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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. 2021-27741-U |
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KTS 1, LLC AND KTS PETRO, INC., |
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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 KTS 1, LLC owns Underground
Storage Tank (“UST”) systems, with UST Facility ID 24910, located at 1104 N SR 229,
parcel # 24-13-17-400-001.003-015, in Batesville, Franklin County, Indiana (the “Site”).
3. Respondent KTS Petro, Inc. operates the
UST systems located at 1104 N SR 229, parcel
# 24-13-17-400-001.003-015, in Batesville,
Franklin County, Indiana (the “Site”).
4. Respondent KTS 1, LLC owns and KTS
Petro, Inc. operates one 12,000-gallon fiberglass gasoline UST installed
6/11/1992, one 6,000-gallon fiberglass gasoline UST installed 6/11/1992, and
one 8,000-gallon steel CLAD diesel UST installed 1/10/2019. The piping is
pressurized fiberglass double walled, installed 1/10/2019.
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”) on April 30, 2021 via email
to:
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Mahendra
Patel, President and Registered Agent for |
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KTS
1, LLC and KTS Petro, Inc. |
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1104
N SR 229 |
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Batesville,
Indiana 47006 |
7. During an investigation including an
inspection on February 5, 2020 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, an updated notification form indicating the correct
piping release detection had not been submitted to IDEM. Piping is fiberglass
double walled installed January 10, 2019. Therefore, interstitial monitoring is
required.
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 inspection, a
financial responsibility mechanism was not provided.
c.
Pursuant
to 40 Code of Federal Regulation (“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, line
tightness testing results for the UST systems were not available.
Line tightness test results dated August
5, 2020 received on May 14, 2021; however, a
functionality test needs performed on the ATG.
d.
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, line
leak detector test results for the UST systems were not available.
Line leak detection test results dated
August 5, 2020 received on May 14, 2021.
e.
Pursuant
to 40 CFR 280.41(a)(2), and previously 329 IAC 9-3-1.3 (repealed 2018), tanks
installed after September 2, 2009 must be monitored
for releases at least every 30 days using the method listed in § 280.43(g).
As noted during the inspection, interstitial monitoring records were not available for the diesel UST.
Tank
tightness test for the diesel UST dated August 5, 2020
was submitted on May 14, 2021; however, a functionality test needs performed on
the ATG.
f. Pursuant to 40 CFR 280.41(b)(2), and previous Indiana rules 329 IAC 9-2-1(2)(D)
and 329 IAC 9-3-1.3 (both repealed 2018), piping installed or replaced after
September 2, 2009 must meet one of the following:
(i) Pressurized
piping must be monitored for releases at least every 30 days in accordance with
§ 280.43(g) and be equipped with an automatic line leak detector in accordance
with § 280.44(a)
(ii) Suction piping must be monitored for
releases at least every 30 days in accordance with § 280.43(g).
As noted during the inspection, complete interstitial monitoring records were unavailable for all
double walled lines.
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 of fact 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 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.
Within the thirty (30) days of the Effective
Date, Respondents shall comply with 329 IAC 9-8-11(a) & (b). Specifically,
Respondents shall submit documentation
of financial responsibility to IDEM.
5.
Within
thirty (30) days of the Effective Date, Respondents shall comply with 40 CFR
280.41(b)(1)(i)(B). Specifically, Respondents shall
have a functionality test of the ATG on all double walled piping that contains
a regulated amount of product.
6.
Within
thirty (30) days of the Effective Date, Respondents shall comply with 40 CFR
280.41(a)(2). Specifically, Respondents shall have a functionality test of the ATG performed on the
diesel UST.
7.
Within
thirty (30) days of the Effective Date, Respondents shall comply with 40 CFR
280.41(b)(2). Specifically, Respondents shall have all double walled lines that
contains a regulated amount of product and found to not have been monitored
every thirty (30) days by not having records of interstitial monitoring
tightness tested.
8.
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 |
9.
Respondents
are assessed and agree to pay a civil penalty of Sixteen Thousand Nine Hundred
Sixty Dollars ($16,960.00). 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 three (3) installments. The first two (2) installments
shall be Five Thousand Six Hundred Fifty-Three Dollars ($5,653.00) shall be
paid within thirty (30) days of the Effective Date; the 30th day
being the “Due Date”. The final installment shall be Five Thousand Six Hundred
Fifty-Four Dollars ($5,654.00). 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.
10.
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 |
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Order
paragraph #4 |
$100.00 per
week |
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Order
paragraph #5 |
$100.00 per
week |
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Order
paragraph #6 |
$100.00 per
week |
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Order
paragraph #7 |
$100.00 per
week |
11.
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.
12.
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 |
13.
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 Environmental Management Special
Fund and shall be payable to IDEM in the manner specified in Paragraph 13, above.
14.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
15.
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.
16.
No change in ownership, corporate, or
partnership status of Respondents
shall in any way alter the Respondents’ status or responsibilities under this
Agreed Order.
17.
Respondents shall ensure that all contractors, firms, and other persons
performing work under this Agreed Order comply with the terms of this Agreed
Order.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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 |
KTS
1, LLC |
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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
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By:
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Date:
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RESPONDENT: |
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KTS Petro, Inc |
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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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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 6/16/2021 |
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Peggy
Dorsey |
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Assistant
Commissioner |
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Office
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