STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2012-21122-S
					)
M G food mart 2 llc,					)
					)
Respondent.					)

AGREED ORDER

Complainant and 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. 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 (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Luke Oil Co., Inc., which owns and/or operates an Underground Storage Tank (“UST”) system with UST Facility ID Number 10935, located at 2 West US Route 6 in Valparaiso, Porter County, Indiana (the “Site”).

3. IDEM 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 (“NOV”) via Certified Mail to:

Thomas M. Collins, President and Registered Agent

Luke Oil Co., Inc.

3592 North Hobart Road

Hobart, IN 46342

5. According to the Porter County tax records, Respondent is listed as the current owner of the Site which is no longer active. Records indicate that Respondent has owned the property since June 29, 2001.

6. On February 25, 2007, IDEM received a report that a release had occurred during UST closure activities at the Site conducted on February 17, 2007. The release was assigned LUST incident number 200709514.

7. According to IDEM records, two (2) gasoline tanks (one 6,000 gallon and one 10,000 gallon) were removed in 2007. IDEM records indicate that two (2) additional gasoline tanks (both 2,000 gallon) were included on a notification form from 1995 and again noted in a 2002 inspection. However, IDEM has no records indicating that the two 2000-gallon tanks have been removed from the Site.

8. Despite multiple requests by IDEM for Respondent to submit an adequate Initial Site Characterization (“ISC”), a complete and adequate ISC was not submitted to IDEM. IDEM’s requests for Respondent to submit a Further Site Investigation (“FSI”) had gone unanswered until after the Notice of Violation was issued.

9. During an investigation including a record review on August 15, 2012, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 329 IAC 9-5-5.1(a) and (b), upon detection of a release from a tank or UST system, an owner and operator shall conduct an initial site characterization according to the requirements of the rule and shall submit the report to IDEM within sixty (60) days of release confirmation.

As noted during the record review, after the reported release, Respondent failed to submit a complete and adequate ISC report despite numerous request letters from IDEM. An ISC report was submitted to IDEM on January 11, 2010. That ISC report was deemed inadequate.

b. Pursuant to 329 IAC 9-5-6, in order to determine the full extent and location of soils contaminated by the release and the presence and concentrations of dissolved product as a contaminant of the ground water, the owner and operator shall conduct a further site investigation of the release, the release site, and the surrounding area possibly affected by the release if the following, but not limited to, condition exists:

(1) Information collected and submitted under section 5.1 of this rule is incomplete or fails to define the nature and extent of contamination in the soil or ground water.

As noted during the record review, Respondent’s ISC report was incomplete and/or failed to define the nature and extent of contamination in the soil or ground water, but Respondent failed to respond to IDEM’s request for an FSI despite multiple requests from IDEM.

10. Sampling results submitted by Respondent’s consultant indicates that the soil and possibly the groundwater have been impacted by operations at the Site.

11. The parties met via teleconference on November 15, 2012 to discuss this matter. At that time, Respondent stated that a Further Site Investigation Report would be submitted the next day. The report was received by IDEM on November 16, 2012. Initial review of the report indicates that further site investigation is needed to adequately delineate the extent of contamination.

12. 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 Complainant or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with the rules listed in the findings here and/or above at issue.

3. Within sixty (60) days of the Effective Date, Respondent shall submit a Further Site Investigation Plan (“FSIP”) to IDEM setting forth in detail the actions Respondent shall take to complete and submit an FSI that meets the requirements of 329 IAC 9-5-6. The FSIP shall be subject to review, modification and approval by IDEM. The FSIP must be approved by IDEM prior to implementation. In the even IDEM determines that the FSIP submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the FSIP to IDEM in accordance with IDEM’s notice. Upon notification of deficiencies in the FSIP, Respondent shall have fifteen (15) days to revise and resubmit a FSIP to IDEM which addresses the deficiencies. After three (3) submissions of the FSIP by Respondent, IDEM may modify and approve any such FSIP, and Respondent must implement the FSIP as modified by IDEM. The approved FSIP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

4. Upon IDEM approval of the FSIP, Respondent shall implement the approved FSIP in accordance with the schedule contained therein and submit the results of the FSI to IDEM. Respondent shall submit and implement additional FSI plans at IDEM’s request if IDEM determines that further site investigation is needed to adequately delineate the extent of contamination.

5. Respondent shall, within sixty (60) days of receiving written notice from IDEM, submit a Corrective Action Plan (“CAP”) as described in 329 IAC 9-5-7. The CAP shall be subject to review, modification and approval by IDEM. In the event IDEM determines that the CAP submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the CAP to IDEM in accordance with IDEM’s notice. Upon notification of deficiencies in the CAP, Respondent shall have fifteen (15) days to revise and resubmit a CAP to IDEM which addresses the deficiencies. After three (3) submissions of the CAP by Respondent, IDEM may modify and approve any such CAP, and Respondent must implement the CAP as modified by IDEM. The approved CAP shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

6. Upon IDEM approval of the CAP, Respondent shall implement the approved CAP in accordance with the schedule contained therein.

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

8. Respondent shall permit an agent of IDEM to view and inspect the activities performed pursuant to the approved FSIP and/or CAP. In order to facilitate such an inspection, Respondent shall notify IDEM’s Leaking Underground Storage Tank Section at least seven (7) days prior to any scheduled events.

9. Within twenty (20) days of the Effective Date, Respondent shall provide information to IDEM detailing the status (including any closure, removal records) of the two (2) 2000-gallon tanks which were included on a notification form from 1995 and again noted in a 2002 inspection.

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

Brenda Lepter, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

11. Respondent is assessed and agrees to pay a civil penalty of Seven Thousand Forty Three Dollars ($7,043). Said penalty amount shall be due and payable to the Underground Petroleum Storage Tank Trust Fund in four quarterly installments of $1,760.75 each. The first installment will be due within thirty (30) days of the Effective Date; the second installment shall be due on or before April 30, 2013; the third installment shall be due on or before July 31, 2013; and the final installment shall be due on or before October 31, 2013.

12. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

Failure to comply with Order paragraph no. 3	$500 per week
Failure to comply with Order paragraph no. 4	$500 per week
Failure to comply with Order paragraph no. 5	$500 per week
Failure to comply with Order paragraph no. 6	$500 per week
Failure to comply with Order paragraph no. 7	$500 per week
Failure to comply with Order paragraph no. 8	$500 per week

13. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

14. 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

15. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Underground Petroleum Storage Tank Trust Fund, and shall be payable to IDEM in the manner specified in Paragraph 14, above.

16. This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

17. 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 this Agreed Order did not contain the invalid terms.

18. 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.

19. This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

20. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

21. Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

22. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the EPA or any other agency or entity.

23. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHN ICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_____	DAY OF	______________,	20__.
				For the Commissioner:
				Signed on 2/6/2013
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality