STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, ) )

Complainant, )

)

v. ) Case Nos. 2001-11086-S

) 2002-11325-S

EQUILON ENTERPRISES, LLC, ) 2002-11361-S )

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 the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding.

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.

  1. Respondent is Equilon Enterprises, LLC (the "Respondent"), who owns and/or operates the following facilities:
  1. Shell Station, Facility ID# 000591, located at 7305 Kennedy Avenue, Hammond, Lake County, Indiana ("Site A");
  2. Shell Station, Facility ID# 000590, located at 7306 Indianapolis Blvd., Hammond, Lake County, Indiana ("Site B");
  3. Shell Station, Facility ID# 000585, located at 3501 Broadway Avenue, Gary, Lake County, Indiana ("Site C").
  1. The Indiana Department of Environmental Management (IDEM") has jurisdiction over the parties and the subject matter of this action.
4. Pursuant to IC 13-30-3-3, on April 1, 2002, IDEM issued a Notice of Violation via Certified Mail for Site A to:

Equilon Enterprises, LLC CT Corporation System, Registered Agent 1100 Louisiana Street 36 South Pennsylvania Street

Suite 2200 Suite 700

Houston, TX 77002 Indianapolis, IN 462045.

5. Pursuant to IC 13-30-3-3, on April 17, 2002, IDEM issued a Notice of Violation via Certified Mail for Site B to:

Equilon Enterprises, LLC CT Corporation System, Registered Agent 603 East Diehl Road 36 South Pennsylvania Street

Suite 103 Suite 700

Naperville, IL 60563 Indianapolis, IN 46204

6. Pursuant to IC 13-30-3-3, on April 11, 2002, IDEM issued a Notice of Violation via Certified Mail for Site C to:

Equilon Enterprises, LLC CT Corporation System, Registered Agent 603 East Diehl Road 36 South Pennsylvania Street

Suite 103 Suite 700

Naperville, IL 60563 Indianapolis, IN 46204

  1. A record review of the following LUST Incidents was conducted by a representative of IDEM's Office of Land Quality ("OLQ"). The following violations were in existence or observed at the time of this records review:
Site A: Case No. 2001-11086-S
    1. Pursuant to 329 IAC 9-4-3(2), the owner and operator shall measure for the presence of a release where contamination is most likely to be present at the underground storage tank site. Due to inadequate sampling, the vertical and horizontal extent of petroleum hydrocarbon contamination has not been properly delineated.
    2. Pursuant to 329 IAC 9-5-4.1(a)(5), the owner and operator shall measure for the presence of a release where contamination is most likely to be present. Due to inadequate sampling, the vertical and horizontal extent of petroleum hydrocarbon contamination has not been properly delineated.

      3.  

       
       
       
       

    3. Pursuant to 329 IAC 9-5-5.1(a) and (b), the owner and operator shall assemble information (Initial Site Characterization/ISC) about the site and the nature of the release, and submit the ISC to IDEM within forty-five (45) days of release confirmation. Information submitted for the ISC does not adequately define the vertical and horizontal extent of contamination.
    4. Pursuant to 329 IAC 9-5-6, the owner and operator shall conduct investigations of the release, the release site and surrounding areas to determine the full extent of contamination by the release. Due to inadequate sampling, the vertical and horizontal extent of soil and groundwater contamination has not been properly delineated.
    5. Pursuant to 329 IAC 9-5-7, the commissioner may require the owner or operator to submit additional information or develop and submit a corrective action plan for responding to contaminated soils and groundwater. The information submitted to IDEM is inadequate to determine the extent of contamination and develop a corrective action plan.
F. Pursuant to IC 13-30-2-1(1), no person may discharge, or threaten to discharge, any contaminant or waste into the environment. Petroleum products located at the Site were discharged into the environment.
Site B: Case No. 2002-11325-S
  1. Pursuant to 329 IAC 9-4-3(2), the owner and operator shall measure for the presence of a release where contamination is most likely to be present at the underground storage tank site. Due to inadequate sampling, the vertical and horizontal extent of petroleum hydrocarbon contamination has not been properly delineated.
  2. Pursuant to 329 IAC 9-5-4.1(a)(5), the owner and operator shall measure for the presence of a release where contamination is most likely to be present. Due to inadequate sampling, the vertical and horizontal extent of petroleum hydrocarbon contamination has not been properly delineated.
  3. Pursuant to 329 IAC 9-5-5.1(a) and (b), the owner and operator shall assemble information (Initial Site Characterization/ISC) about the site and the nature of the release, and submit the ISC to IDEM within forty-five (45) days of release confirmation. Information submitted for the ISC does not adequately define the vertical and horizontal extent of contamination.
  4. Pursuant to 329 IAC 9-5-6, the owner and operator shall conduct investigations of the release, the release site and surrounding areas to determine the full extent of contamination by the release. Due to inadequate sampling, the vertical and horizontal extent of soil and groundwater contamination has not been properly delineated.
  5. Pursuant to 329 IAC 9-5-7, the commissioner may require the owner or operator to submit additional information or develop and submit a corrective action plan for responding to contaminated soils and groundwater. The information submitted to IDEM is inadequate to determine the extent of contamination and develop a corrective action plan.
  6. Pursuant to IC 13-30-2-1(1), no person may discharge, or threaten to discharge, any contaminant or waste into the environment. Petroleum products located at the Site were discharged into the environment.

Site C: Case No. 2002-11361-S

  1. Pursuant to 329 IAC 9-4-3(2), the owner and operator shall measure for the presence of a release where contamination is most likely to be present at the underground storage tank site. Due to inadequate sampling, the vertical and horizontal extent of petroleum hydrocarbon contamination has not been properly delineated.
  2. Pursuant to 329 IAC 9-5-4.1(a)(5), the owner and operator shall measure for the presence of a release where contamination is most likely to be present. Due to inadequate sampling, the vertical and horizontal extent of petroleum hydrocarbon contamination has not been properly delineated.
  3. Pursuant to 329 IAC 9-5-5.1(a) and (b), the owner and operator shall assemble information (Initial Site Characterization/ISC) about the site and the nature of the release, and submit the ISC to IDEM within forty-five (45) days of release confirmation. Information submitted for the ISC does not adequately define the vertical and horizontal extent of contamination.
  4. Pursuant to 329 IAC 9-5-6, the owner and operator shall conduct investigations of the release, the release site and surrounding areas to determine the full extent of contamination by the release. Due to inadequate sampling, the vertical and horizontal extent of soil and groundwater contamination has not been properly delineated.
  5. Pursuant to 329 IAC 9-5-7, the commissioner may require the owner or operator to submit additional information or develop and submit a corrective action plan for responding to contaminated soils and groundwater. The information submitted to IDEM is inadequate to determine the extent of contamination and develop a corrective action plan.

    6.  

     
     
     
     
     
     

  6. Pursuant to IC 13-30-2-1(1), no person may discharge, or threaten to discharge, any contaminant or waste into the environment. Petroleum products located at the Site were discharged into the environment.
  1. A settlement conference was held between IDEM representatives and Respondent representatives on May 2, 2002.
  2. Upon discussion with the Respondent concerning the closure report violation cited in the NOV for Site A and subsequent investigation, it has been determined that the Respondent had complied with the closure report requirement pursuant to 329 IAC 9-6-2(i)(2). Therefore, this violation is dismissed.
10. Respondent submitted Further Site Investigation (FSI) Reports for Site A and Site B on or about May 8, 2002.

11. 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.

  1. Respondent shall comply with all applicable environmental rules and statutes.
3. Respondent shall, within thirty (30) days of the Effective Date of this Agreed Order, submit an Interim Corrective Action Plan (ICAP) for Site C to address on-site remediation. The Respondent shall utilize IDEM's UST Branch Guidance Manual October 1994, update, or if applicable, IDEM's Risk Integrated System for Closure (RISC) Technical Guide (www.IN.gov/idem/land/risc/tech_guide.html) to develop the ICAP for Site C. The ICAP shall be subject to review, modification, and approval by IDEM. Upon notification of deficiencies in the CAP, the Respondent shall have thirty (30) days to revise and resubmit a ICAP to IDEM which addresses the deficiencies. Subject to any appeal rights under IC 4-21.5, the Respondent hereby agrees to implement the approved ICAP within fifteen (15) days of receipt from IDEM of the approval of the ICAP. The Respondent shall complete all of the requirements in the approved ICAP. The approved ICAP, including a remediation activity schedule in the ICAP, shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.
  1. Respondent shall, within thirty (30) days of the Effective Date of this Agreed Order,


    2. submit an FSI Report delineating the vertical and horizontal extent (on-site and off-site) of petroleum contamination for Site C.

  2. If the FSI Reports submitted per Finding of Fact paragraph 8 and/or the FSI Report required by Order paragraph 3 above do not completely delineate on-site and off-site petroleum contamination, the Respondent shall submit a Further Site Investigation Plan ("FSIP") to IDEM for Site A, Site B, and/or Site C within thirty (30) days of receiving written notice that an FSIP is due. If required, the FSIP for Site A, Site B and/or Site C must be approved by IDEM prior to implementation. Once the FSIP for each Site is approved by IDEM, it will become an enforceable part of this Agreed Order. Respondent shall implement an approved FSIP within fifteen (15) days of IDEM's approval of the FSIP. If necessary, this condition shall be repeated until the extent of petroleum contamination is adequately defined.
  3. If an FSIP, as noted in Order paragraph 5 above, is required to be implemented to delineate petroleum contamination for Site A, Site B and/or Site C, the Respondent shall submit an FSI Report within thirty (30) days of completing the work pursuant to an approved FSIP. If necessary, this condition shall be repeated until the extent of petroleum contamination is adequately defined.
7. The Respondent shall submit a Corrective Action Plan (CAP) for Site A, Site B, and Site C, within ninety (90) days of receiving written notice from IDEM that a CAP is due. The Respondent shall utilize IDEM's UST Branch Guidance Manual October 1994, update, or if applicable, IDEM's Risk Integrated System for Closure (RISC) Technical Guide (www.IN.gov/idem/land/risc/tech_guide.html) to develop the CAP for each Site. The CAP for Site A, Site B, and Site C shall be subject to review, modification and approval by IDEM. Upon notification of deficiencies in the CAP for Site A, Site B, or Site C, the Respondent shall have forty-five (45) days to revise and resubmit a CAP to IDEM which addresses the deficiencies. Subject to any appeal rights under IC 4-21.5, the Respondent hereby agrees to implement the approved CAP for each Site. The Respondent shall complete all requirements in the approved CAP for each Site. The approved CAP, including the remediation schedule in the CAP, shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

8. Upon IDEM's approval of the ICAP for Site C and CAP for Site A, Site B, and/or Site C, the Respondent shall commence activities for remediation as set forth in the ICAP for Site C and CAP for each Site, and complete said activities in accordance with an approved schedule in the ICAP for Site C and CAP for each Site.

9. The Respondent shall apply for and obtain all necessary permits pertaining to testing and remediation on-site and/or off-site prior to any remediation activities being performed.

10. The Respondent shall permit an agent of IDEM to view and inspect the activities performed pursuant to the approved ICAP for Site C and CAP for each Site. In order to facilitate such an inspection, the Respondent shall notify the IDEM Office of Land Quality Project Manager assigned to the Site by telephone at least seven (7) days prior to any scheduled activities.
 
 
 
 

11. All submittals, two (2) copies, required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Paul Higginbotham, Chief

Solid Waste - UST Section

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015
  1. All IDEM correspondence concerning this Agreed Order, unless notified otherwise in writing, shall be sent to:
Dorian C. Kawar, S Phil Daly

Senior Attorney Manager HSE, Science & Engineering

Equiva Services LLC Equilon Enterprises, LLC

910 Louisiana, 1134 OSP 16800 Greenspoint Park Drive, Suite 215-S

Houston, TX 77002 Houston, TX 77060

 13. Respondent is assessed a civil penalty of Thirty One Thousand Two Hundred Dollars ($31,200). Said penalty amount shall be due and payable to the Underground Petroleum Storage Tank Trust Fund within 30 days of the Effective Date of this Agreed Order.

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:

Violation Violation Penalty

Order paragraph #3 $500 per week the ICAP is late

Order paragraph #4 $500 per week FSI Report is late

Order paragraph #5 $500 per week the FSIP is late, if required (each site to be calculated individually)

Order paragraph #5 $1,500 per week for failure to perform work pursuant to the approved schedule in an FSIP (each Site to be calculated individually)

Order paragraph #6 $500 per week an FSI Report is late, if required (each Site to be calculated individually)

Order paragraph #7 $500 per week CAP is late (each site to be calculated individually)

Order paragraph #8 $1,500 per week for failure to perform work pursuant to the approved schedule in the CAP (each Site to be calculated individually)
  1. 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 Respondents 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 Underground Petroleum Storage Tank Trust 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
  1. In the event that the civil penalty required by Order paragraph 13, 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. The interest shall continue to accrue until the civil penalty is paid in full.
  2. A "Force Majeure," for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault 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. A Force Majeure does not include changed business or economic conditions, 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 the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of 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 its 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.

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 directly attributable to the event constituting the force majeure.

19. 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.

20. 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.

21. 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.

22. 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 Department of Environmental Management Equilon Enterprises, LLC
 
 

By: _________________________ By: _________________________

Paul Higginbotham

Chief, Solid Waste - UST Section Printed: ______________________

Office of Enforcement

Title: ________________________

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 ____________________, 2002.
 
 
 
 

For the Commissioner:
 
 
 
 

(signed 7/2/2002) Felicia A. Robinson

Deputy Commissioner

for Legal Affairs