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. 2011-20493-S
					)
Dennis Kuritz d.b.a. kuritz marathon,					)
					)
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 Dennis Kuritz d.b.a. Kuritz Marathon (“Respondent”), who owns (2) Underground Storage Tank (“UST”) systems, which are not registered with IDEM, located at 45 N US HWY 35 N (Parcel Number 09-06-22-300-015.000-017) 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 December 21, 2011, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

Mr. Dennis Kuritz, Owner

Dennis Kuritz d.b.a. Kuritz Marathon

115 Eel River Avenue

Logansport, Indiana 46947

5. IDEM issued a Violation Letter on May 16, 2011 detailing the requirements to return the Site to compliance.

6. During an investigation, including an inspection on March 29, 2011 and September 15, 2011, conducted by a representative of IDEM, the following violation was found:

a. Pursuant to 329 IAC 9-2.1-1(a), all existing UST systems shall comply with one of the following requirements no later than December 22, 1998: (1) new UST system performance standards under 329 IAC 9-2-1; (2) upgrading requirements under sections (b) through (d); or (3) closure requirements under 329 IAC 9-6, including applicable requirements for corrective action under 329 IAC 9-5. Respondent failed to properly upgrade or permanently close two (2) UST systems at the Site that do not meet the new UST performance standards.

7. 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 the rule listed in the findings here and/or above at issue.

3. Respondent shall permanently close the UST systems as follows:

(a) Close the UST systems within 60 days of the Effective Date of this Order in accordance with the requirements of 329 IAC 9-6-1 through 329 IAC 9-6-4, including the applicable requirements for corrective action under 329 IAC 9-5-1 through 9-5-8; and,

(b) Submit a UST Closure Report (“USTCR”) in accordance with 329 IAC 9-6-2.5 within thirty (30) days of closing the UST systems.

4. Respondent shall apply for and obtain all necessary permits pertaining to UST systems closure activities being performed at the Site.

5. Respondent shall permit an agent of IDEM to view and inspect the activities performed pursuant to the USTCR. In order to facilitate such an inspection, Respondent shall notify IDEM’s Underground Storage Tank Section at least seven (7) days prior to any scheduled activities.

6. 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

7. Respondent is assessed and agrees to pay a civil penalty of Seven Thousand Two Hundred Dollars ($7,200). Six Hundred Dollars ($600) shall be due within thirty (30) days of the Effective Date. The remaining Six Thousand Six Hundred Dollars ($6,600) shall be due in eleven (11) consecutive monthly payments of Six Hundred Dollars ($600) to begin sixty (60) days from the Effective Date of this Agreed Order. Interest will not be charged on the principal amount over the repayment period.

8. 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
3a	Failure to close the UST systems	$250 per week
3b	Failure to submit a UST Closure Report	$250 per week

9. 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.

10. 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

11. 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 7, above.

12. This Agreed Order shall apply to and be binding upon Respondent and his successors and assigns. Respondent’s signatories to this Agreed Order certify that he is fully authorized to execute this Agreed Order and legally bind the party he represents. No change in ownership, corporate, or partnership status of Respondent shall in any way alter his status or responsibilities under this Agreed Order.

13. 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.

14. 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.

15. 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 his obligation to comply with the requirements of his applicable permits or any applicable Federal or State law or regulation.

16. 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.

17. 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.

18. 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.

19. 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 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	________________,	20__.
				For the Commissioner:
				signed 3/30/12
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality