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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
MANAGEMENT |
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No. 2020-27105-U |
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Gas City Foodmart Inc., Friendly |
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stop LLC, and Harjot and |
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lakhwinder singh, |
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Respondents. |
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AGREED ORDER
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 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. 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.
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, Gas City Foodmart Inc., owns the Underground Storage Tank (“UST”)
systems with UST Facility ID #3200, located at 701 E. Main St., Gas City, Grant
County, Indiana, parcel #27-07-34-103-172.000-018 (the “Site”).
3. Respondent, Friendly Stop LLC, operates
the UST systems located at the Site. There are three (3) fiberglass USTs: one (1) 15,000-gallon gasoline, one (1)
4,000-gallon gasoline, and one (1) 4,000-gallon diesel all installed on July
31, 2013.
4. 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, Respondents, Harjot
and Lakhwinder Singh, are the owners of the Site.
5. IDEM has jurisdiction over the parties
and the subject matter of this action.
6. Pursuant to IC 13-30-3-3, IDEM issued a
Notice of Violation (“NOV”) via USPS to:
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Harjot Singh, President and Registered Agent
for |
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Gas
City Foodmart Inc. |
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4020
Joshua Drive |
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Marion,
Indiana 46953 |
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Gas
City Foodmart Inc., UST Owner |
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4020
Joshua Drive |
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Marion,
Indiana 46953 |
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Gautam
Patel, Registered Agent for |
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Friendly
Stop LLC |
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13256
Mink Lane |
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Carmel,
Indiana 46074 |
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Friendly
Stop LLC, UST Operator |
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701
East Main Street |
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Gas
City, Indiana 46933 |
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Harjot and Lakhwinder
Singh, Property Owners |
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4020
Joshua Drive |
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Marion,
Indiana 46953 |
7. During an investigation including an
inspection on October 22, 2019 conducted by a representative of IDEM, the
following violations were found:
a. Pursuant to 329 Indiana Administrative Code
(“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 inspection,
Respondents failed to submit a correct and complete notification form.
An updated notification form was
submitted on March 10, 2020; however, deficiencies were noted, and a Notice of
Deficiency was sent on April 13, 2020.
To date, IDEM has not received a corrected notification form.
b. Pursuant to 329 IAC 9-8-11(a) and (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 inspection,
Respondents did not demonstrate the ability to pay the appropriate deductible amount
or otherwise comply with 329 IAC 9-8-4.
On December 13, 2019, Respondents
submitted documentation to comply with 329 IAC 9-8-4.
c. Pursuant to 329 IAC 9-3-1.3 (effective
September 2, 2009 through June 27, 2018), the owner and operator of an UST
system shall have all newly installed tanks and piping
or all replaced tanks and piping interstitially monitored through a method that
meets the requirements under 329 IAC 9-2-1.1(b)(1)(A) and 329 IAC 9-7-4(7) for
tanks and 329 IAC 9-2-1.1(b)(2)(A) and 329 IAC 9-7-5 for piping. Pursuant to 329
IAC 9-1-1 and 40 CFR 280.41(a), tanks must be monitored for releases at least
every thirty (30) days. Pursuant to 329 IAC 9-1-1 and 40 CFR 280.41(b), piping
must also be monitored for releases.
As noted during the inspection, no
interstitial monitoring records from October 2018 through September 2019 for
the tanks and piping were available.
d. 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 inspection, the
regular UST spill bucket was observed to have been hit by a vehicle and showed
damages which could prevent the spill bucket from performing as designed in the
event of an overfill.
On February 4, 2020, documentation of
repairs to the regular UST spill bucket was submitted.
e. Pursuant to 329 IAC 9-1-1 and 40 CFR
280.41(b)(1)(i)(A), pressurized underground piping
installed on or before December 26, 2018 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, no current
line leak detector test report was available.
On June 5, 2020, Respondents submitted
line leak detector and tank tightness test reports for all USTs and piping.
f. 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, Class A,
Class B, and Class C training certificates were not available.
On November 12, 2019, Class B and Class
C operator certificates were submitted.
On March 24, 2020, the Class A operator certificate was submitted.
g. Pursuant to 329 IAC 9-5-5.1(a), in
accordance with IC 13-12-3-2, the owner and operator shall assemble information
about the Site and the nature of the release, including information gained
while confirming the release or completing the initial response and abatement
measures in sections 2 and 3.2 of this rule.
As noted during the inspection,
Respondents failed to submit the initial response information regarding the
release at the Site.
8. 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, Respondents acknowledge notice of this right and
waive 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 Respondents. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondents shall comply with the rules listed
in the findings above.
3.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 329 IAC 9-2-2(c). Specifically, Respondents shall
download and submit the “Notification
Form for Underground Storage Tanks,” State Form from the IDEM webpage: https://www.in.gov/idem/5157.htm,
under “Underground Storage Tank (UST) Program.”
Once downloaded the form may be completed on-line or by hand and emailed
to USTRegistration@idem.in.gov. The completed form will not be accepted by
mail.
4.
Within thirty (30) days of the Effective Date, to
correct the violations alleged in Finding of Fact 7.c above, Respondents shall
comply with the substantive requirements of 40 CFR 280.41(a)(2) and (b)(2).
Specifically, Respondents shall perform tank tightness testing on the USTs, and
submit to IDEM. Respondents shall also
perform interstitial release detection on the USTs and associated piping and submit
the results to IDEM on
a monthly basis for six (6)
months compliance monitoring.
5.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 329 IAC 9-5-5.1(a). Specifically, Respondents
shall have an Initial Site Characterization (“ISC”) performed at the site and
submit an ISC report to IDEM.
6. All submittals required by this Agreed
Order, unless Respondents are 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 |
7. Respondents are assessed and agree to
pay a civil penalty of Nine Thousand One Hundred Dollars ($9,120.00). 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 twelve (12) installments.
The monthly installment payments shall be Seven Hundred Sixty Dollars ($760.00)
each. The first installment shall be paid within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”, and the remaining
payments shall be made every thirty (30) days thereafter. Interest shall accrue
on unpaid amounts at the rate established by IC 24-4.6-1-101.
8. 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:
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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 |
$500.00 per
week late |
9. Stipulated penalties shall be due and
payable no later than the thirtieth day after Respondents receive written notice that Complainant has determined a
stipulated penalty is due; the thirtieth 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 a
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. Respondents
are jointly and severally liable for all stipulated penalty assessments.
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:
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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 |
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Indianapolis,
IN 46204 |
11. 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 10, 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 jointly and severally apply to and be
binding upon Respondents and all
successors and assigns. Respondents
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 Respondents
shall in any way alter the Respondents’ status
or responsibilities under this Agreed Order.
15. Respondents 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 Respondents pursuant to this Agreed Order, shall
not in any way relieve Respondents
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 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.
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 Respondents 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
Respondents.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
Gas City Foodmart Inc., UST Owner |
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By: _________________________ |
By:
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Jennifer
Reno, Chief |
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Land Enforcement
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Compliance
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Title: ________________________ |
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Office of
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR
RESPONDENT: |
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By: ________________________ |
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Date: ______________________ |
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RESPONDENT: |
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Friendly
Stop LLC, UST Operator |
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By:
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Printed: ______________________ |
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Title: ________________________ |
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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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RESPONDENT: |
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Harjot Singh, Property Owner |
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By:
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Printed: ______________________ |
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Title: ________________________ |
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Date: _______________________ |
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COUNSEL FOR
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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
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________________________, 20_____. |
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For the Commissioner: |
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Signed 1/12/2021 |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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