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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. 2020-27535-U |
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SCHILLI LEASING, INC., |
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Respondents. |
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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.
Respondents is Schilli
Leasing, Inc. (“Respondent”), which owns/operates the facility with
Facility ID No. 499, located at 10239
Red School Road, in Shoals,
Martin, Indiana (the “Site”).
3. Respondent owns and operates two
12,000-gallon steel manifolded USTs installed in 1979, interior lined in 1998.
The piping is steel above ground, pressurized, and painted.
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 May 25, 2021 via United States
Postal Service to:
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Lee
Michaud, President of |
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Schilli Leasing, Inc. |
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6358
US 24 |
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Remington,
Indiana 47977 |
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C
T Corporation System, Registered Agent for |
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Schilli Leasing, Inc. |
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334
North Senate Avenue |
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Indianapolis,
Indiana 46204 |
6.
During an investigation including an inspection
on November 30, 2020 conducted by a representative of
IDEM, the following violations were found:
a. Pursuant to 40 Code of Federal
Regulations (“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 inspection, Respondent was sent a records request on November 10, 2020 and did not respond.
b. Pursuant to 329 Indiana Administrative
Code (“IAC”) 9-8-11(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,
Respondent did not provide a mechanism of financial responsibility.
c.
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, auto
shutoff devices were observed on-site, and prior notification forms (2010)
indicate ball float vent valves were installed.
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 east
spill bucket was filled with old fuel and would not function as designed in the
event of a spill or overfill. The west spill bucket was observed to be warped
and possibly damaged.
e. Pursuant
to 40 CFR 280.20(b), the piping that routinely contains regulated substances
and is in contact with the ground must be properly designed, constructed, and
protected from corrosion in accordance with a code of practice developed by a
nationally recognized association or independent testing laboratory.
As noted during the inspection, the
metal piping and metal components at the dispensers and dispenser islands was
in direct contact with the soil with no clear form of corrosion protection.
f. Pursuant to 40 CFR 280.21(b)(1)(ii), within
10 years after lining, and every 5 years thereafter, the lined tank is
internally inspected and found to be structurally sound with the lining still
performing in accordance with original design specifications. If the internal
lining is no longer performing in accordance with original design
specifications and cannot be repaired in accordance with a code of practice
developed by a nationally recognized association or independent testing
laboratory, then the lined tank must be permanently closed in accordance with
329 IAC 9-6.
As noted during the inspection, the
interior lining of the USTs was due in 2018 and no report has been submitted.
g. 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, twelve
(12) months of release detection records for the USTs was not provided. The
east UST contained 3.625 inches of fuel, and the west UST contained eight (8)
inches of fuel.
h. Pursuant to 40 CFR 280.41(b)(1)(i)(B), considering previous Indiana rules at 329 IAC
9-2-1(2)(D) and 329 IAC 9-3-1.3 (both repealed 2018), pressurized underground piping
installed on or before September 2, 2009 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, twelve
(12) months of release detection for piping or a line tightness test was not
provided. The east UST contained 3.625 inches of fuel, and the west UST
contained eight (8) inches of fuel.
i. Pursuant to 40 CFR 280.41(b)(1)(i)(A), considering previous Indiana rules at 329 IAC
9-2-1(2)(D) and 329 IAC 9-3-1.3 (both repealed 2018), pressurized underground
piping installed on or before September 2, 2009 that routinely contains
regulated substances must be equipped with an automatic line leak detector
conducted in accordance with § 280.44(a); and 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, the
annual leak detection test result was not provided.
j. Pursuant to 40 CFR 280.245, owners and
operators of underground storage tank systems must maintain a list of
designated Class A, Class B, and Class C operators and maintain records
verifying that training and retraining, as applicable, have been completed, in
accordance with § 280.34.
As noted during the inspection, Operator
Class A, Class B, and Class C certificates were not provided.
On July 20 and 21, 2021, the UST system
was removed, and closure report submitted to IDEM on September 13, 2021.
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 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 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 fifteen (15) days of the Effective Date,
Respondents shall comply with 329 IAC 9-8-11(b). Specifically, Respondents
shall submit to IDEM written documentation of financial responsibility as
required by this rule.
4.
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 |
5.
Respondent is assessed and agrees to pay a
civil penalty of Fourteen Thousand Four Hundred Dollars ($14,400.00). Said
penalty amount shall be due and payable to the “Underground Petroleum Storage
Tank Trust Fund” within thirty (30) days of the Effective Date; the 30th
day being the “Due Date.”
6.
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 |
7.
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.
8.
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 |
9.
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 Underground
Petroleum Storage Tank Trust Fund and shall be payable to IDEM in the manner
specified in Paragraph 8, above.
10.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
11.
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.
12.
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.
13.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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 |
Schilli Leasing, Inc. |
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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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For
the Commissioner: |
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Signed 11/4/2021 |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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