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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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v. |
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Case No. 2017-24458-U |
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SEYMOUR 2120
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 Seymour 2120 LLC (“Respondent”), that
owns and/or operates the Underground Storage Tank (“UST”) system, with UST
Facility ID No. 4858 and LUST Incident Nos. 200308527 and 200708509, located at
2120 E. Tipton Street, Parcel No. 36-66-15-300-015.001-009,
in Seymour, Jackson County, Indiana
(“Site”).
3.
Respondent owns three (3) steel USTs and a
fiberglass UST at the Site. The
capacities of the USTs are approximately two (2) ten thousand (10,000) gallon
steel tanks, one (1) five thousand (5,000) gallon steel tank, and a ten
thousand (10,000) gallon fiberglass tank.
The three (3) steel USTs were reportedly brought into use in 1965, and
the fiberglass tank was installed in 1989.
4.
Respondent owns the real property that is the
UST site. According to Indiana Property
Record Card, Parcel Number 36-66-15-300-015.001-009, located at 2120 E. Tipton
Street in Seymour, Jackson County, belongs to Seymour 2120 LLC.
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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Baldev Singh, UST Owner |
Baldev Singh,
Registered Agent |
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6755 Robin
Hood Court |
Deep Oil
Inc. |
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Indianapolis,
Indiana 46227 |
3055
Generation Way |
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Greenwood,
Indiana 46143 |
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Manjit Singh Nagra, Manager |
Manjit Singh Nagra, Registered Agent |
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Seymour 2120
LLC |
Seymour 2120
LLC |
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11802 Bills
Avenue |
6979 Hillsdale
Court |
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Fishers,
Indiana 46037 |
Indianapolis,
Indiana 46250 |
8.
Based on an investigation including an
inspection conducted on February 23, 2017, by a representative of IDEM, the following
violations were found:
a. Pursuant to 329 Indiana Administrative
Code (“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 perform corrosion protection testing for the steel UST
system 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 substances, there is no record of corrosion
protection testing for the UST system at the Site.
b. Pursuant to 329 IAC 9-7-2(1), the owner
and operator of a petroleum UST system shall provide release detection for tanks
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. Respondent have not submitted any
record of monthly release detection testing for the UST system.
c.
Pursuant to 329
IAC 9-7-2(2)(A), underground piping that conveys
regulated substances under pressure must: (i) be
equipped with an automatic line leak detector under section 5(1) of 329 IAC
9-7; and (ii) have an annual line tightness test conducted under 5(2) of 329
IAC 9-7 or have monthly monitoring conducted under section 5(3) of 329 IAC 9-7.
As noted
during the inspection, Respondent failed to perform either an annual line
tightness testing or a monthly release detection testing on the underground
piping. There are no records of an annual
line tightness testing or a monthly release detection testing on the
underground piping.
d.
Pursuant to 329 IAC 9-2-2, (a) all
notifications required to be submitted under this section must be submitted on
a form and in a format 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 has 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 investigation, Respondent as owner
of the real property that is the UST Site and the UST, failed to submit notice
to IDEM on the form prescribed by the
commissioner within thirty (30) days of owning the UST system. A Violation Letter issued to Respondent on March
9, 2017 required Respondent to fill out and submit to IDEM, a complete copy of
State Form 45223, Notification for Underground Storage Tank Form, within thirty
(30) days of receipt of the Violation Letter.
To date, no notification on State Form 45223 signed by Respondent has
been received by IDEM.
e.
Pursuant to 329 IAC 9-3-1(a), the owner and
operator of an UST system shall cooperate fully with inspections as well as the
requests for document submissions.
As noted
during the investigation, a Violation Letter issued to Respondent on March 9,
2017 required that a completed copy of State Form 45223, Notification for
Underground Storage Tank Form, be submitted within thirty (30) days of receipt
of the Violation Letter. To date, no
notification on State Form 45223 signed by Respondent
has been received by IDEM.
f.
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 investigation, Respondent 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. Respondent failed to make such records
available to IDEM at the time of the inspection and did not respond to the
Violation Letter dated March 9, 2017 requesting the records.
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.
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.
3.
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.
4.
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.
5.
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).
6.
All submittals required by this Agreed Order,
unless Respondent is 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 |
7.
Respondent is assessed and agrees to pay a
civil penalty of Ten Thousand Dollars ($10,000). 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”.
8.
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 #2 |
$500 per week late |
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Order Paragraph #3 |
$100 per week late |
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Order Paragraph #4 |
$100 per week late |
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Order Paragraph #5 |
$200 per week late |
9.
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.
10.
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 |
11.
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.
12.
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.
13.
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.
14.
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.
15.
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 their applicable permits or any applicable Federal or State law
or regulation.
16.
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.
17.
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.
18.
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.
19.
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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COUNSEL FOR RESPONDENT: |
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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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For the
Commissioner: |
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Signed on 1/31/2018 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
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