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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2010-19216-S |
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Terry lee, |
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d/b/a Mobil gas station |
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Respondent. |
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AGREED ORDER
Complainant and
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. Respondent’s entry into this Agreed Order
shall not constitute a waiver of any defense, legal or equitable, which
Respondent 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
2.
Respondent
is Terry Lee d/b/a Mobil Gas Station (“Respondent”), who owns/operates the Underground
Tank Storage (“UST”) system with UST Facility I.D. Number 11986 located at 998
South Court Street in Crown Point, Lake, County, Indiana (“Site”).
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail to:
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Terry Lee |
Terry Lee |
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d/b/a Mobil Gas Station |
d/ba Mobil Gas Station |
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During an investigation including an
inspection conducted on September 16, 2009 by a representative of IDEM, the
following violations were found:
a.
Pursuant to 329 IAC 9-3.1-2(1)(2) and (3), the owner and
operator of a steel UST system with corrosion protection shall comply with the
following requirements to ensure that releases due to corrosion are prevented
for as long as the UST system is used to store
regulated substances:
(1)
All corrosion protection systems must be operated and
maintained to continuously provide corrosion protection to the metal components
of that portion of the tank and piping that (A) routinely contain regulated substances;
and (B) are in contact with the ground.
(2) All UST
systems equipped with galvanic cathodic protection systems must be inspected
for proper operation by a qualified cathodic protection tester under the
following requirements: (A) All galvanic cathodic protection systems must be
tested within six (6) months of installation and at least every three (3) years
thereafter.(B) Nace International (formerly the National Association of
Corrosion Engineers) Standard RP0285-95, "Corrosion Control of Underground
Storage Tank Systems by Cathodic Protection", revised 1995, NACE
International, P.O. Box 218340, Houston, Texas 77218-8340.
(3)
All UST systems with impressed current cathodic protection
systems must be: (A) inspected every sixty (60) days to ensure the equipment is
running according to manufacturer's specifications; and (B) tested within six (6)
months of installation and at least every three (3) years thereafter.
As
noted during the inspection, Respondent failed to perform corrosion protection
operation maintenance for the USTs system at the Site.
b.
Pursuant to 329 IAC 9-3.1-4(a) and (b), the owner and
operator of an UST system shall ensure that repairs and maintenance prevent
releases due to (1) structural failure or (2) corrosion; as long as the UST
system is used to store regulated substances. The repairs and maintenance must
meet the conditions specified under 329 IAC 9-3.1-4(b)(1).
As noted during the
inspection, the corrosion protection for the UST system was inadequate as it
failed a three year performance tests conducted on November 4, 2009.
5.
In
recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
6.
Respondent
has complied with 329 IAC 9-3.1-4(a)(b)(1).
Specifically, Respondent has repaired the existing non-functional
cathodic protection system at the site. The documentation showing that cathodic
protection system has been repaired was submitted to IDEM on September 15,
2010.
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
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2.
Respondent
shall comply with the operation and maintenance of corrosion protection system
as required by 329-IAC 9-3.1-2.
3.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Chike Okeke, Enforcement Case
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Office of Land Quality – Mail Code
60-02L |
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Indiana Department of
Environmental Management |
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4.
Respondent
is assessed a civil penalty of Six Thousand One Hundred and Twenty Five Dollars
($6,125). Said penalty amount shall be paid
in three (3) monthly installments with the first payment of Two Thousand Forty
One Dollars and Sixty Six Cents ($2,041.66) due and payable to the Underground
Petroleum Storage Tank Trust Fund within thirty (30) days of the Effective
Date. The next monthly payment in the
amount of Two Thousand Forty One Dollars and Sixty Six Cents ($2,041.66) shall
be due and payable to the Underground Petroleum Storage Tank Trust Fund upon
receiving an invoice from IDEM. The last
monthly payment in the amount of Two Thousand Forty One Dollars and Sixty Eight
Cents ($2,041.68) shall also be due and payable to the Underground Petroleum
Storage Tank Trust Fund upon receiving an invoice from IDEM.. In the event that the civil penalty is not
paid as specified above, 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.
5.
In
the event the terms and conditions of the following paragraphs are violated,
Complainant may assess and Respondent shall pay a stipulated penalty in the following
amount:
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Paragraph |
Penalty |
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Order
paragraph Number 2 |
$500
per week or part thereof late |
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Order
paragraph Number 3 |
$100
per week or part thereof late |
6.
Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, 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 “Underground Petroleum
Storage Tank Trust Fund.” Checks shall
include the Case Number of this action and shall be mailed to:
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Indiana Department of
Environmental Management |
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Cashier – Mail Code 50-10C |
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8.
This
Agreed Order shall apply to and be binding upon Respondent and its successors
and assigns. Respondent’s signatories to
this Agreed Order certify that he is fully authorized to execute this Agreed
Order and legally bind the party he represents.
No change in ownership, corporate, or partnership status of Respondent shall
in any way alter his 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 this Agreed Order did not contain the invalid terms.
10.
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.
11.
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 Respondent pursuant to this Agreed Order,
shall not in any way relieve Respondent of its obligation to comply with the
requirements of its applicable permit or any applicable Federal or State law or
regulation.
12.
Complainant does not, by its approval of this Agreed Order,
warrant or aver in any manner that Respondent’s 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 Respondent may incur
as a result of Respondent’s efforts to comply with this Agreed Order.
13.
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 same violations specified in the
NOV.
14.
Nothing in this Agreed Order shall prevent IDEM or anyone
acting on its behalf from communicating with the 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 Respondent may incur as a result of
such communications with the EPA or any other agency or entity.
15.
This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
_________________________ |
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Nancy
Johnston, Section Chief |
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Enforcement
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Printed: ______________________ |
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Office of Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental
Management |
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By: ________________________ |
By: ________________________ |
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Deputy Attorney General |
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Date: _______________________ |
Date: ______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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2010. |
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For the
Commissioner: |
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_Signed
on 12/2/2010_ |
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Bruce H Palin |
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Assistant
Commissioner |
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Office of
Land Quality |
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