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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.
2018-25184-U |
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dennis & tamala Mathews, |
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MATHEWS
& MATHEWS, LLC, |
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Respondents. |
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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 Dennis & Tamala Mathews, property owner according to the Jasper
County Assessor, and Mathews & Mathews, LLC, property owner and Underground
Storage Tank (“UST”) owner and operator according to UST Notification Form
45223 Notification for Underground Storage tanks (“Respondents”), for the
facility with Facility ID No. 16011, located at 3772 W State Road 10, in Wheatfield,
Jasper County, Indiana (“Site”).
3.
Respondents own and/or operate UST systems with
four (4) steel 10,000 gallon capacity USTs that were installed in 1982.
4.
IDEM has jurisdiction over the parties and the
subject matter of this action.
5.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) via Certified Mail to:
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Dennis
& Tamala Mathews |
Dennis
Mathews, Registered Agent |
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828
E 925 N |
Mathews
& Mathews, LLC |
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Wheatfield,
IN 46392 |
3772
W State Rd 10 |
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Wheatfield,
IN 46392 |
6.
During an investigation including a record
review conducted by a representative of IDEM, the following violations were
found:
a.
Pursuant to 329 IAC 9-2.1-1(b)(2)(C), a tank
that is upgraded by internal lining may be lined one (1) time during the
service life to meet the upgrading requirement of this subsection.
During a record review it was determined
Respondents’ two (2) of the four (4) 10,000 gallon capacity USTs that were
upgraded with an internal lining in 1998, were relined in 2013 after a liner
inspection found the two (2) tanks had significant defects and did not meet or
satisfy the criteria for Visual Lining Inspection as referenced in the American
Petroleum Institute (“API”) Standard 1631.
b.
Pursuant to 329 IAC 9-3-1(b)(10),
the owner and operator shall submit documentation supporting the suitability of
the UST to be upgraded with an internal lining.
The documentation must be submitted within thirty (30) days after the
determination is completed under 329 IAC 9-2.1-1(b)(2).
During a record review it was determined
Respondents did not submit documentation supporting the suitability of the USTs
to be upgraded with an internal lining.
Respondents relined two (2) tanks in 2013 after a liner inspection found
the two (2) tanks had significant defects and did not meet or satisfy the
criteria for Visual Lining Inspection as referenced in the API Standard 1631.
7.
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 Respondents. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Within sixty (60) days of the Effective Date,
Respondents shall permanently close the two (2) USTs, relined in 2013, in
accordance with the requirements of 329 IAC 9-6-1 through 329 IAC 9-6-4,
including the applicable requirement for corrective action under 329 IAC 9-5-1
through 329 IAC 9-5-8.
3.
At least thirty (30) days before beginning
closure, Respondents shall notify IDEM using the notification form required by
329 IAC 9-2-2(a), and the office of the state fire marshal of intent to close
the two (2) USTs.
4.
At least fourteen (14) days prior to scheduled
closure activities, Respondents shall notify IDEM’s UST Section to permit an
agent of IDEM to view and inspect the activities performed pursuant to closure
of the UST systems.
5.
Within thirty (30) days of closing the UST
system, Respondents shall submit a closure report to IDEM which shall include
the notification form required by 329 IAC 9-2-2(a).
6.
All submittals required by this Agreed Order,
unless Respondents are notified otherwise in writing by IDEM, shall be sent to:
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Christina Halloran, Enforcement Case
Manager |
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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 |
7.
Respondents are assessed and agree to pay a
civil penalty of Thirteen Thousand and Five Hundred Dollars ($13,500.00). 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 in eighteen consecutive
monthly installments of Seven Hundred and Fifty Dollars ($750). The first installment is due 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 Respondents 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 |
$100 per
week late |
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Order
paragraph #5 |
$250 per
week late |
9.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondents receive written notice
that Complainant has determined a stipulated penalty is due; the 30th
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.
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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Office of Legal Counsel |
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IGCN, Room N1307 |
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100 North Senate Avenue |
11.
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 10, above.
12.
This Agreed Order shall apply to and be binding
upon Respondents and their successors and assigns. 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.
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.
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.
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 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.
16.
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.
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 Respondents 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 Respondents.
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TECHNICAL RECOMMENDATION: |
RESPONDENT DENNIS MATHEWS: |
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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 Section |
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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RESPONDENT
TAMALA MATHEWS: |
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By:
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Printed: ______________________ |
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Title: ________________________ |
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Date: _______________________ |
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RESPONDENT MATHEWS
& MATHEWS, LLC: |
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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
10/08/2019 By: |
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Peggy Dorsey, Assistant Commissioner |
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Office of
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