STATE OF
INDIANA |
) |
SS: |
BEFORE THE
INDIANA DEPARTMENT OF |
||||
|
) |
|
|
||||
COUNTY OF
MARION |
) |
|
ENVIRONMENTAL
MANAGEMENT |
||||
|
|||||||
COMMISSIONER
OF THE DEPARTMENT |
) |
|
|||||
OF
ENVIRONMENTAL MANAGEMENT, |
|
) |
|
||||
|
|
) |
|
||||
Complainant, |
|
) |
|
||||
|
|
) |
|
||||
|
v. |
|
) |
Case No. 2020-26925-U |
|||
|
|
) |
|
||||
EPP-Atlas Acquisition LLC |
|
) |
|
||||
|
|
) |
|
||||
Respondent. |
|
) |
|
||||
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.
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 |
Granbury,
TX 76049 |
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.
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 |
||||