STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2011-20256-H
					)
metalworking lubricants Co.,					)
					)
Respondent.					)

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. 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, except a proceeding to enforce this 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 Metalworking Lubricants Co. (“Respondent”), which operated (but did not own or maintain) several above ground storage tanks at a used oil storage facility, located at 199 South Sherman Avenue, in Indianapolis, Marion County, Indiana (“Site”).

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

4. Pursuant to IC 13-30-3-3, on October 12, 2011, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

Mr. R. F. Tomlinson, Secretary

Metalworking Lubricants Co.

25 Silverdome Industrial Park

Pontiac, Michigan 48342

5. Metalworking Lubricants Company manufactures and markets cutting oils, ferrous and non-ferrous compounds, hydraulic, way, and gear oils, greases, and other products.

6. Respondent experienced a release of approximately 30,000 gallons of a petroleum product from an AST #7 at the Site on September 7, 2010. This release was caused by a valve failure which the Respondent did not own or maintain.

7. IDEM State Cleanup Program issued a Special Notice of Liability letter to Respondent on September 30, 2010.

8. IDEM State Cleanup Program issued a letter to Respondent on March 22, 2011 requesting a complete spill report and confirmation sampling results.

9. In accordance with IC 13-24-1-6, on September 30, 2010, an authorized employee of IDEM sent an information request (“Letter”) to Metalworking Lubricant Co. The Letter requested the following testing and information to assess the need for removal or remedial action:

a. With regard to Incident #2010-09-0933, specify the type of petroleum product released during the incident. Provide information on the historical contents of the AST #7 that leaked. Provide the name and contact information of the contractor that performed excavation activities for the petroleum contaminated soils. Provide a map showing the approximate excavation locations and depths of excavation. Provide documentation on the disposal of impacted soil. Provide a description of repair work done to the AST #7 or any associated piping or equipment.

b. Collect confirmation samples from around the excavation area to verify that all petroleum contamination from incident #2010-09-033 has been removed. Due to the vicinity or petroleum products historically stored at the Site, contaminants of concern (COCs) to be evaluated must include volatile organic compounds (VOCs), semi-volatile organic compounds (SVOCs), total petroleum hydrocarbons (TPH), gasoline range organics (GRO), TPH-extended range organics (ERO), naphthalene, polychlorinated biphenyls (PCBs) and metals.

c. If the confirmatory samples indicate petroleum contamination from the incident remains in the soil or groundwater at or near the facility, perform a site investigation to define the nature and extent of soil, air, surface water, and groundwater contamination at and emanating from the Site, and to identify the risks posed by the Site.

10. IDEM, Office of Land Quality, Enforcement Section issued a Violation Letter to Respondent on July 19, 2011 requesting a complete spill report, collection of confirmation samples and to respond in accordance to the analytical findings for further site investigation.

11. IDEM, Office of Land Quality, Enforcement Section issued a Notice of Inadequacy to Respondent on August 16, 2011 for failure to collect confirmation samples.

12. During an investigation including a record review on September 15, 2011, conducted by a representative of IDEM, the following violation was found:

a. Pursuant to IC 13-24-1-6, to allow the commissioner to take or assess the need for removal or remedial action under IC 13-24-1-1, 2, or 3 or to enforce IC 13-24-1, an owner, an operator, or a responsible party of a facility, upon request of an officer, an employee, or a designated representative of IDEM, shall furnish information relating to the facility or the facility’s associated equipment or contents; conduct testing of the facility or the facility’s associated equipment or contents; and conduct testing of soils, air, surface water, or ground water surrounding the facility if the testing confirms a release of petroleum, or if other evidence exists that gives cause for reasonable suspicion that a release has occurred. Respondent failed to submit the analytical results from the excavation area confirmation sampling and to respond in accordance to the analytical findings for further site investigation.

13. On October 12, 2011, a Notice of Violation was issued, pursuant to IC 13-30-3-3 to Respondent for violation of IC 13-24-1-6. Respondent received this Notice of Violation on October 17, 2011. The Notice of Violation contained an offer to enter into an Agreed Order containing actions required to correct the violation.

14. IDEM met with Respondent or Respondent’s Legal Counsel on October 7, 2010, July 27, 2011, December 1, 2011, March 7, 2012, April 25, 2012, and July 11, 2012 in attempts to resolve the matter. More than sixty (60) days elapsed after Respondent was offered the opportunity to enter into an Agreed Order.

15. As of April 13, 2012, IDEM incurred Six Thousand One Hundred Fifty Dollars and Eighty-Seven Cents ($6,150.87) in oversight costs related to the spill and cleanup.

16. On September 5, 2012, IDEM issued a Notice and Order of the Commissioner which required Respondent to comply with IC 13-24-1-6 by specifically submitting analytical results of confirmation samples from around the excavation area to verify that all petroleum contamination from Incident # 2010-09-033 was removed.

17. On September 25, 2012, Respondent filed a Petition for Administrative Review, Adjudicatory Hearing, and Stay of Effectiveness of the Notice and Order of the Commissioner with the Office of Environmental Adjudication, which has been pending as Cause No. 12-S-E-4612.

18. On January 16, 2014, IDEM issued a response to a September 19, 2013 Site Investigation and Closure Report submitted on behalf of Respondent and confirmed that the soil confirmation results appeared adequate for the excavations conducted in response to Incident #2010-09-033, but IDEM requested ground water sampling to determine whether contamination has migrated to the ground water.

19. Respondent no longer has access to the Site, as the lease that allowed Respondent to operate the aboveground storage tanks when Incident # 2010-09-033 occurred, is no longer in effect.

20. IDEM Nonrule Policy Document WASTE-0065-NPD establishes adequate steps to be taken and documentation to be provided by a respondent who is attempting to gain access to third party properties for the investigation or remediation of contamination.

21. In correspondence dated September 27, 2016, Respondent provided adequate documentation to show that it has made reasonable attempts to gain access to the Site and that it is unable to obtain the necessary permission to undertake additional investigation or corrective action at the Site.

22. This Agreed Order supersedes and replaces the September 5, 2012 Notice and Order of the Commissioner.

23. 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, except a proceeding to enforce this order.

24. 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 is assessed and agrees to pay a civil penalty of Ten Thousand Dollars ($10,000). Said penalty shall be made in five (5) monthly payments in the amount of One Thousand Six Hundred Sixty-Seven Dollars ($1,667.00) and one monthly payment of One Thousand Six Hundred Sixty-Five Dollars ($1,665.00). The first installment shall be due and payable to the Hazardous Substances Response Trust Fund within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.

3. Civil penalties are payable by check to the “Hazardous Substances Response Trust Fund.” Checks shall include the Case Number of this action and shall be mailed to:

Indiana Department of Environmental Management

Office of Legal Counsel

IGCN, Room 1307

100 North Senate Avenue

Indianapolis, IN 46204

4. Respondent agrees to withdraw and dismiss its Petition for Administrative Review of the September 5, 2012 Notice and Order of the Commissioner, within ten (10) days of the Effective Date of this Agreed Order.

5. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 3, above.

6. 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.

7. 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.

8. 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.

9. 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 permits or any applicable Federal or State law or regulation.

10. 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.

11. 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.

12. 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.

13. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_______	DAY OF	______________________,	20__.
				For the Commissioner:
				_Signed on 12/12/16__________
				Peggy Dorsey
				Deputy Assistant Commissioner
				Office of Land Quality