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,

 

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Complainant,

 

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v.

 

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Case No. 2015-23134-U

 

 

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Basra and chohan 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 Basra and Chohan LLC (“Respondent ”), which owns the Phillips 66 Gas Station and UST system with Facility ID No.16987, located at 2909 E Highway 12, in Michigan City, LaPorte County, Indiana (“Site”).

 

3.         Respondent owns three 8,000 gallon steel USTs; each installed in November of 1966.

 

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) to Gobinder S Basra, registered agent for Basra and Chohan LLC and Chris K Ball, registered agent for Reese Holdings I, LLC.

 

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 Trustee’s Deed, Respondent is the owner of the Site.

 

7.            A Violation Letter was issued to Respondent on March 13, 2015 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 September 3, 2014, conducted by a representative of IDEM, the following violations were found:

 

a.            Pursuant to 329  Indiana Administrative Code (“IAC”) 9-2-2, (a) all notifications required to be submitted under this section must be submitted on a form prescribed by the commissioner; (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 in the Violation Letter, 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 an appropriate method of monthly release detection for the underground storage tank system at the Site.

 

c.            Pursuant to 329 IAC 9-3.1-4(a), the owner and operator of an UST system shall ensure that repairs and maintenance prevent releases due to structural failure or corrosion as long as the UST system is used to store regulated substances.

 

As noted during the inspection, Respondent failed to ensure that repairs and maintenance prevent releases due to structural failure of corrosion.  Respondent failed to maintain and repair the ATG leak detector, the rectifier box, and test the cathodic protection system.

 

d.            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 inspection, Respondent failed to provide corrosion protection for the steel UST system at the Site.  Specifically, Respondent failed to conduct the required inspections and testing for the impressed cathodic protection system.

 

9.            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 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 are notified otherwise in writing by IDEM, shall be sent to:

 

Trent Lindley, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

8.            Respondent is assessed and agrees to pay a civil penalty of Seventeen Thousand Forty Dollars ($17,040.00).  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”.

 

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:

 

Order Paragraph 3

$1000 for late closure

Order Paragraph 6

$200 per week 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:

 

Indiana Department of Environmental Management

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

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 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 11, above.

 

13.         This Agreed Order shall apply to and be binding upon Respondent and their 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.

 

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 its 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.

 

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

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DAY OF

_________________,

20__.

 

 

For the Commissioner:

 

 

 

Signed on April 14, 2016__

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality