STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CASE NO. 2001-10432-S
v. )
)
MACKEY TANNER PETROLEUM, INC. )
)
Respondent. )
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.
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.
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 Mackey Tanner Petroleum, Inc. ("Respondent"), who owns and operates the Fair Lease Well #1, located in the center of Section 9, Township 5 North, Range 10 West, Oaktown, Knox County, Indiana ("Site").
3. 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:
Mackey Tanner Petroleum, Inc. Mackey Tanner Petroleum, Inc.
John Mackey, President John Mackey, R.A.
P.O. Box 5446 3491 East Rogers Rd.
Bloomington, IN 47407 Bloomington, IN 47401
5. Designated representatives of IDEM conducted an inspection at the Site on March 6, 2001.
6. Based on information gathered by IDEM during the above noted inspection, the following violations were in existence or observed at the time of the inspection:
A. Pursuant to 327 IAC 2-6.1-7, any person who operates, controls or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state contain the spill, if possible, to prevent additional spilled material from entering the waters of the state; undertake or cause others to undertake activities needed to accomplish a spill response; and as soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response. During the above noted inspection, Mackey Tanner Petroleum, Inc., caused or allowed the discharge of crude oil from the Site and failed to adequately report, respond to, and contain the spill.
B. Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans, and which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance. During the above noted inspection, Mackey Tanner Petroleum, Inc., caused or allowed the discharge of crude oil from the Site to waters of the state.
C. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge is prohibited, unless in conformity with a NPDES Permit obtained prior to the discharge. During the above noted inspection, Mackey Tanner Petroleum, Inc., caused or allowed the discharge of crude oil from the Site to waters of the state without a valid NPDES permit.
D. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or to cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters, any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under Sections 1 and 3 of this chapter. During the above noted inspection, Mackey Tanner Petroleum, Inc., caused or allowed the discharge of crude oil from the site to waters of the state.
E. Pursuant to IC 13-30-2-1(1), no person may discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form which causes or would cause pollution which violates or which would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws. During the above noted inspection, Mackey Tanner Petroleum, Inc., caused or allowed the discharge of crude oil into the environment.
F. Pursuant to 326 IAC 4-1-2, the open burning of any material is prohibited unless exempted by 326 IAC 4-1-3 or an approval is obtained in accordance with 326 IAC 4-1-4. During the above noted inspection, Mackey Tanner Petroleum, Inc., caused or allowed the open burning of crude oil.
7. IDEM reserves, and this Agreed Order is without prejudice to, all rights against
Respondents with respect to all violations or matters not expressly included within the Findings of Fact. Notwithstanding any other provision of this Agreed Order, the State reserves the right to institute proceedings in a new action seeking recovery of Natural Resource Damages pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, (CERCLA), 42 USC Section 9601 et. seq., the Clean Water Act, 33 USC Section 1251 et seq., or the Oil Pollution Act, Section 2701 et seq. based on the matters addressed herein.
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 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.
3. Respondent shall, within sixty (60) days of the Effective Date of this Agreed Order, submit a Site Investigation Plan (SIP) and schedule that addresses the delineation of the vertical and horizontal extent of contamination of crude oil that was spilled/released at the Site. The SIP and schedule shall be subject to review, modification, approval or denial by IDEM. If IDEM identifies deficiencies in the SIP and/or schedule, the Respondent shall have thirty (30) days to revise and resubmit the SIP and/or schedule to IDEM that addresses the deficiencies. The SIP shall include, but not be limited to:
A. Introduction;
B. Proposed list of contaminants to be sampled for;
C. Proposed sampling and analytical methods to be utilized;
D. Site map with proposed sampling locations marked;
E. Schedule to complete the Site Investigation.
A. Introduction;
B. List of constituents sampled for;
C. Sampling and analytical methods utilized;
D. Chain of custody documentation;
F. Analytical findings;
E. Site map showing sampling locations and extent of contamination; and
G. Conclusions and recommendations.
A. Introduction;
B. Proposed remediation activities;
C. Proposed remediation levels for the contaminant(s) of concern;
D. Proposed schedule to implement and complete remediation activities;
E. Proposed confirmation sampling;
F. Site map delineating area of proposed remediation activities.
submit a report detailing the remediation activities and the findings of the confirmation
sampling. This report shall include, but not be limited to:
A. Introduction;
B. Discussion of remediation activities implemented;
C. Sampling and analytical methods utilized for confirmation sampling;
D. Analytical findings of confirmation sampling;
E. Chain of custody documentation;
F. Site map showing areas of remediation activities and confirmation sampling locations;
G. Summary.
Dirk Andres, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
Violation Penalty
Order Paragraph #3 $1,000 per week SIP is late.
Order Paragraph #4 $1,000 per week for failure to perform work per the approved SIP schedule.
Order Paragraph #5 $500 per week Site Investigation Report is late.
Order Paragraph #7 $1,000 per week RP is late.
Order Paragraph #8 $1,000 per week for failure to perform work per
the approved RP schedule.
Order Paragraph #10 $500 per week Remediation Report is late.
Order Paragraph #11 $500 per violation
Cashier
IDEM
100 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
18. In the event that the civil penalty required by Order Paragraph 11 is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.
19. 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.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Mackey Tanner Petroleum, Inc.
By:___________________________ By:____________________________
Paul Higginbotham, Chief
Solid Waste/UST Section Printed:_______________________
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:
Signed on 3/4/02
_________________________
Felicia A. Robinson
Deputy Commissioner
Legal Affairs