STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CAUSE NO. UST-10
v. )
)
KELLY OIL COMPANY, )
JACK DREW ENTERPRISES )
AND )
DAVE KELLY )
)
Respondents. )
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.
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 Kelly Oil Company, Jack Drew Enterprises and Dave Kelly (hereinafter
referred to as the "Respondents"), who own and operate regulated underground storage
tanks at the J D Service Station, Facility ID #8081, located at S.R. 101, Sunman, Ripley
County, Indiana (hereinafter referred to as "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:
Mr. Dave Kelly, President Mr. Franklin Arkenberg, R.A.
Kelly Oil Company Kelly Oil Company and
P.O. Box 396 P.O. Box 396
Milan, Indiana 47031 Milan, Indiana 47031
Mr. Franklin Arkenberg, R.A. Mr. Dave Kelly
Jack Drew Enterprises P.O. Box 396
P.O. Box 373 Milan, Indiana 47031
Milan, Indiana 47031
5. Designated representatives of IDEM conducted an inspection at the Site on December 28,
1998.
6.
Based on information gathered by IDEM during the above noted inspection, the
Respondents have been found in violation of:
A. Emergency Rules Concerning Underground Storage Tanks (ERUST), LSA #98-
275(E), 22 IR 1540 at 1549, Section 64(a) (currently 329 IAC 9-2.1-1(a)), which
states:
All existing UST systems shall comply with one (1) of the following
requirements on or before December 22, 1998:
(1) New UST system performance standards under Section 62 (329
IAC 9-2-1).
(2) The upgrading requirements under subsections (b) through (d).
(3) Closure requirements under Section 82 through Section 86
(329 IAC 9-6-1 through 329 IAC 9-6-5), including applicable
requirements for corrective action under Section 74 through
Section 81 (329 IAC 9-5-1 through 329 IAC 9-5-8).
This violation is based on the fact that the Respondents' UST systems at the Site
do not meet the new UST system performance standards, have not been upgraded
and have not been properly closed.
B. ERUST, LSA #98-275(E), 22 IR 1540 at 1566, Section 88 ( currently 329
IAC 9-7-2-(1)(B)) which states:
The owner and operator of a petroleum UST system shall provide release
detection for tanks and piping as follows:
(1) Tanks must be monitored at least every thirty (30) days for
releases using one (1) of the following methods listed in
SECTION 90(4) (329 IAC 9-7-4(4)) through SECTION 90(8)
(329 IAC 9-7-4(8)), except for the following:
(B) A UST system that does not meet the performance
standards in SECTION 62 (329 IAC 9-2-1) or
SECTION 64 (329 IAC 9-2.1-1) may use:
(i) monthly inventory controls conducted under
SECTION 90(1) (329 IAC 9-7-4(1)) or
SECTION 90(2) (329 IAC 9-7-4(2)); and
(ii) annual tank tightness testing conducted under
SECTION 90(3) (329 IAC 9-7-4(3));
until December 22, 1998, when the tank must be
upgraded under SECTION 64 (329 IAC 9-2.1-1)
or
permanently closed under SECTION 82 (329 IAC 9-6-
1).
This violation is based on the fact that
the Respondents' UST systems at the Site
do not have adequate release detection
7. In recognition of the settlement reached, the Respondents waive any right to
administrative and judicial review of this Agreed Order.
2. If the UST Systems at the Site have not been upgraded to meet the requirements of 329
IAC 9-2.1, the Respondents shall:
a. immediately cease dispensing product from the UST Systems; and
b. permanently close the UST Systems pursuant to 329 IAC 9-6 within sixty (60)
days of the Effective Date of this Agreed Order.
3. If the UST Systems at the Site have been upgraded to meet the requirements of 329 IAC
9-2.1, the Respondents shall:
a. pursuant to 329 IAC 9-2-2(f), submit a notification of the upgrades within ten
(10) days of the Effective Date of this Agreed Order; and
b. pursuant to 329 IAC 9-3-1(b)(9), (10) and/or (11), submit the documentation
supporting the suitability of the UST Systems at the Site to be upgraded.
within twenty (20) days of the Effective Date of this Agreed Order.
4. Respondents shall withdraw their petition for review in Cause # 99-SE-2394 within ten
(10) days of the Effective Date of this Agreed Order
5. The Respondents are assessed a civil penalty of nine thousand three hundred seventy-five
dollars ($9,375). Said penalty amount shall be due and payable to the Underground
Petroleum Storage Tank Trust Fund in five (5) equal payments of one thousand eight
hundred seventy-five dollars ($1,875). The first payment shall be due and payable on or
before June 30, 2000. The second payment shall be due and payable on or before
September 30, 2000. The third payment shall be due and payable on or before December
30, 2000. The fourth payment shall be due and payable on or before March 30, 2001.
The fifth and final payment shall be due and payable on or before June 30, 2001.
6. In the event the following terms and conditions are violated, the Complainant may assess
and the Respondents shall pay stipulated penalties in the following amounts:
Violation Penalty
Order Condition 2(a) $1,000 per day for failure to cease operating
a non-compliant UST System
Order Condition 2(b) $1,000 per week that closure is late
Order Condition 3(a) $500 per week the upgrade notification is
late
Order Condition 3(b) $500 per week that suitability
documentation is late
Order Condition 4 $500 per week that the withdraw of petition
for review is late
7. Stipulated penalties shall be due and payable within thirty (30) days after 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 Respondents' violation of this
Agreed Order, or Indiana Law, including but not limited to civil penalties pursuant to IC
13-30-4.
8. Civil and stipulated penalties are payable by check to the Underground Petroleum Storage
Tank Trust Fund. Checks shall include the Cause Number of this action and shall be
mailed to:
Cashier
IDEM
100 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
9. In the event that the civil penalty required by Order Condition Number 5 is not paid
within thirty (30) days of the Effective Date of this Agreed Order, 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: RESPONDENTS:
Department of Environmental Management
By:___________________________ By:____________________________
Paul Higginbotham, Chief
Solid Waste - UST Section Printed:________________________
Office of Enforcement
Title:__________________________
Date:_________________________ Date:__________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:___________________________ By:____________________________
Office of Legal Counsel
Department of Environmental Management
Date:__________________________ Date:___________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS __________ DAY OF __________________, 2000.
For the Commissioner:
___signed 7/25/00_______
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement
Converted by Andrew Scriven