STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

)

 

 

 

)

 

Complainant,

 

)

 

 

 

)

 

 

v.

 

)

Case No. 2018-25217-U

 

 

)

 

kocolene Marketing, LLc and Shri

 

)

 

hari enterprise,

 

)

 

 

 

)

 

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.            Kocolene Marketing, LLC was the owner and/or operator of the underground storage tanks (“USTs”) with UST Facility ID 9387, located at 1510 North Main Street, in Monticello, White County, Indiana (the “Site”) when a petroleum release was reported and assigned incident number 200308514. On September 9, 2009, the property was sold to Harpreet Singh. In a letter dated September 4, 2008, Kocolene Marketing, LLC stated that it had retained responsibility for ongoing corrective action regarding leaking UST incident number 200308514. On May 27, 2011, the property was sold to Shri Hari Enterprise.

 

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

 

4.            Pursuant to IC 13-30-3-3, on May 7, 2018, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to Debbie Vondielingen, Controller of Kocolene Marketing, LLC and J. Kevin Johnson, Registered Agent for Kocolene Marketing, LLC.

 

5.            During a file review conducted by a representative of IDEM on March 22, 2018, the following violations were found:

 

a.         Pursuant to 329 Indiana Administrative Code (“IAC”) 9-5-7, (c) upon approval of the corrective action plan or as directed by the commissioner, the owner and operator shall implement the plan, including modifications to the plan made by the commissioner. The owner and operator shall monitor, evaluate, and report the results of implementing the plan in accordance with a schedule and in a format established by the commissioner.

 

As noted during a file review conducted on March 22, 2018, Respondents failed to implement the Corrective Action Plan (“CAP”) Addendum approved by IDEM on October 26, 2016. In addition, Respondents failed to continue quarterly groundwater monitoring as outlined in the CAP approved April 2, 2007.

 

6.         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 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.            All corrective action costs and activities performed after the signing of this agreement will be subject to preapproval by IDEM. All requests for preapproval will be submitted on IDEM’s Scope of Work form, available on the IDEM website. All requests for preapproval must include all activities and all costs related thereto including time, personnel, materials, equipment, mileage, etc.

 

3.            In conjunction with Order Paragraph 4, below, Shri Hari Enterprise shall conduct a groundwater monitoring and sampling event during the fourth quarter of 2020. The results of the groundwater monitoring and sampling event must be included in an Exposure Evaluation Report.

 

4.            Shri Hari Enterprise shall conduct a vapor intrusion investigation at 116 Heritage Road during fourth quarter 2020. Winter sampling events must be completed and submitted to IDEM by December 30, 2020 within the Exposure Evaluation Report. In addition, historical vapor intrusion sampling data collected at 116 Heritage Road must be included in future reports.

 

5.            Shri Hari Enterprise shall, if requested by IDEM as part of the closure process, submit a right-of-way notice of contamination to the City of Monticello.

 

6.            Within thirty (30) days of the Effective Date of the Agreed Order, Shri Hari Enterprise shall submit draft Environmental Restrictive Covenants (“ERC”) to IDEM for review and approval for the following addresses located in Monticello, White County, Indiana: 1510 North Main Street, 116 Heritage Road, and 200 Heritage Road. An ERC template is provided in Attachment A.

 

7.            If IDEM issues a Notice of Deficiency (“NOD”) for any ERC submitted under Order paragraph 6, Shri Hari Enterprise shall respond within the timeframes in the NOD. If such timeframes are not met, IDEM may assess stipulated penalties as described in Order paragraph 12.

 

8.            Within sixty thirty (3 60) days of IDEM’s approval of the ERCs, described in Order paragraph 6 above, Shri Hari Enterprise shall record the ERCs with the White County Recorder's Office.

 

9.            Within fifteen (15) days of the date of recording with White County, Shri Hari Enterprise shall submit a copy of the file-stamped ERCs to IDEM.

 

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

 

Linda McClure, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.       Respondents are assessed and agree to pay a civil penalty of seven thousand two hundred dollars ($7,200.00). 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 within thirty (30) days of the Effective Date; the 30th day being the “Due Date.”

 

12.         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 paragraph # 3

$500 per month late

Order paragraph # 4

$500 per month late

Order paragraph # 5

$150 per month late

Order paragraph # 6

$350 per month late

Order paragraph # 7

$250 per month late

Order paragraph # 8

$150 per month late

Order paragraph # 9

$150 per month late

 

13.         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.

 

14.         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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

 

15.         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 14, above.

 

16.         This Agreed Order shall 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 its status or responsibilities under this Agreed Order.

 

17.         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.

 

18.         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.

 

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

 

20.         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.

 

21.         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.

 

22.         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.

 

23.         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:

 

 

Jennifer Reno, Chief

Printed:

 

 

Land Enforcement Section

Title:

 

 

Compliance Branch

 

 

 

Office of Land Quality

 

 

Date:

4/22/2020

 

Date:

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

By:

 

 

 

Printed:

 

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 20_____

 

 

 

 

 

 

For the Commissioner:

 

 

 

 

 

 

 

Signed 7/2/2020

 

 

 

 

Peggy Dorsey

 

 

Assistant Commissioner

 

 

Office of Land Quality