|
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. 2019-26177-U |
|||
|
|
|
) |
|
||||
|
Spotshine Inc., and |
|
) |
|
||||
|
R & MM PetrolEUM, INc., |
|
) |
|
||||
|
|
|
) |
|
||||
|
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.
Respondent Spotshine
Inc. owns the real property with underground storage tank (“UST”) Facility ID No.
3304, located at 727 S. Wabash Street, in Wabash, Wabash County, Indiana (the
“Site”).
3.
Respondent R & MM Petroleum Inc. owns
certain personal property with UST FID No. 3304, located at S. Wabash Street,
parcel # 85-14-14-104-051.000-009, in Wabash, Wabash County, Indiana (the
“Site”).
4. Respondents own and/or operate one (1) twenty
thousand (20,000) gallon and one (1) six thousand (6,000) gallon gasoline UST,
one (1) ten thousand (10,000) gallon diesel UST, and one (1) four thousand
(4,000) gallon kerosene UST. All USTs were installed in 1963, except for the
twenty thousand (20,000) gallon gasoline tank, which was installed in 1978. The
UST’s are steel construction, and prior to 1998, had been upgraded with impressed
current cathodic protection. The piping is fiberglass construction.
5. IDEM has jurisdiction over the parties
and the subject matter of this action.
6.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) via USPS on April 30, 2020 to:
|
Spotshine Inc. |
|
Mr.
Balwinder Singh, President and Registered Agent |
|
2965
Heirloom Lane |
|
Greenwood,
Indiana 46143 |
|
|
|
R
& MM Petroleum, Inc. |
|
Mr.
Inderjit Singh, President and Registered Agent |
|
7350
Gold King Way |
|
Indianapolis,
Indiana 46259 |
|
|
|
Spotshine Inc. |
|
UST
Owner |
|
727
S. Wabash Street |
|
Wabash,
Indiana 46992 |
|
|
|
R
& MM Petroleum Inc. |
|
UST
Operator |
|
727
S. Wabash Street |
|
Wabash,
Indiana 46992 |
7.
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 Wabash County Assessor’s office, Respondent Spotshine
Inc., is the owner of the real property at the Site, and Respondent R & MM
Petroleum Inc., is the owner of certain personal property at the Site.
Notification forms submitted to the agency indicate Spotshine
Inc. is the UST owner and R & MM Petroleum Inc. is the UST operator at the
Site.
8. During an investigation, including an inspection
conducted February 14, 2018, the following violations were found:
a. Pursuant
to 329 Indiana Administrative Code (“IAC”) 9-2-2(c) and (d):
(c) An
owner required to submit a notification under this section shall provide notice
for each tank the owner owns. The owner may provide notice for several tanks at
one (1) location using one (1) form. An
owner with tanks located in more than one (1) place of operation shall submit a
separate notification form for each separate place of operation;
(d) An
owner required to submit notice under this section shall provide all the
information required by the form provided by the agency for each tank for which
notice is submitted.
Based on the inspection, Respondents
failed to submit a correct and complete Notification for Underground Storage Tanks
form. A Violation Letter (“VL”) was sent on March 27, 2018.
On April 27, 2018, a notification form was
submitted. On May 9, 2018, a Notice of Deficiency-UST Notification Form (“NOD”)
letter was issued. On July 23, 2018, a VL was issued for failure to respond to
the May 9, 2018 NOD.
On August 3, 2018, a notification form
was submitted. On March 19, 2019 a NOD was issued. To
date, an updated notification form has not been received.
b. Pursuant to 329 IAC 9-3-1(c)(3), the
owner and operator shall maintain documentation of compliance with release
detection requirements, and (13), the results of any sampling, testing, or
monitoring relating to release detection systems must be maintained for at
least one year except the results of tank tightness testing conducted under 329
IAC 9-7-4(3) must be maintained until the next test is conducted.
Based on the inspection conducted
February 14, 2018, Respondents failed to provide one years’ worth of
Statistical Inventory Reconcilation (“SIR”) release
detection system records to demonstrate compliance with release detetction method requirements.
c.
Pursuant to 329 IAC 9-3.1-1(a)(1), the owner
and operator shall ensure the following:
(1) Releases due to spilling or overfilling
do not occur.
Based on the inspection conducted
February 14, 2018, it was observed that the spill bucket at the fill pipe of
the diesel fuel tank was damaged to such an extent that the owner and/or
operator could not ensure that a spill would be prevented if product entered the
spill bucket. Also, an object that appeared to be a wooden tank measuring stick
was observed to be obstructing the fill pipe of the diesel fuel tank which
could interfere with the operation of the overfill protection device installed
in the diesel fuel tank.
On May 29, 2020 and June 1, 2020, an
invoice dated August 9, 2018, and photo documentation of repair to the diesel
UST overfill and spill bucket was submitted.
d.
Pursuant to 329 IAC 9-3-3.1-2(1), (2), and (3),
the owner and operator of a steel UST system with corrosion protection shall
comply with the following requirements to ensure that releases due to corrosion
are prevented for as long as the UST system is used to store regulated
substances:
(1) All
corrosion protection systems must be operated and maintained to continuously
provide corrosion protection to the metal components of that portion of the
tank and piping that routinely contain regulated substances and are in contact
with the ground.
(2) All
UST systems equipped with galvanic cathodic protection systems must be
inspected for proper operation by a qualified cathodic protection tester under
the following requirements: (A) all galvanic cathodic protection systems must
be tested within six (6) months of installation and at least every three (3)
years thereafter; and (B) Nace International
(formerly the National Association of Corrosion Engineers) Standard RP0285-95
“Corrosion Control of Underground Storage Tank Systems by Cathodic Protection”,
revised 1995 NACE International, P.O. Box 218340, Houston, Texas 77218-8340.
(3) All
UST systems with impressed cathodic protection systems must be: (A) inspected
every sixty (60) days to ensure the equipment is running according to
manufacturer’s specifications; and (B) tested within six (6) months of
installation and at least every three (3) years thereafter.
Based on the inspection conducted
February 14, 2018, Respondent had not had the impressed current cathodic
protection system inspected within the last sixty (60) days. Prior to the
February 14, 2018 inspection documentation of the last inspection of the
impressed current cathodic protection system was dated March 3, 2017.
On October 1, 2018, a copy of the cathodic
protection test result conducted by by The Oscar W.
Larson Company dated June 14, 2018 for the two (2) gasoline USTs, one (1)
diesel UST, and one (1) kerosene UST was submitted.
Rectifier logs with volt and amp
readings for the four (4) USTs with impressed current have not been submitted
to date.
e. Pursuant to 329 IAC 9-7-4(8)(A), any
other type of release detection method, or combination of methods, may be used
if one (1) of the following is completed:
(A) The release detection method or
combination of methods must meet the following requirements:
(i) Capability
to detect a two-tenths (0.2) gallon per hour leak rate or a release of one
hundred fifty (150) gallons within a month.
(ii) Probability of detection of ninety-five
hundredths (0.95) and a probability of false alarm of five-hundredths (0.05).
(iii) The method is third party certified.
Based on the inspection conducted February
14, 2018, Respondents use SIR as their release detection method, which covers
both the UST and associated piping to the UST, and produced only a one page
summary for the last three (3) months of SIR release detection monitoring for
the four (4) USTs. No documentation of the daily data gathering processes and
all other necessary information required for the monthly SIR to be a compliant
method of release detection was provided.
On October 1, 2018, a copy of the Tank
Tightness Test (“TTT”) result for the kerosene UST was submitted. A copy of Product Line Test
results for the two (2) gasoline USTs and one (1) diesel fuel UST dated July 9,
2018, was also submitted to IDEM.
On August 4, 2020, copies of the TTT, dated
November 6, 2018 was submitted. The two (2)
gasoline USTs had passing results, and the diesel UST had a failure result.
f. 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 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.
Based on the inspection conducted
February 14, 2018, Respondents failed to provide proof of financial
responsibility for this Site.
On August 3, 2018, documentation of
financial responsibility was received with the submitted notification form.
g. Pursuant
to 329 IAC 9-9-3(a), the owner or operator of a UST system must designate a
Class A, Class B, and Class C operator for the UST system on or before thirty
(30) days after the effective date of this rule 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.
Based on the inspection conducted
February 14, 2018, Respondents failed to provide proof of the Class B operator
certificate for this Site.
On October 1, 2018, a copy of the Class B operator
certificate, issue date September 19, 2018, was submitted to IDEM.
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.
329 IAC 9, effective June 28, 2018,
incorporates certain federal underground storage tank requirements found in 40
Code of Federal Regulations (“CFR”) Part 280, including those identified below.
3.
Respondents shall comply with the rules listed
in the findings above or the incorporated federal equivalent thereof.
4.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 329 IAC 9-2-2(c). Specifically, Respondents shall
download and submit the “Notification
Form for Underground Storage Tanks,” State Form from the IDEM webpage: https://www.in.gov/idem/5157.htm, under “Underground
Storage Tank (UST) Program.” Once
downloaded the form may be completed on-line or by hand and emailed to USTRegistration@idem.in.gov.
The completed
form will not be accepted by mail.
5.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 40 CFR 280.31(c).
Specifically, Respondents shall maintain records of the rectifier logs
containing volt and amp readings on-site. Respondents shall also submit to IDEM
the rectifier
log results on a monthly basis for six (6) months for compliance monitoring.
6.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 40 CFR 280.41(a)(1). Specifically, Respondents shall have the
diesel UST tightness tested. A failed test result was received, but does not satisfy
the requirements. Any repairs necessary shall be completed by a certified
contractor and corrosion expert in accordance with 40 CFR 280.33(a), (d), and
(e), and documentation including but not limited to repair invoices and reports
shall be submitted to IDEM. All
documentation shall be received prior to the diesel UST being brought back into
service.
7.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 40 CFR 280.41(a)(1) and 40 CFR 280.43(h). Specifically, Respondents shall submit to
IDEM the SIR
results including the daily data on a monthly basis for six (6) months
compliance monitoring.
8. All submittals required by this Agreed
Order, unless Respondents are notified otherwise in writing by IDEM, shall be
sent to:
|
Jodi Pisula, Enforcement Case Manager |
|
Office of Land Quality |
|
Indiana Department of Environmental
Management |
|
100 North Senate Avenue |
|
Indianapolis, IN 46204-2251 |
9. Respondents are assessed and agree to
pay a civil penalty of Three Thousand One Hundred Twenty Dollars ($3,120.00). 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 twelve (12) monthly installments. The monthly installment payments shall be Two
Hundred Sixty Dollars ($260.00) each. The first installment shall be paid within
thirty (30) days of the Effective Date; the 30th day being the “Due
Date”, and the remaining payments shall be made every thirty (30) days
thereafter. Interest shall accrue on
unpaid amounts at the rate established by IC 24-4.6-1-101.
10. 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 # 4 |
$100.00 per
week |
|
Order
paragraph # 5 |
$100.00 per
week |
|
Order
paragraph # 6 |
$100.00 per
week |
|
Order paragraph
# 7 |
$100.00 per
week |
11. 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.
12. 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:
|
IDEM Accounts Receivable |
|
IGCN, Rm 1340 |
|
100 North Senate Avenue |
|
Indianapolis, IN 46204 |
13. 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 12, above.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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 Notice of Violation.
20. 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.
21. This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondents.
|
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
||||
|
Department of
Environmental Management |
Spotshine, Inc |
||||
|
|
|
||||
|
By: ______________________ |
By: _________________________ |
||||
|
|
Jennifer
Reno, Section Chief |
|
|||
|
|
Land
Enforcement Section |
Printed:
______________________ |
|||
|
Office of
Land Quality |
|
||||
|
|
Title: ________________________ |
||||
|
|
|
||||
|
Date: ______________ |
Date:
_______________________ |
||||
|
|
|
||||
|
|
|
||||
|
|
RESPONDENT: |
||||
|
|
R & MM
Petroleum, Inc |
||||
|
|
|
||||
|
|
By: _________________________ |
||||
|
|
|
||||
|
|
Printed:
______________________ |
||||
|
|
|
||||
|
|
Title: ________________________ |
||||
|
|
|
||||
|
|
Date:
_______________________ |
||||
|
|
|
||||
|
|
|
||||
|
|
COUNSEL FOR RESPONDENT: |
||||
|
|
|
||||
|
|
|
||||
|
|
By:
________________________ |
||||
|
|
|
|
|||
|
|
|
||||
|
|
Date:
______________________ |
||||
|
|
|||||
|
APPROVED AND ADOPTED BY THE INDIANA
DEPARTMENT OF ENVIRONMENTAL |
|||||
|
MANAGEMENT
THIS |
______ |
DAY OF |
________________________, |
20__. |
|
|
|
|||||
|
|
For the Commissioner: |
||||
|
|
|
||||
|
|
Signed 10/29/2020 |
||||
|
|
Peggy Dorsey, Assistant Commissioner |
||||
|
|
Office of Land Quality |
||||