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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
MARION |
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ENVIRONMENTAL
MANAGEMENT |
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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. 2015-23477-U
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surinder “paul” singh, individual, |
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and rayshel llc, |
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Respondents. |
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AGREED ORDER
Complainant
and Respondents 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. Respondents’ entry into this Agreed Order
shall not constitute a waiver of any defense, legal or equitable, which
Respondents 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.
Respondents are Surinder
“Paul” Singh and Rayshel LLC (“Respondents”), which own
and/or operate Underground Storage Tank (“UST”) system, with UST Facility ID
No. 25363 and LUST incident No. 201404512, located at 1055 E. Raymond Street,
in Indianapolis, Marion County, Indiana (“Site”).
3.
Respondent Rayshel
LLC owns the real property, Lots 86, 87, 88, and 89 in Metzgers
Garfield Park Addition to the City of Indianapolis as per Plat thereof as
recorded in the Plat Book 13, page 183, in the Office of the Recorder of Marion
County, Indiana, which contains the underground storage tanks.
4.
Respondent Surinder
“Paul” Singh owns and operates the underground storage tanks, and leases the
real property (Site) that contains the underground storage tanks pursuant to a December
9, 2008 lease agreement with Rayshel LLC.
5.
Respondent Surinder
“Paul” Singh is an operator of the underground storage tanks at the Site.
6.
Regulated products consisting of gasoline and
diesel fuels are stored and dispensed from three (3) USTs located at the Site. The USTs include one (1) twelve thousand
(12,000) gallon tank containing gasoline, one (1) six thousand (6,000) gallon tank
containing gasoline, and one (1) six thousand (6,000) gallon tank containing
diesel. The three tanks were reportedly brought
into use in October 2009.
7. IDEM has jurisdiction over the parties
and the subject matter of this action.
8.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (NOV) via Certified Mail to:
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Rayshel LLC |
Baldev “Dave” Singh |
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Keith
Kleinmaier, Registered Agent |
3210
E. Thompson Road |
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12854
Walbeck Drive |
Indianapolis,
IN 46227 |
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Fishers,
IN 46037 |
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Surinder “Paul” Singh |
Baldev “Dave” Singh |
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1055
E. Raymond Street |
6755
Robin Hood Ct. |
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Indianapolis,
IN 46203 |
Indianapolis,
IN 46227 |
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Surinder “Paul” Singh |
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3210
E. Thompson Road |
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Indianapolis,
Indiana 46227 |
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9.
During an investigation including inspections conducted
on July 23, 2015, August 3, 2015, and November 23, 2015 by a representative of
IDEM, the following violation was found:
a.
Pursuant to 329 Indiana Administrative Code (“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, Respondents
failed to sustain passing monthly release detection test results for the 12,000
gallon underground storage tank (“Tank No. 1”).
According to the monthly release detection test results of the USTs, Tank
No. 1 failed to generate passing test results for three (3) or more months.
According to a Tank Assessment Report
dated November 2, 2016, and submitted to IDEM on Respondents’ behalf by ATC
Group Services, LLC, the following activities have taken place at the Site: Stichter & Stichter Trucking,
LLC transferred approximately 369 gallons of unleaded 87 octane gasoline from
Tank # 1 to Tank # 2. Following the
removal of product from Tank # 1, the depth of product in Tank # 1 was measured
to be one inch, which is the equivalent of approximately 16 gallons of
product. The vast majority of product
has been removed from Tank # 1, which greatly reduces the potential for a
release of product to the environment to occur from Tank # 1 while the tank components
are being evaluated.
10. In recognition of the settlement reached,
Respondents waive 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.
Respondents shall comply with the rule listed
in the findings above.
3.
Respondents shall address the LUST Incident
number 201404512 by complying with the requirements set forth in the
Commissioner’s Order to Comply, issued by the Commissioner on May 19, 2014
(“COTC”). Compliance with the COTC shall
be determined by IDEM in its reasonable discretion.
4.
As long as IDEM, in its reasonable discretion,
believes that Respondents are attempting in good faith to satisfy the
requirements of the COTC, Respondents shall not be required to permanently
close Tank No. 1 pursuant to paragraph 8 of the Temporary Order to Prohibit
Delivery to Underground Storage Tank, issued by the Commissioner on January 11,
2016. If IDEM, in its reasonable
discretion, determines that Respondents are not attempting in good faith to
satisfy the requirements of the COTC, IDEM shall provide Respondents with
written notification of that determination. Within thirty (30) days after receiving such
written notification, Respondents shall proceed to permanently close Tank No. 1
in accordance with 329 IAC 9-6 by submitting a request for approval to close
Tank No. 1, using State Form 45223 (R5 / 1-14).
Respondents shall then permanently close Tank No. 1 in accordance with
IDEM’s approval.
5.
If IDEM, in its reasonable discretion,
determines that Respondents have sufficiently satisfied the requirements of the
COTC, such that Respondents no longer need to comply with the requirement to
“immediately remove as much of the gasoline from the two gasoline UST systems
as necessary to prevent further release to the environment” (see COTC
paragraph 38), IDEM shall provide Respondents with written notification of that
determination. Within thirty (30) days
after receiving such written notification, Respondents shall bring Tank No. 1
into compliance with 329 IAC 9-7-2(1). Specifically,
Respondents shall perform an appropriate method of monthly release detection
testing for Tank No. 1.
6.
Within fifteen (15) days after completion of
the work required under paragraph 5 above, Respondents shall submit to IDEM
passing monthly release detection test results for Tank No. 1. Subsequently, Respondents shall submit to
IDEM six (6) consecutive passing monthly release detection test results for
Tank No. 1.
7.
If Respondents fail to comply with paragraphs 5
and 6 above, Respondents shall proceed to permanently close Tank No. 1 in
accordance with 329 IAC 9-6 by submitting a request for approval to close Tank
No. 1, using State Form 45223 (R5 / 1-14).
Respondents shall then permanently close Tank No. 1 in accordance with
IDEM’s approval.
8.
All submittals required by this Agreed Order,
unless Respondents are notified otherwise in writing by IDEM, shall be sent to:
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Chike Okeke, 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 |
9.
Respondents are assessed and agree to pay a
civil penalty of Seven Thousand Dollars ($7,000). Respondents are jointly and severally liable
for all civil penalty assessments, including stipulated penalties. 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”.
10.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondents shall
pay a stipulated penalty in the following amount:
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Paragraph |
Penalty |
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Order Paragraph No. 3 |
$250 per week late |
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Order Paragraph No. 4 |
$250 per week late |
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Order Paragraph No. 5 |
$250 per week late |
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Order Paragraph No. 6 |
$500 per week late |
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Order Paragraph No. 8 |
$250 per week late |
11.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondents receive written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant
may notify Respondents at any time that a stipulated penalty is due. Failure to notify Respondents 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 Respondents for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondents 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:
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Indiana Department of Environmental
Management |
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Office of Legal Counsel |
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IGCN, Room N1307 |
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100 North Senate Avenue |
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Indianapolis, IN 46204 |
13.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondents 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 Respondents
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 12, above.
14.
This Agreed Order shall apply to and be binding
upon Respondents and their successors and assigns. Respondents’ 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 Respondents shall in any way
alter their 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.
Respondents shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondents
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 Respondents pursuant to this Agreed Order,
shall not in any way relieve Respondents of their obligation to comply with the
requirements of their 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 Respondents’ 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
Respondents may incur as a result of Respondents’ 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 Respondents 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 Respondents.
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TECHNICAL RECOMMENDATION: |
RESPONDENTS: |
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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
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Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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By:
_________________________ |
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Printed: ______________________ |
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Title: ________________________ |
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Date: _______________________ |
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COUNSEL FOR RESPONDENTS: |
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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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DAY
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FEBRUARY,
2017. |
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For the
Commissioner: |
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Signed on
3/22/2017 |
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Peggy Dorsey |
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Deputy Assistant
Commissioner |
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Office of
Land Quality |
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