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. 2002-11334-S
					)
SPEEDWAY SUPERAMERICA, LLC,					)
					)
	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(c), entry into the terms of the 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 (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 Speedway SuperAmerica, LLC (hereinafter referred to as "Respondent"), which owns and operates regulated Underground Storage Tanks, Facility ID# 6694, located at 3005 East 10^th Street, Indianapolis, Marion County, Indiana (“Site”).

3. The Indiana Department of Environmental Management (“IDEM") has jurisdiction over the parties and the subject matter of this action.

4. The respondent submitted a Corrective Action Plan (“CAP”) that was approved by IDEM on June 13, 2000.

5. A designated representative of IDEM’s Office of Land Quality conducted a records review of the Site on November 30, 2001.

6. Based on information gathered during the records review, the Respondent has been found in violation of:

Pursuant to 329 IAC 9-5-7(c), upon approval of the corrective action plan or as directed by the commissioner, the owner and operator shall implement the plan, including modifications to the plan made by the commissioner. The owner and operator shall monitor, evaluate, and report the results of implementing the plan in accordance with a schedule and in a format established by the commissioner.

The Respondent did not implement the approved CAP.

7. Pursuant to IC 13-30-3-3, on July 16, 2002, IDEM issued a Notice of Violation via Certified Mail to:

Speedway SuperAmerica, LLC	C T Corporation System
539 S. Main Street	c/o Speedway Super America, LLC
Findlay, OH 45840	36 S. Pennsylvania Street Suite 700
	Indianapolis, IN 46204

8. On September 4, 2002, Speedway SuperAmerica, LLC, began the operation of the vacuum enhanced recovery (VER) system.

9. 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

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

5. Respondent is assessed a civil penalty of Five Thousand Six Hundred Dollars ($5,600.00). 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 of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation	Penalty
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 Respondent's 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 - 11334 - S and shall be mailed to:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

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 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. “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.

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.

TECHNICAL RECOMMENDATION:		RESPONDENT:
Department of Environmental Management		Speedway Super America, LLC
By:	_____________________________	By:	______________________________
	Paul Higginbotham, Chief	Printed:	______________________________
	Solid Waste - UST Section	Title:	_____________________________
	Office of Enforcement
Date:	_____________________________	Date:	______________________________
COUNSEL FOR COMPLAINANT:		COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:	_____________________________	By:	______________________________
	Office of Legal Counsel
Date:	_____________________________	Date:	______________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ___________ DAY OF _________________________, 200____.

For the Commissioner:

Signed on January 4, 2005

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs