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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No.
2013-21567-U |
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atlas building, inc, |
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Respondent. |
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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 Atlas Building, Inc (“Respondent”),
which owns/operates the Underground Storage Tank (UST) systems, with Facility
ID No.2936, located at 816 E. Jefferson St., in Tipton, Tipton County, Indiana
(“Site”).
3. Respondent’s UST system contains three (3),
7,500 gallon tanks that were installed June 1, 1970.
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 Standard Bank & Trust
Company, Trustee for Trust 15692.
6.
During an investigation including inspections
conducted on May 19, 2011, September 28, 2012, and January 30, 2013 by a
representative of IDEM, the following violations were found:
a.
Pursuant to 329 IAC 9-2-2(h), all owners and
operators of UST systems who temporarily close a tank system under 329 IAC
9-6-5 or close a tank system under 329 IAC 9-6-1 shall, within thirty (30) days
of completing such action, submit notice of this action to IDEM.
As noted during the inspection,
Respondent failed to submit notice to IDEM that the tank system was temporarily closed.
b. Pursuant to 329 IAC 9-3.1-2(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.
As noted during the inspections,
Respondent failed to provide corrosion protection for the steel UST system at
the Site.
c.
Pursuant to 329 IAC 9-7-2(1), the owner and
operator of a petroleum UST system shall provide release detection for tanks
and piping 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 this rule.
As noted during the inspection,
Respondent failed to perform an appropriate method of monthly release detection
for the underground storage tank system at the Site.
7. 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 Respondents. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondent shall comply with the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Within sixty (60) days of the Effective Date,
Respondent shall permanently close the underground storage tanks in accordance
with the requirements of 329 IAC 9-6-1, through 329 IAC 9-6-4, including the
applicable requirement for corrective action under 329 IAC 9-5-1, through 329
IAC 9-5-8.
4.
At least thirty (30) days before beginning
closure, Respondent shall notify IDEM using the notification form required by
329 IAC 9-2-2(a), and the office of the state fire marshal of intent to close
the underground storage tanks.
5.
At least seven (7) days prior to scheduled
closure activities, Respondent shall notify IDEM’s Underground Storage Tank
Section to permit an agent of IDEM to view and inspect the activities performed
pursuant to closure of the UST systems.
6.
Within thirty (30) days of closing the UST
system, Respondent shall submit a closure report to IDEM which shall include the
notification form required by 329 IAC 9-2-2(a).
7.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Trent Lindley, Enforcement Case
Manager |
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Office of Land Quality – Mail Code
60-02L |
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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 |
8.
Respondent is assessed
and agrees to pay a civil penalty of Fifteen Thousand Dollars ($15,000.00). 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”. The 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.
9.
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:
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Paragraph |
Penalty |
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Order Paragraph #3 |
$5,400 for late closure |
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Order Paragraph #6 |
$500 per week that closure
certification is late |
10.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant
may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent 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 Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent 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.
11.
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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Cashier – Mail Code 50-10C |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
12.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or
before their Due Date, Respondent 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 Respondent 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 11, above.
13.
This Agreed Order shall apply to and be binding
upon Respondent and its successors and assigns. This Agreed Order shall jointly
and severally apply to and be binding upon Respondent and its successors and
assigns. Respondent’s 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 Respondent shall in any way alter their status or responsibilities
under this Agreed Order.
14.
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.
15.
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.
16.
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 its obligation to
comply with the requirements of their applicable permits or any applicable
Federal or State law or regulation.
17.
Complainant does not, by its 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.
18.
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.
19.
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.
20.
This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
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Printed: ______________________ |
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Office of
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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
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For the
Commissioner: |
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Signed
November 10, 2014_ |
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Bruce H Palin |
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Assistant
Commissioner |
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Office of
Land Quality |
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