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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,            )
                            )    CAUSE NO. UST-13
            v.                )
    )
THOMAS GREEN     )
d/b/a THOMAS GREEN TIRE    )
                            )
            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 Thomas Green (hereinafter referred to as "Respondent"), who owns and operates Thomas Green Tire, Facility ID# 17672, located at 801 West 3rd Street, Rushville, Rush 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:

                    Thomas Green
                    d/b/a Thomas Green Tire
                    801 West 3rd Street
                    Rushville, Indiana 46173

5.    Designated representatives of IDEM conducted an inspection at the Site on February 24, 1999.

6.    Based on information gathered by IDEM during the above noted inspection, the Respondent has been found in violation of:

    Emergency Rules Concerning Underground Storage Tanks (ERUST), LSA #98-275(E), 22 IR 1540 at 1549, Section 64(a) (329 IAC 9-2.1-1(a)), (1999) 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 system at the Site does not meet the new UST system performance standards, has not been upgraded and has not been properly closed.

    ERUST, LSA #98-275(E), 22 IR 1540 at 1566, Section 88 (329 IAC 9-7-2-(1)(B)), (1999) 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 Respondent's UST systems do not have adequate release detection.

7.    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.    The Respondent shall immediately cease dispensing product from the UST system in violation and put the UST system at the Site in temporary closure in accordance with the requirements of Emergency Rules for Underground Storage Tanks (ERUST) Section 86 (329 IAC 9-6-5).

3.    The Respondent shall, within thirty (30) days of the Effective Date of this Order, provide certification that the UST system has been placed in temporary closure in accordance with ERUST Section 86 (329 IAC 9-6-5). The certification shall be provided on the underground storage tank notification form under ERUST Section 63 (329 IAC 9-2-2).

4.    The Respondent shall either:

    A.    Permanently close the UST system as follows:

        (1)    Close the UST system within three hundred and sixty-five (365) days of the Effective Date of this Order in accordance with the requirements of ERUST Section 82 through 85 (329 IAC 9-6-1 through 329 IAC 9-6-4), including the applicable requirements for corrective action under ERUST Section 74 through 81 (329 IAC 9-5-1 though 329 IAC 9-5-8); and,

        (2)    Submit a closure report in accordance with ERUST Section 83 (329 IAC 9-6-2) within thirty (30) days of closing the UST system.

    OR

    B.    Upgrade the UST system as follows:

        (1)    Install release detection in accordance with ERUST Section 88 (329 IAC 9-7-2) within three hundred and sixty-five (365) days of the Effective Date of this Order;

        (2)    Install corrosion protection for the tanks and piping in accordance with ERUST Section 64(b) and (c) (329 IAC 9-2.1-1(b) and (c)) within three hundred and sixty-five (365) days of the Effective Date of this Order;

        (3)    Install spill and overflow prevention equipment in accordance with the requirements of ERUST Section 62(3) (329 IAC 9-2-1(3)) and Section 66 (329 IAC 9-3.1.1) within three hundred and sixty-five (365) days of the Effective Date of this Order; and,

        (4)    Provide a certification of compliance on the underground storage tank notification form under ERUST Section 63 (329 IAC 9-2-1) within thirty (30) days of completing items 4B(1)-4B(3) of this Order.

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

    Brett E. DeBusk, Environmental Manager
    Office of Enforcement
    Indiana Department of Environmental Management
    100 North Senate Avenue
    P.O. Box 6015
    Indianapolis, Indiana 46206-6015

5.    Respondent is assessed a civil penalty of Six Thousand Two Hundred Fifty Dollars ($6,250). Said penalty amount shall be due and payable to the Underground Petroleum Storage Tank Trust Fund in Four (4) equal payments of One Thousand Five Hundred Sixty Two Dollars and Fifty Cents ($1,562.50). The first payment of ($1,562.50) shall be made on or before October 31, 1999. The second payment of ($1,562.50) shall be made on or before January 31, 2000. The third payment of ($1,562.50) shall be made on or

before April 30, 2000. The forth payment of ($1,562.50) shall be made on or before July 31, 2000. Timely payment of the $6,250 to the Underground Petroleum Storage Tank Trust Fund shall constitute a final resolution of IDEM's claim for civil penalty for the violations that occurred prior to the Effective Date of this Agreed Order. The Respondent shall pay civil penalty as directed by Order Condition # 8 below.

6.    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
        Order Condition #3            $500 per week that certification is late
        Order Condition #4A(1)        $25,000 if closure is late.
        Order Condition #4A(2)        $500 per week that certification is late
        Order Condition #4B(1)-(3)        $25,000 if installation is late
        Order Condition #4B(4)        $500 per week that certification is late

7.    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 any 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.

8.    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 Cause Number of this action and shall be mailed to:

        Cashier
        IDEM
        100 North Senate Avenue
        P.O. Box 7060
        Indianapolis, Indiana 46207-7060

     In the event that the civil penalty required by Order Condition 5 is not paid on each installment date as directed, Respondent shall pay interest on each late or unpaid payment, beginning the day after the payment was due, at a 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 Respondent, its 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.

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 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 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 Respondent has complied with all terms and conditions of this Agreed Order.

TECHNICAL RECOMMENDATION:        RESPONDENT:
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 __________________, 1999.

                            For the Commissioner:

                            Signed on September 15, 1999
                            Felicia Robinson George
                            Assistant Commissioner
                            Office of Enforcement

Converted by Andrew Scriven