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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
MARION |
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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. 2021-28100-U |
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C AND S INC., |
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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 C and S Inc. (“Respondent”),
which owns the facility with Facility ID No. 3614, located at 1355 N Green St, parcel
#32-07-02-200-012.000-026, in Brownsburg, Hendricks County, Indiana (the
“Site”).
3.
Respondent owns and operates five (5) active
Steel (sti-P3) USTs installed in September 1990. One (1) is a fifteen thousand
(15,000) gallon gasoline tank. Two (2) are twelve thousand (12,000) gallon
gasoline tanks. One (1) is a twelve thousand (12,000) gallon diesel tank. One
(1) is a six thousand (6,000) gallon kerosene tank. 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”) to:
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Jonathan
S. Smith, President and |
C
and S Inc. |
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Registered
Agent |
1355
N Green St |
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C
and S Inc. |
Brownsburg,
IN 46112 |
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2001
Main St |
csinc@psci.net |
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Tell
City, IN 47586 |
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6.
During an investigation, including an
inspection and record review on August 17, 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. The
Notification Form received on June 26, 2015,
was rejected on July 15, 2015, and an updated Notification Form has not been
submitted.
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 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 in contact with the
ground were designed, constructed, and protected from corrosion. During the
inspection, metal components of the piping in the Submersible Turbine Pumps (“STPs”)
were found to be in direct contact with soil and gravel without apparent
cathodic protection.
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 statutes and
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 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 notification from IDEM that the submitted Form 45223,
required in Order Paragraph 3 is inadequate, Respondent shall submit a
corrected form to be approved by IDEM. Stipulated penalties, as described in
Order Paragraph 3 may be assessed for continued submittal of inadequate forms.
5.
Within thirty (30) days of the Effective Date,
Respondent shall submit to IDEM a copy of the instrument proving they have the
coverage required by this rule.
6.
Within fifteen (15) days of the Effective Date,
Respondent shall submit to IDEM the required documents or have their UST
systems fully inspected by a qualified cathodic protection tester within
fifteen (15) days and submit the results to IDEM within thirty (30) days.
7.
Within fifteen (15) days of the Effective Date,
Respondent shall determine if piping or metal components in contact with the
ground are substandard.
a)
If
fixable, within thirty (30) days of the Effective Date, IDEM must receive and
approve any proposed work, and all proposed work must be completed with
documentation of the work submitted to IDEM within forty-five (45) days of the
Effective Date.
b)
If
substandard, within five (5) days of the Effective Date, Respondent shall notify
IDEM of the intent to remove or replace the affected components,
and submit to IDEM documentation of the removed or replaced affected
components within forty-five (45) days of the Effective Date.
8.
Within fifteen (15) days of the Effective Date,
Respondent shall have their UST systems fully inspected by a qualified overfill
protection tester and submit the results to IDEM within thirty (30) days.
9.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Lillian Treon Gant, 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 |
10.
Respondent is assessed and agrees to pay a
civil penalty of Forty Eight Thousand Five Hundred Dollars
($48,500). Said penalty amount shall be due and payable to the “Underground
Petroleum Storage Tank Trust Fund” within thirty (30) days of the Effective Date;
the 30th day being the “Due Date.”
11.
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 |
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Order
paragraph #8 |
$100.00
per week |
12.
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.
13.
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 |
14.
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
Environmental Management Special Fund, and shall be
payable to IDEM in the manner specified in Paragraph 13, above.
15.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
16.
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.
17.
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.
18.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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 |
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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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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 |
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20__. |
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For
the Commissioner: |
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Signed 4/1/2022 |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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