STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

ADVANTAGE TANK LINES,

Respondent.

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Case No. 2007-17239-W

 

 

AGREED ORDER

 

Complainant and 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 (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondent is Advantage Tank Lines (“Respondent”), which owns and operates a trucking company which was delivering gasoline to Murphy Oil USA located at 1620 McClain Ave in Scottsburg, Scott County, Indiana (the “Site”).

 

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

 

4.                  Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

 

Kevin Emerson

Terminal Manager

Advantage Tank Lines

3520 Bells Lane

Louisville, KY 40211

 

5.                  Respondent owns and operates a trucking company which was delivering gasoline to Murphy Oil USA located at 1620 McClain Ave in Scottsburg, Scott County, Indiana (the “Site”).

 

6.         Pursuant to 327 IAC 2-6.1-4(15), a spill is defined as any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage seepage, discharge or other loss of petroleum, hazardous and/or otherwise objectionable substance which enters or threatens to enter the waters of the state.

 

7.         Pursuant to 327 IAC 2-6.1-6, the following spills from a mode of transportation must be reported:

(A)       Spills that damage the waters of the state so as to cause death or acute injury or illness to humans or animals.

(B)       Spills that damage surface waters.

(C)       Spills to soil:

(a)       spills of hazardous substances or extremely hazardous substances when the amount spilled exceeds one hundred

(100) pounds or the reportable quantity, whichever is less;

(b)       spills of petroleum when the amount spilled exceeds fifty-five (55) gallons; or

(c)        spills of objectionable substances as defined in section 4(11) of this rule.

(D)       Any spill for which a spill response has not been done.

 

8.         Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state, do the following:

(A)       Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

(B)       Undertake or cause others to undertake activities needed to accomplish a spill response.

(C)       As soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management.

 

9.         Pursuant to IC 13-30-2-1, no person may 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 or emission requirements adopted by the appropriate board pursuant to this title.

 

10.       An employee of Respondent caused and/or allowed the discharge of 250 gallons of petroleum from a tanker truck on to the Site on or about December 19, 2006.  The employee failed to report or attempt to contain the spill, which caused pollution, a violation of 327 IAC 2-6.1-6 and 327 IAC 2-6.1-7 (a rule adopted by the Water Pollution Control Board), in violation of IC 13-30-2-1.

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

 

2.                  Respondent shall comply with 327 IAC 2-6.1-6, 327 IAC 2-6.1-7 and IC 13-30.

 

3.                  Within 30 days of the Effective Date, Respondent shall provide to IDEM a plan which shows how all drivers are trained in spill recognition, response and reporting.  This training plan is subject to IDEM review and approval.  This training shall include steps a driver should take and whom to contact in response to a spill.

 

4.                  All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Edward Judson, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Enforcement – Mail Code 60-02

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

5.                  Respondent is assessed a civil penalty of Seven Thousand Dollars ($7,000).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.  In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, 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.

 

6.                  In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

 

Paragraph

Violation

Stipulated Penalty

3

Failure to submit training plan within required time period.

$500 per week late, or part thereof.

 

7.                  Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for violation of this Agreed Order.  In lieu of any of the stipulated penalties set out above, 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.                  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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

9.                  This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns.  Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.  No change in ownership, corporate, or partnership status of 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 this Agreed Order did not contain the invalid terms.

 

11.             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 is not and shall not be interpreted to be a permit or a modification of an existing permit.  This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permit or any applicable Federal or State law or regulation.

 

13.             Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation.  Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

 

14.             Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

 

15.             Nothing in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action.  IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the EPA or any other agency or entity.

 

16.             This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Paragraph Nos. 3 through 8 of this Agreed Order and IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on June 15, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement