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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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Case No. 2017-24272-U |
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JIT REAL ESTATE INVESTMENT INC, |
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JIT INDIANA
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HERDRICH PETROLEUM CORP., |
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Respondent, |
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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 JIT Indiana LLC, JIT Real
Estate Investment Inc., and Herdrich Petroleum Corp.,
(“Respondents”), which own/operate the Underground Storage Tank (“UST”) system,
with UST Facility ID No. 227, located at 1107 N. Lincoln Street, in Greensburg,
Decatur County, Indiana (“Site”).
3. The Site has one (1) 12,000 gallon and
two (2) 10,000 gallon steel STiP3 gasoline tanks, and one (1) 6,000 gallon steel
STiP3 kerosene tank, all of which were installed November 3, 1995.
4.
Respondent Herdrich
Petroleum Corp owned the real property that is the UST site at the time the
Notice of Violation was issued.
According to Indiana Property Record Card, Parcel Number 16-11-02-110-024.000-016,
located at 1107 N. Lincoln Street in Greensburg, Decatur County, belonged to Herdrich Petroleum Corp. The Decatur County Recorder
recorded a Memorandum of Land Contract between Herdrich
Petroleum Corp and JIT Real Estate Investment Inc. The Memorandum of Land Contract executed on
April 15, 2014 specified the terms and conditions of the Land Contract. According to a Notification for Underground
Storage Tanks form (State Form 45223) received by IDEM on April 16, 2015, Respondent
JIT Real Estate Investment Inc. owned the real property that is the UST Site. On November 16, 2017, Herdrich
Petroleum Corp Quitclaim Deeded the property to JIT
Real Estate Investment, Inc.
5.
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.
6.
IDEM has jurisdiction over the parties and the
subject matter of this action.
7.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (NOV) via Certified Mail to:
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Balwinder Singh,
Registered Agent |
Balwinder Singh,
Registered Agent |
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JIT
Real Estate Investment Inc. |
JIT
Indiana LLC |
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2965
Heirloom Lane |
2965
Heirloom Lane |
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Greenwood,
IN 46143 |
Greenwood,
IN 46143 |
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William
J. Herdrich, Registered Agent |
William
J. Herdrich, President |
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Herdrich Petroleum Corp |
Herdrich Petroleum Corp. |
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296
E. Riverside Dr. |
210
East US 52 STE. E. |
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Rushville,
IN 46173 |
Rushville,
IN 46173 |
8.
During an investigation including an inspection
on December 6, 2016, conducted by a representative of IDEM, the following violations
were found:
a. 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,
Respondents failed to perform corrosion protection for the steel UST system at
the Site to ensure that releases due to corrosion are prevented. The facility has been out of use for an
unknown period of time. While all USTs
contained quantities of regulated product, there is no record of corrosion
protection testing for the UST system at the Site.
b. Pursuant to 329 IAC 9-3-1(d), the owner and operator shall maintain the
records required at: (1) the underground storage tank site and immediately
available for inspection by the agency; or (2) a readily available alternative
site and be provided for inspection to the agency upon request.
As noted
during the inspection, Respondents failed to maintain the records required at
the underground storage tank site, or a readily available alternative
site. IDEM requested for inspection,
records of corrosion protection testing and release detection testing, which
are records required at the site or a readily available alternative site. Respondents failed to make such records
available to IDEM at the time of the inspection and did not respond to the
Violation Letter dated December 12, 2016, requesting the records.
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 329 IAC 9-7.
As noted
during the inspection, Respondents failed to perform an appropriate method of
monthly release detection for the underground storage tank system at the Site. There were dispensers located at the
facility, but they were all Red Tagged by the Department of Weights and
Measures. The store building is vacant
and the electric meter does not appear to be on. Electric power is generally required for
proper operation of Automatic Tank Guage.
9.
Respondents submitted passing tank tightness
test for the three (3) 10,000 gallon gasoline tanks, but the one (1) 6,000
gallon kerosene tank failed.
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.
Within thirty (30) days of the Effective Date,
Respondents JIT Indiana LLC and JIT Real Estate Investment Inc. shall conduct
line tightness testing for the kerosene tank and submit the results to IDEM.
3.
Within thirty (30) days of the Effective Date, if
not already submitted to IDEM then Respondents JIT Indiana LLC and JIT Real
Estate Investment Inc. shall submit the last twelve (12) months of the UST
system release detection test results to IDEM.
4.
Within thirty (30) days of the Effective Date, if
not already submitted to IDEM then Respondents JIT Indiana LLC and JIT Real
Estate Investment Inc. shall submit the last two (2) cathodic protection test
results for the UST system to IDEM.
5.
Within thirty (30) days of the Effective Date, if
the test results for the past year have not already been submitted to IDEM then
Respondents JIT Indiana LLC and JIT Real Estate Investment Inc. shall have the
corrosion protection system on its UST system fully inspected by a qualified
cathodic protection tester and submit the results to IDEM.
6.
If Respondents JIT Indiana LLC and JIT Real
Estate Investment Inc. cannot comply with the requirements of Order paragraphs
two (2) through five (5), then Respondents JIT Indiana LLC and JIT Real Estate
Investment Inc. shall comply with the requirements of Order paragraphs seven
(7) through ten (10).
7.
Within sixty (60) days of the Effective Date, Respondents
JIT Indiana LLC and JIT Real Estate Investment Inc. 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.
8.
At least thirty (30) days before beginning
closure, Respondents JIT Indiana LLC and JIT Real Estate Investment Inc. 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.
9.
At least seven (7) days prior to scheduled
closure activities, Respondents JIT Indiana LLC and JIT Real Estate Investment
Inc. 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.
10.
Within thirty (30) days of closing the UST
system, Respondents JIT Indiana LLC and JIT Real Estate Investment Inc. shall
submit a closure report to IDEM which shall include the notification form
required by 329 IAC 9-2-2(a).
11. All submittals required by this Agreed
Order, unless Respondents JIT Indiana LLC and JIT Real Estate Investment Inc. are
notified otherwise in writing by IDEM, shall be sent to:
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Janet Arnold, Technical Environmental
Specialist |
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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 |
12. Respondents are assessed and agree to pay a
civil penalty of Twenty-Five Thousand Dollars ($25,000.00). 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 in four (4)
installments. The first installment of
Six Thousand Two Hundred and Fifty Dollars ($6,250.00) shall be paid within
ninety (90) days of the Effective Date; the 90th day being the “Due
Date”. Subsequent installments of Six
Thousand Two Hundred and Fifty Dollars ($6,250.00) shall be paid one hundred
and eighty (180) days of the Effective Date, two hundred and seventy (270) days
of the Effective Date, and three hundred and sixty (360) days of the Effective
Date.
13. In the event the terms and conditions of
the following paragraphs are violated, Complainant may assess and Respondents
JIT Indiana LLC and JIT Real Estate Investment Inc. shall pay a stipulated penalty
in the following amount:
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Order
Paragraph 2 |
$250
per week late |
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Order
Paragraph 3 |
$250
per week late |
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Order
Paragraph 4 |
$250
per week late |
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Order
Paragraph 5 |
$250
per week late |
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Order
Paragraph 7 |
$500
per week late |
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Order
Paragraph 8 |
$100
per week late |
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Order
Paragraph 9 |
$100
per week late |
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Order
Paragraph 10 |
$250
per week late |
14. Stipulated penalties shall be due and
payable no later than the 30th day after Respondents JIT Indiana LLC
and JIT Real Estate Investment Inc. receive written notice that Complainant has
determined a stipulated penalty is due; the 30th day being the “Due
Date”. Complainant may notify Respondents
JIT Indiana LLC and JIT Real Estate Investment Inc. at any time that a
stipulated penalty is due. Failure to
notify Respondents JIT Indiana LLC and JIT Real Estate Investment Inc. 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 JIT Indiana LLC and JIT Real
Estate Investment Inc. for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against Respondents
JIT Indiana LLC and JIT Real Estate Investment Inc. 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.
15. 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 |
16. 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 15, above.
17. This Agreed Order shall jointly and
severally apply to and be binding upon Respondents 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of
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By:
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Nancy
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COUNSEL FOR RESPONDENT: |
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RESPONDENT: |
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By: _________________________ |
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COUNSEL FOR RESPONDENT: |
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RESPONDENT: |
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COUNSEL FOR RESPONDENT: |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For the
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Signed
August 7, 2018 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
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