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. 2018-24971-U
					)
Woodrow & Elizabeth Smallwood,					)
					)
Respondents.					)

AGREED ORDER

Complainant and Respondents 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. Respondents’ entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents 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. Respondents own Underground Storage Tank (“UST”) systems, with UST Facility ID 22521 located at 225 E SR 62, located in Gentryville, Spencer County, Indiana (the “Site”).

3. Respondents own three (3) UST systems. One UST system is an eight thousand (8,000) gallon fiberglass dual compartment tank which for regulatory purposes is considered two (2) tanks. The other is an eight thousand (8,000) gallon fiberglass UST system.

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

5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) to:

Woodrow & Elizabeth Smallwood, Owners

2210 Briargate Ave.

Louisville KY 40216

6. Owner as defined in IC 13-11-2-150(a)(1)(A) means, for an UST that was in use on November 8, 1984 or brought into use after November 8, 1984 for the storage, use, or dispensing of regulated substances, a person who owns the UST or the real property that is the UST site, or both. According to the Spencer County Assessor’s Office, Respondents own the Site.

7. A Violation Letter was issued to Respondents on September 8, 2017 which required Respondents to submit a Notification form within thirty (30) days of receipt of the Violation Letter. Respondents did respond to this letter which was dated September 20, 2017. Respondents did not submit a Notification form.

8. During an investigation including an inspection on July 26, 2017 and a record review conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 329 IAC 9-2-2, (a) all notifications required to be submitted under this section must be submitted on a form prescribed by the commissioner; (b) any person who owns an UST system or tank shall, within thirty (30) days of owning such an UST system or tank or bringing such tank or UST system into use, submit notice to the agency to register the tank or UST system. Bringing a tank or UST system “into use” means the tank or UST system contains or has contained a regulated substance and not been closed under 329 IAC 9-6; and (d) an owner required to submit notice under this section shall provide all the information required by the form provided by the agency for each tank for which notice is submitted.

As noted during the inspection, Respondents, as owners of the Site, failed to submit notice to IDEM within thirty (30) days of owning the UST systems. No notification signed by Respondents as owner has been submitted to IDEM.

b. Pursuant to 329 IAC 9-8-4(a), an owner or operator of a petroleum underground storage tank shall demonstrate financial responsibility for taking corrective action and for compensating third parties.

As noted during the inspection, Respondents failed to submit proof of financial responsibility in the form of a Certification of Financial Responsibility that was requested by the “329 IAC 9-3-1 Records Request” letter sent by IDEM on June 5, 2017 and was not available at the time of the inspection.

9. In recognition of the settlement reached, Respondents 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondents shall comply with the statutes, rules, and/or permit conditions listed in the findings above.

3. Within fifteen (15) days of the Effective Date, Respondents shall comply with 329 IAC 9-2-2(a) and (d).  Specifically, Respondents shall submit to IDEM, an updated Notification for Underground Storage Tanks form (State Form 45223) with supporting documentation, as outlined in the Instructions for State Form 45223 (R5/1-14) document.  The notification form and instructions can be found at the following web address: http://www.in.gov/idem/5157.htm.

4. Within thirty (30) days of the Effective Date, Respondents shall comply with 329 IAC 9-8-4(a). Specifically, Respondents shall submit to IDEM, proof of Certification of Financial Responsibility (State Form 52884). The UST Request for Certificate of Financial Assurance for UST form and instructions can be found at the following web address: http://www.in.gov/idem/5157.htm.

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

Christina Halloran, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

6. Respondent is assessed a civil penalty of Zero ($0) Dollars. This penalty reflects a significant reduction from the original proposed civil penalty based on evidence submitted to IDEM by Respondent which adequately demonstrated Respondent’s inability to pay the original proposed civil penalty.

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

Paragraph	Penalty
Order paragraph #3	$250/week
Order paragraph #4	$250/week

7. Stipulated penalties shall be due and payable no later than the 30^th day after Respondents receive written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondents at any time that a stipulated penalty is due. Failure to notify Respondents 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 Respondents for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondents 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.

8. Stipulated penalties are payable by check to the “Underground Petroleum Storage Tank 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 N1307

100 North Senate Avenue

Indianapolis, IN 46204

9. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondents 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 Respondents pay any unpaid balance. Such interest shall be payable to the Underground Petroleum Storage Tank Trust Fund, and shall be payable to IDEM in the manner specified in Paragraph 8, above.

10. This Agreed Order shall jointly and severally apply to and be binding upon Respondents and their successors and assigns. Respondents’ 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 Respondents shall in any way alter their status or responsibilities under this Agreed Order.

11. 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.

12. Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

13. 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 Respondents pursuant to this Agreed Order, shall not in any way relieve Respondents of their obligation to comply with the requirements of their applicable permits or any applicable Federal or State law or regulation.

14. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents may incur as a result of Respondents’ efforts to comply with this Agreed Order.

15. 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.

16. 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 Respondents may incur as a result of such communications with the EPA or any other agency or entity.

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

TECHNICAL RECOMMENDATION:
Department of Environmental Management				RESPONDENT
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 02/22/2019 By:
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality