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. 2013-22018-H
					)
ACTION ENVIRONMENTAL, INC.,					)
					)
Respondents.					)

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 Action Environmental, Inc., which owns and/or operates a facility with U.S. EPA I.D. number INR 000130658, located at 2122 Bremer Road in Fort Wayne, Allen 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 (“NOV”) via Certified Mail to:

Edward L. Black, President and Registered Agent

Action Environmental, Inc.

5449 Keystone Dr.

Fort Wayne, IN 46825

5. On February 17, 2012, Respondent notified IDEM as a transporter and transfer facility of used oil, as well a transporter and small quantity generator of hazardous waste. However, at the time of the inspection, Respondent was also operating as a used oil processor.

6. “Processing,” as defined in 329 IAC 13-2-14, means chemical or physical operations designed to produce from used oil, or to make used oil more amenable for production of, fuel oils, lubricants, or other used oil-derived product. Processing includes, but is not limited to:

(1) blending used oil with virgin petroleum products;

(2) blending used oils to meet the fuel specification;

(3) filtration;

(4) simple distillation;

(5) chemical or physical separation; and

(6) re-refining.

7. During an investigation including an inspection conducted on September 25, 2013, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and above ground tanks with the words “Used Oil.”

As noted during the inspection, Respondent failed to label seventeen (17) 20,000 gallon frac tanks used to temporarily store oily water awaiting waste water treatment with the words “Used Oil.” Nine (9) tanks were stored inside and eight (8) were stored outside on the west side of the Site.

b. Pursuant to 329 IAC 13-7 and 40 CFR 279, Subpart F, processors of used oil must comply with the standards set forth in these rules.

As noted during the inspection, Respondent was operating as a used oil processor and had not complied with the regulatory requirements for a used oil processor as listed in 329 IAC 13-7 and 40 CFR 279, Subpart F.

8. The parties met on February 4, 2014 to discuss this matter. Respondent submitted an Initial Compliance Plan to address the used oil processor requirements to IDEM via email on February 24, 2014.

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

3. Upon the Effective Date, Respondent shall comply with 329 IAC 13-4-3(d). Specifically, Respondent shall label all used oil containers and aboveground tanks with the words “Used Oil.”

4. Within thirty (30) days of the Effective Date, Respondent shall comply with all applicable requirements of 40 CFR 279, Subpart F and 329 IAC 13-7 for used oil processors including, but not limited to, the actions addressed in the Initial Compliance Plan submitted to IDEM by Respondent via email on February 24, 2014.

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

Brenda Lepter, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

6. Respondent is assessed and agrees to pay a civil penalty of Nine Thousand Two Hundred Dollars ($9,200). Said penalty amount shall be due and payable to the Environmental Management Special Fund in four (4) installments of $2,300 each. The first installment shall be due within thirty (30) days of the Effective Date; the second installment shall be due on or before September 30, 2014; the third installment shall be due on or before December 31, 2014; and the final installment shall be due on or before March 31, 2015.

7. 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:

Failure to comply with Order Paragraph No. 4

$500 per week.

8. 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.

9. 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

10. 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 9, above.

11. 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.

12. 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.

13. 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 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.

15. 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.

16. 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.

17. 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.

18. 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 June 5, 2014_
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality