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


COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

         Complainant,

            v.

KIEL BROTHERS OIL COMPANY, INC. ,

        Respondent.

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)    CAUSE NO. B-2410    
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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.    The 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.    The Respondent is Kiel Brothers Oil Company, Inc. (hereinafter referred to as "Respondent"), which owns and operates a petroleum products supply business located in Columbus, Bartholomew County, Indiana.

3.     The Indiana Department of Environmental Management (IDEM) has jurisdiction over the parties and subject matter of this action.

4.    327 IAC 2-6.1 applies to the reporting and containment of, and response to, spills of hazardous substances, petroleum, and other objectionable substances of a quantity, type, duration or in a location as to damage the waters of the state.

5.    327 IAC 2-6.1-6 substantively states , in part, that a petroleum spill from a mode of transportation to soil that exceeds 55 gallons must be reported .
6.    327 IAC 2-6.1-7 substantively states , in part, that any person who operates, controls, or maintains any mode of transportation from which a spill occurs must notify IDEM's Office of

Environmental Response (OER) as soon as possible, but no more than two hours after the discovery of the spill.

7.    At approximately 11:00 P.M. on September 29, 1998 , the Respondent experienced a spill of between 200 and 500 gallons of No. 2 fuel oil when a tanker rolled over on the eastbound entrance ramp at Holt Road and Interstate 65 in Indianapolis, Marion County, Indiana.

8.    At 7:09 A.M . on September 30, 1998, the Respondent reported the spill described in Paragraph 7 above to OER. The spill report was filed with OER approximately eight hours after the spill occurred, in violation of 327 IAC 2-6.1-6 and 327 IAC 2-6.1-7.

9.    OER records indicate that the Respondent has experienced at least 27 other spills, two of which resulted in the issuance of warning letters. Therefore, the Respondent should be knowledgeable of the spill reporting requirements of 327 IAC 2-6.1.

10.    Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

Mr. Theodore C. Kiel, President and Registered Agent
Kiel Brothers Oil Company, Inc.
P.O. Box 344
Columbus, Indiana 47202-0344

11.    In recognition of the settlement reached, the 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.    For 12 consecutive months after the Effective Date of this Agreed Order, the Respondent shall comply with the spill reporting requirements of 327 IAC 2-6.1.

3.     The Respondent is assessed a civil penalty of One Thousand, Six Hundred Dollars ($1,600). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

4.    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            $3,500 per each spill the Respondent fails to properly report while this Agreed Order is in effect.

                        
5.    Stipulated penalties shall be due and payable within 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 the stipulated penalties 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 13-30-3-4.

6.    Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this Agreed Order and shall be mailed to:

        Cashier
        Indiana Department of Environmental Management
        100 North Senate Avenue
        P.O. Box 7060
        Indianapolis, Indiana 46207-7060

7.    In the event that the Civil Penalty required by Section II, Paragraph 3, is not paid within 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.

8.    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 the Respondent's status or responsibilities under this Agreed Order.
    
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 the Agreed Order did not contain the invalid terms.

10.    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.

11.    This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order.


TECHNICAL RECOMMENDATION:    RESPONDENT:

By:     By:
    Mark W. Stanifer
    Water Enforcement Section    Printed:
    Office of Enforcement
    Department of Environmental    Title:
    Management    

Date:     Date:

COUNSEL FOR COMPLAINANT:    COUNSEL FOR RESPONDENT:

By:     By:

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

Date:     Date:

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , 199 .

        
        FOR THE COMMISSIONER:

        Original signed February 12, 1999
        Felicia Robinson George
        Assistant Commissioner of Enforcement

Converted by Andrew Scriven