STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT OF
                ) SS:        ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
            Complainant,        )
                            )    CAUSE NO. B-2169
                v.            )
                            )
JAMES RIGGS                    )
                            )
            Respondent.            )

    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.    James Riggs ("Respondent"), owns and operates a diesel fuel tank and pump truck-filling station located on his farm at 20707 Hinkle Road, Noblesville, in Hamilton County, Indiana.

    3.    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:

                James Riggs
                20707 Hinkle Road
                Noblesville, IN 46060

    5.    IC 13-18-4-5 states, in substance, that a person may not throw, run, drain or otherwise dispose into any of the streams or waters of this state, or to cause, permit or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters, any organic or inorganic matter that shall cause or contribute to a polluted condition of any waters.

    6.    327 IAC 5-2-2 states, in part, that any discharge of pollutants into waters of the state as a point source discharge is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

    7.    327 IAC 2-1-6(a)(1) states in relevant part that all 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:

        a. that will settle to form putrescent or otherwise objectionable deposits;

        b. that are in amounts sufficient to be unsightly or deleterious;

        c. that produce color, visible oil sheen, odor or other conditions in such degree          as to create a nuisance;

        d. which are in amounts sufficient to be acutely toxic to, or to
         otherwise severely injure or kill aquatic life, other animals, plants, or          humans;

        e. which 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.

    8.    IC 13-30-2-1 states, in part, that no person shall discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works.

    9.    At the times noted herein, 327 IAC 2-6-2 required in substance, that in the event of a spill to water of the state, the responsible party must:
        
        a. immediately report the event to IDEM's Office of Environmental Response;

        b. ensure that the spilled material is immediately contained and cleaned up;

        c. immediately notify the nearest downstream water user; and,
    
        d. as deemed necessary, submit a report(s) to the Department with details of
         the event.

    10.    On February 12, 1997, IDEM's Office of Environmental Response (OER) and the Indiana Department of Natural Resources (IDNR) responded to a complaint that diesel fuel was observed in Little Bear Creek. OER identified this as Incident # 9702056, in its Initial Incident Report (IIR), describing inspection of the site on February 12, 1997. The IIR estimated that the original date of occurrence of the spill was approximately January 16, 1997. IDNR's investigation documented that a fishkill had occurred.

    11.    The Respondent told IDEM, on February 12, 1997, that he discovered that a leaky truck filling nozzle had been left hanging on the wrong (out) side of the secondary containment wall of a diesel storage/fueling tank, during a heavy rain event in late January. National Weather Service records show that the heavy rain event occurred on January 27, 1997. Respondent said that, upon discovery of the leaky nozzle, he shut the nozzle off, but did no further investigation to determine the extent of the spill or damage caused by the spill. Respondent also said that the pump pad was running over and the area around the pad was discolored. In summary, Respondent did not report, contain, and clean up the spill when he discovered it. OER staff returned to the site on February 13, 1997 and observed contamination from the tank pump pad to Morse Reservoir. The contamination ranged from product in the pad to dead grass to sheens and product from the pad to Little Bear Creek to Hinkle Creek and emulsified product and a slight sheen in Morse Reservoir.

    12.    The spill of diesel fuel, Respondent's failure to report and contain the spill, and the water quality violations caused by the spill are in violation of 327 IAC 2-6-2, IC 13-18-4- 5, 327 IAC 5-2-2, and 327 IAC 2-1-6(a)(1).

    13.    OER required cleanup and testing for soil contamination in the area of the spill. OER also requested, by a letter dated March 7, 1997, that Respondent submit a detailed narrative spill report. IDEM representatives conducted a preliminary meeting with Respondent, his engineering consultants, and his insurance representatives on March 12, 1997. A cleanup and sampling plan was devised and carried out, and reports regarding same were

submitted by Respondent to IDEM dated March 20, 1997. The samples were split and tested by two independent laboratories. The lab results for all of the samples, except for one, showed agreement. There was a considerable discrepancy between the lab results for the sample taken from a location identified as SS-4. IDEM has requested further testing to determine which results are accurate.

    14.    A followup inspection of the site and downstream area was made on May 7, 1997 by OER and Office of Enforcement (OE). IDEM representatives observed some visible residual diesel fuel to be present in sediment and along banks, with pockets of brown scum on the surface in at least three or four locations.

    15.    Respondent submitted the requested narrative spill report in a brief letter dated May 11, 1997, in which he said the spill happened because very cold weather caused a valve to only partially close. Respondent also reported that he had installed a new valve and ten (10) absorbent booms.

    16.    327 IAC 2-6 (the Spill Rule) was repealed in March, 1997 and replaced by 327 IAC 2-6.1.

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

    2.      Within thirty (30) days of Effective Date, Respondent shall submit to IDEM for its approval a spill control and contingency plan (SPCC). The SPCC shall include, but not be limited to, provisions for notification of any spill to IDEM, Office of Environmental Response; to downstream users, and to any other affected parties. The SPCC shall also include provisions that specifically detail steps to be taken for spill prevention, spill containment, recovery, and cleanup. The SPCC is subject to the approval of IDEM. If the SPCC is deemed inadequate by IDEM, a revised plan shall be submitted within thirty (30) days of receipt of notice from IDEM of the inadequacies thereof. If after submission of a revised plan, IDEM still finds the plan to be inadequate, then IDEM may require further modification of the plan as necessary to meet IDEM's requirements. If further modification does not meet IDEM's approval, IDEM will suggest appropriate modification to be undertaken

by Respondent within specified time frames. If such modification is not timely undertaken or an alternate plan timely submitted by Respondent is not approved by IDEM, the Respondent will be liable for stipulated penalties. IDEM approval of a spill contingency plan shall be solely a requirement of this Agreed Order and in no way relieves the Respondent of his obligation to comply with all applicable rules or statutes. Nothing in this provision prevents Complainant from exercising its full enforcement authority as to all permit requirements, rules and statutes.

    3.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to :

        Mark Stanifer, Chief
        Water Enforcement Section
        Office of Enforcement
        Indiana Department of Environmental Management
        P.O. Box 6015
        Indianapolis, Indiana 46206-6015

    4.    Respondent is assessed a Civil Penalty of Ten Thousand Dollars ($10,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund in ten consecutive monthly installment payments of One Thousand ($1,000) Dollars each. The first installment payment of the ten consecutive monthly payments shall be due within thirty (30) days of the Effective Date of this Agreed Order. Each installment payment thereafter is due within thirty (30) days of the preceding month's due date.
.
    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         Penalty

        Paragraph 2.            $1,000 per week SPCC or any required revision of                         the SPCC is not submitted;

    6.    Stipulated penalties shall be due and payable within thirty (30) days after 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 the stipulated penalty given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

    7.    Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:
             Cashier
            IDEM
             100 N. Senate Avenue
            P.O. Box 7060
            Indianapolis, Indiana 46206-7060.
    
    8.    In the event that the civil penalty required by paragraph 4 is not paid within thirty (30) days of the Effective Date of this Agreed Order 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, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The 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 or his 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. Respondent shall by contract require that all contractors, firms, and other persons acting for it comply with the terms of this Agreed Order.
    
    12.    This Agreed Order shall remain in effect until Respondent has complied with all the requirements of this Agreed Order.

By:         By:
Mark W. Stanifer, Chief                 James Riggs
Water Enforcement Section                
Office of Enforcement                 
                                                

Date:             Date:

COUNSEL FOR COMPLAINANT:        COUNSEL FOR RESPONDENT:
Department of Environmental Management

By:             By:
Office of Legal Counsel
Department of Environmental    
Management                    Printed:
                                
Date:             Date:
        

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

THIS DAY OF , 1997.

                        For the Commissioner:
                        

                         Signed 3/24/98
                        David J. Hensel
                        Director
                        Office of Enforcement

Converted by Andrew Scriven