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STATE OF
INDIANA |
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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
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2021-27987-U |
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PRINCE LLC, |
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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 Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is Prince LLC (“Respondent”), which
owns and operates the facility with Facility ID No. 15886, located at 800 W. 61st
Avenue, in Merrillville, Lake County, Indiana (“Site”).
3. Respondent owns and operates 1 x
8,000-gallon gasoline, 1 x 6,000-gallon gasoline, and 1 x 4,000-gallon gasoline
USTs installed March 8, 1974.
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 September 30, 2021 via
Certified Mail to:
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Daljit
Singh, President and Registered Agent for |
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Prince
LLC |
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8858
Doubletree Drive N |
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Crown
Point, Indiana 46307 |
6.
During an investigation including an inspection
on October 13, 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 failed to perform the monitoring or testing required by the rules
and submit the requested documentation as required.
b. Pursuant to 329 Indiana Administrative
Code (“IAC”) 9-8-11(b), when utilizing the Excess Liability Trust Fund to demonstrate
financial responsibility, 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 failed to demonstrate the ability to pay the
appropriate deductible.
c.
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, Respondent failed to ensure the piping or metal
components of all three STP risers and all three UDCs in contact with the
ground were designed, constructed, and protected from corrosion.
d.
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, Respondent failed to inspect the internal tank liner as
required on all USTs.
e.
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 that can detect a release at the Site.
f.
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, Respondent failed to
provide appropriate leak detection testing records for pressurized piping
containing a regulated substance.
Respondent submitted leak detection test results dated January 2, 2020 and March 10, 2021.
g.
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, Respondent failed to have piping, containing a regulated
amount of product, tightness tested.
Respondent submitted line tightness test results dated January 2, 2020 and March 10, 2021.
7.
Respondent informed IDEM that new installation
at the site will take place by the end of May 2022.
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, 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 rules listed in the findings of fact
above.
3.
Immediately
upon the Effective Date, Respondent shall comply with 40 CFR 280.34.
Specifically, Respondent 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.
4.
Within thirty (30) days of the Effective Date, Respondents
shall comply with 329 IAC 9-6-2.1(a). Specifically, Respondents shall download
and submit the “Thirty (30) Day
Notification of Intent to Close,” State Form 56553 from IDEM webpage: https://www.in.gov/idem/5157.htm, under “Underground
Storage Tank (UST) Program.” This is for the old UST systems. 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.
5.
Within sixty (60) days of submitting the
“Thirty (30) Day Notification of Intent to Close”, Respondents shall have a
person certified by the Indiana Department of Homeland Security for
decommissioning USTs, perform a permanent closure by removal of the UST systems
at the Site in accordance with 329 IAC 9-6.
6.
Within thirty (30) days of the new installation,
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 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.
7.
Within
thirty (30) days of the Effective Date, Respondent shall comply with 329 IAC
9-8-11(b). Specifically, Respondent shall submit documentation of the ability
to pay the appropriate deductible.
8.
If
the UST system closure is not completed by the end of June 2022, then
Respondent shall comply with 40 CFR 280.20(b). Specifically, Respondent shall contract
with a certified contractor to determine if piping or metal components in
contact with the ground are substandard, and what steps shall be taken to
provide corrosion protection and submit the written documentation including
test results and reports to IDEM no later than July 31, 2022.
9.
If
the UST system closure is not completed by the end of June 2022, Respondent
shall comply with 40 CFR 280.21(b)(1)(ii). Specifically, Respondent shall
contract with a certified contractor to assess the liners and tanks to ensure
the liner and tanks are still performing in accordance with the original design
specifications and submit the results to IDEM no later than July 31, 2022.
10.
If
the liners and tanks do not show they are performing to original design
specifications, they will be permanently closed in accordance with 329 IAC
9-6-2.1.
11.
If
the liners and tanks are shown to be performing to original design
specifications, Respondent shall comply with 40 CFR 280.40(a)(1). Specifically,
Respondent shall have all USTs tank tightness tested and submit the results to
IDEM no later than July 31, 2022.
12.
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 |
13.
Respondent is assessed and agrees to pay a
civil penalty of Thirty Thousand Five Hundred Dollars ($30,500.00). 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 Two Thousand Five Hundred Forty-One Dollars ($2,541.00). The
last installment payment shall be Two Thousand Five Hundred Forty-Nine Dollars
($2,549.00). 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.
14.
In
the event that
Respondent does not complete the closure and new installation by the end of June
2022, the full civil penalty of Fifty-Seven Thousand Five Hundred Dollars ($57,500.00),
plus interest established by IC 24-4.6-1-101 on the remaining amount, less the
portion of the civil penalty Respondent has already paid, will be due within
fifteen (15) days from Respondent’s receipt of IDEM’s notice to pay. Interest,
at the rate established by IC 24-4.6-1-101, shall be calculated on the amount
due from the date which is thirty (30) days after the Effective Date of this
Agreed Order until the full civil penalty is paid.
15.
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 #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 |
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Order
paragraph #8 |
$100.00 per
week |
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Order
paragraph #9 |
$100.00 per
week |
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Order
paragraph #10 |
$100.00 per
week |
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Order
paragraph #11 |
$100.00 per week |
16.
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.
17.
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 |
18.
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 17,
above.
19.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
20.
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.
21.
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.
22.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
23.
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.
24.
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.
25.
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.
26.
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.
27.
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.
28.
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 |
Prince
LLC |
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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 1/11/2022 |
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Peggy
Dorsey, Assistant Commissioner |
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