Case No. 2018-25658-U





irving j. sherman revocable




trust, s & r sunshine inc., and




kwick mart one llc,















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.




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 Irving J. Sherman Revocable Trust, S & R Sunshine Inc., and Kwick Mart One LLC (“Respondents”), which own and/or operate the facility with Facility ID No. 3623, located at 1731 East 52nd Street, in Indianapolis, Marion County, Indiana (“Site”).


3.         Respondents own and/or operate two ten thousand (10,000) gallon gasoline USTs. The tanks were installed in 1979 and are steel construction.


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 Surmukh Singh, President and Registered Agent for S & R Sunshine Inc.; John Hamburger, manager of real estate for the Irving J. Sherman Revocable Trust; Parshotam Sandhu, manager of Kwick Mart One LLC; and Patrick Rooney, Registered Agent for Kwick Mart One 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 Marion County Assessor’s Office, Respondent Irving J. Sherman Revocable Trust is the owner of the Site.


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


8.            During an investigation, including an inspection conducted by a representative of IDEM, the following violations were found:


a.         Pursuant to 329 Indiana Administrative Code (“IAC”) 329 IAC 9-2.1-1(b)(2)(B), tanks upgraded by internal lining must meet the following: Within 10 years after lining, and every 5 years thereafter, the lined tank is internally inspected and found to be structurally sound with the lining still performing in accordance with original design specifications.


As noted during the inspection on May 17, 2018, Respondents failed to provide UST internal liner inspection documentation.


            The UST liners were inspected on September 13, 2018 and determined to be performing in accordance with the original design specifications.


b.         Pursuant to 329 IAC 329 IAC 9-2.1-1(c), metal piping that routinely contains regulated substances and is in contact with the ground must be cathodically protected in accordance with a code of practice developed by a nationally recognized association or independent testing laboratory.


As noted during the inspection on May 17, 2018, Respondents failed to repair or replace dispenser piping boots. Steel piping containing a regulated substance is in contact with the ground and must be cathodically protected.


On September 28, 2018, zipper boots were installed around dispenser flex connectors to prevent contact with the soil.


c.            Pursuant to 329 IAC 9-8-4(a), an owner or operator of a petroleum underground storage tank shall demonstrate financial responsibility for taking corrective action and for compensating third parties.


As noted during the inspection on May 17, 2018, Respondents failed to provide financial responsibility documentation.


d.            Pursuant to 329 IAC 329 IAC 9-3-1(a), the owner and operator of an UST shall cooperate fully with inspections, monitoring, and testing conducted by the agency, as well as requests for document submissions, testing, and monitoring.


Respondents failed to cooperate and provide documentation requested during the UST inspection conducted on May 17, 2018. Documentation includes an updated UST notification form, tank liner inspection results, dispenser piping boot repair documentation, and financial responsibility documentation.


On November 5, 2018, Respondents provided UST liner inspection and piping boot repair documentation to IDEM for review. An updated UST notification form was submitted July 29, 2019. Subsequently, a notice of deficiency was issued on August 27, 2019 and indicated the following information was either missing or invalid:


·                     Piping manufacturer/model

·                     Catchment basin manufacturer/model

·                     Auto shutoff manufacturer/model/type

·                     UST operator section

·                     Tank manufacturer

·                     UST owner section

·                     Tank model

·                     Submersible turbine pump manufacturer/model


9.         In recognition of the settlement reached, Respondents waive 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.


2.            Within fourteen (14) days of receipt of the Notice of Deficiency (NOD) for UST System Notification issued August 27, 2019, Respondents shall submit a corrected Notification for Underground Storage Tanks form to IDEM for review.


3.            Within thirty (30) days of the Effective Date, Respondents shall comply with 329 IAC   9-8-4(a). Specifically, Respondents shall submit financial responsibility documentation to IDEM for review.


4.         All submittals required by this Agreed Order, unless Respondents are 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


5.         Respondents are assessed and agree to pay a civil penalty of one thousand one hundred twenty dollars ($1,120.00). 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) quarterly payments. The first payment of two hundred eighty dollars ($280.00) shall be due and payable within thirty (30) days of the Effective Date; the 30th day being the “Due Date”. Each subsequent payment of two hundred eighty dollars ($280.00) shall be due and payable on a quarterly basis thereafter.


6.         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:




Order paragraph # 3

$250 per month late

Order paragraph # 4

$250 per month late


7.         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.


8.         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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204


9.            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 8, above.


10.         This Agreed Order shall jointly and severally 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.


11.         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.


12.         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.


13.         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.


14.         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.


15.         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.


16.         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.


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




Department of Environmental Management




By: _________________________

By:  _________________________


Linda L. McClure, Section Chief



Enforcement Section

Printed: ______________________

      Office of Land Quality



Title: ________________________

Date: __________________



Date: _______________________








By: _________________________




Date: ________________________









______________________, 20____.



For the Commissioner:




Signed 10/1/19


Peggy Dorsey, Assistant Commissioner


Office of Land Quality