STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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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. 2015-23392-W |
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Pilot
travel centers 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 Indiana Code (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 IC
13-13-1-1.
2.
Respondent
is Pilot Travel Centers LLC (Respondent), which owns and operates the Pilot
Travel Center No. 242, located at 1851 West 400 North, in Shelbyville, Shelby
County, Indiana (the Site).
3.
Pilot
Travel Center No. 242 is a truck stop/fuel retail station with diesel and
gasoline underground storage tanks (USTs) located on the Site. Respondent operates a Groundwater Remediation
System consisting of an oil/water separator and carbon absorption which was
installed in response to a release of diesel fuel in the diesel UST basin
cavity.
4.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0063029 (the Permit), to discharge groundwater and storm water treated
in accordance with the terms and conditions of the NPDES Permit from its Groundwater
Remediation System into receiving waters named Hankin
Ditch from outfall 001.
5.
IDEM
has jurisdiction over the parties and the subject matter of this action pursuant
to IC 13-30-3.
6.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified
Mail/personal service to Pilot Travel Centers LLC.
7.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
8.
Pursuant
to 327 Indiana Administrative Code (IAC) 5-2-8(1) and Part II.A.1 of the
Permit, Respondent is required to comply with all terms and conditions of the
Permit.
9.
Pursuant
to 327 IAC 5-2-15(a) and Part I.C.2 of the Permit, the Respondent shall submit
monitoring reports to IDEM containing results obtained during the previous
month and shall be postmarked no later than the 28th day of the
month following each completed monitoring period. These reports shall include the Discharge
Monitoring Report (DMR) and the Monthly Monitoring Report (MMR).
IDEM
records indicate that DMRs and MMRs have not been submitted for the months of
June 2014 through August 2015, in violation of 327 IAC 5-2-15(a) and Permit
Part I C.2.
10.
Pursuant
to 327 IAC 5-2-14 and Part I.C.7 of the Permit, Respondent shall retain for a
minimum of three years all records and information resulting from the
monitoring activities required by this permit at the permitted facility. If original records are kept at another
location, a copy of all such records shall be kept at the permitted facility.
During
inspections on May 21, 2014 and August 13, 2015, IDEM staff observed and
documented that DMR and MMR records were not available on-site for review, in
violation of 327 IAC 5-2-14 and Part I.C.7 of the Permit.
11.
Pursuant
to 327 IAC 5-22-10(2)(A) and Part II.A.14 of the
Permit, Respondent shall have the wastewater treatment facilities under the
responsible charge of an operator certified by the Commissioner in a
classification corresponding to the classification of the wastewater treatment
plant.
The
certified operator notified IDEM on August 14, 2015, that he would no longer
serve as the certified operator in responsible charge of the Groundwater
Remediation System effective following the August 13, 2015 inspection. Respondent has not notified IDEM of a person
designated to serve as the new certified operator in responsible charge of the
Groundwater Remediation System, in violation of Part II.A.14 of the Permit.
12.
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 adopted by
Complainant or Complainant’s delegate (as evidenced by signature), and the
adopted Agreed Order has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date. In
addition to addressing the violations cited in Paragraphs 8 through 11 of the
Findings of Fact above, this Agreed Order also addresses any additional
violations of these same rules that may have occurred subsequent to the
issuance of the NOV and prior to the Effective Date.
2.
Respondent
shall comply with rules and permit conditions listed in the findings above at
issue.
3.
Beginning
on the Effective Date, Respondent agrees to submit all monthly monitoring
reports to IDEM by the 28th day of the month following each
completed monitoring period.
4.
Within
30 days of the Effective Date, Respondent shall hire a qualified and licensed
certified operator, with a classification corresponding to the classification
of the Groundwater Remediation System, to operate and maintain the Groundwater
Remediation System. Respondent shall
submit notification to IDEM of the designated certified operator in responsible
charge of the Groundwater Remediation System.
5.
Within
60 days of the Effective Date, Respondent agrees to submit DMRs and MMRs
electronically via NetDMR, by the 28th of
the data of the month following the monitoring period. NetDMR is a free
web-based tool that allows NPDES permittees to electronically sign and submit
DMRs to IDEM. NetDMR
instructions are located at http://in.gov/idem/cleanwater/2422.htm and included
as Attachment A.
6.
Within
30 days of the Effective Date, Respondent shall submit copies of the missing
DMRs and MMRs for the period of June 2014 through the present to IDEM.
7.
Within
30 days of the Effective Date, Respondent shall maintain on-site at all times
the previous three years of all records and information resulting from the
monitoring activities required by the Permit.
If original records are kept at another location, a copy of all such
records shall be kept on-site and available for inspection.
8.
Beginning
within 90 days of the Effective Date, Respondent shall demonstrate six (6) consecutive
months of compliance (Compliance Demonstration) with all terms and conditions
of the Permit. Specifically, Respondent
shall demonstrate compliance with all monitoring and reporting and record
retention requirements contained in the Permit. During the Compliance Demonstration Period,
Respondent shall be subject to stipulated penalties, as specified below, for
violations noted therein. In the event
that Respondent fails to make the Compliance Demonstration, Respondent shall,
within sixty days of becoming aware that the Compliance Demonstration cannot be
achieved, develop and submit to IDEM, for approval, an Additional Action Plan
which identifies the additional actions that Respondent will take to achieve
and maintain compliance with the Permit.
The Additional Action Plan, if required, shall include an implementation
and completion schedule, including specific milestone dates.
9.
The
Additional Action Plan, if required, is subject to IDEM approval. In the event IDEM determines that any plan
submitted by Respondent is deficient or otherwise unacceptable, Respondent
shall revise and resubmit the plan to IDEM in accordance with IDEM’s
notice. After three submissions of such
plan by Respondent, IDEM may seek civil enforcement of this Order.
Respondent, upon receipt of written
notification from IDEM, shall immediately implement the approved plan and
adhere to the milestone dates therein.
The approved Additional Action Plan shall be incorporated into the
Agreed Order and shall be deemed an enforceable part thereof. Failure by Respondent to submit any plan by
the specified date, or to meet any of the milestones
in the approved plan will subject Respondent to stipulated penalties as
described below. Failure to achieve
compliance at the conclusion of work under the Additional Action Plan will
subject Respondent to additional enforcement action. Respondent shall submit to IDEM a written
report of progress or completion for each milestone date included in the
Additional Action Plan.
10.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
David
Koehler, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
11.
Respondent
is assessed and agrees to pay a civil penalty of Nineteen Thousand Eight
Hundred Dollars ($19,800). Said penalty
amount shall be due and payable to the Environmental Management Special Fund in
six consecutive monthly installment payments in the amount of Three Thousand
Three Hundred Dollars ($3,300). The
first monthly installment payment of $3,300 shall be due 30 days after the
Effective Date of this Agreed Order.
Each of the remaining five monthly installment payments of $3,300 shall
be due within 30 days of the preceding month’s due date, the 30th
day being a “Due Date.” In the event
civil penalty installments are not paid when due, 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.
12.
In
the event the terms and conditions of the following paragraphs are violated, IDEM
may assess and Respondent shall pay the corresponding stipulated penalty:
Paragraph |
Violation |
Stipulated Penalty |
3 |
Failure
to submit monthly monitoring reports by the 28th day of the month
following each completed monitoring schedule |
$250
per week late, or part thereof. |
4 |
Failure
to provide proof of a certified operator on staff within the given time
period. |
$250
per week late, or part thereof. |
5 |
Failure
to submit DMRs and MMRs electronically via NetDMR
within the given time period. |
$250
per week late, or part thereof. |
6 |
Failure
to submit the missing DMRs and MMRs for June 2014 through August 2015 within
the given time period. |
$250
per week late, or part thereof. |
7 |
Failure
to maintain on-site the previous three years of all records and information
resulting from the monitoring activities required by the Permit or copies of
all such records within the given time period. |
$250
per week late, or part thereof. |
8 |
Failure
to submit or modify the Additional Action Plan, if required, within the given
time period. |
$250
per week late, or part thereof. |
8 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration period. |
$250
per violation. |
13.
Stipulated
penalties shall be due and payable no
later than the 30th day after Respondent receives written
notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due
Date.” IDEM may notify Respondent at any
time that a stipulated penalty is due.
Failure to notify Respondent in writing in a timely manner of a
stipulated penalty assessment shall not waive IDEM’s right to collect such
stipulated penalty or preclude IDEM from seeking additional relief against
Respondent for violation of this Agreed Order.
Neither assessment nor payment
of stipulated penalties shall preclude IDEM 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.
14.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the
Case Number 2015-23392-W of this action and shall be mailed to:
Office
of Legal Counsel |
Indiana
Department of Environmental Management |
IGCN,
Rm N1307 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
15.
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.
16.
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 and any accrued interest 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. The interest shall continue to
accrue on the first of each month until the civil penalty and any interest
accrued are paid in full. Such interest
shall be payable to the Environmental Management Special Fund, and shall be
payable to IDEM in the manner specified above.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
Nothing
in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from
communicating with the United States Environmental Protection Agency (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 EPA or any other agency or entity.
23.
This
Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of this Agreed Order and IDEM issues a Resolution of Case
(close out) letter to Respondent.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
Department of Environmental
Management |
Pilot Travel Centers LLC |
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By:___________________________ |
By:________________________ |
Brian
Wolff, Branch Chief |
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Surface
Water, Operations and |
Printed: ______________________ |
Enforcement
Branch |
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Office
of Water Quality |
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 ______
DAY OF ________________________, 20___. |
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For the Commissioner: |
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Signed on June 27, 2016 |
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Martha
Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |