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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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Case No. 2022-28607-U |
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SHIV
DEVELOPMENT LLC, KALPANA |
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REAL ESTATE
LLC, AND ADITI 1 GAS |
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STATION,
LLC, |
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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.
Respondents are Shiv Development LLC, Kalpana
Real Estate LLC, and Aditi 1 Gas Station LLC (“Respondents”), which own and/or operate
the facility with Facility ID No. 25273, located at 2546 E SR 44, in Shelbyville,
Shelby County, Indiana (“Site”).
3. Respondents own and/or operate one
15,000-gallon regular unleaded (“RUL”) gasoline UST, one 6,000-gallon premium
unleaded (“PUL”) gasoline UST, and one 6,000-gallon diesel UST. All tanks are
double walled fiberglass. The piping is double walled flex.
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 and email On July 14, 2022 to:
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Shiv
Development LLC and Kalpana Real Estate LLC, |
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UST
Owners |
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315
US Highway 31 S |
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Greenwood,
Indiana 46142 |
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Chintu Patel, Registered Agent for |
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Shiv
Development LLC and Aditi 1 Gas Station LLC |
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315
US Highway 31 S |
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Greenwood,
Indiana 46142 |
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Kalpana
Patel, Registered Agent for |
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Kalpana
Real Estate LLC, Property Owner |
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315
US Highway 31 S |
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Greenwood,
Indiana 46142 |
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Aditi
1 Gas Station LLC, UST Operator |
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315
US Highway 31 S |
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Greenwood,
Indiana 46142 |
6.
During an investigation including inspections
on February 23, 2021 and February 17, 2022 conducted
by a representative of IDEM, the following violations were found:
a. Pursuant to IC 13-23-12-1, each year
the owner of an underground storage tank that has not been closed before
January 1 of any year under rules adopted under IC 13-23-1-2; or a requirement
imposed by the commissioner before the adoption of rules under IC 13-23-1-2;
shall pay to the department of state revenue an annual registration fee. The
annual registration fee required by this section is ninety dollars ($90) for
each underground petroleum storage tank; or two hundred forty-five dollars
($245) for each underground storage tank containing regulated substances other
than petroleum. If an underground storage tank consists of a single tank in
which there are separate compartments, a separate fee shall be paid under
subsection (b) for each compartment within the single tank. If an underground
storage tank consists of a combination of tanks, a separate fee shall be paid
under subsection (b) for each compartment within each tank in the combination
of tanks.
As noted during the 2021 and 2022
inspections, Respondents failed to pay the annual registration fee for years
2015-2020 and 2022.
Tank fees paid on September 21, 2022.
b. 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 2021 and 2022
inspections, the notification form (“NF”) submitted on
February 26, 2016 was rejected on June 7, 2016. An
updated NF has not been submitted.
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 2021 and 2022
inspections, Respondents failed to demonstrate a current Financial
Responsibility mechanism.
Insurance policy dated January 1, 2022 through January 1, 2023 submitted on August 15, 2022.
d. Pursuant to 40 Federal Code of
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 2021 and 2022
inspections, Respondents failed to submit the documentation requested by IDEM’s
January 20, 2021 letter as required.
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 2021 and 2022 inspections,
12-months of interstitial monitoring (“IM”) records for the double walled
fiberglass USTs was not provided.
Tank tightness test results dated
September 26, 2022 submitted October 7, 2022.
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 2021 and 2022
inspections, 12-months of IM records for the double walled flex piping was not
provided.
Line tightness test results dated
September 26, 2022 submitted October 7, 2022.
g. 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 2022 inspection,
30-day walkthrough inspections were not provided.
Walkthrough inspections dated April
through September submitted September 19, 2022.
h. Pursuant to 40 CFR 280.43(g), interstitial
monitoring between the UST system and a secondary barrier immediately around or
beneath it may be used, but only if the system is designed, constructed, and
installed to detect a leak from any portion of the tank that routinely contains
product and also meets one of the following
requirements:
(1) For double walled UST systems, the
sampling or testing method can detect a leak through the inner wall in any
portion of the tank that routinely contains product;
(2) For UST systems with a secondary barrier
within the excavation zone, the sampling or testing method used can detect a
leak between the UST system and the secondary barrier.
As noted during the 2022 inspection,
sensors in the sump compartments were observed to not be in the lowest portion
of the sump. Schrader valves were also observed to be closed in all sumps
preventing fuel from triggering the sensor as designed.
Photographic documentation of removed
test booting and correctly placed sensors submitted on September 26, 2022 and October 18, 2022.
i. Pursuant to 40 CFR 280.240, not later
than June 28, 2021, all owners and operators of UST systems must ensure they
have designated Class A, Class B, and Class C operators who meet the
requirements of this subpart.
As noted during the 2022 inspection,
operator Class A, Class B, and Class C training certificates were not provided.
Operator Class A and Class B training
certificates submitted on May 2, 2022.
Operator Class C certificate submitted
August 29, 2022.
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, 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 statutes and 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
thirty (30) days of the Effective Date, Respondents shall comply with 329 IAC
9-2-2(c). Specifically, Respondents shall accurately complete the most recent
version of the appropriate state form with required attachments and submit to
IDEM via email to USTRegistration@idem.IN.gov and jpisula@idem.IN.gov.
Include a Facility ID# in the subject line and pdf file name of the email, so
documents can be processed accordingly.
5.
Within
fifteen (15) days of notification from IDEM that the submitted form required
the immediately preceding paragraph is inadequate, Respondent shall submit a
corrected form to be approved by IDEM. Stipulated penalties, as described below
may be assessed for continued submittal of inadequate forms.
6.
All submittals required by this Agreed Order,
unless Respondents are 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 Thirty-Five Thousand Eight Hundred
Dollars ($35,800.00). Said penalty amount shall be due and payable in elven
(11) monthly installments of Three Thousand Two Hundred Eight Dollars
($3,208.00), and Three Thousand Two Hundred Twelve Dollars ($3,212.00) the
twelfth and final month. Respondents are jointly and severally liable for all
civil penalty assessments, including stipulated penalties. After this Agreed
Order is adopted (signed by the Assistant Commissioner of the Office of Land
Quality), Respondent shall pay by the due date printed on the Invoice that will
be attached to the adopted Agreed Order, and on subsequent invoices in
accordance with the agreed upon payment plan.
Civil and stipulated penalties are
payable to the “Underground Petroleum Storage Tank Trust Fund” by:
Mail:
Civil 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 |
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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.
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 #4 |
$100.00 per
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Order
paragraph #5 |
$100.00 per
week |
9.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondents receive written notice that Complainant has determined a
stipulated penalty is due; the thirtieth 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 a
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.
10.
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.
11.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
12.
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.
13.
No change in ownership, corporate, or
partnership status of Respondents shall in any way alter the Respondents’ status or responsibilities under this
Agreed Order.
14.
Respondents shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL
RECOMMENDATION: |
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Jennifer
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RESPONDENT: |
COUNSEL FOR RESPONDENT: |
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Shiv
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RESPONDENT: |
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Kalpana
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Aditi
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For
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Signed
1/31/2023 |
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Peggy
Dorsey |
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Assistant
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