STATE OF
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BEFORE THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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CASE NO. 2002-11326-S |
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Respondent. |
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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(c), 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 right or 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
2. Respondent is Speedway SuperAmerica,
LLC, ("Respondent"), which owns and operates the Speedway SSA #6136,
Facility ID# 6737, located at
3. The
4. A designated representative of IDEM’s
Office of Land Quality conducted a records review of LUST Incident
#9005532 on
A.
Pursuant to 329 IAC
Due to inadequate sampling, the vertical and horizontal extent of petroleum hydrocarbon contamination has not been properly delineated.
B. 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.
C. 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.
D.
Pursuant to 329 IAC
Due to inadequate sampling, the vertical and horizontal extent of soil and groundwater contamination has not been properly delineated.
E.
Pursuant to 329 IAC
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.
5. Pursuant to IC 13-30-3-3, on
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CT Corporation System, Registered Agent |
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6. The Site Characterization for the Site
was approved by IDEM on
7. Respondent submitted a Corrective
Action Plan (“CAP”) to IDEM on
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. The Respondent shall continue to implement and complete all requirements in the approved CAP. The approved CAP, including the remediation schedule, and any modified approved CAP shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.
3. IDEM
and the Administrator of the Excess Liability Trust Fund ("ELTF")
agree that the Respondent's entry into and compliance with this Agreed Order
shall not affect, in any manner, and have no bearing whatsoever on the
Respondent's eligibility for reimbursement from the ELTF. Entry into this
Agreed Order does not guarantee ELTF eligibility. Upon the Effective Date of this Agreed Order,
the Respondent may re-submit claims to the ELTF for any costs for which
reimbursement has previously been denied due to the existence of the
enforcement action resolved by the Agreed Order. All such claims, and all
claims being held
pending resolution of this enforcement action, if any, will be processed in
accordance with current procedures for determining ELTF claims.
4. All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Barbara Goldblatt, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental
Management
5. Respondent is assessed a civil penalty of Ten Thousand Four Hundred Dollars ($10,400.00). 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.
6. In the event the terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:
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Violation |
Penalty |
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Order paragraph # 2 |
$1,000 per week for failure to continue to implement and complete all requirements in the approved CAP and any modified approved CAP. |
7. 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.
8. In accordance with IC 13-23-6-2, civil and stipulated penalties are payable by check to the Underground Petroleum Storage Tank Trust Fund. Checks shall include case number 2002 - 11326 - S and shall be mailed to:
Cashier
IDEM
9. In the event that the civil penalty required by Order paragraph # 5 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.
10. “Force Majeure,” for the 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 the 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 that 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.
11. 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.
12. 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.
13. 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.
14. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental
Management |
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By: |
_____________________________ |
By: |
______________________________ |
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Paul Higginbotham, Chief |
Printed: |
______________________________ |
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Solid Waste - UST Section |
Title: |
_____________________________ |
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Office of
Enforcement |
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Date: |
_____________________________ |
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______________________________ |
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COUNSEL FOR
COMPLAINANT: |
COUNSEL FOR
RESPONDENT: |
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Department of Environmental
Management |
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By: |
_____________________________ |
By: |
______________________________ |
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Office of Legal
Counsel |
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Date: |
_____________________________ |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT THIS _______ DAY OF _____________________, 200____.
For the Commissioner:
Signed on
Felicia A. Robinson
Deputy Commissioner
for
Legal Affairs