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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
MARION |
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ENVIRONMENTAL
MANAGEMENT |
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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. 2018-25211-U |
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HEARTLAND
OIL MERIDIAN STREET, LLC, |
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INDYGO GAS
& CONVENIENCE, LLC, AND |
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HEARTLAND
OIL, 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 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. 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 Heartland Oil Meridian
Street, LLC, property owner according to the Marion County Assessor, Heartland
Oil, LLC, property owner according to State Form 45223 Notification for
Underground Storage Tanks, and IndyGo Gas &
Convenience, LLC, operator (“Respondents”) of the facility with Facility ID No.
5046, located at 9080 N. Meridian Street, in Indianapolis, Marion County,
Indiana (“Site”).
3. Respondents own and/or operate an
Underground Storage Tank (“UST”) system with a fiberglass 12,000 gallon
capacity tank and two fiberglass 6,000 gallon capacity tanks, all installed
February 12, 2014, according to State Form 45223 Notification for Underground
Storage Tanks submitted by Respondents on March 28, 2018.
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”) on August 10, 2018, via Certified Mail to:
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Travis
May, Member |
Gavin
Hart, Member |
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Heartland
Oil Meridian Street, LLC |
IndyGo Gas & Convenience, LLC |
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7597
E US Hwy 36 |
5333
W 86th Street |
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Avon,
IN 46123 |
Indianapolis,
IN 46268 |
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Robert
T. Wildman, Registered Agent |
Travis
May, Registered Agent |
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Heartland
Oil Meridian Street, LLC & |
IndyGo Gas & Convenience, LLC |
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Heartland
Oil, LLC |
866
Lyn Lea Lane |
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111
Monument Circle, Suite 2700 |
Lebanon,
IN 46052 |
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Indianapolis,
IN 46204 |
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Heartland
Oil, LLC |
Travis
May, Operator |
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7597
E US Hwy 36 |
IndyGo Gas & Convenience, LLC |
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Avon,
IN 46123 |
3802
W 96th Street, Suite 210 |
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Indianapolis,
IN 46268 |
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 Marion County Assessor’s Office, Respondent Heartland Oil
Meridian Street, LLC is the owner of the Site and according to State Form
45223, Notification for Underground Storage Tanks, Respondent Heartland Oil,
LLC is the owner of the Site.
7.
During an investigation including a record
review on March 28, 2018, conducted by a representative of IDEM, the following
violations were found:
a.
Pursuant to 329 IAC 9-2-2(b), any person who
owns an UST system or tank shall, within thirty (30) days of owning such an UST
system or tank or bringing such tank or UST system into use, submit notice to
the agency to register the tank or UST system. Bringing a tank or UST system
“into use” means the tank or UST system contains or has contained a regulated
substance and not been closed under 329 IAC 9-6.
During a record review on March 28,
2018, it was determined Respondents, as owners of the USTs and the real
property that is the UST Site, failed to submit notice to IDEM on the form
prescribed by the commissioner within thirty days of owning the UST
system. A letter was mailed March 16,
2018, requesting Respondents to submit to IDEM, State Form 45223, Notification
for Underground Storage Tanks Form.
State Form 45223 was submitted to IDEM on March 28, 2018 and indicated
the UST system was installed and came into use February 2014.
A Notification
Form was submitted on August 31, 2018.
b.
Pursuant to 329 IAC 9-3-1(a), the owner and
operator of an UST shall cooperate fully with inspection as well as requests
for document submission.
During a record review on March 28,
2018, a letter issued to Respondents on March 16, 2018 required Respondents to
submit the following:
A.
Records of all piping pressure testing that
took place upon installation, six (6) months after installation and every
thirty-six (36) months thereafter;
B.
Records of required monthly interstitial
monitoring for tanks at the Site for the last twelve (12) months;
C.
Records of require monthly interstitial
monitoring for piping at the Site for the last twelve (12) months;
D.
All Class A, B, and C Operator Training
Certificates related to this Site;
E.
Documentation of any repairs made to the UST
system during the last thirty-six (36) months;
F.
Work orders for scheduled repairs;
G.
Copy of financial responsibility mechanism
required by 329 IAC 9-8;
H.
Copy of Certification of Financial
Responsibility required by 329 IAC 9-8; and
I.
Notification form, if not submitted and
approved since January 1, 2014.
Respondents failed to submit the
following:
A.
Records of all piping pressure testing that
took place upon installation, six months after installation and every 36 months
thereafter;
B.
Records of required monthly interstitial
monitoring for tanks at the Site for the last 12 months;
C.
Records of required monthly interstitial
monitoring for piping at the Site for the last 12 months;
D.
All Class A, B, and C Operator Training
Certificates related to this Site; only B was submitted;
E.
Documentation of any repairs made to the UST
system during the last thirty-six (36) months;
F.
Work orders for scheduled repairs;
G.
Copy of financial responsibility mechanism
required by 329 IAC 9-8;
H.
Copy of Certification of Financial
Responsibility required by 329 IAC 9-8; and
I.
The Notification form was submitted, but multiple
facets of the form were not filled out, incorrect, or did not match public
records.
IDEM UST Compliance Section issued a Violation
Letter (“VL”) to Respondents on May 13, 2019. The violations contained in the
VL were the same as issued in this NOV.
IDEM UST Compliance Section issued a Return to Compliance Letter for the
May 13, 2019 VL on June 7, 2019, which resolved this violation.
c.
Pursuant to 329 IAC 9-9-3(a), owners and
operators of a UST system must designate a Class A, Class B, and Class C operator
for the UST system, except as provided in subsection (c). The owner and operator of the UST system are
responsible for ensuring that the Class A, Class B, and Class C operators
fulfill their responsibilities under this rule.
During a record review on March 28,
2018, Respondents designated and submitted the Class B operator certification,
but did not designate or submit the Class A and Class C operator
certifications.
IDEM UST Compliance Section issued a VL
to Respondents on May 13, 2019. The violations contained in the VL were the
same as issued in this NOV. IDEM UST
Compliance Section issued a Return to Compliance Letter for the May 13, 2019 VL
on June 7, 2019, which resolved this violation.
d.
Pursuant to 329 IAC 9-2-1(2)(D)(iii)(BB), all
connected piping, installed or replaced after the effective date of the 2009
amendments to this rule, must be equipped with secondary containment, and the
connected piping and secondary containment must be checked for evidence of a
release by pressure testing upon installation, again six (6) months after
installation, and every thirty-six (36) months thereafter.
During a record review on March 28,
2018, Respondents did not pressure test the connected piping and secondary
containment upon installation, again six (6) months after installation, and
every thirty-six (36) months thereafter.
IDEM UST Compliance Section issued a VL
to Respondents on May 13, 2019. The violations contained in the VL were the
same as issued in this NOV. IDEM UST
Compliance Section issued a Return to Compliance Letter for the May 13, 2019 VL
on June 7, 2019, which resolved this violation.
e.
Pursuant to 329 IAC 9-7-2(2)(A), underground
piping that conveys regulated substances under pressure must: (i) be equipped
with an automatic line leak detector under section 5(1) of 329 IAC 9-7; and
(ii) have an annual line tightness test conducted under 5(2) of 329 IAC 9-7 or
have monthly monitoring conducted under section 5(3) of 329 IAC 9-7.
During a record review on March 28,
2018, Respondents failed to perform an annual line tightness test on the
underground piping since bringing the UST system into use in 2014.
IDEM UST Compliance Section issued a VL
to Respondents on May 13, 2019. The violations contained in the VL were the
same as issued in this NOV. IDEM UST
Compliance Section issued a Return to Compliance Letter for the May 13, 2019 VL
on June 7, 2019, which resolved this violation.
f.
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.
During a record review on March 28,
2018, Respondents were performing an accepted form of release detection using
an Automatic Tank Gauge, but results showed multiple failures during the catastrophic
tests while passing precision tests and no evidence has been submitted
demonstrating an effort to repair failures.
IDEM UST Compliance Section issued a VL
to Respondents on May 13, 2019. The violations contained in the VL were the
same as issued in this NOV. IDEM UST
Compliance Section issued a Return to Compliance Letter for the May 13, 2019 VL
on June 7, 2019, which resolved this violation.
8. All rule citations herein and listed in these Findings of Fact
refer to the rule in effect at the time of the inspection review unless
otherwise noted.
9. Orders of the Commissioner are subject
to administrative review by the Office of Environmental Adjudication under IC
4-21.5; however, in recognition of the settlement reached, Respondents acknowledge notice of this right and
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 Respondent. This Agreed
Order shall have no force or effect until the Effective Date.
2.
Respondent shall comply with the rules listed in
the findings above or any incorporated federal equivalent thereof, as
applicable.
3. Respondent is assessed and agrees to
pay a civil penalty of $0. This penalty reflects a significant reduction from
the original proposed civil penalty based upon evidence submitted to IDEM by
Respondent which adequately demonstrated Respondent’s inability to pay the
original proposed civil penalty.
4. Civil 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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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
5. 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 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 4, above.
6.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
7.
This Agreed Order shall jointly and severally
apply to and be binding upon Respondents and all successors and assigns.
Respondents shall provide a copy of this Agreed Order, if in force, to any
subsequent owners, successors, or assigns before ownership rights are
transferred.
8.
No change in ownership, corporate, or
partnership status of Respondents shall in any way alter the Respondents’
status or responsibilities under this Agreed Order.
9.
Respondents shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
10.
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.
11.
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 the
obligation to comply with the requirements of any applicable permits or any
applicable Federal or State laws or regulations.
12.
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.
13.
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 violations
specified in the NOV.
14.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the U.S. Environmental
Protection Agency (U.S. 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 U.S. EPA or any other agency or entity.
15.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
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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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Jennifer
Reno, Section Chief |
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Enforcement
Section |
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
THIS |
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DAY OF |
_____________________, 20_____. |
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For the Commissioner: |
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Signed August 25, 2020 |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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