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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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Complainant, |
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v. |
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Case No. 2021-27992-U |
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UNITED PARKWAY 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 United Parkway LLC
(“Respondent”), which owns and operates the facility with Facility ID No. 9039,
located at 121 W. South Street, in Monroeville, Allen County, Indiana (“Site”).
3. Respondent owns and operates three
steel USTs installed in 1974. The piping is fiberglass, single walled and
pressurized.
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”) via Certified Mail to:
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Miriam
Mohamad, President and Registered Agent for |
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United
Parkway LLC, UST Owner, Operator and Property Owner |
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121
W. South Street |
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Monroeville,
Indiana 46773 |
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Miriam
Mohamad, President and Registered Agent for |
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United
Parkway LLC |
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202
Angling Road |
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Kendallville,
Indiana 46721 |
6.
During an investigation including an inspection
on January 15, 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, Respondent
failed to submit a complete and accurate notification form with required
attachments.
b. Pursuant to 329 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
failed to demonstrate a current Financial Responsibility mechanism.
c.
Pursuant
to 40 Code of Federal Regulations (“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 contained liquid and/or debris to such an extent that
a spill may not be prevented if product were to enter the catchment basin.
Documentation provided
that liquid and debris in the regular spill bucket removed on December
3, 2021.
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, auto
shut off was observed; however, ball float valves were listed on previous
notification forms and inspections. Coincident use of auto shut off and ball
float valves may result in releases of fuel to the environment. See Fact Sheet available at: https://www.in.gov/idem/files/factsheet_olq_ust_overfill-prevention.pdf
. Confirmation of removal of the ball floats or approved coincident use of overfill
has not been provided.
e.
Pursuant
to 40 CFR 280.31(a), all corrosion protection systems must be operated and
maintained to continuously provide corrosion protection to the metal components
of that portion of the tank and piping that routinely contain regulated
substances and are in contact with the ground.
As noted during the inspection, the isolation
boots attached to the metal pipe fittings under dispensers 1/2 and 3/4 were no
longer completely isolating the metal pipe fittings from the contact with the
ground. Due to the presence of water in all STP sump pits, metal pump and
piping components inside the STP sump pits of each UST were not protected from
corrosion.
Documentation of isolation boots
installed under dispensers 1/2 and 3/4 submitted November 10, 2021.
f. Pursuant to 40 CFR 280.43(d), equipment
for automatic tank gauging that tests for the loss of
product and conducts inventory control must meet the following requirements:
(1) The automatic product level monitor test
can detect a 0.2 gallon per hour leak rate from any portion of the tank that
routinely contains product;
(2) The automatic tank gauging equipment must
meet the inventory control (or other test of equivalent performance)
requirements of § 280.43(a); and
(3) The test must be performed with the
system operating in one of the following modes:
(i) In-tank
static testing conducted at least once every 30 days; or
(ii) Continuous
in-tank leak detection operating on an uninterrupted basis or operating within
a process that allows the system to gather incremental measurements to
determine the leak status of the tank at least once every 30 days.
As noted during the inspection, the ATG
could not be inspected for correct function and UST programming due to it not
having a functional printer to provide documentation of the system operations.
Documentation of a functional printer
installed on the ATG submitted November 10, 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 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.
Within fifteen (15) days of the Effective Date,
Respondent shall comply with 329 IAC 9-2-2(c). Specifically, Respondent 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 fifteen (15) days of the Effective Date,
Respondent shall comply with 329 IAC 9-8-11(b). Specifically, Respondent shall submit documentation of financial responsibility
to IDEM.
5.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 280.20(c)(1)(ii). Specifically, Respondent
shall contract with a certified contractor and provide documentation of removal
of the ball float valves, or that the auto shut off has been adjusted according
to the coincident.
6.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 280.31(a). Specifically, Respondent shall contract
with a qualified cathodic protection tester to inspect all metal UST pump and
piping components inside all the STP sump pits and replace as necessary and
submit documentation to IDEM.
7.
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 |
8.
Respondent is assessed and agrees to pay a
civil penalty of Fifteen Thousand Two Hundred Thirteen Dollars ($15,213.00). This
penalty reflects a significant reduction from the original proposed civil
penalty based upon evidence submitted to IDEM by Respondent which adequately
demonstrated Respondent’s inability to pay the original proposed civil penalty.
Said penalty amount shall be due and payable to the Underground Petroleum
Storage Tank Trust Fund in twelve (12) installments of One Thousand Two Hundred
Sixty-Seven Dollars and Seventy-Five Cents ($1,267.75). Respondent shall pay by
the due date printed on the Invoice, as attached.
Civil and stipulated penalties are
payable to the “Underground Petroleum Storage Tank Trust Fund” by check, eCheck, Master Card, Visa, or Discover. A processing fee of
$1.00 will be charged for e-check payments. A processing fee of $1.00 plus
1.99% will be charged for credit card payments.
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 |
If paying by eCheck,
Master Card, Visa, or Discover, visit www.IN.gov/IDEM. Under Online Services,
click Online Payment options and follow prompts. Respondent may also call
Accounts Receivable at (317) 234-3099 and follow the instructions for Master
Card, Visa, or Discover payment.
9.
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 |
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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 |
10.
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.
11.
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 an additional penalty of 10 percent, payable to the “Underground
Petroleum Storage Tank Trust Fund” and shall be payable to IDEM in the manner
specified in Paragraph 8, 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 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.
14.
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.
15.
Respondent 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 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.
18.
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.
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 Respondent 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 Respondent.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
United
Parkway LLC |
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By:
_________________ |
By: _________________________ |
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Jennifer Reno, Section 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
FOR RESPONDENT |
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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 THIS |
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DAY OF |
________________________, |
20__. |
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For
the Commissioner: |
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Signed 2/22/2022 |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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