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STATE OF
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BEFORE THE
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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. 2020-27250-U |
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SHIVAN ONE
INC, & |
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PARSVNATH,
LLC, |
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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.
Respondents are Shivan One Inc, and Parsvnath,
LLC, which own/operate the Underground Storage Tank (“UST”) systems, with UST
Facility ID No. 16107, located at 415 S Main Street, parcel #
12-15-12-438-004.000-007, in Kirklin, Clinton County, Indiana (“Site”).
3. Respondents own/operate four (4) USTs
constructed of fiberglass installed in 1999, which consist of the following:
one (1) 4,000 gallon kerosene tank, (1) 6,000 gallon
diesel tank, and (1) 8,000 gallon and (1) 12,000 gallon gasoline tanks.
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 Clinton County Assessor’s Office, Respondent, Parsvnath, LLC, is the owner
of the Site.
5.
A
Violation Letter was issued to Respondents on February 11, 2020, which required
Respondents to submit a Notification form within thirty (30) days of receipt of
the Violation Letter. Respondents failed
to respond to the Violation Letter.
6.
DEM
has jurisdiction over the parties and the subject matter of this action.
7.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via mail to:
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S-Mart
Real Estate, Inc |
Shivan One Inc |
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Warren
K Johnson, Registered Agent |
Ankitaben Patel |
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5824
Plum Creek Blvd |
415
S Main St. |
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Carmel,
IN 46033 |
Kirklin, IN 46050 |
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Parsvnath, LLC |
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Jayesh
Patel |
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3624
S Keystone Ave |
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Indianapolis,
IN 46227 |
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8.
During
an investigation including a record review conducted on December 9, 2019 and an inspection conducted on January 29, 2020, 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 and
record review, Respondents failed to submit a complete and accurate
notification form with required attachments.
b. 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
for bodily injury and property damage caused by accidental releases arising
from the operation of a petroleum underground storage tank.
As noted during the inspection and
record review, Respondents failed to demonstrate financial responsibility aimed
at taking corrective action and for compensating third parties for bodily
injury and property damage caused by accidental releases arising from the
operation of a petroleum underground storage tank at the Site.
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
inspection, Respondents failed to maintain spill prevention equipment: the
regular gas and diesel spill buckets were heavily corroded.
d.
Pursuant to 40 CFR 280.20(c)(1)(ii), 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:
(ii) Overfill prevention equipment that will:
(A) Automatically shut off flow into the tank
when the tank is no more than 95 percent full; or
(B) Alert the transfer operator when the tank
is no more than 90 percent full by restricting the flow into the tank or
triggering a high-level alarm; or
(C) Restrict flow 30 minutes prior to
overfilling, alert the transfer operator with a high level
alarm one minute before overfilling, or automatically shut off flow into the
tank so that none of the fittings located on top of the tank are exposed to
product due to overfilling.
As
noted during the inspection, Respondents failed to maintain overfill prevention
equipment because the Notification Form indicates the tanks have automatic
shut-off devices as spill prevention equipment, but they do not.
e.
Pursuant to 40 CFR 280.340, 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 inspection on January 29, 2020, Respondents are in violation
of this rule because they did not submit any documentation in response to the
December 6, 2019 records request.
f.
Pursuant to 40 CFR
280.41(a)(1), considering previous Indiana rule at 329 IAC 9-3-1.3
(repealed 2018), tanks installed on or before September 2, 2009
must be monitored for releases at least every 30 days using one of the methods
listed in § 280.43(d) through (I).
As
noted during the inspection on January 29, 2020, Respondents failed to monitor
tanks for releases at least every 30 days. The regular gas tanks were missing
five (5) months of release detection and the diesel fuel tank was missing three
(3) months of release detection.
9. Respondents submitted documentation for
the following in order to address the violations
cited: financial responsibility, work
completed by a certified contractor to replace the regular gas and diesel spill
buckets, the installation of overfill prevention equipment, proof that the
overfill prevention equipment had been installed properly to the 90% fill
level, and release detection records.
10.
S-Mart
Real Estate, Inc. submitted documentation proving that they sold the real
estate, equipment, personal property and USTs on July 5, 2016; and therefore are not considered owners of said property.
11.
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 329 IAC
9-2-2(c), 329 IAC 9-8-4(a), 40 CFR 280.20(c)(1)(i),
40 CFR 280.20(c)(1)(ii), 40 CFR 280.240, 40 CFR 280.340, and 40 CFR
280.41(a)(1) listed in the findings of fact above.
3.
Within fifteen (15) 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 45223 from 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.
Immediately upon the Effective Date,
Respondents shall 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 to IDEM.
5.
Within thirty (30) days of the Effective Date,
Respondents shall have any UST or line that contains a regulated amount of
product and found to not have been monitored every thirty (30) days tightness
tested.
6.
Within forty-five (45) days of the Effective
Date, Respondents shall submit the results from Order Paragraph 5 to IDEM.
7.
All submittals required by this Agreed Order,
unless Respondents are notified otherwise in writing by IDEM, shall be sent to:
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Janet Arnold, Technical Environmental
Specialist |
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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 Shivan One Inc is assessed and agrees
to pay a civil penalty of Twenty-Four Thousand and Eighty Dollars ($24,080). Said
penalty amount shall be due and payable to the “Underground Petroleum Storage
Tank Trust Fund” in twelve (12) monthly installments. The first installment of Two
Thousand and Fourteen Dollars ($2,014) shall be paid within thirty (30) days of
the Effective Date; the 30th day being the “Due Date.” Thereafter,
subsequent monthly payments in the amount of Two Thousand and Six Dollars ($2,006)
shall be due on the 30th day being the “Due Date”.
9.
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 per
week |
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Order
paragraph #4 |
$500 per
week |
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Order
paragraph #5 |
$500 per
week |
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Order
paragraph #6 |
$100 per
week |
10.
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.
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, 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 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 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.
15.
No change in ownership, corporate, or
partnership status of Respondents shall in any way alter the Respondents’ status or responsibilities under this
Agreed Order.
16.
Respondents 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 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.
19.
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.
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 Respondents 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
Respondents have complied with the terms of Order Paragraph Nos. 2-12.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
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By:
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By: _________________________ |
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Jennifer Reno, Section Chief |
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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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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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For
the Commissioner: |
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Signed September 16, 2021 |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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