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. 2013-21818-SU

 

 

)

 

Khoury 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 Khoury Inc. (“Respondent”), which owns the Underground Storage Tank (UST) system, with UST Facility ID No. 11594, located at 22 Pendleton Avenue, Parcel No. 48-10-28-402-030.000-032 in Lapel, Madison County, Indiana (“Site”).

 

3.            The UST system includes three (3) fiberglass underground storage tanks with metal flex connectors at each end of the piping.  The capacities of the three (3) tanks are estimated to be approximately three (3) to four (4) thousand gallons each.

 

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:

 

Mina M. Khoury, President & Registered Agent

Khoury Inc.

954 Fawn View Drive

Carmel, IN 46032

 

6.            Based on an investigation including investigations conducted on May 2, 2013 and July 15, 2013, by a representative of IDEM, the following violations were found:

 

a.         Pursuant to 329 IAC 9-2-2(b), any person who owns an UST system or tank shall, within thirty (30) days of owning such an UST system or tank or bringing such tank or UST system into use, submit notice to the agency to register the tank or UST system.  Bringing a tank or UST system “into use” means the tank or UST system contains or has contained a regulated substance and has not been closed under 329 IAC 9-6.

 

As noted during the inspections, Respondent failed to submit notice to IDEM to register the tank or UST system within thirty (30) days of owning such an UST system or tank or bringing such tank or UST system into use.

 

b.         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 inspections, Respondent failed to perform an appropriate method of monthly release detection for the underground storage tank system at the Site.

 

c.            Pursuant to 329 IAC 9-2-1(2)(B) and (C), metal piping that routinely contains regulated substances and is in contact with the ground must be properly designed, constructed, and protected from corrosion as specified in that: 1) the piping is constructed of steel and cathodically protected in the manner specified by 329 IAC 9-2-1(2)(B); or 2) the piping is constructed of metal without additional corrosion protection measures provided that additional requirements as specified in 329 IAC 9-2-1(2)(C) are completed.

 

As noted during the inspections, Respondent failed to provide corrosion protection for the metal flex connectors in the UST system.

 

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

 

2.            Respondent shall comply with the rules, 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 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 system.

 

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.            Within fifteen (15) days of the Effective Date, Respondent shall submit notice to IDEM to register the UST system at the Site.

 

8.            All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Chike Okeke, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

9.            Respondent is assessed and agrees to pay a civil penalty of Eight Thousand Four Hundred Dollars ($8,400).  Said penalty amount shall be due and payable to the Underground Petroleum Storage Tank Trust Fund in twenty-four (24) monthly installments of Three Hundred and Fifty Dollars ($350).  The first installment payment is due within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.  Thereafter, subsequent monthly payments in the amount of Three Hundred and Fifty Dollars ($350) shall be due on the 30th day being the “Due Date”.

 

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 # 3

$500 per week late

Order Paragraph # 6

$100 per week late

Order Paragraph #7

$500 per week late

 

11.         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.

 

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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

13.         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 pays 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 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 its 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 its obligation to comply with the requirements of its 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 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 RESPONDENT:

 

 

 

 

 

By:

 

 

 

 

 

 

 

Date:

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 20

 

 

 

For the Commissioner:

 

 

 

Signed on 3/26/14

 

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality