STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

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. 2020-26925-U

 

 

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EPP-Atlas Acquisition 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 Indiana Code (“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 EPP-Atlas Acquisition LLC (“Respondent”), which owns/operates Quick Mart 2 #25 with Facility ID No. 2824, located at 128 W Main Street, in Gas City, Grant County, Indiana (“Site”).

 

3.            Respondent has four (4) steel underground storage tanks (“UST”). Two (2) ten thousand (10,000) gallon gasoline UST’s installed on June 15, 1984, one (1) four thousand (4,000) gallon gasoline UST installed on September 1, 1986, and one (1) two thousand (2,000) gallon kerosene UST installed on October 1, 1985.

 

4.            IDEM Petroleum Branch issued a Violation Letter to Respondent on November 7, 2019.  Respondent failed to respond to the Violation Letter.

 

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. According to the Grant County Assessor’s Office, Respondent EPP-Atlas Acquisition LLC is deeded owner of the property.

 

6.         IDEM has jurisdiction over the parties and the subject matter of this action.

 

  1. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) to:

 

EPP-Atlas Acquisition LLC

CT Corporation Systems,

Attn: Dennie Mathes,

Registered Agent for

Corporate Director of

EPP-Atlas Acquisition LLC

Environmental Compliance

334 North Senate Avenue

8350 N. Central Expressway, Ste M2185

Indianapolis, IN 46204

Dallas, TX 75206

 

 

 

EPP-Atlas Acquisition LLC

EPP-Atlas Acquisition LLC

Attn: Dennie Mathes

% Southwest Property Tax

Via email:

PO Box 5037

dmathes@empirepetroleum.com

Granbury, TX 76049

 

  1. During an investigation including an inspection on October 22, 2019, conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to Indiana Administrative Code (“IAC”) Pursuant to 329 IAC 9-2-2(c), an owner required to submit a notification under this section shall provide:

(1)       a notification for each UST owned;

(2)       complete information required on the form for each UST owned; and

(3)       if applicable, a separate notification form for each separate place of operation at which the USTs are located.

 

As noted during the October 22, 2019 inspection and in the November 7, 2019 Violation Letter, Respondent has not updated the State Form 45223 Notification for Underground Storage Tanks.  Respondent needs to update the corrosion protection method which needs to be changed to galvanic for the tanks and the overfill protection device for the kerosene UST needs updated to show a flapper valve was installed.

 

The Notification for the Underground Storage Tanks was submitted on 11/05/2020 and 12/23/2020. IDEM issued a Notification Letter Approval letter dated 02/10/2021.

 

b.         Pursuant to 329 IAC 9-8-11(a) & (b), an owner or operator may satisfy the financial responsibility requirements of section 4 of this rule by participation in the excess liability trust fund under 328 IAC 1. Reimbursement from the fund is determined by compliance with 328 IAC 1.

(b)       An owner or operator of:

(1)       twelve (12) or fewer USTs shall demonstrate the ability to pay the applicable deductible amount under IC 13-23-9-1.3; or

(2)       more than twelve (12) USTs shall demonstrate the ability to pay two (2) times the applicable deductible amount under IC-13-23-9-1.3.

 

As noted during the October 22, 2019 inspection and in the November 7, 2019 Violation Letter, Respondent has not submitted to IDEM a financial responsibility mechanism.  A certificate of liability was obtained on-site, but it was outdated.

 

The Notification for the Underground Storage Tanks was submitted on 11/05/2020 and 12/23/2020. IDEM issued a Notification Letter Approval letter dated 02/10/2021.

 

c.            Pursuant to 40 CFR 280.20(c)(1)(i), to prevent spilling and overfilling associated with product transfer to the UST system, owners and operators must use the following spill and overfill prevention equipment:

(i)            Spill prevention equipment that will prevent release of product to the environment when the transfer hose is detached from the fill pipe (for example, a spill catchment basin).

 

As noted during the October 22, 2019 inspection and in the November 7, 2019 Violation Letter, the spill buckets for all four (4) UST systems were corroded. The UST inspector was unable to verify that the spill buckets would contain a spill or release in the event of an overfill.

 

Based on an invoice submitted via electronic mail on 09/15/2020 dated 02/14/2020 the spill buckets for all four (4) UST systems have been replaced.

 

d.            Pursuant to 40 CFR 280.31(b), all UST systems equipped with cathodic protection systems must be inspected for proper operation by a qualified cathodic protection tester in accordance with the following requirements:

(1)       Frequency. All cathodic protection systems must be tested within 6 months of installation and at least every 3 years thereafter or according to another reasonable time frame established by the implementing agency; and

(2)       Inspection criteria. The criteria that are used to determine that cathodic protection is adequate as required by this section must be in accordance with a code of practice developed by a nationally recognized association.

 

As noted during the October 22, 2019 inspection and in the November 7, 2019 Violation Letter, Respondent was not able to provide galvanic corrosion protection testing results for the four (4) UST systems.  The liner inspection results for the four (4) USTs are invalid.

 

On September 15, 2020, Respondent submitted via electronic mail cathodic protection tests for all four (4) UST systems.

 

e.            Pursuant to 40 CFR 280.40(a)(2), owners and operators of UST systems must provide or a combination of methods, of release detection that is installed and calibrated in accordance with the manufacturer’s instructions.

 

As noted during the inspection and in the November 7, 2019 Violation Letter, Respondent needs to perform a functionality test on the automatic tank gauge. The volume and ullage calibrations print out shows the automatic tank gauge is not programmed correctly.  Respondent also needs to provide verification that the ball float valve was properly removed on the kerosene UST system.

 

On September 15, 2020, Respondent submitted via electronic mail functionality test on the automatic tank gauge and documented based on an invoice dated 02/14/2020 that the ball float valve on the kerosine tank has been removed.

 

9.         Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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.            Respondent shall comply with the rules listed in the findings of fact above.

 

3.            Within thirty (30) days of the Effective Date, Respondent shall submit to IDEM documentation of financial responsibility.

 

4.            Within thirty days (30) of the Effective Date, Respondent shall comply with 40 CFR 280.40(a)(2).  Specifically, Respondent has performed a functionality test on the automatic tank gauge (“ATG”) however the ATG programming volume of the kerosene was an exact number which it should not be. Respondent needs to have the volume of the kerosene tank programmed in accordance with the tank chart.  Respondent shall submit to IDEM documentation within ten (10) days of completion.

 

5.            Within thirty (30) days of the Effective Date, Respondent shall submit to IDEM a copy of the 60 day rectifier log for the last 6 months.

 

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

 

Christina Halloran, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.            Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Thirty-Three Thousand Four Hundred Forty Dollars ($33,440).  Respondent shall pay by the due date printed on the invoice, as attached.

 

Civil and stipulated penalties are payable to the “Underground Petroleum Storage Tank Trust Fund” by:

 

Mail:

Civil penalties are payable by check to the or “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

 

Online:

Accounts Receivable is accepting payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM. Under Online Services, click Online Payment options and follow the prompts. A processing fee of $1 plus 1.99% will be charged for credit card payments.  A processing fee of $1.00 will be charged for eCheck payments.

 

The Case Number is required to complete the process.

 

Phone:

You may also call us at 317-234-3099 and follow the instructions for Master Card, Visa or Discover payments. A processing fee of $1 plus 1.99% will be charged for credit card payments.  A processing fee of $1.00 will be charged for eCheck payments.

 

The Case Number is required to complete the process.

 

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:

 

Paragraph

Penalty

Order paragraph # 3

$100 per week

Order paragraph # 4

$100 per week

Order paragraph # 5

$100 per week

 

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:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

 

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 Environmental Management Special Fund and shall be payable to IDEM in the manner specified in Paragraph 9, above.

 

12.         Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

 

13.         This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

 

14.         No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

 

15.         Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of 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.         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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

 

18.         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.

 

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 violations specified in the NOV.

 

20.         Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 U.S. EPA or any other agency or entity.

 

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

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

 

By: ___________

By:  _________________________

 

Jennifer Reno, Section Chief

 

 

Land Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date: ________________

Date: _______________________

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

By: ________________________

 

 

 

 

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

_________

DAY OF

________________________,

20__.

 

 

For the Commissioner:

 

 

 

Signed 03/11/22 By:

 

Peggy Dorsey, Assistant Commissioner

 

Office of Land Quality