STATE OF INDIANA)BEFORE THE INDIANA DEPARTMENT

)SS:OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION)

 COMMISSIONER OF THE DEPARTMENT)

OF ENVIRONMENTAL MANAGEMENT,)

)

Complainant,)

)CASE NO. 2001-10262-S

v.)

)

CLARK RETAIL ENTERPRISES, INC.,)

)

Respondent.)

 AGREED ORDER

 The Complainant and the 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.

I. FINDINGS OF FACT

1.Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2.Respondent is Clark Retail Enterprises, Inc., (hereinafter referred to as "Respondent"), who owns underground storage tank systems, Facility ID# 2949, located at 8755 Crawfordsville Road, Indianapolis, Marion County, Indiana ("the Site").

1. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

  4.Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

Clark Retail Enterprises, Inc.Corporation Service Company

Attn: Brandon K. Barnholt, President251 E. Ohio St., Ste 500

3003 Butterfield RoadIndianapolis, Indiana 46204

Oak Brook, Illinois 60523

1. Designated representatives of IDEM conducted an inspection at the Site January 26, 2001.
2. The Respondent received the Notice of Violation on April 5, 2001.
3. Based on information gathered by IDEM during the above noted inspection, the Respondent has been found in violation of:

1. Pursuant to 329 IAC 9-4-1(3)(A), the owner and operator of a UST system shall report to the agency within twenty-four (24) hours and follow the procedures in 329 IAC 9-5-4.1 when monitoring results from the release detection method required under 329 IAC 9-7-2 and 329 IAC 9-7-3 that indicate a release may have occurred unless the monitoring device is found to be defective; and immediately repaired, recalibrated, or replaced; and additional monitoring does not confirm the initial result. The Respondent failed to respond to or report a release for at least five (5) months when leak detection records presented to IDEM personnel as the primary form of UST release detection indicated there was an ongoing release of petroleum from the Site. The Respondent did not respond to, investigate or report failed leaked detection tests of the piping attached to the UST systems after automated reports indicated a release was ongoing from January 1, 2001 through January 24, 2001 until an IDEM inspector visited the Site.
2. Pursuant to 329 IAC 9-7-1, all owners and operators of new and existing UST systems shall provide a method, or combination of methods, of release detection that does the following: (1) Can detect a release from any portion of the tank and the connected underground piping that routinely contains product. (2) Is installed, calibrated, operated, and maintained in accordance with the manufacturer=s instructions, including routine maintenance and service checks for operability or running condition. The Respondent failed to monitor release detection in use at the Site.

8.The Respondent reported a release at the Site to the Leaking Underground Storage Tank Section on February 6, 2001 and was issued Incident Number 200102502.

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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. The Respondent shall submit copies of all tank and piping leak detection and maintenance records on a monthly basis for a period of twelve (12) months after the Effective Date of this Agreed Order. The records for each month shall be due at this office within seven (7) business days after the end of each month.
3. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Thomas F. Newcomb, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, Indiana 46206-6015

4.The Respondent is assessed a civil penalty of five thousand six hundred dollars ($5,600.00). Said penalty amount shall be due and payable to the Underground Petroleum Storage Tank Trust Fund within thirty (30) days of the Effective Date of this Agreed Order.

5.In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

ViolationPenalty

Order Condition #2$500 per week that records are late

6.Stipulated penalties shall be due and payable within thirty (30) days after the Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order.

In lieu of assessment of any of the stipulated penalty given above, the Complainant may seek any other remedies or sanctions available by virtue of the Respondent's violation of this Agreed Order, or Indiana Law, including but not limited to civil penalties pursuant to IC 13-30-4.

7.In accordance with IC 13-23-6-2, civil and 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:

Cashier

IDEM

100 North Senate Avenue

P.O. Box 7060

Indianapolis, Indiana 46207-7060

8.In the event that the civil penalty required by Order Condition #4 is not paid within thirty (30) days of the Effective Date of this Agreed Order, the Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

9.This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

10.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 the Agreed Order did not contain the invalid terms.

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

12.This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order.

               TECHNICAL RECOMMENDATION:RESPONDENT:

Department of Environmental ManagementClark Retail Enterprises, Inc.

By:___________________________By:

Paul Higginbotham, Chief

Solid Waste/UST SectionPrinted:

Office of Enforcement

Title:

Date:_________________________Date:

 COUNSEL FOR COMPLAINANT:COUNSEL FOR RESPONDENT:

Department of Environmental Management

By:___________________________By:

Office of Legal Counsel

Department of Environmental Management

Date:__________________________Date:

 APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __________ DAY OF __________________, 2002.

 For the Commissioner:

   Adopted 3/15/02

Felicia A. Robinson

Deputy Commissioner

For Legal Affairs