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. 2011-20438-H
					)
pasquale trucking company, inc.,					)
					)
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 Pasquale Trucking Company, Inc. (“Respondent”), which owns and operates the facility located at 960 West County Road 250 South, in Logansport, Cass 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 November 28, 2011, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

Mr. Tom Pasquale, President	Mr. Tom Pasquale, Registered Agent
Pasquale Trucking Company, Inc.	Pasquale Trucking Company, Inc.
4295 E. Penrod	960 W. County Road 250 S
Monticello, Indiana 47960	Logansport, Indiana 46947

5. Respondent operates a trucking logistics company.

6. 329 IAC 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270, and Part 273 including these identified below.

7. During an investigation, including an inspection on September 1, 2011, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to Indiana Code (“IC”) 13-30-2-1(3), no person shall deposit any contaminants upon the land in a place and manner that creates or would create a pollution hazard that violates or would violate 329 IAC 10-4-2. Respondent deposited contaminants, including, but not limited to used oil, upon the land in a place and manner that that creates or would create a pollution hazard that violates or would violate 329 IAC 10-4-2.

b. Pursuant to 329 Indiana Administrative Code (“IAC”) 10-4-2, no person shall cause or allow the storage, containment, processing, or disposal of solid waste in a manner which creates a threat to human health or the environment, including the creating of a fire hazard, vector attraction, air or water pollution, or other contamination. Respondent caused and/or allowed solid waste, including, but not limited to used oil, to be stored/disposed at the Site in a manner which creates a threat to human health or the environment. Specifically, soil contamination was documented at or near the two diesel fuel pumping stations, the two used oil aboveground storage tanks and the used oil fifty-five gallon horizontal tank located at the Site.

c. Pursuant to 329 IAC 13-4-3(e), upon detection of a release of used oil to the environment, a generator must do the following: stop the release; contain the release; clean up the release; and report the spill if necessary. Respondent failed to stop the release of used oil and failed to clean up the used oil releases documented at the Site. Specifically, the two used oil aboveground storage tanks and the used oil fifty-five gallon horizontal tank were leaking and helped contribute to the soil contamination at or near their location at the Site.

d. Pursuant to 329 IAC 13-4-3(c), containers and aboveground tanks used to store used oil must be in good condition and not leaking. Respondent's two used oil aboveground storage tanks and the used oil fifty-five gallon horizontal tank were not in good condition and were leaking.

e. Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and aboveground tanks with the words “Used Oil.” Respondent did not label two used oil aboveground storage tanks and the used oil fifty-five gallon horizontal tank with the words “Used Oil.”

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 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 statutes and rules listed in the findings here and/or above at issue.

3. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit to IDEM a site assessment plan. The purpose of the site assessment plan shall be to conduct sampling and analysis in order to assess potential contamination of different media (soil, ground water, and vapor) from the areas of concern which includes those areas described in Finding of Fact No. 7.b. and, if necessary, the nature and extent of contamination. The site assessment plan shall be based upon the principles outlined in IDEM’s Remediation Closure Guide (RCG), dated March 22, 2012, which can be accessed at: http://www.IN.gov/idem/6683.htm. In addition, the site assessment shall:

a. Describe and evaluate all areas of potential contamination in and around each area of concern.

b. Specify the method of determining the number and location of samples to be taken to yield a representative assessment of each media of concern. This method shall be in accordance with Section 3, Conceptual Site Model of the RCG, to address each media:

1. soil sampling, pursuant to Sections 3 and 8 of the RCG; or

2. ground water sampling, pursuant to Sections 3,4, and 9 of the RCG.

c. Specify how the soil samples will be obtained and handled in order to minimize loss of volatile constituents. Respondent may composite samples of non-volatiles (i.e., metals and semi-volatiles), but shall not composite samples of volatiles, pursuant to Section 3.2.4 of the RCG.

d. Specify how the ground water samples, pursuant to Section 3.3 of the RCG, will be obtained and describe the sampling procedures.

e. Clearly define all sampling and analytical protocols designed to identify hazardous waste or its constituents, pursuant to 40 CFR 261, including Appendices I, II, III, and VIII. The site assessment plan shall include the method of sample collection, pursuant to “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846. This includes, but is not limited to, sample collection containers, preservatives, and holding times. Specify the analytical methods to be used and the method’s reporting and detection limits.

f. Specify that chain-of-custody of the samples shall be maintained and Quality Assurance and Quality Control (“QA/QC”) procedures shall be followed, pursuant to Section 3.8 through 3.10 of the RCG for all media.

g. Include within the site assessment plan a supplemental contingent plan for determining the nature and extent of:

1. soil contamination, as specified Sections 3 and 8 of the RCG, in the event that sampling and analysis indicates soil contamination to exist above screening levels as specified in Table A-6 of Appendix A of the RCG; and

2. ground water contamination in the event that sampling and analysis indicates hazardous waste or its constituents are detected in the ground water as specified in Sections 3, 4, and 9 of the RCG.

h. If soil or ground water contamination is above screening levels, it is necessary to conduct a vapor intrusion investigation. In regard to soil contamination, professional judgment will dictate the necessity of a vapor intrusion investigation.

i. Include within the site assessment plan time frames for its implementation.

j. Be approved by IDEM prior to its implementation.

4. Within fifteen (15) days of receiving notice from IDEM of approval of the site assessment plan, Respondent shall implement it as approved and in accordance with the times frames contained therein.

5. Within fifteen (15) days of obtaining the analytical results, Respondent shall submit said results, including chain-of-custody information, and QA/QC records, pursuant to Section 3.8 through 3.10 of the RCG to IDEM.

6. Respondent shall submit within sixty (60) days subsequent to the submittal of the analytical results, a remediation workplan which identifies potential contaminates, potential receptors, and exposure pathways to IDEM for the purpose of identifying all media contamination. The remediation workplan shall:

a. In accordance with Section 7, Risk Evaluation of the RCG, remediate each contaminated area to meet the remediation objective(s). Remediation objectives shall be one of the following:

1. screening levels, pursuant to Table A-6 of Appendix A in the RCG; or

2. levels based upon site specific risk assessment; or

3. levels based on site specific risk assessment taking into account remedial measures that manage the risk and controls completed and potential pathways; or

4. background levels for inorganics, pursuant to the RCG, and/or the analytical method’s estimated quantitation limits (“EQLs”) for organics.

b. Include a sampling and analysis plan to be performed after the remedial activities have been performed which verifies that all contamination meets the remediation objective(s).

c. Include within the remediation workplan time frames of its implementation.

7. Within fifteen (15) days of approval by IDEM of the remediation workplan, Respondent shall implement the remedial action(s) within the plan as approved and in accordance with the time frames contained therein.

8. Within thirty (30) days of completion of the remedial action(s) conducted pursuant to the remediation workplan, Respondent shall submit to IDEM certification by an independent registered professional engineer that the remedial action(s) has/have been completed as outlined in the approved remediation workplan.

9. In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three (3) submissions of such plan by Respondent, IDEM many modify and approve any such plan and Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into this Agreed Order and shall be deemed and enforceable part thereof.

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

Linda L. McClure, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

11. Respondent is assessed and agrees to pay a civil penalty of Sixteen Thousand Dollars ($16,000). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Three Thousand Two Hundred Dollars ($3,200). Said penalty amount shall be due and payable to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (“SEP”). Respondent estimates that this SEP will cost over Sixteen Thousand Dollars ($16,000). Within fifteen (15) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less than Twelve Thousand Eight Hundred Dollars ($12,800), Respondent shall pay the difference between the required cost of the SEP ($12,800) and the actual cost of the SEP.

As a Supplemental Environmental Project, Respondent shall construct a building to house waste oil tanks, containers and other applicable equipment. All filtering/draining of waste oil containers, tanks and other applicable equipment will be conducted inside the building. A waste oil furnace may be installed if feasible. Respondent shall complete the SEP by no later than March 31, 2013. Implementation of this SEP will move storage of waste oil containers, tanks and other applicable equipment from storage outside in the elements to storage inside an enclosed building. In addition, adding and removing waste oil from the containers, tanks and other applicable equipment will occur inside the building and not on an unpaved surface.

12. Within fifteen (15) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less than Twelve Thousand Eight Hundred Dollars ($12,800), Respondent shall pay the difference between the proposed cost of the SEP and the actual cost of the SEP.

13. In the event that Respondent does not complete the SEP by March 31, 2013, the full amount of the civil penalty as stated in paragraph 14 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM’s notice to pay. Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

14. 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:

Order #	Requirement	Penalty
3	Failure to submit Site Assessment Plan as required.	$250 per week
4	Failure to implement Site Assessment Plan.	$500 per week
9	Failure to submit a revised Site Assessment	$250 per week
	Plan/Remediation Workplan, if required, within the given time period.

15. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to 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 “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

17. 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 11, above.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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: _______________________				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_______	DAY OF	_________________,	20__.
				For the Commissioner:
				Signed 6/12/12
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality