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. 2010-19171-S

 

 

)

 

MICHAEL MCCALIP

 

)

 

D/B/A  MCCALIP’S SERVICE, INC.,

 

 

 

 

 

)

 

Respondent.

 

)

 

 

AGREED ORDER

 

Complainant and Respondent 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.  Respondent’s entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent 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 is Michael McCalip d/b/a McCalip’s Service, Inc. who owns the Underground Storage Tank (“UST”) system with UST Facility I.D. Number 5884 located at 12740 E. Southeastern Avenue, in Fairland, Shelby County, Indiana (the “Site”).

 

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

 

4.                  Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via certified mail to:

 

Michael McCalip, Owner

Michael McCalip, Owner

McCalip’s Service, Inc

McCalip’s Service, Inc

12740 E. Southeastern Avenue

9704 N. Michigan Road

Fairland, Indiana 46126

Fairland, Indiana 46126


5.                  During an investigation including inspections conducted on September 21, 2009 and March 30, 2010, by a representative of IDEM, the following violations were found:

 

a.         Pursuant to 329 IAC 9-2.1-1(c), metal piping that routinely contains regulated substances and is in contact with the ground must meet the following: (1) be cathodically protected and (2) meet the requirements of 329 IAC 9-2-1(2)(B)(ii) and 329 IAC 9-2-1(2)(B)(iii).

 

As noted during the inspections, Respondent failed to provide cathodic protection for the piping of the UST system at the Site.

 

b.                  Pursuant to 329 IAC 9-2.1-1(a), all UST systems shall comply with one (1) of the following requirements no later than December 22, 1998: (1) new UST performance standards under 329 IAC 9-2-1, (2) upgrading requirements under sections (b) through (d), (3) closure requirements under 329 IAC 9-6, including applicable requirements for corrective action under 329 IAC 9-5.

 

As noted during the inspections, Respondent failed to properly upgrade or permanently close the waste oil UST system that does not meet the new UST performance standards at the Site.

 

c.                  Pursuant 329 IAC 9-2.1-1(b)(2)(B), if a steel tank is upgraded by internal lining, within one (1) year after lining, and every five (5) years thereafter, the lining and tank must be internally inspected and found to be structurally sound with the lining and tank still performing in accordance with requirements under 329 IAC 9-3.1-4.

 

As noted during the inspections, Respondent failed to inspect the internal lining of the underground storage tanks at the Site as required by 329 IAC 9-2.1-1(b)(2)(B).

 

d.         Pursuant to 329 IAC 9-7-2, the owner and operator of a petroleum UST system shall provide release detection for tanks and piping as follows: (1) 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 this rule.

 

As noted during the inspections, Respondent failed to perform monthly release detection for the UST system at the Site.

 

6.                  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 Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  Within thirty (30) days of the Effective Date, Respondent shall provide the UST metal piping with cathodic protection which must meet the requirements of 329 IAC 9-2-1(2)(B)(ii) and 329 IAC 9-2-1(2)(B)(iii).

 

3.                  Within fifteen (15) days of completion of the work required under paragraph 2 above, Respondent shall provide copies of cathodic protection tests to IDEM for review.

 

4.                  Within thirty (30) days of the Effective Date, Respondent shall perform monthly release detection tests for the UST system at the Site, and thereafter, perform a release detection tests every thirty (30) days to monitor releases.

 

5.                  Within fifteen (15) days of completion of the work required under paragraph 4 above, Respondent shall provide documentation of the monthly release detection method and results to IDEM for review.

 

6.                  Within thirty (30) days of the Effective Date, Respondent shall comply with 329 IAC 9-2.1-1(b)(2)(B). Specifically, Respondent shall conduct an inspection of the internal lining of the tanks at the Site.

 

7.                  Within fifteen (15) days of completion of the work required under paragraph 6 above, Respondent shall provide documentation of the internal lining inspection and test results to IDEM for review.

 

8.                  Within sixty (60) days of the Effective Date, Respondent shall do one of the following:

a.                  Upgrade the waste oil underground storage tank system as required under sub sections (b) through (d) of 329 IAC 9-2.1-1.

 

b.                  Permanently close the waste oil tanks in accordance with the requirements of 329 IAC 9-6, including the applicable requirement for corrective action under 329 IAC 9-5.

 

9.                  Within fifteen (15) days, Respondent shall provide documentation to IDEM of the action taken under paragraph 8 above.

 

10.       Respondent is assessed a civil penalty of Thirteen Thousand Eight Hundred Dollars ($13,800).  Said penalty amount shall be due and payable to the Underground Petroleum Storage Tank Trust Fund within thirty (30) days of the Effective Date.  In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101.  The interest shall continue to accrue until the civil penalty is paid in full.

 

10.             In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

 

Paragraph

Penalty

Order Paragraph # 2

$500 per week late

Order Paragraph # 3

$100 per week late

Order Paragraph # 4

$500 per week late

Order Paragraph # 5

$100 per week late

Order Paragraph # 6

$500 per week late

Order Paragraph # 7

$100 per week late

Order Paragraph # 8

$500 per week late

Order Paragraph # 9

$100 per week late

 

12.       Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for violation of this Agreed Order.  In lieu     of any of the stipulated penalties set out above, Complainant may seek any other remedies or sanctions available by virtue of Respondent’s violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

 

13.             Civil and stipulated penalties are payable by check to the “Underground Petroleum Storage Tank Trust Fund.”  Check shall include the Case Number of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

14.       This Agreed Order shall apply to and be binding upon Respondent and his successors and assigns. Respondent’s signatories to this Agreed Order certify that he is fully authorized to execute this Agreed Order and legally bind the party he represents.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter his 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.       Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.  Respondent 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 Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of his obligation to comply with the requirements of his applicable permit or any applicable Federal or State law or regulation.

 

18.       Complainant does not, by his approval of this Agreed Order, warrant or aver in any manner that Respondent’s 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 Respondent may incur as a result of Respondent’s 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 NOV.

 

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 Respondent 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 Respondent.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

 

By: _________________________

By:  _________________________

 

Nancy Johnston, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date: __________________

Date: _______________________

 

 

 

 

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

By: ________________________

By: ________________________

 

Deputy Attorney General

 

 

 

Date: _______________________

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

_____

DAY OF

____________________,

 2010.

 

 

 

 

For the Commissioner:

 

 

 

Signed, September 3, 2010

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality