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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
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No.
2018-25658-U |
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irving j. sherman revocable |
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trust, s & r sunshine inc., and |
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kwick mart one 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 Irving J. Sherman Revocable
Trust, S & R Sunshine Inc., and Kwick Mart One
LLC (“Respondents”), which own and/or operate the facility with Facility ID No.
3623, located at 1731 East 52nd Street, in Indianapolis, Marion
County, Indiana (“Site”).
3. Respondents own and/or operate two ten
thousand (10,000) gallon gasoline USTs. The tanks were installed in 1979 and
are steel construction.
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 Surmukh
Singh, President and Registered Agent for S & R Sunshine Inc.; John
Hamburger, manager of real estate for the Irving J. Sherman Revocable Trust; Parshotam Sandhu, manager of Kwick
Mart One LLC; and Patrick Rooney, Registered Agent for Kwick
Mart One LLC.
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 Irving J. Sherman Revocable Trust
is the owner of the Site.
7.
All rule citations herein refer to the rule in
effect at the time of the inspection unless otherwise noted.
8.
During an investigation, including an inspection
conducted by a representative of IDEM, the following violations were found:
a. Pursuant to 329 Indiana Administrative
Code (“IAC”) 329 IAC 9-2.1-1(b)(2)(B), tanks upgraded by internal lining must
meet the following: Within 10 years after lining, and every 5 years thereafter,
the lined tank is internally inspected and found to be structurally sound with
the lining still performing in accordance with original design specifications.
As noted during the inspection on May
17, 2018, Respondents failed to provide UST internal liner inspection
documentation.
The UST liners were inspected on
September 13, 2018 and determined to be performing in accordance with the original
design specifications.
b. Pursuant to 329 IAC 329 IAC 9-2.1-1(c), metal
piping that routinely contains regulated substances and is in contact with the
ground must be cathodically protected in accordance
with a code of practice developed by a nationally recognized association or
independent testing laboratory.
As noted during the inspection on May
17, 2018, Respondents failed to repair or replace dispenser piping boots. Steel
piping containing a regulated substance is in contact with the ground and must
be cathodically protected.
On September 28, 2018, zipper boots were
installed around dispenser flex connectors to prevent contact with the soil.
c.
Pursuant to 329 IAC 9-8-4(a), an owner or
operator of a petroleum underground storage tank shall demonstrate financial
responsibility for taking corrective action and for compensating third parties.
As
noted during the inspection on May 17, 2018, Respondents failed to provide
financial responsibility documentation.
d.
Pursuant to 329 IAC 329 IAC 9-3-1(a), the owner
and operator of an UST shall cooperate fully with inspections, monitoring, and
testing conducted by the agency, as well as requests for document submissions,
testing, and monitoring.
Respondents failed to cooperate and
provide documentation requested during the UST inspection conducted on May 17,
2018. Documentation includes an updated UST notification form, tank liner
inspection results, dispenser piping boot repair documentation, and financial
responsibility documentation.
On November 5, 2018, Respondents
provided UST liner inspection and piping boot repair documentation to IDEM for
review. An updated UST notification form was submitted July 29, 2019.
Subsequently, a notice of deficiency was issued on August 27, 2019 and indicated
the following information was either missing or invalid:
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Piping manufacturer/model
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Catchment basin manufacturer/model
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Auto shutoff manufacturer/model/type
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UST operator section
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Tank manufacturer
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UST owner section
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Tank model
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Submersible turbine pump manufacturer/model
9. 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.
Within fourteen (14) days of receipt of the
Notice of Deficiency (NOD) for UST System Notification issued August 27, 2019, Respondents
shall submit a corrected Notification for Underground Storage Tanks form to
IDEM for review.
3.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 329 IAC 9-8-4(a).
Specifically, Respondents shall submit financial responsibility documentation
to IDEM for review.
4. All submittals required by this Agreed
Order, unless Respondents are notified otherwise in writing by IDEM, shall be
sent to:
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Amy Elliott, 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 |
5. Respondents are assessed and agree to
pay a civil penalty of one thousand one hundred twenty dollars ($1,120.00). 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 four (4) quarterly payments. The first payment of two hundred eighty
dollars ($280.00) shall be due and payable within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”. Each subsequent
payment of two hundred eighty dollars ($280.00) shall be due and payable on a
quarterly basis thereafter.
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:
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Paragraph |
Penalty |
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Order
paragraph # 3 |
$250 per
month late |
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Order
paragraph # 4 |
$250 per
month late |
7. 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.
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
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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 |
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.
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TECHNICAL RECOMMENDATION: |
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Department of Environmental Management |
RESPONDENT: |
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By: _________________________ |
By:
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Linda L. McClure, 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: __________________ |
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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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______________________, 20____. |
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For the Commissioner: |
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Signed 10/1/19 |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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