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. 2018-25168-U
					)
DMS Clinton Inc. d/b/a main street,					)
mini mart, and bikram sapkota					)
					)
Respondents.					)

AGREED ORDER

Complainant and Respondents 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. Respondents’ entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents 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. Respondents are DMS Clinton Inc. d/b/a Main Street Mini Mart and Bikram Sapkota (“Respondents”), which own and/or operate the facility with Facility ID No. 11664, located at 453 S Main Street, Parcel # 83-13-15-310-081.000-002, in Clinton, Vermillion County, Indiana (“Site”).

3. Respondents own and/or operate one (1) 10,000 gallon and (1) 8,000 gallon underground storage tanks (“USTs”) both installed in 1990. One (1) 2,000 gallon UST installed in 1987 has been removed. Respondents contend that the 2,000 gallon UST was an above ground storage tank (“AST”).

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

5. Pursuant to IC 13-30-3-3, on May 15, 2018, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

Bikram Sapkota	Bikram Sapkota, Registered Agent
6423 Deepford St	DMS Clinton Inc. d/b/a Main Street Mini Mart
Springfield, VA 22150	3359 Betty Jean Ln
	Terre Haute, IN 47805

6. 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 Vermillion County Assessor’s Office, Respondent, DMS Clinton Inc. is the owner of the Site. According to the most recent UST notification, Respondent, Bikram Sapkota registered ownership on June 7, 2017.

7. A Violation Letter was issued to Respondents on June 26, 2017 which required Respondents to submit a Notification of closure State Form 45223, submit Class C certifications for employees designated to be trained, closure report of tank removal and proof of financial responsibility within thirty (30) days of receipt of the Violation Letter. Respondents failed to respond to the Violation Letter.

8. During an investigation including an inspection on May 22, 2017 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 329 Indiana Administrative Code (“IAC”) 9-3-1(b)(5), the owner and operator shall submit the following information to the agency: a notification before closure or change-in-service under 329 IAC 9-6-1.

As noted during the investigation, Respondents, as owner and operator 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 within thirty (30) days of closing the UST system. A 2,000 gallon (K-1) tank was removed before 2005, but the owner and/or operator continued to register the tank after removal. A Violation Letter issued to Respondents on June 26, 2017 required Respondents 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 Respondents has been received by IDEM. Respondents contend that the UST was an AST.

b. 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 this rule 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 the investigation, Respondents are in violation of this rule for failing to recertify Class C certification.

Effective June 28, 2018, Indiana’s UST Operator Training and Certification rule, 329 IAC 9-9-1 et seq., was repealed and replaced by the federal provision in 40 CFR 280 Subpart J, which does not require recertification for a Class C Operator.

c. Pursuant to 329 IAC 9-6-2.5(a), the procedure for closure includes, but is not limited to, the following requirements: (1) at least thirty (30) days before beginning closure, the owner and operator shall notify the agency and the Office of the State Fire Marshall of the intent to close as specified by one (1) of the methods in section 1 of this rule; (2) closure sampling and laboratory analysis with the associated detection limits for the UST system are required pursuant to the requirements of the rule;… (8) the closure will not be considered complete until all closure report requirements are met; and … (10) 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 Marshall.

As noted during an inspection, Respondents removed a 2,000 gallon (K-1) UST at the Site without complying with the applicable requirements of 329 IAC 9-6-2.5(a). The UST owner and operator failed to request approval for closure of tank or submit closure documentation. Respondents contend that the UST was an AST.

d. Pursuant to 329 IAC 9-6-2.5(a)(5), the owner and operator of an UST system shall complete and submit a closure report to IDEM within thirty (30) days after the UST removal. The closure report must include the notification form provided by IDEM under 329 IAC 9-2-2 and the underground storage tank closure report.

As noted during an inspection, Respondents removed a 2,000 gallon (K-1) UST at the Site without complying with the applicable requirements of 329 IAC 9-6-2.5(a). The UST owner and/or operator failed to submit a closure report within thirty (30) days after UST removal. Respondents contend that the UST was an AST.

e. Pursuant to 329 IAC 9-8-21(a), an owner or operator shall maintain evidence of all financial assurance mechanisms used to demonstrate financial responsibility under this rule for an underground storage tank until released from the requirements of this rule under section 23 of this rule. An owner or operator shall maintain such evidence at the underground storage tank site or the owner’s or operator’s place of work. Records maintained off site must be made available upon request of the Indiana Department of Environmental Management, Underground Storage Tank Branch.

As noted during the inspection, Respondents failed to submit proof of financial responsibility for the Site as requested by IDEM’s March 24, 2017 “329 IAC 9-3-1 Records Request” letter.

9. Respondents submitted a complete closure report in accordance with 329 IAC 9-6-2.5 to IDEM on April 17, 2019, which is currently under review.

10. Respondents conducted a subsurface investigation in the area of the K-1 UST; soil and groundwater analytical results show that all contaminants of concern were below both the laboratory reporting levels and the respective IDEM Remediation Closure Guide (“RCG") mitigation to groundwater and groundwater tap residential screening levels. Respondents content that the UST was an AST.

11. In recognition of the settlement reached, Respondents waive 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondents shall comply with the rules listed in the findings above.

3. Within thirty (30) days of the Effective Date, Respondents shall establish Financial Responsibility and submit documentation of coverage to IDEM.

4. All submittals required by this Agreed Order, unless Respondents are notified otherwise in writing by IDEM, shall be sent to:

Linda McClure, Section Chief

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

5. Respondents are assessed and agree to pay a civil penalty of Six Hundred Dollars ($600). Respondents are jointly and severally liable for all civil penalty assessments, including stipulated penalties. 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 30^th day being the “Due Date.”

6. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondents shall pay a stipulated penalty in the following amount:

Paragraph	Penalty
Order paragraphs #3	$100 per week late

7. Stipulated penalties shall be due and payable no later than the 30^th day after Respondents receive written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondents at any time that a stipulated penalty is due. Failure to notify Respondents 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 Respondents for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondents 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:

Indiana Department of Environmental Management

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

9. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondents 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 Respondents pay 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 Respondents and their successors and assigns. Respondents’ 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 Respondents shall in any way alter their 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. Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents 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 Respondents pursuant to this Agreed Order, shall not in any way relieve Respondents of their obligation to comply with the requirements of their 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 Respondents’ 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 Respondents may incur as a result of Respondents’ 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 Respondents 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 Respondents.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Linda L. McClure, 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 July 2, 2019
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality