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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. 2021-28093-U |
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PPS ENTERPRISES LLC AND |
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pAWANDEEP SOOCH, |
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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 PPS Enterprises LLC (“Respondent”) owns
the facility with Facility ID No. 25150, located at 8533 Lakeshore Drive, parcel #87-12-27-105-006.000-019, in Newburgh, Warrick County, Indiana
(“Site”).
3. Respondent Pawandeep
Sooch operates the facility with Facility ID No.
25150, located at 8533 Lakeshore Drive in Newburgh, Warrick County, Indiana
(“Site”).
4. Respondents own and operate one
15,000-gallon UST and a 6,000-gallon and 4,000-gallon compartmented UST. The
USTs are fiberglass double walled, installed in October 2009. The piping is
also fiberglass, double walled, and pressurized.
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 December 28, 2021via Certified Mail to:
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c/o
Pawandeep Sooch, Member
of |
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PPS
Enterprises LLC |
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UST
and Property Owner |
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8533
Lakeshore Drive |
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Newburgh,
Indiana 47360 |
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Sushma
Bedi, Registered Agent for |
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PPS
Enterprises LLC |
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8533
Lakeshore Drive |
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Newburgh,
Indiana 47360 |
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Pawandeep Sooch. UST Operator |
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3711
Joseph Court |
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Newburgh,
Indiana 47360 |
7. During an investigation including an
inspection on August 13, 2021 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 previous notification form submitted on October 14, 2014 was rejected and a notice of deficiency issued on March
16, 2015. An updated form has not been submitted.
A
notification form was submitted January 19, 2022.
b. 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,
Respondents failed to perform the monitoring or testing required by the rules
and/or submit the requested documentation as required.
c. 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.
d. Pursuant to 40 CFR 280.40(a)(2), owners
and operators of UST systems must provide a method, or combination of methods,
of release detection that is installed and calibrated in accordance with the
manufacturer’s instructions.
Documentation
submitted showing the UST system was installed prior to 9/2/2009, and therefore
interstitial monitoring (IM) requirements are not applicable.
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, Respondents
failed to provide 12-months of interstitial monitoring release detection
records for the USTs.
Line tightness testing dated March 30, 2021 provided. Documentation submitted showing the UST
system was installed prior to 9/2/2009, and therefore IM requirements are not applicable.
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,
Respondents failed to provide 12-months of interstitial monitoring release
detection records for the piping.
Respondents submitted line tightness
test results dated March 30, 2021; however, these results do not address the missing
interstitial records from March 2021 to August 2021.
Documentation submitted showing the UST
system was installed prior to 9/2/2009, and therefore IM requirements are not
applicable.
g. 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
premium and unleaded spill buckets were observed to be over half filled with
fluid and would not function as designed in the event of a spill or overfill.
Spill bucket testing documents dated
December 29, 2021 submitted. Photo documentation submitted showing liquid
removed from premium and regular spill buckets completed on January 21, 2022.
h. 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 not observed in the fill
ports, but previous notification forms indicated auto shut off devices were
present.
Overfill
prevention testing dated August 9, 2021 submitted
showing ball float valves present.
i. Pursuant to 40 CFR 280.35(a)(1), spill prevention equipment (such as a catchment basin,
spill bucket, or other spill containment device) and containment sumps used for
interstitial monitoring of piping must prevent releases to the environment by
meeting one of the following:
(i) The equipment is double walled, and the
integrity of both walls is periodically monitored at a frequency not less than
the frequency of the walkthrough inspections described in §280.36. Owners and
operators must begin meeting paragraph (a)(1)(ii) of this section and conduct a
test within 30 days of discontinuing periodic monitoring of this equipment; or
(ii) The
spill prevention equipment and containment sumps used for interstitial
monitoring of piping are tested at least once every three years to ensure the
equipment is liquid tight by using vacuum, pressure, or liquid testing in
accordance with one of the following criteria:
(A)
Requirements
developed by the manufacturer (Note: Owners and operators may use this
option only if the manufacturer has developed requirements);
(B)
Code
of practice developed by a nationally recognized association or independent
testing laboratory; or
(C)
Requirements
determined by the implementing agency to be no less protective of human health
and the environment than the requirements listed in paragraphs (1)(1)(ii)(A)
and (B) of this section.
As noted during the inspection, spill
prevention, under dispenser containment (UDC) sump, and containment sump
testing reports used for IM were not provided.
Containment sump test report documents
dated August 9, 2021 were submitted on August 26, 2021;
however, the under-dispenser containment sump test reports were not provided.
Documentation was submitted showing the
UST system was installed prior to 9/2/2009, and therefore spill prevention,
UDC, and containment sump testing reports used for IM not applicable.
j. Pursuant to 40 CFR 280.35(a)(2), overfill
prevention equipment must be inspected at least once every three years. At a
minimum, the inspection must ensure that overfill prevention equipment is set
to activate at the correct level specified in § 280.20(c) and will activate
when regulated substance reaches that level. Inspections must be conducted in
accordance with one of the criteria in paragraph (a)(1)(ii)(A) through (C) of
this section.
As noted
during the inspection, an overfill prevention test report was not provided.
Overfill
prevention (spill bucket and containment sump) tests dated August 9, 2021 and December 29, 2021 submitted.
k. Pursuant to 40 CFR 280.36(a)(1)(i), to properly operate and maintain UST systems, not later
than June 28, 2021, owners and operators must conduct a walkthrough inspection
every 30 days that, at a minimum, checks spill prevention equipment and release
detection equipment (Exception: spill prevention equipment at UST systems
receiving deliveries at intervals greater than every 30 days may be checked
prior to each delivery).
As noted
during the inspection, Respondents failed to conduct a walkthrough inspection
every 30 days, at a minimum, to check spill prevention equipment and release
detection equipment.
Documentation
submitted showing walkthrough inspections completed on January 21, 2022.
l. Pursuant to 40 CFR 280.40(a)(3)(ii),
owners and operators of UST systems must provide a method, or combination of
methods, of release detection that beginning on October 13, 2018, is operated
and maintained, and electronic and mechanical components are tested for proper
operation, in accordance with one of the following: manufacturer's
instructions; a code of practice developed by a nationally recognized
association or independent testing laboratory; or requirements determined by
the implementing agency to be no less protective of human health and the
environment than the two options listed in paragraphs (a)(1) and (2) of this
section. A test of the proper operation must be performed at least annually
and, at a minimum, as applicable to the facility, cover the following
components and criteria: probes and sensors: inspect for residual buildup;
ensure floats move freely; ensure shaft is not damaged; ensure cables are free
of kinks and breaks; test alarm operability and communication with controller.
As noted
during the inspection, Respondents failed to perform an annual proper operation
test (components and criteria) of the automatic tank gauge (ATG) sensors used
for IM.
Documentation
was submitted showing the UST system was installed prior to 9/2/2009, and
therefore sensor testing IM requirements are not applicable. An ATG probe test
result dated March 30, 2021 was submitted.
m. 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, Class A, Class B, and Class C operator certificates were
not provided.
Class A and Class B operator
certificates were submitted on August 30 and 31, 2021. Operator C certificate was submitted January
19, 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, 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.
Effective Immediately, Respondents shall comply
with 40 CFR 280.34. Specifically, Respondents 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 fifteen (15) 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.
5.
Within fifteen (15) days of the Effective Date,
Respondents shall comply with 329 IAC 9-8-11(b). Specifically, Respondents
shall submit documentation of
financial responsibility to IDEM.
6.
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 |
7.
Pursuant to IC 13-30-4-1, Respondents are
assessed and agree to pay a civil penalty of Five Thousand Two Hundred Dollars
($5,200.00). Respondents are jointly
and severally liable for all civil penalty assessments, including stipulated
penalties. Respondents 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.
8.
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 |
9.
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.
10.
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 |
11.
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 7, 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 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.
14.
No change in ownership, corporate, or
partnership status of Respondents
shall in any way alter the Respondents’ status
or responsibilities under this Agreed Order.
15.
Respondents 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 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.
18.
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.
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 Respondents 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 Respondents.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
PPS Enterprises 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
FOR RESPONDENT |
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By:
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RESPONDENT: |
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Pawandeep Sooch |
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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
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Signed 2/10/2022 |
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Peggy
Dorsey, Assistant Commissioner |
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Office
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