Case No. 2018-25239-U





Mac’s convenience stores LLc,















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.




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 Mac’s Convenience Stores LLC (“Respondent”), which owns/operates the facility with Facility ID No. 9933, located at 901 East Bradford Street, in Marion, Grant County, Indiana (“Site”).


3.            Respondent owns/operates one (1) eight thousand (8,000) gallon gasoline underground storage tank (UST) and two (2) six thousand (6,000) gallon gasoline USTs. The tanks are steel construction with an interior lining and were installed in 1971.


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 Darrel Davis, President of Mac’s Convenience Stores LLC and Corporation Service Company, Registered Agent for Mac’s Convenience Stores LLC.


6.            All rule citations herein refer to the rule in effect at the time of the inspection unless otherwise noted.


7.            During an investigation, including an inspection conducted by a representative of IDEM, the following violation was found:


a.         Pursuant to 329 Indiana Administrative Code (“IAC”) 9-2.1-1(b)(2)(B), if a steel tank is upgraded by internal lining, within one (1) year after lining and every five (5) years thereafter, the lining and tank must be internally inspected and found to be structurally sound with the lining and tank still performing in accordance with requirements under 329 IAC 9-3.1-4.


Respondent failed to submit documentation missing from the July 7, 2017 video inspection conducted to verify the integrity of the lined USTs.


Respondent conducted video inspections of tank number one, two, and three on August 28, 2018 and submitted the results for IDEM review on October 3, 2018.


The liner inspection was determined to be invalid due to an error in the age of the tanks. On January 23, 2019, IDEM requested that Circle K correct the calculation and resubmit the data. The UST assessment was resubmitted on May 7, 2019. Based on the report, the USTs were determined to be beyond the median age for failure, but with a low leakage potential. Tank Tech recommended conducting an internal inspection. On May 17, 2019, internal tank inspections were performed and the tanks were reported to meet the requirements. Tank Tech is assembling a report for IDEM review.


8.         In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed 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.            329 Indiana Administrative Code (“IAC”) 9, effective June 28, 2018, incorporates certain federal underground storage tank requirements found in 40 Code of Federal Regulations (“CFR”) Part 280, including those identified below.


3.            Within sixty (60) days of the Effective Date, Respondent shall submit a final report with the results of the internal tank inspections conducted on May 17, 2019.


4.            If the UST liners are not performing in accordance with the original design specifications and cannot be repaired in accordance with a recognized code of practice, as required by 40 CFR 280.21, then Respondent shall complete the following actions outlined in Order paragraphs five (5) through eight (8).


5.            Within one hundred twenty (120) days of the Effective Date, Respondent shall permanently close the underground storage tanks in accordance with the requirements of 329 IAC 9-6-2.1 through 329 IAC 9-6-4, including the applicable requirements for corrective action under 329 IAC 9-5-1 through 329 IAC 9-5-8.


6.            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.


7.            At least fourteen (14) 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.


8.            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).


9.            All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:


Amy Elliott, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251


10.         Respondent is assessed and agrees to pay a civil penalty of two thousand eight hundred dollars ($2,800.00). 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”.


11.         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

$100.00 per month late

Order paragraph # 5

$500.00 per month late, if applicable

Order paragraph # 6

$250.00 per month late, if applicable

Order paragraph # 8

$500.00 per month late, if applicable


12.         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.


13.         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


14.         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 13, above.


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


16.         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.


17.         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.


18.         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.


19.         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.


20.         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.


21.         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.


22.         This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.




Department of Environmental Management




By: _________________________

By:  _________________________


Linda M. McClure, Section Chief



Enforcement Section

Printed: ______________________

Office of Land Quality



Title: ________________________



Date: __________________

Date: _______________________












By: ________________________







Date: ______________________






________________________, 20_____.



For the Commissioner:




____Signed 7/16/19_______________


Peggy Dorsey, Assistant Commissioner


Office of Land Quality