STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

RANDALL AND BARBARA ADAM,

Respondent.

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Case No. 2002-11788-S

 

AGREED ORDER

 

The Complainant and the Respondents 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.  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, 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 Randall and Barbara Adam (hereinafter referred to as "Respondents"), who are owners and/or operators of unregistered underground storage tank systems, located at Rural Route #5 Box 169, Hollandsburg, Parke County, Indiana, ("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:

Randall and Barbara Adam
7179 N CR 880 W
Greencastle, IN  46135

 

5.                  An inspection, on May 14, 2002 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:

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.

The UST systems at the Site have not been registered with IDEM.

 

A.                 Pursuant to 329 IAC 9-2.1-1(a), all existing UST systems shall comply with one (1) of the following requirements no later than December 22, 1998: (1) new UST performance standards under 329 IAC 9-2-1, (2) upgrading requirements under sections (b) through (d), (3) closure requirements under 329 IAC 9-6, including applicable requirements for corrective action under 329 IAC 9-5.

The UST systems at the Site have not been properly upgraded or permanently closed.

 

6.                  In recognition of the settlement reached, the 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 his delegate, and has been received by the Respondents.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  This Agreed Order addresses only those violations expressly described in Finding of Fact No. 5, and, except for claims described in Finding of Fact No. 5, does not preclude Complainant from bringing any additional action against the Respondents, including any claim for failure to pay underground storage tanks fees, interest, and penalties and failure to undertake corrective action of an underground storage tank.

 

3.                  The Respondents shall permanently close the UST systems as follows:

 

(A)              Close the UST systems within 60 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; and,

 

(B)              Submit a closure report in accordance with 329 IAC 9-6-2.5 within thirty (30) days of closing the UST systems.

 

4.                  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                  Mail Code 60-02
Indiana Department of Environmental Management
100 North Senate Avenue
Indianapolis, Indiana  46204-2251

 

5.                  The Respondents are assessed a civil penalty of one thousand six hundred dollars ($1,600.00). Said penalty amount may be paid in four (4) quarterly payments of two four hundred dollars ($400.00) payable to the Underground Petroleum Storage Tank Trust Fund. The first payment shall be due within thirty (30) days after the Effective Date of this Agreed Order. The second payment shall be due within one hundred and twenty (120) days after the Effective Date of this Agreed Order.  The third payment shall be due within two hundred and ten (210) days after the Effective Date of this Agreed Order.  The fourth payment shall be due within three hundred (300) days after the Effective Date of this Agreed Order.

 

6.                  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 #3(1)

$3,200 for late closure

Order Condition #3(2)

$500 per week that closure certification is late

 

7.                  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.

 

8.                  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:

Indiana Department of Environmental Management
Cashiers Office – Mail Code 50-10C
100 N. Senate Avenue
Indianapolis, IN  46204-2251

 

9.                  In the event that the civil penalty required by Order Condition 5 is not paid accordingly, 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.

 

10.             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.

 

11.             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.

 

12.             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.

 

13.             This Agreed Order shall remain in effect until the Respondents have complied with all terms and conditions of this Agreed Order.

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Randall and Barbara Adam

 

 

 

By:

 

 

By:

 

 

Paul Higginbotham, Chief
Solid Waste/UST Section
Office of Enforcement

 

Printed:

Randall Adam
Barbara Adam

 

 

 

Title:

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Nicole Sipe

 

 

 

 

Enforcement Section

 

 

 

 

Office of Legal Counsel

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 200

 

.

 

 

For The Commissioner:

 

 

 

Signed on June 2, 2005

 

Matthew T. Klein

 

Assistant Commissioner

 

of Compliance and Enforcement