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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No. 2017-24958-U |
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SHALIMAR INVESTMENTS, 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 Shalimar Investments, LLC, (“Respondent”),
which owns the USTs with Facility ID No. 1321 located at 2202 E. Spring Street, parcel # 22-05-02-900-938.000-008,
in New Albany, Floyd County, Indiana (the “Site”).
3. The Site contains four (4) USTs
constructed of steel installed in 1979, which consist of the following: three (3) 12,000 gallon gasoline tanks and
one (1) 4,000 gallon diesel tank.
4.
Respondent owns the real property that is the
UST site. According to Indiana Property
Record Card, Parcel Number 22-05-02-900-938.000-008, located at 2202 E. Spring
Street in New Albany, Floyd County, belongs to Shalimar Investments, LLC.
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:
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Sukhjit Bains, Member |
Young,
Lind, Endres & Kraft, Registered Agent |
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Shalimar
Investments, LLC |
Shalimar
Investments, LLC |
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14619
Inspiration Ct |
126
W. Spring St |
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Louisville,
KY 40245 |
New
Albany, IN 47150 |
7.
Owner as defined in IC 13-11-2-150(a)(1)(A)
means, for an UST that was in use on November 8, 1984 or brought into use after
November 8, 1984 for the storage, use, or dispensing of regulated substances, a
person who owns the UST or the real property that is the UST site, or
both. According to the Floyd County Assessor’s
Office, Shalimar Investments, LLC is the owner of the Site.
8.
A Violation Letter dated September 18, 2017, was
hand delivered to Respondent on October 19, 2017, which required Respondent to
submit a Notification form within thirty (30) days of receipt of the Violation
Letter. Respondent failed to respond to the Violation Letter.
9.
During an investigation including inspections
on August 8, 2017, October 19, 2017 and November 3, 2017, conducted by a
representative of IDEM, the following violations were found:
a. Pursuant to 329 Indiana Administrative
Code (“IAC”) 9-2-2, (a) all notifications required to be submitted under this
section must be submitted on a form 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.
Pursuant to 329 IAC 9-3-1(a), the owner
and operator of an UST shall cooperate fully with inspections as well as
requests for document submission.
As noted during the inspections,
Respondent, as owner of the UST and/or the real property that is the UST Site,
failed to submit notice to IDEM on the form prescribed by the commissioner. A Violation Letter hand delivered to
Respondent on October 19, 2017, required Respondent to fill out and submit to
IDEM, a complete copy of State Form 45223, Notification for Underground Storage
Tank Form, within thirty (30) days of receipt of the Violation Letter. To date, no notification on State Form 45223
signed by Respondent has been received by IDEM.
b. 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 routinely contain
regulated substances and 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 some or all of the
inspections, Respondent failed to perform corrosion protection for the steel
UST system at the Site to ensure that releases due to corrosion are prevented. The facility had their impressed current
system turned off, thus it had not been operated and maintained continuously.
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 some or all of the
inspections, Respondent failed to perform an appropriate method of monthly
release detection for the underground storage tank system at the Site.
d. Pursuant to
329 IAC 9-9-6(c), Class A, Class B, and Class C operators must receive full
refresher training under the requirements of 329 IAC 9 and be recertified every
three (3) years unless the provisions of section 8 of this rule apply. For
Class A and Class B operators, retraining and recertification must be
accomplished prior to the expiration of the certificate. For Class C operators,
retraining and recertification must be accomplished prior to the expiration of
the certification.
As noted during some or all of the
inspections, Respondent failed to retrain and recertify the Class A operator certification prior to the expiration of the
certificate.
e. Pursuant to 329 IAC 9-9-7(a)(b) &
(c), owners and operators shall maintain records identifying designated and
certified Class A, Class B, and Class C operators of each UST system as
required in 329 IAC 9-3-1(d). When
requested by the department or at any inspection conducted by the state fire
marshal, owners and operators of a facility of facilities containing a UST
system shall provide a list of designated certified Class A, Class B, and Class
C operators, as applicable for each facility.
All records maintained under this section must include current contact
information for each designated operator, including a telephone number and
mailing address.
As noted during some or all of the
inspections, Respondent failed to provide a list of designated certified Class
A, Class B, and Class C operators upon request that included current contact
information for each designated operator.
f. Pursuant to 329 IAC 9-8-4, an owner or
operator of a petroleum underground storage tank shall demonstrate financial
responsibility for taking corrective action and for compensating third parties
for bodily injury and property damage caused by accidental releases arising
from the operation of a petroleum underground storage tank in a per occurrence
amount of at least one million dollars ($1,000,000).
As noted during some or all of the
inspections, Respondent, as owner and/or operator of the Site, failed to
demonstrate financial responsibility for accidental petroleum releases.
10.
Respondent submitted documentation depicting
passing results for the impressed current cathodic protection system.
11.
Respondent has removed the UST system and will
no longer dispense fuel at the Site.
Respondent submitted a closure report on February 18, 2019, which is
currently under review by IDEM.
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 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 respond to any Notice of
Deficiency (“NOD”) issued by the Underground Storage Tank Section within the
stated timeframes in the NOD. If such timeframes are not met, IDEM may assess
stipulated penalties as described in Order Paragraph 6.
2.
Within ninety (90) days of the Effective Date,
Respondent shall complete permanent closure of the underground storage tanks in
accordance with the requirements of 329 IAC 9-6, including the applicable
requirements for corrective action under 329 IAC 9-5.
4. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, shall be
sent to:
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Janet Arnold, Technical Environmental
Specialist |
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Office of Land Quality |
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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 |
5. Respondent
is assessed and agrees to pay a civil penalty of Thirty Four Thousand Nine
Hundred Dollars ($34,900). Said penalty
amount shall be due and payable to the Underground Petroleum Storage Tank Trust
Fund in six (6) installments. The first
installment of Five Thousand Eight Hundred Sixty Dollars and Sixty-Seven Cents ($5,816.67)
shall be paid within thirty (30) days of the Effective Date; the 30th
day being the “Due Date”. Subsequent installments of Five Thousand
Eight Hundred Sixteen Dollars and Sixty-Seven Cents ($5,816.67) shall be paid within one hundred twenty
(120) days of the Effective Date, two hundred and ten (210) days of the
Effective Date, three hundred (300) days of the Effective Date, three hundred
and ninety (390) days of the Effective Date and four hundred and eighty (480)
days of the Effective Date.
6. 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 2 |
$500 per week late |
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Order Paragraph 3 |
$500 per week late |
7. 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.
8. 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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Office of Legal Counsel |
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IGCN, Room N1307 |
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100 North Senate Avenue |
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Indianapolis, IN 46204 |
9. 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 8, above.
10. This
Agreed Order shall jointly and severally 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 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
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For the
Commissioner: |
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Signed March
22, 2019 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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