STATE OF INDIANA            )                       BEFORE THE INDIANA DEPARTMENT

SS:                                           )                       OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION        ) 

COMMISSIONER OF THE DEPARTMENT            )

OF ENVIRONMENTAL MANAGEMENT,              )

                                                                                    )

                        Complainant,                                        )

                                                                                    )           CASE NO. 2001-10495-S

                                    v.                                             )

                                                                                    )

RONALD D. HARRIS AND BIVALVE                     )

PROPERTIES, 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. 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 (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. Respondents are Ronald D. Harris and Bivalve Properties, Inc. (hereinafter referred to as "Respondents"), who own property at 1602 Allison Lane, Jeffersonville, Clark County, Indiana, ("the Site") at which are located underground storage tank systems, UST Facility ID 10333. A Warranty Deed transferring the property from Bivalve Properties, Inc. to 1602 Partners was filed with the Office of the Clark County Recorder on May 11, 2004. A Warranty Deed transferring the property from 1602 Partners to Investments Unlimited, LLC was subsequently filed with the Office of the Clark County Recorder on May 11, 2004.

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:

Ronald D. Harris

Bivalve Properties, Inc.

3008 Middle Rd

Attn: Ronald D. Harris

Jeffersonville, IN 47130

PO Box 1493

 

Jeffersonville, IN 47131
  1. The Respondents received the Notice of Violation on November 5, 2001.
  2. Designated representatives of IDEM conducted an inspection at the Site April 3, 2001.
  3. Based on information gathered by IDEM during the above noted inspection, IDEM has found Respondents to be in violation of:

      A. Pursuant to 329 IAC 9-2-2(a), any owner who brings a UST system into use shall, within thirty (30) days of bringing such tank into use, submit notice to the agency to register the tank using a form provided by the agency for this notification. Respondents have not properly registered the UST systems at the Site.

      B.Pursuant to 329 IAC 9-6-5(c), when a UST system has been temporarily closed for twelve (12) months, the owner or operator shall permanently close the UST system if it does not meet the performance standards in 329 IAC 9-2-1 or 329 IAC 9-2.1, except that spill and overfill equipment requirements do not have to be met. The UST systems at the Site have been in temporary closure for more than twelve (12) months and have not been permanently closed.

8.   In recognition of the settlement reached, Respondents waive 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.
  2. The Respondents shall permanently close the UST systems at the Site as follows:

(1) Close the UST system within 90 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,

(2)  Submit a closure report in accordance with 329 IAC 9-6-2 within thirty (30) days of closing the UST system.

  1. 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
  1. The Respondents are assessed a civil penalty of Two Thousand Dollars ($2,000.00). 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.
  2. In the event the following terms and conditions are violated, the Complainant may assess and the Respondents shall pay a stipulated penalty in the following amounts:

Violation

Penalty

Order Condition #2(1)

$4,400 per week that closure is late

Order Condition #2(2)

$500 per week that closure report is late

6.   Stipulated penalties shall be due and payable within thirty (30) days after the Respondents receive 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 Respondents 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 Respondents' 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
  1. 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 Respondents 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.
  2. This Agreed Order shall apply to and be binding upon the Respondents, their officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondents' 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 Respondents shall in any way alter its status or responsibilities under this Agreed Order.
  3. 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.
  4. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
  5. This Agreed Order shall remain in effect until the Respondents have complied with all terms and conditions of this Agreed Order. 

 

TECHNICAL RECOMMENDATION:                       RESPONDENTS:

Department of Environmental Management                    Ronald D. Harris

By:___________________________                         By:

Paul Higginbotham, Chief

Solid Waste/UST Section                                             Printed: Ronald D. Harris

Office of Enforcement

                                                                                    Bivalve Properties, Inc.

Date:_________________________

                                                                                    By:                                                      

COUNSEL FOR COMPLAINANT:

Nicole Sipe                                                                  Printed:                                                

By:___________________________                         Title:

Office of Legal Counsel

Department of Environmental Management

                                                                                    Date:

Date:__________________________

                                                                                    COUNSEL FOR RESPONDENT:

                                                                       

                                                                                    By:                                                      

                                                                                    Printed:                                                

                                                                                    Date:

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ___18TH_____ DAY OF ________May_______, 2004.

 

For the Commissioner: 

Signed May 18, 2004

Felicia A. Robinson

Deputy Commissioner

For Legal Affairs

Cc:       Sandra Lynch, US EPA Region 5

            Clark County Health Department

            UST Public File, FID # 10333

            http://www.state.in.us/idem