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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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COUNTY OF MARION |
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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. 2011-20244-S |
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RMK of
Indiana, llc, |
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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 Indiana created by Indiana
Code (“IC”) 13-13-1-1.
2.
Respondent
is RMK of Indiana, LLC, (“Respondent”), which owns and/or operates underground
storage tanks with the Facility I.D. No. 9857, located at the Mobile Gas
Station on 860 Broadway, in Chesterton, Porter 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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Roger M. Keaton, President |
Michael Duffy, Registered Agent
for |
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RMK of Indiana, LLC |
RMK of Indiana, LLC |
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6201 West Ogden Avenue |
860 Broadway |
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Berwyn, IL 60402 |
Chesterton, IL 46304 |
5.
Respondent
notified on August 3, 2007 as the new owner of the Mobile Gas Station located
at 860 Broadway, Chesterton, Indiana.
6.
Respondent
owns and/or operates a Mobile Gas Station which is a motor vehicle fuel
dispensing station.
7.
Respondent
owns/operates an Underground Storage Tank (UST) system which consist of four
(4) ten thousand (10,000) gallon steel underground storage tanks which were
installed on September 1, 1995.
8.
IDEM
sent Respondent a Violation Letter dated April 21, 2011 requesting a written
detail submittal within thirty (30) days documenting compliance with the
violations noted during the October 20, 2010 inspection. Respondent failed to respond to the Violation
Letter.
9.
During
an investigation including an inspection on October 10, 2010 conducted by a representative of IDEM, the following
violations were found:
a.
Pursuant
to 329 IAC 9-2.1-1(b)(2), if a tank is upgraded by internal lining, within one
(1) year after the lining and every five (5) years thereafter, the lining and
tank must be internally inspected and found to be structurally sound with the
lining and tank still performing in accordance with requirements under 329 IAC
9-3.1-4. If the lined tank cannot meet
performance standards, closure of the tank according to 329 IAC 9-6 is
required.
Respondent
failed to perform timely internal lining inspections and upon subsequently
discovering the internal lining failed inspection, Respondent failed to either repair
or close the four (4) tanks as appropriate.
b.
Pursuant
to 329 IAC 9-3-1, the owner and operator of an UST system shall cooperate fully
with inspections as well as the requests for document submissions. Respondent
failed to submit the requested tank lining inspection report when requested.
10.
Respondent
submitted the tank lining inspection report on or before June 24, 2011.
11.
Subsequent
to the Notice of Violation dated August 8, 2011 and a reminder letter dated
October 11, 2011, Respondent submitted a response dated October 31, 2011.
12.
Respondent
pulled four (4) ten (10,000) thousand gallon underground storage tanks on November
17, 2011.
13.
Respondent
reported to IDEM a suspected release report November 28, 2011, Incident Number
201111509.
14.
Respondent
submitted an Underground Closure Report to IDEM on May 21, 2012 and is
currently being reviewed by IDEM staff.
14. 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
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 rules listed in the findings here and/or above at issue.
3.
Respondent
submitted a closure report to IDEM on May 21, 2012. This will not be considered complete until
all closure report requirements are met and by providing a certification of
compliance on the notification form under 329 IAC 9-2-2. The certification must demonstrate that the
person that performs the work has been certified by the Office of the State
Fire Marshall.
4.
Respondent
shall comply with the applicable requirements for corrective action under 329 IAC 9-5.
5.
Upon
the Effective Date, Respondent shall comply with 329 IAC 9-3-1. Specifically, Respondent shall respond to
future document submittal requests from IDEM.
6.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Christina Halloran, Enforcement
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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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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
7.
Respondent
is assessed and agrees to pay a civil penalty of Twenty Two Thousand Four
Hundred Dollars ($22,400). 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 30th day being the “Due Date”.
8.
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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Order Paragraph
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Penalty |
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4 |
$500 per week |
9.
Stipulated
penalties shall be due and payable no later than the 30th day after
Respondent receives written notice that Complainant has determined a stipulated
penalty is due; the 30th day being the “Due Date”. Complainant may notify Respondent at any time
that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of stipulated penalty assessment shall not waive Complainant’s
right to collect such stipulated penalty or preclude Complainant from seeking
additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief
includes any remedies or sanctions available pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
10.
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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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
11.
In
the event that the monies due to IDEM pursuant to this Agreed Order are not
paid on or before their Due Date, Respondent 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 Respondent pays 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 11, above.
12.
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 they
are fully authorized to execute this Agreed Order and legally bind the party
they represent. No change in ownership,
corporate, or partnership status of Respondent shall in any way alter its
status or responsibilities under this Agreed Order.
13.
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.
14.
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.
15.
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 permits or any applicable Federal or State law
or regulation.
16.
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.
17.
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.
18.
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.
19.
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
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By:
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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
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Title:
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Date: __________________ |
Date:
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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Date:
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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2012. |
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For
the Commissioner: |
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Signed
07/25/2012 by_ |
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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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