STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. LASSUS BROS OIL INC., Respondent. |
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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 Indiana Code (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 IC
13-13-1-1.
2.
Lassus
Bros Oil Inc. dba Lassus Brothers Oil Handy Dandy (Respondent),
which owns/operates fuel stations with the principal office located at 1800 Magnavox Way, Fort Wayne, Allen County,
Indiana, was involved in a tanker spill
at 9029 North US Highway 24 East, Roanoke, Huntington County, Indiana (the Site).
3.
On December
14, 2020, Respondent reported the spill to IDEM On-Scene Coordinator, Brian
Smith. Subsequently, Brian Smith notified the National Response Center (NRC
#1294303) that approximately 3,000 gallons of gasoline spilled. A significant portion of this gasoline discharged to Cow
Creek and Little River.
4.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
5.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified
Mail/personal service to:
Todd Lassus,
President |
Carson Boxberger LLP, Registered Agent |
Lassus Bros Oil Inc. dba Lassus |
Lassus Bros Oil Inc. dba Lassus
Brothers |
Brothers Oil Handy Dandy |
Oil Handy Dandy |
10810 Birkdale Court |
301 West Jefferson Boulevard, Ste 300 |
Fort Wayne, IN 46814 |
Fort Wayne, IN 46802 |
6.
During
an investigation including an inspection on December 15, 2020, conducted by a
representative of IDEM, violations were found, as described below.
7.
Pursuant
to IC 13-18-4-5, a person may not: (1) throw, run, drain, or otherwise dispose;
or (2) cause, permit, or suffer to be thrown, run, drained, allowed to seep, or
otherwise disposed; into any of the streams or waters of Indiana any organic or
inorganic matter that causes or contributes to a polluted condition of any of
the streams or waters of Indiana.
Pursuant
to IC 13-30-2-1(1), it is unlawful for any person to discharge, emit, cause or allow any contaminant or waste, including any
noxious odor, either alone or in combination with contaminants from other
sources in the environment in any form that causes or would cause pollution
that violates or would violate rules, standards, or discharge or emission
requirements adopted by the appropriate board under the environmental
management laws.
Pursuant
to 327 IAC 2-1-6(a)(1), all surface 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 do any of the following:
a. will settle to form putrescent or
otherwise objectionable deposits;
b. are in amounts sufficient
to be unsightly or deleterious;
c. produce
color, visible oil sheen, odor, or other conditions in such degree as to create
a nuisance;
d. are in concentrations or combinations that will cause or
contribute to the growth of aquatic plants or algae to such degree as to create
a nuisance, be unsightly, or otherwise impair the designated uses; and
e. are in amounts sufficient to be acutely toxic to, or to
otherwise severely injure or kill aquatic life, other animals, plants, or
humans.
During the inspection
on December 15, 2020, IDEM staff observed and documented that gasoline from a
tanker was released when the tankers hit a concrete divider, sheering off a
valve on the bottom of the tanker. Gasoline ran downhill to a storm drain
before entering Cow Creek and eventually into the Little River. A fish kill was
observed in Cow Creek near the outfall from the storm drain, in violation of IC
13-18-4-5, IC 13-30-2-1(1), and 327 IAC 2-1-6(a)(1).
8.
Orders
of the Commissioner are subject to administrative review by the Office of
Environmental Adjudication under IC 4-21.5; however, in recognition of the
settlement reached, Respondent acknowledges notice of this right and 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 adopted by
Complainant or Complainant’s delegate (as evidenced by signature), and the adopted
Agreed Order has been received by Respondent. This Agreed Order shall have no
force or effect until the Effective Date. In addition to addressing the
violations cited in Paragraph 7 of the Findings of Fact above, this Agreed
Order also addresses any additional violations of these same rules that may
have occurred subsequent to the issuance of the NOV and
prior to the Effective Date.
2.
Respondent
shall comply with rules and statutes listed in the findings above at issue.
3.
Respondent
is liable to IDEM for the reasonable costs of any response or remedial action
taken, under authority of IC 13-24-1-4. IDEM has determined this amount to be Seven
Thousand One Hundred Twenty-Five Dollars ($7,125). Said amount shall be due and
payable to the Hazardous Substances Response Trust Fund within 30 days of the
Effective Date; the 30th day being a “Due Date.”
4.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Jessica
Irvine, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
5.
Respondent
is assessed and agrees to pay a civil penalty of Seven Thousand Two Hundred Dollars
($7,200). Said penalty amount shall be due and payable to the “Environmental
Management Special Fund” within 30 days of the Effective Date, the 30th
day being a “Due Date.”
6.
Civil
penalties and recovery costs are payable by check to the funds specified in Paragraph
5 and Paragraph 3, respectively. Checks shall include the Case Number 2021-27798-W
of this action and shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN, Room
1340 |
100 North
Senate Avenue |
Indianapolis,
Indiana 46204 |
7.
This
Agreed Order shall apply to and be binding upon Respondent, 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.
8.
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 and any
accrued interest 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. The interest shall continue to accrue on the first of each
month until the civil penalty and any interest accrued are paid in full. Such
interest shall be payable to the “Environmental Management Special Fund,” and
shall be payable to IDEM in the manner specified above.
9.
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.
10.
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.
11.
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.
12.
Complainant
does not, by his 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.
13.
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 Notice of Violation.
14.
Nothing
in this Agreed Order shall prevent IDEM (or anyone acting on its behalf) from
communicating with the United States Environmental Protection Agency (US 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 US EPA or any other agency or entity.
15.
This
Agreed Order shall remain in effect until Respondent has complied with the terms
and conditions of this Agreed Order and IDEM issues a Resolution of Case (close
out) letter to Respondent.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
Department
of Environmental Management |
Lassus Bros Oil
Inc. |
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By:
__________________________ |
By:
________________________ |
Amari
Farren, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:
_____________________ |
Enforcement Branch |
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Office of Water Quality |
Title:
_______________________ |
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Date:
________________________ |
Date:
_______________________ |
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COUNSEL FOR RESPONDENT: |
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By:
________________________ |
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Date:
______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS ___________ DAY OF ________________, 20___. |
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For
the Commissioner: |
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Signed on June 24, 2021 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |