STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, ) )

Complainant, )

)

v. ) Case No. 2001-10873-S

)

BERNARD PODOLSKY, d/b/a )

PODOLSKY OIL COMPANY, )

 )

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 (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Bernard Podolsky, d/b/a Podolsky Oil Company (ARespondent@), who leases the property located at 14107 Dickens Road, in Blackhawk, Vigo County, Indiana (ASite@).

3. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.
 
 
 
 
 
 
 
 

4. Pursuant to IC 13-30-3-3, on November 6, 2001, IDEM issued a Notice of Violation via Certified Mail to:

 Bernard Podolsky, d/b/a

Podolsky Oil Company

P. O. Box 278

Fairfield, Illinois 62837

5. An inspection, on February 11, 2001, was conducted at the Site by a representative of IDEM=s, Office of Land Quality (OLQ). The following violations were in existence or observed at the time of this inspection:
    1. 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. Crude oil was discharged from the Site into Busseron Creek, and was not properly contained, responded to or reported.
    2. 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. Crude oil was discharged from the Site into Busseron Creek, waters of the state, in an amount sufficient to be unsightly and deleterious.
    3. 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.


      4. Pollutants were discharged from the Site into Busseron Creek, waters of the state, without a valid NPDES permit.

    4. 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. Pollutants were discharged from the Site into Busseron Creek, waters of the state, in direct violation of 327 IAC 2-1-6(a)(1), 327 IAC 5-2-2, and 327 IAC 2-6.1-7, rules adopted by the Indiana Water Pollution Control Board.
    5. 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. Crude oil was discharged from the Site into Busseron Creek, waters of the state in violation of 327 IAC 2-1-6(a)(1), 327 IAC 5-2-2 and 327 IAC 2-6.1-7, rules adopted by the Indiana Water Pollution Control Board.
    1. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.
7. The Respondent cleaned up the oil spill to the satisfaction of an IDEM Office of Land Quality representative.

8. 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. Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding.
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 comply with all applicable environmental rules, regulations and statutes.

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

 Craig Henry, Enforcement Case Manager Office of Enforcement Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

4. Respondent is assessed a civil penalty of Six Thousand One Hundred Twenty Five Dollars ($6,125.00). Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay a portion of this penalty in the amount of Three Thousand Three Hundred Seventy Five ($3,375.00) Dollars. Said penalty amount shall be due and payable to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (SEP), Respondent estimates that this SEP will cost Five Thousand Five Hundred ($5,500.00) Dollars. Within sixty (60) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM that substantiates all actions taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less than Five Thousand Five Hundred ($5,500.00) Dollars, Respondent shall pay fifty per cent of the difference between the proposed cost of the SEP (Five Thousand Five Hundred ($5,500.00) Dollars) and the actual cost of the SEP.

As a Supplemental Environmental Project, Respondent shall collect and properly dispose of trash and debris illegally dumped on and near the Site by parties other than the Respondent. Respondent shall complete the SEP within one hundred eighty (180) days of the Effective Date this Agreed Order. Implementation of this SEP will prevent trash and debris from entering Busseron Creek and a nearby lake.

In the event that the Respondent does not complete the SEP within one hundred eighty (180) days of the Effective Date this Agreed Order, the full amount of the civil penalty as stated above, plus interest established by IC 24-4.6-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM's notice to pay. Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

5. Civil penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to:

 Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

6. In the event that the civil penalty required by Order paragraph 4, 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.

7. This Agreed Order shall apply to and be binding upon the Respondent, its successors 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.

8. In the event that any terms of the 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.

9. 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.

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

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Man Bernard Podolsky, d/b/a

Podolsky Oil Company

By: _________________________ By: _________________________

Paul Higginbotham, Chief

Solid Waste/UST Section

 Chief, [Section] Office of Enforcement Printed: ____________________

Office of Enforcement

Title: ________________________

Date: ________________________ Date: ________________________
 
 
 
 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management
 
 

By: _________________________ By: ________________________

Office of Legal Counsel
 
 

Date: _______________________ Date: ______________________
 
 
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2002.
 
 
 
 

For the Commissioner:
 
 

Adopted December 18, 2002

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs
 
 
 
 
 
 
 
 

Attachment A

Supplemental Environmental Project Description


  1. SEP Project Description: Podolsky Oil Company will collect and properly dispose of trash and debris illegally dumped on and near the Site by parties other than the Podolsky Oil Company. The Site will be cleaned once in the fall of 2002 and again in the spring of 2003.
  2. SEP Category: Environmental Restoration
  3. Environmental Benefit of SEP: Implementation of this SEP will prevent trash and debris from entering Busseron Creek and a nearby lake.
  4. Projected Cost: $5,500.00
  5. Time Frame: The SEP will be completed within one hundred eighty (180) days of the Effective Date of this Agreed Order.