STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

 

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

) CASE NO. 2001-10503-S

v. )

)

FAMILY EXPRESS CORPORATION, )

)

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 this Agreed Order does not constitute an admission of any violation contained herein. This Agreed Order is entered into solely for the purpose of resolving this disputed matter.

 

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 Family Express Corporation, (hereinafter referred to as "Respondent"), who owns and/or operates underground storage tanks ("USTs") at Family Express #35, Facility ID #4140, located at 8805 W. State Road 114, Rensselaer, Jasper County, Indiana (hereinafter referred to as "the 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:

Gus Olymipdis, President

Family Express Corporation

1951 Morthland Drive

Valparaiso, IN 46385

5. On May 30, 2000, an Initial Incident Report (LUST Incident #200005513) was filed with the Indiana Department of Environmental Management (IDEM) concerning a petroleum release from USTs located at the Site.

  1. Based on information submitted by the Respondent in response to the above referenced Initial Incident Report, it is the Complainant's position that the Respondent did not comply with the following environmental rules and statute:
    1. Pursuant to 329 IAC 9-4-3(2), the owner and operator shall measure for the presence of a release where contamination is most likely to be present at the underground storage tank site. Due to inadequate sampling, the vertical and horizontal extent of petroleum hydrocarbon contamination has not been properly delineated.
    2. Pursuant to 329 IAC 9-5-4.1(a)(4), the owner and operator shall remedy hazards posed by contaminated soils that are excavated or exposed as a result of release confirmation, site investigation, abatement, or corrective action activities. If these remedies include the treatment or disposal of soils, the owner and operator shall comply with applicable state and local requirements. The landfarm constructed at the Site to treat contaminated soil does not comply with applicable state requirements.
    3. Pursuant to 329 IAC 9-5-4.1(a)(5), the owner and operator shall measure for the presence of a release where contamination is most likely to be present. Due to inadequate sampling, the vertical and horizontal extent of petroleum hydrocarbon contamination has not been properly delineated.
    4. Pursuant to 329 IAC 9-5-5.1(a) and (b), the owner and operator shall assemble information (Initial Site Characterization/ISC) about the site and the nature of the release, and submit the ISC to IDEM within forty-five (45) days of release confirmation. The information submitted for the ISC does not adequately define the vertical and horizontal extent of contamination.

E. Pursuant to 329 IAC 9-5-6, the owner and operator shall conduct investigations of the release, the release site and surrounding areas to determine the full extent of contamination by the release. Due to inadequate sampling, the vertical and horizontal extent of soil and groundwater contamination has not been properly delineated.

F. Pursuant to 329 IAC 9-5-7, the commissioner may require the owner or operator to submit additional information or develop and submit a corrective action plan for responding to contaminated soils and groundwater. The information submitted to IDEM was inadequate to determine the extent of contamination and develop a corrective action plan.

G. Pursuant to 329 IAC 9-6-2(i)(2), a completed closure report must be submitted to IDEM within thirty (30) days after the UST is removed from the ground or closed in place. The tanks were closed and a closure report form was not submitted within thirty (30) days.

H. Pursuant to IC 13-30-2-1(1), no person may discharge, or threaten to discharge, any contaminant or waste into the environment. Petroleum products located at the Site were discharged into the environment.
  1. On or about June 27, 2000, the Respondent submitted to IDEM an Initial Site Characterization (ISC) and proposed Corrective Action Plan (CAP).
  2. On or about September 28, 2000, IDEM issued a response to the ISC/CAP submittal mentioned above and requested additional information be submitted. IDEM also issued an Initial Free Product Abatement Letter.
  3. On or about October 10, 2000, the Respondent submitted a letter of comment to IDEM's September 28, 2000, request for additional information and included the Initial Free Product Abatement Letter. A meeting was also held on this date at IDEM between representatives of IDEM and the Respondent.
  4. In December 2000, an Excess Liability Trust Fund (ELTF) claim was submitted on behalf of the Respondent to IDEM.
  5. On or about March 8, 2001, IDEM issued a response to the Respondent's letter of comment dated October 10, 2000 and IDEM requested additional information be submitted.
  6. On or about March 15, 2001, the Respondent submitted a second letter of comment regarding the March 8, 2001, IDEM request for additional information. A meeting was also held at IDEM offices on this date between representatives of IDEM and Respondent.
  7. On or about April 11, 2001, IDEM issued a Violation Letter to the Respondent and IDEM also requested additional information.
  8. On or about April 30, 2001, the Respondent submitted a letter of comment regarding IDEM's Violation Letter.
  9. On or about May 30, 2001, IDEM issued a Letter of Response to the Respondent regarding Respondent's April 30, 2001 submittal.
  10. On or about August 10, 2001, IDEM issued a Notice of Violation ("NOV") in this case in conjunction with a Proposed Agreed Order.
  11. In response to the NOV, a settlement conference was held on August 28, 2001, between representatives of IDEM and Respondent's representatives, including Respondent's legal counsel and environmental consultants Mundell & Associates ("Mundell") and Terra Environmental Corporation ("Terra"). Mundell detailed a scope of work that would characterize the Site and address IDEM's concerns in the NOV. This included a compilation of all work by Terra/CSI for the purpose of evaluating all data submitted previously.
  12. On or about September 24, 2001, Mundell issued a Subsequent Site Characterization Report to IDEM that summarized the initial subsurface investigation and characterization work completed during 2000 and 2001 for the purposes of determining the necessary work required at the Site for impacted soil and groundwater delineation.
  13. By letters to IDEM dated September 26, 2001, and October 15, 2001, Mundell confirmed the proposed scope and purpose of the work that was proposed at the August 28, 2001, meeting.
  14. On December 21, 2001, Respondent submitted to IDEM a Supplemental Site Activities Report, hereinafter referred to as the Further Site Investigation ("FSI").

    15.  

     

  15. On January 30, 2002, IDEM issued a technical review letter commenting on the December 21, 2001, FSI submitted by Respondent.
  16. On February 26, 2002, the Respondent submitted a revised FSI and a response letter based on IDEM's technical review letter of January 30, 2002.
  17. On April 11, 2002, IDEM issue a letter approving the Respondent's ISC and FSI, provided comments for clarification and requested a Corrective Action Plan (CAP).
  18. On April 16, 2002, the Respondent provided its clarification comments as requested by IDEM's April 11, 2002.
  19. 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. Respondent shall maintain compliance with all applicable laws and rules from the Effective Date of this Agreed Order by the Complainant.

3. The FSI submitted on December 21, 2001, is approved by IDEM and is an enforceable part of this Agreed Order.

4. Respondent shall, upon the Effective Date of this Agreed Order, conduct quarterly

groundwater monitoring of all functioning monitoring wells that were installed by the Respondent. These samples shall be analyzed for BTEX/MTBE per IDEM's UST Branch Guidance Manual October 1994, update. Respondent shall continue gauging and conducting sampling events of these monitoring wells to evaluate groundwater according to the schedule to be set forth in the CAP, subject to IDEM's approval.
  1. The Respondent shall, within sixty (60) days of receiving written comments from IDEM on the FSI, submit a CAP. Based on the results of the FSI, it is anticipated that the CAP will include, but is not limited to, the following: groundwater monitoring, appropriate reconstruction of the existing soil waste pile into an approved landfarm, and an operation and maintenance plan for the landfarm. The Respondent shall utilize IDEM's UST Branch Guidance Manual October 1994 update or the RISC Guidance to develop the CAP. The CAP shall be subject to review, modification and approval by IDEM. Upon notification of deficiencies in the CAP, the Respondent shall have thirty (30) days to revise and resubmit a CAP to IDEM that addresses the deficiencies. If the CAP is modified and approved by IDEM, it shall be subject to any appeal rights under IC 4-21.5 within twenty (20) days after receipt of a CAP modified and approved by IDEM. Once a CAP is approved and any applicable appeal rights have been exhausted, the Respondent shall commence activities for implementing the approved CAP. The Respondent shall complete all requirements in the approved CAP. The approved CAP, including the remediation schedule in the CAP, shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.
  2. Upon IDEM approval of the CAP, the Respondent shall commence activities for remediation as set forth in the CAP and complete said activities in accordance with an approved schedule in the CAP.

7. The Respondent shall apply for and obtain all necessary permits pertaining to testing and remediation on-site and/or off-site prior to any remediation activities being performed.

8. The Respondent shall permit an agent or agents of IDEM to view and inspect the activities performed pursuant to the approved CAP. In order to facilitate such an inspection, the Respondent shall notify IDEM at least seven (7) days prior to any scheduled activities.

9. IDEM and the Administrator of the Excess Liability Trust Fund agree that the Respondent's entry into and compliance with this Agreed Order shall not adversely affect, in any manner, the Respondent's eligibility for reimbursement from the Excess Liability Trust Fund.

(a) Upon the Effective Date of this Agreed Order, the Respondent may submit an application with the ELTF for reimbursement of all costs associated with LUST Incident #200005513, except for those associated with the preparation and implementation of any CAP activities, including the CAP that is to be submitted in accordance with Order Condition #5 above.

(b) Upon IDEM's approval of the CAP, as required per Order Condition No. 5, the Respondent may submit applications for reimbursement of all additional costs not sought in the ELTF application filed in accordance with Order Condition #9(a) above, including those costs associated with the preparation and implementation of any CAP activities and thereafter may submit claims for reimbursement of all costs associated with the Respondent's subsequent efforts to bring the Site into environmental compliance.

10. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

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

All communications regarding this Agreed Order to the Respondent, unless notified otherwise in writing, shall be sent to:

Scott Jones, Vice President and Manager of Petroleum Operations

Family Express Corporation

1951 Morthland Drive

Valparaiso, IN 46385

and

Christopher J. Braun, Esq.
Plews Shadley Racher & Braun
1346 N. Delaware Street
Indianapolis, Indiana 46202

11. Respondent is assessed a civil penalty of Fifteen Thousand, Three Hundred and Twenty Dollars and Zero Cents ($15,320.00). 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.

12. 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:

Violation Penalty

Order Condition #3 $500 per week the FSI is late

Order Condition #5 $500 per week the CAP is late

Order Condition #6 $1,500 per week for failure to perform work pursuant to the approved schedule in the CAP

13. Stipulated penalties shall be due and payable within thirty (30) days after 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 Respondent's violation of this Agreed Order, or Indiana Law, including but not limited to civil penalties pursuant to IC 13-30-4.

14. 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

15. In the event that the civil penalty required by Order Condition 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.

16. "Force Majeure," for the purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite the Respondent's best efforts to fulfill the obligation. The requirement that the Respondent exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include financial inability to complete the work required by this Agreed Order or increases in costs to perform the work.

The Respondent shall notify IDEM by calling within three (3) calender days and by writing no later than seven (7) calender days after any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM. Said decision shall be communicated to the Respondent.

If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is attributable to the event constituting the force majeure.

17. 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.

18. 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.

19. The 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.

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management Family Express Corporation

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 __________________, 2001.

 

For the Commissioner:

 

Signed 5/16/02

_________________________

Felicia A. Robinson

Assistant Commissioner

Office of Enforcement