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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
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No.
2014-22627-U |
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KJS properties, llc |
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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 KJS Properties, LLC (“Respondent”),
which owns/operates the Underground Storage Tank (UST) system located at 4899
Georgia Street in Gary, Lake County, Indiana (“Site”).
3. Respondent has (1) 10,000 gallon steel
tank and (1) 8,000 gallon steel tank both of which were
installed January 1, 1978.
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:
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KJS
Properties, LLC, Property Owner |
Tracy
Kamba, CPA, Registered Agent |
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1535
W. Grand Avenue |
KJS
Properties, LLC |
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Chicago,
IL 60642 |
1901
E. 31st Street, Unit B |
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LaGrange,
IL 60526 |
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Yehya Alqalab,
Registered Agent |
Yehya Alqalab,
Incorporator |
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A
& Y Gas & Mini Mart, Inc. |
A
& Y Gas & Mini Mart, Inc. |
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4899
Georgia Street |
7106
Broadway |
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Gary,
IN 46409 |
Merrillville,
IN 46410 |
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 Lake
County Assessor’s Office, Respondent is the owner of the Site. In a Special Warranty Deed executed on March
28, 2012, Heartland Bank and Trust Company, an Illinois state bank granted the
real property to KJS Properties, LLC, an Illinois
limited liability company.
7.
A Violation Letter was
issued to Respondent KJS Properties, LLC on June 6, 2014, which required
Respondent to submit a Notification form within thirty (30) days of receipt of
the Violation Letter. Respondent failed
to respond to the Violation Letter.
8.
During an investigation including an
inspection on January 10, 2014, conducted 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 not been closed under 329 IAC 9-6; and (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.
As noted during the inspection,
Respondent, as owner of the Site, failed to submit notice to IDEM within thirty
(30) days of owning the UST system. No
notification signed by Respondent as owner has been submitted
to IDEM.
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 329 IAC 9-7.
As noted during the inspection,
Respondent failed to perform monthly release detection on the USTs at the Site.
c.
Pursuant to 329 IAC 9-7-4(4)(A)(B), equipment
for automatic tank gauging that tests for the loss of product and conducts
inventory control must meet the following requirements:
(A) The automatic product level monitor test
can detect a two-tenths (0.2) gallon per hour leak rate from any portion of the
tank that routinely contains product.
(B) Inventory
control, or another test of equivalent performance, is
conducted under subdivision (1).
As noted
during the inspection, Respondent failed to perform monthly release detection
for the UST system at the Site.
d. 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.
As noted during the inspection,
Respondent failed to designate a certified Class A, B, and C operator for the
UST system at the Site.
9.
On May 24, 2016, IDEM received Class A, Class
B, and Class C Operator training certificates from Respondent.
10. 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 statutes,
rules, and/or permit conditions listed in the findings above.
3.
Within sixty (60) days of the Effective Date,
Respondent shall submit notice to IDEM to register tanks using an approved Notification
for USTs form.
4.
Within sixty (60) days of the Effective Date,
Respondent shall perform monthly release detection tests for all USTs at the
Site. Respondent shall submit the
passing test results to IDEM for eight (8) months.
5.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Sherri Bass, 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 |
6.
Respondent is assessed and agrees to pay a
civil penalty of Eighteen
Thousand Eight Hundred and Eighty Dollars ($18,880). The civil penalty shall be
paid in the following manner: Twenty three monthly payments of $786.66
and one monthly payment of $786.82. The First installment of the civil penalty
shall be due and payable to the Environmental Management Special Fund within
thirty (30) days of the Effective Date of this Agreed Order. Payments shall be made
every month for twenty four (24) months.
Said penalty amount shall be due and payable to the Underground
Petroleum Storage Tank Trust Fund.
In the event that the civil penalty is
not paid when due according to the installment payment schedule, 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.
7. 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 |
$100 per week late |
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Order Paragraph 4 |
$100 per week late |
8. Stipulated penalties shall be due and
payable no later than the 30th day after Respondent receive 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.
9. 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
Management |
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Accounts Receivable |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
10. 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 10, above.
11.
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 their
status or responsibilities under this Agreed Order.
12.
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.
13.
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.
14.
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 Respondent of its obligation to
comply with the requirements of its applicable permits or any applicable
Federal or State law or regulation.
15.
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.
16.
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.
17.
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.
18.
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
Management |
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By: _________________________ |
By:
_________________________ |
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Nancy
Johnston, 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: __________________ |
Date: ________________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS |
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DAY
OF |
________________________, |
20__. |
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For the
Commissioner: |
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Signed
June 28, 2016__ |
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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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