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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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Complainant, |
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v. |
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Case No. 2021-27993-U |
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KDA PROPERTIES IN LLC AND |
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SAMIR PATEL, |
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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 KDA Properties IN LLC owns Underground
Storage Tank (“UST”) systems, with UST Facility ID 11188, located at 221 E. Main
Street parcel # 28-05-04-331-008.000-023, in Jasonville, Greene County, Indiana (the “Site”).
3.
Respondent Samir Patel operates the UST systems
located at 221 E. Main Street parcel #
28-05-04-331-008.000-023, in Jasonville,
Greene County, Indiana (the “Site”).
4.
Respondents
own and operate three 12,000-gallon steel USTs installed in 1987.
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 November 2, 2021via
Certified Mail to:
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c/o
Kirit Patel, Member of |
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KDA
Properties IN LLC |
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UST
and Property Owner |
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8133
Brinegar Circle |
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Tampa,
Florida 33647 |
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C
T Corporation System, Registered Agent for |
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KDA
Properties IN LLC |
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334
North Senate Avenue |
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Indianapolis,
Indiana 46204 |
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Samir
Patel, UST Operator |
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7227
Blue Mesa Place |
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Indianapolis,
Indiana 46259 |
7. During an investigation including an
inspection on November 24, 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, the last notification form submitted contained inaccurate information
regarding the UST system installation date, UST system corrosion protection,
UST system containment sumps and types of UST overfill prevention equipment in
use.
A
notification form indicating owner and operator change information was
submitted November 30, 2021. Tank information is still needed.
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,
Respondents failed to demonstrate a current financial responsibility mechanism.
c.
Pursuant
to 329 IAC 9-8-21(c), an owner or operator that uses an assurance mechanism
specified in sections 6 through 17 of this rule shall
maintain an updated copy of a certification of financial responsibility.
As noted during the inspection, an
updated certificate of financial responsibility was not provided.
d. 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, all catchment basins contained liquid and/or debris to
such an extent that a spill may not be prevented if any product were to enter
any of the catchment basins.
Documentation dated
December 18, 2021 that liquid and/or debris removed
from all catchment basins submitted.
e. 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, previously submitted documentation indicated that each
UST was equipped with a ball float valve, but auto shutoff devices were
observed on the two regular gasoline UST fill pipes.
Documentation
dated January 4, 2022 that video inspection concluded
that no ball float valves present, and automatic shutoff devices present in all
coaxial drop tubes.
f. 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, metal UST pump and/or piping components inside the UST
STP sump pits and under the fuel dispensers were not protected from corrosion
due to presence of water in all STP sump pits. The corrosion protection system
for the fuel dispensers were also not being properly connected to the metal
piping under the fuel dispensers.
g. Pursuant to 40 CFR 280.31(b), all UST
systems equipped with cathodic protection systems must be inspected for proper
operation by a qualified cathodic protection tester in accordance with the
following requirements:
(1) Frequency. All cathodic protection
systems must be tested within 6 months of installation and at least every 3
years thereafter or according to another reasonable time frame established by
the implementing agency; and
(2) Inspection criteria. The criteria that
are used to determine that cathodic protection is adequate as required by this
section must be in accordance with a code of practice developed by a nationally
recognized association.
As noted
during the inspection, current test results for the impressed current cathodic
protection system were not provided.
h. Pursuant to 40 CFR 280.31(c), UST
systems with impressed current cathodic protection systems must also be
inspected every 60 days to ensure the equipment is running properly.
As noted during the inspection, Respondents
failed to inspect the impressed current cathodic protection system as required.
i. 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 was indicating an alarm for a protective cover
as well as other previous alarms including invalid fuel levels in both regular
unleaded USTs. The ATG also was not providing any current inventory or release
detection monitoring data for the diesel fuel UST.
The diesel UST
contained less than one inch of product and therefore is not required to have
release detection. Documentation dated December 18, 2021
that the ATG was reprogrammed submitted.
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, 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 thirty (30) days of the Effective Date,
Respondents shall comply with 329 IAC 9-8-11(b) and 329 IAC 9-8-21(c).
Specifically, Respondents shall submit documentation
of certification of financial responsibility to IDEM.
5.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 40 CFR 280.31(a). Specifically, Respondents shall
contract with a certified contractor to inspect all metal pump and piping
components inside the STP sump pits and fuel dispensers for corrosion damage
and replace as necessary and submit documentation including photographs to
IDEM.
6.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 40 CFR 280.31(b). Specifically, Respondents shall
contract with a qualified cathodic protection tester and have the UST systems
fully inspected and submit the results to IDEM.
7.
Effective immediately, Respondents shall comply
with 40 CFR 280.31(c). Specifically, Respondents shall maintain 60-day rectifier
logs.
8.
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 |
9.
Pursuant
to IC 13-30-4-1, Respondents are assessed and agree to pay a civil penalty of Twenty-Four
Thousand Four Hundred Eighty Dollars ($24,480.00) for which Respondents are
jointly and severally liable. Said penalty amount shall be due and payable in
twelve (12) monthly installments of Two Thousand Forty Dollars ($2,040.00). Respondents
shall pay the first installment by the due date printed on the Invoice, as
attached. Respondents shall pay by the due date printed on any subsequent
invoices in accordance with the agreed upon payment plan.
Civil and stipulated penalties are
payable to the “Environmental Management Special Fund” by:
Mail:
Civil
penalties are payable by check to the “Environmental Management Special Fund”
[or “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 |
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Indianapolis,
IN 46204 |
Online:
Accounts
Receivable is accepting payments online by e-Check, Master Card, Visa or
Discover. Please visit www.IN.gov/IDEM. Under Online Services,
click Online Payment options and follow the prompts. A processing fee of $1
plus 1.99% will be charged for credit card payments. A processing fee of $1.00
will be charged for eCheck payments.
The
Case Number is required to complete the process.
Phone:
You
may also call us at 317-234-3099 and follow the instructions for Master Card,
Visa or Discover payments. A processing fee of $1 plus 1.99% will be charged
for credit card payments. A processing fee of $1.00 will be charged for eCheck payments.
The
Case Number is required to complete the process.
10.
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 |
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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. Respondents are
jointly and severally liable for all stipulated penalty assessments.
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 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 9 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
IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
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KDA Properties IN LLC |
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By:
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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
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By:
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Date:
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RESPONDENT: |
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Samir Patel |
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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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Date:
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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 on 03/23/22_____________ |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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