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-1
            v.                )
    )
    )
REMOTE SERVICES, INC. D/B/A    )
THE LAWSON COMPANY,    )
                            )
            Respondent.            )

    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. Pursuant to IC 13-30-3-3, entry into the terms of 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.     Respondent is Remote Services, Inc. d/b/a The Lawson Company (hereinafter referred to as "Respondent"), who owns and operates regulated underground storage tanks (USTs) located at Dairy Mart Store #173, IDEM Facility ID No. 008304, 3830 Hamburg Pike, Jeffersonville, Clark County, Indiana (hereinafter referred to as the "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 on September 4, 1997, via Certified Mail to:

     Robert B. Stein, Jr., President        CT Corporation, Registered Agent
    Remote Services, Inc.                One North Capitol
    One Division Drive                Indianapolis, IN 46204
    Enfield, CT 06082

5.    Designated representatives of IDEM and ATC Associates Inc. (ATC) conducted a petroleum hydrocarbon contamination investigation during January and February 1997, in the vicinity of the Site. The purpose of this investigation was to identify the source and transport pathways for the petroleum hydrocarbon contamination, both soil and groundwater, in and around the Site. The results of the investigation indicate that the petroleum release that occurred on-Site has affected soil and groundwater on and around the Site.

6.    Based upon the investigation noted above, IDEM finds the Respondent in violation of:
                    
    329 IAC 9-4-2, which states, owners and operators of underground storage tank (UST) systems must follow the procedures in section 3 of this rule to determine if the UST system is the source of off-site impacts. These impacts include, but are not limited to, the presence of regulated substances, either as free product or vapors, in soils, basements, sewer and utility lines, and nearby surface and drinking waters that have been observed by the agency or brought to its attention by another party. This violation is based on the fact that during the investigation it was determined that the Respondent did not comply with section 3 of this rule to determine if the on-site petroleum hydrocarbon contamination, IDEM LUST No. 8711026, was the source of the off-site impacts surrounding the Site;

    329 IAC 9-4-3(2), which requires the owners and operators to measure for the presence of a release where contamination is most likely to be present at the UST site. In selecting the sample types, sample locations, and measurement methods, owners and operators must consider the nature of the stored substance, the type of initial alarm or cause for suspicion, the type of backfill, the depth to groundwater, and other factors appropriate for identifying the presence and source of the release. If the test results for the excavation

zone or the UST site indicate that a release has occurred, owners and operators must begin corrective action in accordance with 329 IAC 9-5. If the test results for the excavation zone or the UST site do not indicate that a release has occurred, further investigation is not required. This violation is based on the fact that the Respondent did not do an adequate investigation of the soil and groundwater to determine the extent of contamination and did not initiate adequate Corrective Action;

    329 IAC 9-5-3(a)(5), which requires the owners and operators to measure for the presence of a release where contamination is most likely to be present at the UST site, unless the presence and source of the release have been confirmed in accordance with the site check required by 329 IAC 9-4-3(2) or the closure site assessment of 329 IAC 9-6- 2(a). In selecting sample types, sample locations, and measurement methods, the owner and operator must consider the nature of the stored substance, the type of backfill, the depth to groundwater, and other factors appropriate for identifying the presence and source of the release. This violation is based on the fact that the Respondent did not do an adequate investigation of the soil and groundwater to determine the extent of contamination;

    329 IAC 9-5-6(a), which states, in order to determine the full extent and location of soils contaminated by the release and the presence and concentrations of dissolved product contamination of the groundwater, owners and operators must conduct investigations of the release, the release site, and the surrounding area possibly affected by the release if any of the following conditions exist: (1) There is evidence that groundwater wells have been affected by the release . . . ; (2) Free product is found to need recovery in compliance with section 5 of this rule; (3) There is evidence that contaminated soils may be in contact with groundwater . . . ; and (4) The commissioner requests an investigation, based on the potential effects of contaminated soil or groundwater on nearby surface water and groundwater resources. This violation is based on the fact that the Respondent did not do an adequate investigation of the soil and groundwater to determine the extent of contamination;

    329 IAC 9-5-7 (a), which states that at any point after reviewing the information submitted in compliance with sections 1 through 4 of this rule, the commissioner may require owners and operators to submit additional information or to develop and submit a corrective action plan for responding to contaminated soils and groundwater. If the plan is required, owners and operators must submit the plan according to a schedule and format established by the commissioner. Alternatively, owners and operators may, after fulfilling the requirements of sections 2 through 4 of this rule, choose to submit a corrective action plan for responding to contaminated soil and groundwater. In either case, owners and operators are responsible for submitting a plan that provides for adequate protection of human health and the environment, as determined by the commissioner, and must modify their plan as necessary to meet this standard. This violation is based on the fact that the Respondent has not submitted a corrective action plan that is adequate to be protective of public health and the environment;

    IC 13-30-2-1(1), which states, that a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odors, either alone or in combination from other sources, into: (A) the environment; in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws. This violation is based upon the fact that the Respondent has allowed the discharge of petroleum products into the environment; and

    IC 13-24-1-6(a)(3), which states, to allow the commissioner to take or to assess the need for removal or remedial action under section 1, 2, or 3 of this chapter or to enforce this chapter, an owner, an operator, or a responsible party of a facility, upon the request of an officer, an employee, or a designated representative of the department, shall: (3) conduct testing of: (A) soils; (B) air; (C) surface water; or (D) groundwater; surrounding the facility if the testing, using methods that are similar to but do not exceed federal standards, confirms a release of petroleum, or if other evidence exists that gives cause for reasonable suspicion that a release has occurred. This violation is based upon the fact that the Respondent has not conducted adequate testing surrounding the Site to determine the extent of contamination from the release of petroleum that occurred on-site.

7.    On or about December 31, 1997, the Respondent submitted a scope of work plan with a time schedule.

8.    On or about February 3, 1998, the Respondent replaced six (6) surface casings and seals around existing wells where surface water was infiltrating into the well casing.

9.    On or about January 26, 1998, the Respondent performed a soil gas survey to the south of the Site along Hamburg Pike Road. The purpose of this survey was to further define the extent of the release along the roadway and utility conduits.

10.    On or about February 6, 1998, the Respondent installed eight (8) new ground water monitoring wells: two (2) overburden monitoring wells and six (6) bedrock monitoring wells. These monitoring wells will be utilized to determine the extent of contamination that originated from the Site.

11.    On or about March 13, 1998, the Respondent submitted a second scope of work plan with a time schedule.

12.    On or about April 25, 1998, the Respondent installed three (3) 4-inch monitoring wells and one (1) 2-inch monitoring well to further define the leading edge of the contamination plume to the west of the Site.

13.    On or about April 25, 1998, the Respondent installed one (1) 2-inch monitoring well east of MW20 to define the extent of the contamination plume to the east of the Site.

14.    On or about April 25, 1998, the Respondent installed one (1) 4-inch monitoring well to utilize as a pumping well for the pump test listed in Findings Condition #16 below. In addition to this monitoring well, the Respondent installed two (2) 2-inch piezometers that were utilized in the pump test.

15.    On or about May 1, 1998, the Respondent developed and sampled the monitoring wells listed in Findings Conditions #12, 13 and 14, and gauged and sampled monitoring wells listed in Findings Condition #10.

16.    On or about May 1, 1998, the Respondent performed a pump test to determine the hydraulic properties of the shale bedrock.

17.    On or about June 2, 1998, the Respondent submitted a report to IDEM detailing the findings and conclusions gathered from completing Findings Conditions #8-10 and Findings Conditions #12-16.

18.    On or about June 9, 1998, the Respondent submitted an Expanded Assessment/Feasibility Study Proposal. This document is included as Attachment A.
    
19.    In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2.     Respondent shall maintain compliance with all applicable laws and rules from the date of issuance of this Agreed Order by the Complainant.

3.    All ground water grab samples required by this Agreed Order shall be collected using disposable bailers, with a new bailer being used on each monitoring well. The sampler shall wear new latex gloves during each sampling procedure at each monitoring well, and place each sample in labeled 40 mL VOA vials. The samples shall be placed in an iced cooler and submitted, with Chain-of-Custody, to an environmental laboratory for analysis. These samples shall be analyzed for BTEX/MTBE per IDEM's Underground Storage Tank Branch Guidance Manual dated July 1993, with the October 1994, update.

4.    Respondent shall, upon the Effective Date of this Agreed Order, conduct quarterly monitoring of all bedrock monitoring wells noted in Findings Conditions #10, 12, 13 and 14. Respondent shall continue quarterly gauging and sampling events of these monitoring wells to evaluate groundwater trends.

5.    Respondent shall conduct free product recovery as an interim Corrective Action measure if any monitoring wells show non-aqueous phase liquids.

6.    Respondent shall, within thirty (30) days of the Effective Date of this Agreed Order, complete the Expanded Assessment/Feasibility Study as outlined in Attachment A.

7.    Respondent shall, within fifty (50) days of the Effective Date of this Agreed Order, submit a report detailing the findings of the work performed in the Expanded Assessment/Feasibility Study as outlined in Attachment A.
                                    
8.    If IDEM determines from the report submitted per Order Condition #7 above that the extent of contamination has not been adequately defined, then the Respondent 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. Once the FSIP is approved by IDEM, it will become an enforceable part of this Agreed Order. If necessary, this condition shall be repeated until the extent of contamination is adequately defined.
                    
    The Respondent shall submit a CAP within sixty (60) days of receiving written notice from IDEM that a CAP is due. The Respondent shall utilize the Underground Storage Tank Branch Guidance Manual dated July 1993 , with the October 1994, update to develop the CAP.

    The CAP shall be subject to review, modification and approval by IDEM. Upon notification of deficiencies in the CAP, the Respondent shall have fifteen (15) days to revise and resubmit a CAP to IDEM which addresses the deficiencies. Subject to any appeal rights under IC 4-21.5, the Respondent hereby agrees to implement the approved CAP. The Respondent shall complete all of the requirements in the approved CAP. The approved CAP, including a remediation activity schedule in the CAP, shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.
                                            
9.    Upon IDEM approval of the CAP, the Respondent shall commence activities for remediation as set forth in the CAP and complete said activities in accordance with an approved schedule in the CAP.

10.    Respondent shall permit an agent of IDEM to view and inspect the activities performed pursuant to the approved CAP. In order to facilitate such an inspection, Respondent shall notify IDEM at least seven (7) days prior to any scheduled activities.

11.    Respondent is assessed a civil penalty of thirty-eight thousand four hundred dollars ($38,400). Said penalty shall be due and payable to the Underground Petroleum Storage Tank Trust Fund in four (4) equal payments of nine thousand six hundred dollars ($9,600). The first payment of $9,600 shall be paid within thirty (30) days of the Effective Date of this Agreed Order. The second payment of $9,600 shall be made on or before December 31, 1998. The third payment of $9,600 shall be made on or before

March 31, 1999. The fourth and final payment of $9,600 shall be made on or before June 30, 1999. Timely payment of the $38,400 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, as set forth in the Findings Condition #6 above . The Respondent shall pay the civil penalty as directed by Order Condition #15 below.

12.    Respondent shall pay as reimbursement, for expenses incurred through work performed on behalf of IDEM, the amount of fifty-eight thousand seventy-two dollars and fifty-six cents ($58,072.56) to IDEM. Said reimbursement shall be due and payable to the Hazardous Substance Response Trust Fund in four (4) equal payments of fourteen thousand five hundred eighteen dollars and fourteen cents ($14,518.14). The first payment of $14,518.14 shall be made within thirty (30) days of the Effective date of this Agreed Order. The second payment of $14,518.14 shall be made on or before December 31, 1998. The third payment of $14,518.14 shall be made on or before March 31, 1999. The fourth and final payment of $14,518.14 shall be made on or before June 30, 1999. Timely payment of the $58,072.56 to the Hazardous Substance Response Trust Fund shall constitute a final resolution of IDEM's claim for cost recovery for worked performed at the Site prior to the Effective Date of this Agreed Order . Said payments shall be sent to the address listed in Order Condition #15 below.

13.    In the event the following terms and conditions are violated, subject to any cause due to force majeure, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

            Violation                Penalty
        Order Condition #6            $500 per day the Expanded Assessment/Feasibility Study is not completed
        Order Condition #7            $500 per day the report is late
        Order Condition #8            $1,500 per day the CAP is late
        Order Condition #9            $1,500 per day for failure to perform work
                                pursuant to the schedule in the CAP
            
14.    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 penalties 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 13-30-4-1.
                                    

15.    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:

17.      “Force Majeure,” for the purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite the Respondent's best efforts to fulfill the obligation. The requirement that the Respondent exercise “best efforts to fulfill the obligation” includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. “Force Majeure” does not include financial inability to complete the work required by this Agreed Order or increases in costs to perform the work.

    The Respondent shall notify IDEM by calling within three (3) calendar days and by writing no later than seven (7) calendar days after any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM. Said decision shall be communicated to the Respondent.
            
    If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is attributable to the event constituting the force majeure.
            

                
18.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
            Mr. Paul Higginbotham, Chief
            Solid Waste - UST Enforcement Section, Office of Enforcement
            Indiana Department of Environmental Management
            100 North Senate Avenue
            P.O. Box 6015
            Indianapolis, Indiana 46206-6015

19.    All IDEM correspondence concerning this Agreed Order, unless notified otherwise in writing, shall be sent to:
            Mr. Dale Valvo, Vice President
            One Dairy Mart Way
            300 Executive Parkway West
            Hudson, Ohio 44236
    
20.     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.

21.    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.

22.    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.

23.    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

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 __________________, 1998.

                            For the Commissioner:

                            __Signed 8/6/98_______________
                            David J. Hensel
                            Director
                            Office of Enforcement

Converted by Andrew Scriven