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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2020-26977-U |
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frankfort enterprises INC. DBA |
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FRIENDLY
MARKET, |
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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 IC 13-13-1-1.
2.
Respondent is Frankfort Enterprises Inc DBA
Friendly Market (“Respondent”), which owns and operates the Underground Storage
Tank (“UST”) system with Facility ID No. 7365, located at 253 W. Walnut Street,
in Frankfort, Clinton County, Indiana (“Site”).
3. Respondent owns and operates four (4)
steel USTs at the Site. The capacities of the tanks include a six thousand
(6,000) gallon tank and three (3) ten thousand (10,000) gallon tanks. The USTs
were installed on January 1, 1972.
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”) on November 23, 2020 to:
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Jupinder Singh, President |
Jupinder Singh, Registered Agent |
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Frankfort
Enterprises Inc. |
Frankfort
Enterprises Inc. |
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DBA
Friendly Market |
DBA
Friendly Market |
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5243
Grapevine Drive |
901
Kossuth Street |
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West
Lafayette, Indiana 47906 |
Lafayette,
Indiana 47905 |
6.
During an investigation including an inspection
January 23, 2020 conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 329 Indiana Administrative
Code (“IAC”) 9-2-2(b) The owner of a UST system, UST, or tank shall submit a
notification form to register the UST system, UST, or tank to the department
within thirty (30) days of becoming the owner of, or bringing into use, the UST
system, UST, or tank. Bringing "into use" means the UST system, UST,
or tank: (1) contains or has contained a regulated substance; and (2) has not
been closed under 329 IAC 9-6.
As noted during the inspection,
Respondent, as owner of the Site, failed to submit notice to IDEM within thirty
(30) days of owning the UST system. To date,
a
notification signed by Respondent as owner has not been received by IDEM.
An updated notification form was
submitted on February 17, 2021; however, there are deficiencies that need
corrected.
b. Pursuant
to IC 13-23-12-1, (a) each year the owner of an underground storage tank that
has not been closed before July 1 of any year under: (1) rules adopted under IC
13-23-1-
2; or (2) a requirement imposed by the
commissioner before the adoption of rules under IC 13-23-1-2; shall pay to the
department of state revenue an annual registration fee. (b) The annual
registration fee required by this section is as follows: (1) Ninety dollars
($90) for each underground petroleum storage tank. (2) Two hundred forty-five
dollars ($245) for each underground storage tank containing regulated
substances other than petroleum. (c) If an underground storage tank consists of
a combination of tanks, a separate fee shall be paid for each tank.
As noted
during the investigation, Respondent failed to pay an annual underground
storage tank registration fee. According to IDEM’s records, there are
outstanding underground storage tank fees for the Site.
On March
24, 2021 payment of tank fees was submitted.
c.
Pursuant
to 40 CFR 280.34, owners and operators of UST systems must cooperate fully with
inspections, monitoring and testing conducted by the implementing agency, as
well as requests for document submission, testing, and monitoring by the owner
or operator pursuant to section 9005 of Subtitle I of the Solid Waste Disposal
Act, as amended.
As noted
during the investigation, Respondent failed to cooperate fully with inspection,
monitoring and testing conducted by IDEM, as well as requests for document
submission.
d.
Pursuant
to 40 CFR 280.34(a)(3), owners and operators must submit the following information
to the implementing agency: reports of all releases including suspected
releases (§ 280.50), spills and overfills (§ 280.53), and confirmed releases (§
280.61).
As noted during the investigation,
Respondent failed to report a suspected release of petroleum to IDEM.
A suspected release was reported October
8, 2020.
e.
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 system must be tested within six (6) months of installation
and at least three (3) years thereafter or according to another reasonable
timeframe established by the implementing agency.
(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
inspection, Respondent failed to have a qualified cathodic protection tester
inspect the UST system equipped with cathodic protection.
f.
Pursuant
to 40 CFR 280.40(a)(1), owners and operators of UST systems must provide a
method, or combination of methods, of release detection that can detect a
release from any portion of the tank and the connected underground piping that
routinely contains product.
As noted
during the inspection, Respondent failed to provide a method, or combination of
methods, of release detection for the UST system.
Documentation
of release detection was provided October 13, 2020 and March 25, 2021.
g.
Pursuant
to 40 CFR 280.41(b)(1)(i)(A), pressurized underground
piping installed on or before April 11, 2016 (previously cited as September 2,
2009 under 329 IAC 9-2-1(2)(D)) that routinely contains regulated substances
must be equipped with an automatic line leak detector conducted in accordance
with § 280.44(a).
As noted during the
inspection, Respondent failed to equip the UST system with an automatic line
leak detector.
Documentation was submitted
March 25, 2021.
h.
Pursuant
to 40 CFR 280.41(b)(1)(i)(B), pressurized underground
piping installed on or before April 11, 2016 (previously cited as September 2,
2009 under 329 IAC 9-2-1(2)(D)) that routinely contains regulated substances
must have an annual line tightness test conducted in accordance with §
280.44(b) or have monthly monitoring conducted in accordance with § 280.44(c).
As noted during the
inspection, Respondent failed to conduct annual line tightness testing, or
monthly line monitoring.
Documentation was submitted
March 25, 2021.
i.
Pursuant
to 40 CFR 280.240, not later than October 13, 2018, all owners and operators of
UST systems must ensure they have designated Class A, Class B, and Class C
operators who meet the requirements of this subpart.
As noted during the
inspection, Respondent failed to designate Class A, Class B, and Class C
operators for the UST system at the Site.
Documentation was submitted October
5, 2020.
7. 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 statute and rules
listed in the findings above or any incorporated federal equivalent thereof, as
applicable.
3.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 329 IAC 9-2-2. Specifically, Respondent shall
submit to IDEM State Form 45223 to register the underground storage tanks in a
format prescribed by the commissioner.
4.
Upon the Effective Date, Respondent shall comply
with 40 CFR 280.34. Specifically, Respondent shall cooperate fully with
inspections and document submission requested by IDEM.
5.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 280.31(b). Specifically, Respondent shall have
a qualified cathodic protection tester inspect the UST system equipped with
cathodic protection.
6.
Within fifteen (15) days of completion of the
work required in Paragraph 5 above, Respondent shall provide documentation of
cathodic protection inspection results to IDEM for review.
7.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Jodi Pisula, 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 |
8.
Respondent is assessed and agrees to pay a
civil penalty of Sixteen Thousand Dollars ($16,000.00). This penalty reflects a
significant reduction from the original proposed civil penalty based upon
evidence submitted to IDEM by Respondent which adequately demonstrated
Respondent’s inability to pay the original proposed civil penalty.
Said penalty amount shall be due and
payable to the “Underground Petroleum Storage Tank Trust Fund” in twelve (12)
installments. The first eleven (11) installment payments shall be One Thousand
Three Hundred Thirty-Three Dollars ($1,333.00). The last installment payment
shall be One Thousand Three Hundred Thirty-Seven Dollars ($1,337.00). The first
installment shall be paid within thirty (30) days of the Effective Date; the 30th
day being the “Due Date”. Remaining installment payments shall be made every
thirty (30) days thereafter. Interest shall be accrued on unpaid amounts at the
rate established by IC 24-4.6-1-101.
9.
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 # 3 |
$100.00 per
week late |
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Order
paragraph #4 |
$100.00 per
week late |
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Order paragraph
#5 |
$100.00 per
week late |
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Order
paragraph #6 |
$100.00 per
week late |
10.
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.
11.
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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Accounts Receivable |
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IGCN, Room 1340 |
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100 North Senate Avenue |
12.
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 11, above.
13.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
14.
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.
15.
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.
16.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
17.
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.
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 the
obligation to comply with the requirements of any applicable permits or any
applicable Federal or State laws or regulations.
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 violations specified in the NOV.
21.
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.
22.
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 |
Frankfort
Enterprises Inc. DBA Friendly Market |
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By:
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By: _________________________ |
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Jennifer Reno, Chief |
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Land Enforcement Section |
Printed:
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Office of Land Quality |
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Title:
________________________ |
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Date:
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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 THIS |
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For
the Commissioner: |
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Signed 4/22/2021 |
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Peggy
Dorsey |
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Assistant
Commissioner |
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Office
of Land Quality |
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