STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2022-28700-U
					)
Stacks Livestock, LLC,					)
					)
Respondent.					)

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 owns property with registered Underground Storage Tank (“UST”) system(s), with UST Facility ID 15793, located at 1000 West Morton Street, parcel # 26-13-24-202-001.212-007, in Oakland City, Gibson County, Indiana (the “Site”).

3. The UST systems consist of one (1) 560 gallon UST, installed June 1985, and one (1) 600 gallon UST, installed August 1991, at the Site. Respondent did not operate the two (2) USTs.

4. Owner as defined in IC 13-11-2-150(a)(1)(A) means, for an UST that was in use on November 8, 1984 or brought into use after November 8, 1984 for the storage, use, or dispensing of regulated substances, a person who owns the UST or the real property that is the UST site, or both. According to the Gibson County Assessor’s Office, Respondent is the owner of the Site.

5. IDEM issued a “40 CFR 280.34 Records Request” letter to Respondent on January 5, 2022.

6. IDEM issued a Violation Letter to Respondent on March 30, 2022 regarding the violations noted during the March 15, 2022 inspection. To date, IDEM has not received a response.

7. IDEM has jurisdiction over the parties and the subject matter of this action.

8. Pursuant to IC 13-30-3-3, on August 3, 2022, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

J. Court Stacks

Incorporator and Registered Agent

Stacks Livestock, LLC

3108 HWY 92 West

Bee Branch, Arkansas 72013

9. During an investigation including a record review on January 5, 2022 and an inspection on March 15, 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 record review and inspection, Respondent failed to pay the annual registration fee for two (2) USTs registered at the Site.

In November 2022, Respondent paid the required annual registration fee.

b. Pursuant to 329 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 record review and inspection, Respondent purchased the Site on November 12, 2013 and failed to submit a complete and accurate notification form with required attachments.

c. Pursuant to 40 CFR 280.34(a)(5), owners and operators must submit a notification before permanent closure or change-in-service (§ 280.71).

As noted during the record review and inspection, a complete and accurate notification form was not submitted prior to removing the two (2) USTs.

d. Pursuant to 329 IAC 9-6-2.1(b), all tanks permanently closed must be removed from the ground or closed in place and the owner or operator must conduct a site assessment in accordance with section 2.5 of this rule.

As noted during the record review and inspection, a site assessment was not conducted after the closure of both UST systems.

e. Pursuant to 329 IAC 9-6-2.5(d), the permanent closure or change-in-service is not considered complete until all permanent closure or change-in-service requirements and site assessment requirements are met.

As noted during the record review and inspection, the closure process for both the UST systems was not completed as required.

f. 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 record review and inspection, a current Financial Responsibility mechanism was not demonstrated.

g. Pursuant to 40 CFR 280.241(a), UST system owners and operators must designate at least one Class A and one Class B operator for each UST or group of USTs at a facility.

As noted during the record review and inspection, one Class A and one Class B operator for each UST or group of USTs was not designated as required.

10. The outstanding annual registration fees were paid on or about September 2, 2022.

11. 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. Respondents shall comply with the statute and rules listed in the findings of fact above.

3. Within thirty (30) days of the Effective Date, Respondent shall comply with 329 IAC 9-2-2(c). Specifically, Respondent shall download 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” and submit the first four (4) pages of the form. 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 sixty (60) days of the Effective Date, Respondent shall comply with 40 CFR 280.34(a)(5). Specifically, Respondent shall submit a correct and complete copy of the appropriate state form, with attachments, as required for permanent UST closure, taking into account that the two (2) UST systems have already been removed.

5. Within ninety (90) days of the Effective Date, Respondent shall comply with 329 IAC 9-6-2.1(b). Specifically, Respondent shall conduct a site assessment of the two (2) areas once containing a UST at the Site.

6. Within one hundred and twenty (120) days of the Effective Date, Respondent shall comply with 329 IAC 9-6-2.5(d). Specifically, Respondent shall complete all permanent closure requirements and site assessment requirements.

7. Within the sixty (60) 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.

8. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Linda McClure, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

9. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Thirteen Thousand Six Hundred Dollars ($13,600). 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.

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:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

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:

Paragraph	Penalty
Order paragraph # 3	$100 per week
Order paragraph # 4	$100 per week
Order paragraph # 5	$250 per week
Order paragraph # 6	$250 per week
Order paragraph # 7	$100 per week

11. Stipulated penalties shall be due and payable no later than the thirtieth day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the thirtieth 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 a 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.

12. 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 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 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.

15. 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.

16. Respondent 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 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.

19. 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.

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 Respondent.

TECHNICAL RECOMMENDATION:			RESPONDENT:
Department of Environmental Management
By:			By:
	Jennifer Reno, Chief		Printed:
	Land Enforcement Section		Title:
	Compliance Branch
	Office of Land Quality
Date:			Date:
			COUNSEL FOR RESPONDENT:
			By:
			Printed:
			Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF		, 20_____
			For the Commissioner:
			Signed 2/2/23
			Peggy Dorsey
			Assistant Commissioner
			Office of Land Quality