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-22
v. )
)
JAGPAL SINGH OTAL d/b/a
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 this Agreed Order
does not constitute an admission of any violation contained herein. This Agreed Order is
entered into solely for the purpose of resolving this disputed matter.
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 Jagpal Singh Otal d/b/a 31 Car and Truck Plaza f/k/a Johnson's
Garage who owned underground storage tanks (USTs) located at 31 Car and Truck
Plaza f/k/a Johnson's Garage, IDEM Facility ID #4729, 21575 US 31 North, Cicero,
Hamilton County, Indiana (Site), and MG Petroleum Services, LLC the primary
contractor for UST work performed at the Site and per the Indiana Department of
Environmental Management's determination an operator of USTs at the Site
(Respondents).
3. The Indiana Department of Environmental Management (IDEM) has jurisdiction over
the parties and subject matter of this action.
4. A petroleum release at the Site was reported by American Environmental Abatement
Company, Inc. on March 18, 1998, and IDEM Incident Number 9803540 was issued
on March 24, 1998.
5. Based on an investigation of the Site by designated representatives of IDEM between
May 7, 1999, and June 17, 1999, IDEM found non-compliance with the following
environmental rules and statutes
:
A. Pursuant to 329 IAC 9-4-3(2),
the owner and operator shall measure for the
presence of a release where contamination is most likely to be present at the
underground storage tank site.
B. Pursuant to 329 IAC 9-5-2(2), the owner and operator shall take immediate
action to prevent further release of regulated substance into the environment.
C. Pursuant to 329 IAC 9-5-3.1, the owner and operator is required to remove free
product to the maximum extent practicable when it is encountered, and they are
required to submit a free product removal report within forty-five (45) days
after confirming the release.
D. Pursuant to 329 IAC 9-5-4.1(a)(4), the owner and operator shall remedy
hazards posed by contaminated soils that are excavated or exposed and shall do
so in compliance with applicable state and local requirements.
E. Pursuant to 329 IAC 9-5-4.1(a)(5), the owner and operator shall measure for
the presence of a release where contamination is most likely to be present.
F. Pursuant to 329 IAC 9-5-4.1(a)(6), the owner and operator shall investigate to
determine the presence of free product, and begin free product removal as soon
as practicable.
G. Pursuant to 329 IAC 9-5-5.1(a) and (b), the owner and operator shall assemble
information (Initial Site Characterization/ISC) about the site and the nature of
the release, and submit the ISC to IDEM within forty-five (45) days of release
confirmation.
H. Pursuant to 329 IAC 9-6-2(a)(3), if any water is encountered in the UST
excavation during closure one water sample must be taken and analyzed.
I. Pursuant to 329 IAC 10-4-2, no person shall cause or allow solid waste to be
disposed of in a manner which creates a threat to human health and the
environment, including the creating of a fire hazard, vector attractant, air or
water pollution, or other contamination.
J. Pursuant to 329 IAC 10-4-3, prohibits open dumping and open dumps.
K. Pursuant to 329 IAC 10-8.1-5(a), special waste may only be disposed of in a
solid waste land disposal facility that is approved to accept the special waste.
L. Pursuant to IC 13-30-2-1(1), no person may discharge, or threaten to discharge
any contaminant or waste into the environment in a form that causes pollution
that violates a rule adopted by one (1) of the boards.
M. Pursuant to IC 13-30-2-1(3), no person may deposit any contaminants upon the
land in violation of a rule adopted by one (1) of the boards.
N. Pursuant to IC 13-30-2-1(4), no person shall deposit or cause or allow the
deposit of any contaminants or solid waste upon the land unless done in
manner acceptable to the solid waste management board.
O. Pursuant to IC 13-30-2-1(5), no person may cause or allow the open dumping
of solid waste in violation of rules adopted by the solid waste management
board.
6. On or about June 25, 1999, the Respondents submitted an initial site characterization
(ISC) to IDEM.
7. On or about July 14, 1999, the Respondents submitted a further site investigation (FSI)
and corrective action plan (CAP) to IDEM.
8. On or about August 10, 1999, IDEM issued a response to the Respondents' ISC, FSI
and CAP mentioned above. IDEM requested additional information to be submitted.
9. On or about August 25, 1999, the Respondents submitted a Summary Report and
Additional Site Activities Report to IDEM.
10. On or about September 29, 1999, IDEM issued a response to the Respondents'
Additional Site Activities Report, ISC and FSI. IDEM requested additional
information to be submitted.
11. On or about January 11, 2000, the Respondents submitted a Summary Report and
Proposed Corrective Action Plan in response to IDEM's request pursuant to Finding of
Facts paragraph 10 above. The supplemental response includes information regarding
petroleum contaminated soils located at: (1) Beaver Materials, 16101 River Avenue,
Noblesville, Hamilton County, Indiana ; and (2) Warren Auto, 17625 River Avenue,
Noblesville, Hamilton County, Indiana.
12. The Respondents waive their right to the issuance of a Notice Of Violation and to the
settlement period of sixty (60) days as provided for by IC 13-30-3-3.
13. In recognition of the settlement reached, Respondents waive any right to
administrative and judicial review of this Agreed Order.
2. Respondents shall maintain compliance with all applicable laws and rules from the
date of issuance of this Agreed Order by the Complainant.
3. If IDEM determines from the information that the Respondents submitted per Finding
of Fact paragraph 11 above, that the extent of contamination has not been adequately
defined, then the Respondents shall submit a Further Site Investigation Plan (FSIP)
within thirty (30) days of receiving written notice from IDEM. The FSIP must be
approved by IDEM prior to the implementation of the FSIP. The Respondents shall
implement the FSIP within ten (10) days of IDEM approval of the FSIP. The
approved FSIP shall become an enforceable part of this Agreed Order. If necessary,
this condition shall be repeated until the extent of contamination is adequately defined.
4. The Corrective Action Plan (CAP) information submitted by the Respondents as part
of the information submitted per Finding of Fact paragraph 11, shall be subject to
review, modification, and approval by IDEM. The CAP must address remediation at
the Site, Beaver Materials and Warren Auto. Upon notification of deficiencies in the
CAP, the Respondents shall have twenty (20) days to revise and resubmit a CAP to
IDEM which addresses the deficiencies. Subject to any appeal rights under IC 4-21.5,
the Respondents hereby agree to implement the approved CAP within fifteen (15) days
of receipt of IDEM's approval of the CAP. The Respondents shall complete all of the
requirements in the approved CAP. The approved CAP, including a remediation
activity schedule, shall be incorporated into this Agreed Order and shall be deemed an
enforceable part thereof.
5. The Respondents shall apply for and obtain all necessary permits and property access
agreements pertaining to investigation and remediation of on-site and/or off-site
contamination, if necessary, prior to any investigation or remediation activities being
performed.
6. The Respondents shall permit an agent of IDEM to view and inspect the activities
performed pursuant to an FSI or the approved CAP. In order to facilitate such an
inspection, the Respondents shall notify IDEM at least twenty-four (24) hours prior to
any scheduled activities.
7. All submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Kris Buckles, LUST Project Manager
Office of Environmental Response
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
All communications regarding this Agreed Order to the Respondents, unless notified
otherwise in writing, shall be sent to:
Mr. Scott Green
MG Petrolem Services, LLC
30 West 1st. Street S.W.
Carmel, Indiana 46032.
Mr. Jagpal Singh Otal
Johnson's Garage
21575 US 31 N.
Cicero, Indiana 46034
8. Respondents are assessed a civil penalty of Twenty-Four Thousand Seven Hundred
Three Dollars ($24,703). Seven Thousand Nine Hundred Five Dollars ($7,905) shall
be due and payable to the Environmental Management Special Fund in four (4) equal
quarterly installments of $1,976.25, the first of which will be due on June 30, 2000,
and the remainder of which are due on September 30, 2000, December 30, 2000 and
March 31, 2001. Sixteen Thousand Seven Hundred Ninety-Eight Dollars ($16, 798)
shall be due and payable to the Underground Petroleum Storage Tank Trust Fund in
four (4) equal quarterly installments of $4,199.50, the first of which will be due on
June 30, 2000, and the remainder of which are due on September 30, 2000, December
30, 2000 and March 31, 2001.
9. 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 $500 per day an FSIP is late
Order Condition 3 $500 per day an approved FSIP is not
implemented
Order Condition 4 $500 per day a revised CAP, if necessary, is late
Order Condition 4 $1,500 per business day for failure to perform
work pursuant to the schedule in the
approved CAP, unless the reason for non-
compliance with the approved CAP is
beyond the control of the Respondents
(i.e. Respondents inability to obtain off-site
access despite good faith efforts)
10. 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
this 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.
11. Civil and stipulated penalties are payable by check to the either the Environmental
Management Special Fund or the Underground Petroleum Storage Tank Trust Fund, as
described in Order Condition Number 9 above. 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
12. In the event that the civil penalty is not paid pursuant to Order Condition Number 8
above, the Respondents shall pay interest on the unpaid balance at the rate established
by IC 24-4.6-1-101.
13. 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.
14. 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.
15. 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.
16. 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 Jagpal Singh Otal
Solid Waste - UST Section 31 Car & Truck Plaza
Office of Enforcement
Date:_________________________ Date:__________________________
By:_____________________________
K. Scott Green, Operating Manager
MG Petroleum Services, LLC
Date:____________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management BOSE McKINNEY & EVANS LLP
By:___________________________ By:____________________________
Office of Legal Counsel Kathleen G. Lucas
Department of Environmental Management
Date:__________________________ Date:___________________________
By:_____________________________
Melinda Shapiro
Date:____________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS __________ DAY OF __________________, 2000.
For the Commissioner:
Signed 2/8/00
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement
Converted by Andrew Scriven