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. 2017-24494-U
					)
Earl Hammond,					)
					)
Respondent.					)

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 Earl Hammond (“Respondent”), who owns the Underground Storage Tank (“UST”) systems, with UST Facility ID No. 11940, located at 9365 S. Chapel Hill Rd., Parcel No. 006-01010-00, in Heltonville, Monroe County, Indiana (“Site”).

3. Respondent owns UST systems consisting of one 9,000 gallon and one 3,000 gallon steel gasoline STiP3 USTs. The UST systems were installed in February of 1999. There are two dispensers onsite with the year 2013 Weights and Measures stickers. The 9,000 gallon UST contained three and three quarter inches of fuel and the 3,000 gallon UST contained five inches of fuel. The USTs were measured utilizing a tank stick and fuel finding paste. The inspection found the facility was in non-operating condition.

4. IDEM sent a Violation Letter dated February 15, 2017 to Alberta Pierce and a Violation Letter dated March 13, 2017 to Alberta Pierce and Respondent. No responses were received. Alberta Pierce was the owner of the property.

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

6. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

Alberta Pierce, Property Owner	Alberta Pierce, Property Owner
707 Cottage Avenue	Former Krazy Joe’s Trading Post
Indianapolis, IN 47436	9365 S. Chapel Hill Rd.
	Heltonville, IN 47436

Earl Hammond
Former Krazy’s Joe’s Trading Post
9365 S. Chapel Hill Rd
Heltonville, IN 47436

7. Based on an inspection conducted on February 1, 2017, by a representative of IDEM, the following violations were found:

a. Pursuant to 329 Indiana Administrative Code (“IAC”) 9-3-1(d), the owner and operator of a petroleum UST system shall maintain records required at the UST site and immediately available for inspection by the agency or a readily available alternative site and be provided for inspection to the agency upon request.

As noted during the inspection, Respondent did not maintain records required at the Site nor provide records required to the agency upon request. Specifically, no corrosion protection testing records on the USTs and no release detection records for the USTs and piping were available at the Site or submitted as requested.

b. Pursuant to 329 IAC 9-3.1-2(1), the owner or 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; and (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 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 provide corrosion protection for the 9,000 and 3,000 gallon steel (STiP3) UST systems at the Site.

c. Pursuant to 329 IAC 9-7-2(1), the owner and operator of a petroleum UST system shall provide release detection for tanks as follows: tanks must be monitored at least every thirty (30) days for releases using one (1) of the methods listed in section 4(4) through 4(8) of 329 IAC 9-7.

As noted during the inspection, Respondent failed to perform an appropriate method of monthly release detection for the UST system at the Site. Specifically, Respondent did not have records for release detection for the 9,000 and 3,000 gallon tanks that contained three and three quarter (3 ¾) inches of fuel and five (5) inches of fuel respectively.

d. Pursuant to 329 IAC 9-7-2(2), the owner and operator of a petroleum UST system shall provide release detection for piping as follows: (A) underground piping that routinely contains regulated substances must be monitored for releases in a manner that one (1) of the requirements in section 2(A) through 2(B) of 329 IAC 9-7.

As noted during the inspection, Respondent did not provide any records to demonstrate Respondent was providing release detection for the two (2) gasoline tank’s piping at the facility.

8. Respondent has submitted a Notification Form on October 4, 2018. The Form is currently under IDEM review.

9. 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. Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall temporarily close the two (2) underground storage tanks in accordance with the requirements of 329 IAC 9-6-5. Specifically, Respondent shall comply with the following:

(1) Continue operation and maintenance of corrosion protection under 40 CFR 280.31.

(2) Continue operation and maintenance of any release detection required by 40 CFR 280, Subpart D and this article, except release detection and release detection operation and maintenance testing and inspections under 40 CFR 280, Subparts C and Dare not required as long as the UST is empty. The UST system is emptied when all the materials have been removed using commonly employed practices so that no more than:

(A) two and five-tenths (2.5) centimeters or one (1) inch of residue remains in the system; or

(B) three-tenths percent (0.3%) by weight of the total capacity of the UST system remains in the system.

(3) Comply with the following requirements if a release is suspected or confirmed:

(A) 40 CFR 280.50 through 40 CFR 280.52.

(B) 329 IAC 9-4-4.

(4) Spill and overfill operation and maintenance testing and inspections in 40 CFR 280, Subpart C are not required if the UST system is empty.

(b) When a UST system is temporarily closed for three (3) months or longer, the owner and operator shall comply with the following requirements:

(1) Leave vent lines open and functioning.

(2) Cap and secure the following:

(A) All other lines.

(B) Pumps.

(D) Ancillary equipment.

(1) The owner and operator shall permanently close the UST system if it does not meet the:

(A) performance standards in 40 CFR 280.20 for new UST systems; or

(B) upgrading requirements in 40 CFR 280.21; except that the spill and overfill equipment requirements do not have to be met.

(2) The owner and operator shall permanently close the UST system if at the end of the temporary twelve (12) month period under sections 2.5 through 4 of this rule it does not meet performance standards or upgrade requirements.

(3) The commissioner may grant an extension of the twelve (12) month temporary closure period based on the following:

(A) The owner and operator shall complete a site assessment under section 2.5 of this rule before the owner and operator may apply for an extension.

(B) The length of the extension is based on the following:

(i) The results of the site assessment under clause (A).

(ii) The owner and operator shall submit written proof that explains why permanent closure cannot take place within the twelve (12) month period of temporary closure.

(iii) The owner and operator shall submit information that explains when permanent closure will take place.

(d) The owner and operator shall demonstrate compliance with this section 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 marshal under 675 IAC 12-12.

3. Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall submit to IDEM demonstrate a financial responsibility mechanism as required by 329 IAC 9-8.

4. Upon the Effective Date of the Agreed Order, Respondent shall comply with 329 IAC 9-3-1. Specifically, Respondent shall cooperate fully with inspections and respond to document submittal requests from IDEM within the timeframes established.

5. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Christina Halloran, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

6. Respondent is assessed a civil penalty of Zero ($0) Dollars. This penalty reflects a significant reduction from the original proposed civil penalty based on evidence submitted to IDEM by Respondent which adequately demonstrated Respondent’s inability to pay the original proposed civil penalty.

7. 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:

Paragraph	Penalty
Order Paragraph # 2	$200 per week late
Order Paragraph # 3	$200 per week late

8. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th 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.

9. 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:

Indiana Department of Environmental Management

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

10. 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 10, above.

11. This Agreed Order shall apply to and be binding upon Respondent and her 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 her status or responsibilities under this Agreed Order.

12. 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.

13. 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.

14. 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 her obligation to comply with the requirements of her applicable permits or any applicable Federal or State law or regulation.

15. 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.

16. 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.

17. 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.

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


TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management


By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________

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 01/10/2019 By:
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality