondent's NPDES Permit. The Respondent shall assure that the sample results are representative of the actual discharge and that all sample results are reported on the DMRs and MROs as required by Part I.C of the Permit.

5. If the effluent monitoring required by Paragraph 4 of this Order indicates that the improvements required by Paragraph 3 of this Order result in compliance with the Permit effluent limitations during May, June, and July of 2004, then on August 1, 2004, the Respondent will begin the Performance Period under Paragraph 8 below.

If the actions noted in Item 4 of this Order do not result in compliance with the Respondent's effluent limitations during May 1, 2004 through July 31, 2004, then by August 31, 2004, Respondent will install and initiate operations of a metering pump that will add 35% hydrogen peroxide, through a mixing chamber, and into the additional poly tank, and the Respondent shall sample the effluent weekly for the period from September 1, 2004 through November 30, 2004.

6. If the actions noted in Item 5 of this Order result in compliance with the Respondent's effluent limitations during the period of September 1, 2004 through November 30, 2004, then on December 1, 2004, the Respondent will begin the Performance Period under Item 8 below.

If the actions noted in Item 5 of this Order do not result in compliance with the Respondent's effluent limitations during September 1, 2004 through November 30, 2004, then by December 31, 2004, Respondent will install a reclaim system that will dramatically reduce, if not totally eliminate, the amount of gray water discharged, and the Respondent shall sample the effluent weekly for the period from January 1, 2005 through March 31, 2005.

7. If the actions noted in Item 6 of this Order result in compliance with the Respondent's effluent limitations during January 1, 2005 through March 31, 2005, then on April 1, 2005, the Respondent will begin the Performance Period under Item 8 below.

If the actions noted in Item 6 of this Order do not result in compliance with the Respondent's effluent limitations during January 1, 2005 through March 31, 2005, then IDEM may initiate an additional enforcement action against the Respondent for continuing violations of environmental statutes, rules, and the Respondent's NPDES permit.

8. The Respondent shall, within six months of completion of the actions required by Paragraphs 4, 5, 6, or 7 above (Performance Period), demonstrate five consecutive months of compliance (Compliance Demonstration) with the effluent limitations contained in its NPDES Permit. During the Performance Period, the Respondent will monitor the WWTP's effluent as required by the Permit, including effluent sampling with the minimum frequency of monthly. If effluent monitoring during the Performance Period indicates an exceedance of any effluent limitation, then the Respondent will resume effluent sampling with the minimum frequency of weekly.

During the Performance Period, the Respondent shall be subject to stipulated penalties, as specified below, for violations of the effluent limitations. In the event that Respondent fails to make the Compliance Demonstration, Respondent shall, within sixty days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, an “Action Plan” which identifies the additional actions that Respondent will take to achieve and maintain compliance with the effluent limitations contained in its NPDES Permit. The Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

9. The Action Plan required by Paragraph 8 above is subject to IDEM approval. In the event IDEM determines that the Action Plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM.

The Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein. The approved plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. Failure by the Respondent to submit any plan by the specified date, or to meet any of the milestones in the approved plan will subject the Respondent to stipulated penalties as described below. During the Action Plan development and implementation, the Respondent shall be subject to stipulated penalties, as specified below, for violations of the effluent limitations. Failure to achieve compliance at the conclusion of work under the Action Plan will subject Respondent to additional enforcement action.

10. The Respondent shall notify IDEM, in writing, within 10 days of completion of each task contained in Items 3, 5, 6, 7, and each task contained in the approved Action Plan if required. The notifications shall include a description of the task completed and the date it was completed, and the Respondent's compliance status in regard to its NPDES permit effluent limitations for at least the 2 most recent months.

11. Beginning on the Effective Date of this Agreed Order and continuing until the completion of the requirement of this Order, the Respondent shall, at all times, operate its existing WWTP as efficiently and effectively as possible.

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

Terry Ressler, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

13. Respondent is assessed a civil penalty of Two Thousand and Two Hundred and Fifty Dollars ($2,250). Within 30 days of the Effective Date of this Agreed Order, the Respondent shall pay an initial installment penalty payment of Five Hundred and Sixty Dollars ($560) to the Environmental Management Special Fund. Thereafter, the Respondent shall pay installment penalty payments to the Environmental Management Special Fund of Five Hundred and Sixty Dollars ($560) within 5 months of the Effective Date of this Agreed Order, Five Hundred and Sixty Dollars ($560) within 9 months after the Effective Date of this Agreed Order, and Five Hundred and Seventy Dollars ($570) within 13 months after the Effective Date, until the total assessed civil penalty is paid in full.

14. 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:

Order Paragraph Number	Violation	Penalty Amount
3	Failure to complete the installation and initiate operation of the tank, ozonator, and recirculation pump by May 1, 2004.	$200 per week late
4	Failure to take weekly effluent samples and/or report sample results on DMRs and MROs.	$200 per violation
5	If required, failure to install the metering pump/hydrogen peroxide system by August 31, 2004.	$200 per week late
6	If required, failure to install the reclaim system by December 31, 2004.	$200 per week late
8	Failure to comply with any effluent limitation during the Performance Period.	$200 per violation
8	If required, failure to submit or modify the Action Plan within the given time period.	$200 per each week
9	If required, failure to submit any revised Action Plan within the given time period.	$200 per each week
9	Failure to comply with any effluent limitation during the Action Plan.	$200 per violation
9	Failure to meet any milestone date set forth in the approved Action Plan.	$200 per each week
10	Failure to submit a notification of completion of each task within the required time period.	$200 per each week

15. Stipulated penalties shall be due and payable within 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.

16. Civil and 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

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

17. In the event that the civil penalty required by Order paragraph 13 is not paid within 30 days of the Effective Date of this Agreed Order, or any penalty payment is not paid when due, 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.

18. 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.

19. 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.

20. 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.

21. This Agreed Order is not and shall not be interpreted to be a Permit, nor shall it in any way relieve Respondent of its obligation to comply with the applicable requirements of federal or state law or regulation.

22. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with any applicable requirements of federal or state law or regulation.

23. This Agreed Order shall remain in effect until Respondent complies with the terms of Order paragraph Nos. 3 through 17, and IDEM issues a resolution of case letter.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management Department of Environmental Management CleanCar Auto Wash Corporation

By: _________________________ By: _________________________

Mark W. Stanifer

Chief, Water Enforcement Section Printed: ______________________

Office of Enforcement

Title: ________________________

Date: ________________________ Date: ________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Jay Rodia

Office of Legal Counsel

Date: _______________________ Date: ______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________, 20__.

For the Commissioner:

__Signed 5/25/04_______

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs