STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CASE NO. 2000-9708-S
v. )
)
PERRY MULLIS d/b/a MULLIS PETROLEUM, )
)
Respondent. )
AGREED ORDER
The Complainant and the 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.
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. Respondent is Perry Mullis d/b/a Mullis Petroleum (hereinafter referred to as "Respondent"), who owns an underground storage tank system, Facility ID# 15823, located at the northeast corner of the intersection of State Road 58 and Bailey Scales Road, Bedford, Lawrence 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:
Perry Mullis
d/b/a Mullis Petroleum
1001 "J" Street
Bedford, Indiana 47421
5. Designated representatives of IDEM conducted an inspection at the Site March 23, 2000.
6. Based on information gathered by IDEM during the above noted inspection, the Respondent has been found in violation of:
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. This violation is based on the fact that the UST system at the Site is not properly upgraded regarding corrosion protection, spill and overfill prevention and is not properly closed.
B. Pursuant to 329 IAC 9-6-5(c), when a UST system has been temporarily closed for twelve (12) months, the owner or operator shall permanently close the UST system if it does not meet the performance standards in 329 IAC 9-2-1 or 329 IAC 9-2.1, except that spill and overfill equipment requirements do not have to be met. This violation is based on the fact that the UST system at the Site has been in temporary closure for more than twelve (12) months and has not been upgraded or permanently closed.
7. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.
II. ORDER
9-6-4, including the applicable requirements for corrective action under 329 IAC 9-5-1 through 9-5-8; and,
(2) Submit a closure report in accordance with 329 IAC 9-6-2 within thirty (30) days of closing the UST system.
3. 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
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
4. The Respondent is assessed a civil penalty of one thousand dollars ($1,000.00). Said penalty amount shall be due and payable to the Underground Petroleum Storage Tank Trust Fund within thirty (30) days of the Effective Date of this Agreed Order.
5. In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation
PenaltyOrder Condition #2(1) $2,000 per day that closure is late
Order Condition #2(2) $500 per week that certification is late
6. Stipulated penalties shall be due and payable within thirty (30) days after the Respondent receives 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 Respondent 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 Respondent's violation of this Agreed Order, or Indiana Law, including but not limited to civil penalties pursuant to IC 13-30-4.
7. 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:
Cashier
IDEM
100 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
8. In the event that the civil penalty required by Order Condition 5 is not paid within thirty (30) days of the Effective Date of this Agreed Order, the Respondent 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.
9. This Agreed Order shall apply to and be binding upon the Respondent, his officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's 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 Respondent shall in any way alter its status or responsibilities under this Agreed Order.
10. 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.
11. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
12. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Perry Mullis d/b/a Mullis Petroleum
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 March 2, 2001)
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement