STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2017-24866-U
					)
Wayne D. and teresa armstrong,					)
					)
Respondents.					)

AGREED ORDER

Complainant and Respondents 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. Respondents’ entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents may have in any future administrative or judicial proceeding, except a proceeding to enforce this order.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondents are Wayne D. and Teresa Armstrong (“Respondents”), who own and/or operate the Underground Storage Tank (“UST”) systems, with UST Facility ID No. 8730, located at 6587 North State Road 19, Parcel No. 52-05-24-100-025.000-019, in Denver, Miami County, Indiana (“Site”).

3. Respondents own two (2) 1,500 gallon gasoline tanks and one (1) 2,500 gallon gasoline tank. All tanks are steel construction and based on historical documentation, it appears the tanks were installed in 1969.

4. IDEM has jurisdiction over the parties and the subject matter of this action.

5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to Wayne D. and Teresa Armstrong.

6. Based on an investigation including an inspection conducted on August 21, 2017 by a representative of IDEM, the following violations were found:

a. Pursuant to 329 Indiana Administrative Code (“IAC”) 9-2-2(a) and (d), all notifications required to be submitted under this section must be submitted on a form and in a format prescribed by the commissioner; and (d) an owner required to submit notice under this section shall provide all the information required by the form provided by the agency for each tank for which notice is submitted.

As noted during the inspection on August 21, 2017, Respondents failed to submit an updated UST notification form in accordance with the Notification and Financial Responsibility letter dated June 5, 2014 and the Records Request letter dated July 11, 2017.

b. Pursuant to 329 IAC 9-2.1-1(a), all existing UST systems shall comply with one of the following requirements no later than December 22, 1998: (1) new UST system performance standards under 329 IAC 9-2-1; (2) upgrading requirements under subsections (b) through (d); or (3) closure requirements under 329 IAC 9-6, including applicable requirements for corrective action under 329 IAC 9-5.

As noted during the inspection on August 21, 2017, Respondents failed to upgrade or permanently close the substandard UST systems at the Site.

c. Pursuant to 329 IAC 9-6-5(a), (b), and (c), the owner or operator shall continue operation and maintenance of corrosion protection, release detection if the tank is not empty, and comply with suspected and confirmed release requirements. USTs in temporary closure for more than three months shall: leave vent lines open and functioning, and cap and secure all other lines, pumps, manways, etc. After 12 months, the owner or operator must meet performance standards, upgrade requirements, or permanently close the substandard UST system.

As noted during the inspection on August 21, 2017, Respondents failed to cap and secure UST fill pipes. The USTs have been in temporary closure for more than twelve (12) months. Records regarding corrosion protection have not been made available to IDEM for review. Two (2) unsecured USTs were reported to be empty. The third UST is secured with a lock. The owner or operator requested to place the tanks in temporary closure in a letter dated October 14, 1998. Respondents failed to meet performance standards, upgrade requirements, or permanently close the UST systems.

d. Pursuant to IAC 9-8-21(a), the owner or operator shall maintain evidence of all financial assurance mechanisms used to demonstrate financial responsibility. Documentation shall be maintained at the UST site or owner’s or operator’s place of work. Records maintained off site must be made available upon request.

As noted during the inspection on August 21, 2017, Respondents failed to provide proof of financial responsibility.

7. In March 2020, closure of one (1) 2,500-gallon gasoline UST, one (1) 1,000-gallon gasoline UST, and one (1) 1,000-gallon gasoline/diesel UST, including associated piping and dispensers occurred. A UST Closure Report was submitted on May 3, 2020 [VFC #82962847]. No evidence of petroleum contamination was identified in the subsurface.

8. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondents acknowledge notice of this right and waive 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 Complainant or Complainant’s delegate and has been received by Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondents are assessed and agree to pay a civil penalty of Two Thousand Four Hundred Dollars ($2,400). Respondents are jointly and severally liable for all civil penalty assessments, including stipulated penalties. Said penalty amount shall be due and payable to the “Underground Petroleum Storage Tank Trust Fund” within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”.

3. Civil 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:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

4. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondents shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondents pay any unpaid balance. Such interest shall be payable to the “Underground Petroleum Storage Tank Trust Fund,” and shall be payable to IDEM in the manner specified in Paragraph 3, above.

5. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

6. This Agreed Order shall jointly and severally apply to and be binding upon Respondents and all successors and assigns. Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

7. No change in ownership, corporate, or partnership status of Respondents shall in any way alter the Respondents’ status or responsibilities under this Agreed Order.

8. Respondents shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of 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 this Agreed Order did not contain the invalid terms.

10. This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or approval of any submittal made by Respondents pursuant to this Agreed Order, shall not in any way relieve Respondents of the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

11. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondents’ compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondents may incur as a result of Respondents’ efforts to comply with this Agreed Order.

12. Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the violations specified in the NOV.

13. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. EPA) or any other agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondents may incur as a result of such communications with the U.S. EPA or any other agency or entity.

14. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondents.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Jennifer Reno, Chief
	Land Enforcement Section			Printed: ______________________
Compliance Branch				Title: ________________________
Office of Land Quality
Date: __________________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	________________________, 20_____.
				For the Commissioner:
				Signed on October 29, 2020
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality