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. 2001-10912-W
)
EQUILON ENTERPRISES LLC, )
)
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 Equilon Enterprises, LLC (ARespondent@), which owns and operates the petroleum products terminal located at 5405 West 96th Street, Indianapolis, Marion County, Indiana. Respondent is authorized by NPDES Permit No. IN0045209 (the Permit) to discharge water from its containment areas to a tributary of Eagle Creek in accordance with effluent limitations, monitoring requirements, and other conditions contained in the Permit.
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, IDEM issued a Notice of Violation via Certified Mail to:
Mr. Thomas J. Rizzoli C T Corporation System, Registered Agent
Midwest Regional Manager, Operations Equilon Enterprises LLC
Equilon Enterprises LLC 36 S. Pennsylvania Street, Suite 700
30 W. Jefferson Indianapolis, IN 46204
Naperville, IL 60540
5. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1. of the permit, Respondent is required to comply with all terms and conditions of its permit. Any permit noncompliance constitutes a violation of the Clean Water Act (CWA) and the Environmental Management Act (EMA) and is grounds for enforcement action.
6. Part I.A.2.[1] of the permit, effective January 1, 1999, required Respondent to sample Lead at Outfalls 002 and 003 on two consecutive work days prior to discharge to assure the discharge is in compliance with the lead limits prior to discharge.
7. Part I.A.2.(g) of the permit requires that samples taken in compliance with the monitoring requirements above shall be taken at a point representative of the discharge but prior to entry into the unnamed tributary of Eagle Creek.
8. In a letter dated September 25, 2001, Respondent informed IDEM of its findings concerning its self-monitoring testing for Lead at Outfall Numbers 002 and 003. Respondent determined that sampling of storm water in the containment areas served by Outfalls 002 and 003 was conducted at locations other than at the outfall area, sampling was conducted in a manner not consistent with Respondent's policy and sampling instructions, and as a result, certain samples may not have been representative of the discharge from those outfalls. This constitutes violation of 327 IAC 5-2-8(1), Part II.A.1. and Part I.A.2.(g) of the Permit.
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.
3. Respondent is assessed a Civil Penalty of One Thousand Six Hundred Fifty Dollars ($1,650). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.
4. 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
Failure to comply with Order Paragraph 2 $1,000 per violation
5. 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 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.
6. Civil and stipulated 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
IDEM
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
7. In the event that the civil penalty required by Order paragraph 3 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.
8. 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.
9. 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.
10. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights to the project 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.
11. The provisions of this Agreed Order do not affect the limitations and requirements set forth in Respondent's NPDES permit. Efforts by Respondent to comply with provisions of this Agreed Order shall not serve as justification for not complying with the limitations and requirements set forth in its NPDES permit.
12. This Agreed Order shall remain in effect for a period of one (1) year and Respondent has complied with the requirements of paragraphs 2 through 7 of this Agreed Order and Complainant issues a close-out letter.
TECHNICAL RECOMMENDATION RESPONDENT
Department of Environmental Management Equilon Enterprises LLC
By: _________________________ By: _________________________
Mark W. Stanifer, Chief
Water Enforcement Section Printed: _____________________
Office of Enforcement Title: ______________________
Date: ___________________ Date: ______________________
COUNSEL FOR COMPLAINANT COUNSEL FOR RESPONDENT
Department of Environmental Management
By: _________________________ By: _________________________
Candace Vogel
Office of Legal Counsel
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______ DAY OF _______________________, 2002.
For the Commissioner:
_(Signed February 27, 2002)__
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs