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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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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2018-25217-U |
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kocolene Marketing, LLc and Shri |
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hari enterprise, |
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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 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.
Kocolene Marketing,
LLC was the owner and/or operator of the underground storage tanks (“USTs”)
with UST Facility ID 9387, located at 1510 North Main Street, in Monticello,
White County, Indiana (the “Site”) when a petroleum release was reported and
assigned incident number 200308514. On September 9, 2009, the property was sold
to Harpreet Singh. In a letter dated September 4, 2008, Kocolene
Marketing, LLC stated that it had retained responsibility for ongoing
corrective action regarding leaking UST incident number 200308514. On May 27,
2011, the property was sold to Shri Hari Enterprise.
3. IDEM has jurisdiction over the parties
and the subject matter of this action.
4.
Pursuant to IC 13-30-3-3, on May 7, 2018, IDEM
issued a Notice of Violation (“NOV”) via Certified Mail to Debbie Vondielingen, Controller of Kocolene
Marketing, LLC and J. Kevin Johnson, Registered Agent for Kocolene
Marketing, LLC.
5.
During a file review conducted by a
representative of IDEM on March 22, 2018, the following violations were found:
a. Pursuant to 329 Indiana Administrative
Code (“IAC”) 9-5-7, (c) upon approval of the corrective action plan or as
directed by the commissioner, the owner and operator shall implement the plan,
including modifications to the plan made by the commissioner. The owner and
operator shall monitor, evaluate, and report the results of implementing the
plan in accordance with a schedule and in a format established by the
commissioner.
As noted during a file review conducted
on March 22, 2018, Respondents failed to implement the Corrective Action Plan
(“CAP”) Addendum approved by IDEM on October 26, 2016. In addition, Respondents
failed to continue quarterly groundwater monitoring as outlined in the CAP
approved April 2, 2007.
6. 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 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 Respondents. This Agreed
Order shall have no force or effect until the Effective Date.
2.
All corrective action costs and activities performed
after the signing of this agreement will be subject to preapproval by IDEM. All
requests for preapproval will be submitted on IDEM’s Scope of Work form,
available on the IDEM website. All requests for preapproval must include all
activities and all costs related thereto including time, personnel, materials,
equipment, mileage, etc.
3.
In conjunction with Order Paragraph 4, below, Shri
Hari Enterprise shall conduct a groundwater monitoring and sampling event
during the fourth quarter of 2020. The results of the groundwater monitoring
and sampling event must be included in an Exposure Evaluation Report.
4.
Shri Hari Enterprise shall conduct a vapor
intrusion investigation at 116 Heritage Road during fourth quarter 2020. Winter
sampling events must be completed and submitted to IDEM by December 30, 2020
within the Exposure Evaluation Report. In addition, historical vapor intrusion
sampling data collected at 116 Heritage Road must be included in future
reports.
5.
Shri Hari Enterprise shall, if requested by
IDEM as part of the closure process, submit a right-of-way notice of
contamination to the City of Monticello.
6.
Within thirty (30) days of the Effective Date
of the Agreed Order, Shri Hari Enterprise shall submit draft Environmental Restrictive
Covenants (“ERC”) to IDEM for review and approval for the following addresses
located in Monticello, White County, Indiana: 1510 North Main Street, 116
Heritage Road, and 200 Heritage Road. An ERC template is provided in Attachment
A.
7.
If IDEM issues a Notice of Deficiency (“NOD”)
for any ERC submitted under Order paragraph 6, Shri Hari Enterprise shall
respond within the timeframes in the NOD. If such timeframes are not met, IDEM
may assess stipulated penalties as described in Order paragraph 12.
8.
Within sixty thirty (3 60) days
of IDEM’s approval of the ERCs, described in Order paragraph 6 above, Shri Hari
Enterprise shall record the ERCs with the White County Recorder's Office.
9.
Within fifteen (15) days of the date of
recording with White County, Shri Hari Enterprise shall submit a copy of the file-stamped ERCs to IDEM.
10. All submittals required by this Agreed
Order, unless Respondents are notified otherwise in writing by IDEM, shall be
sent to:
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Linda McClure, Enforcement Case
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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 |
11. Respondents are assessed and agree to pay
a civil penalty of seven thousand two hundred dollars ($7,200.00). Respondents are jointly and severally liable for all civil
penalty assessments, including stipulated penalties. 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.”
12.
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 |
$500 per month late |
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Order
paragraph # 4 |
$500 per
month late |
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Order
paragraph # 5 |
$150 per
month late |
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Order
paragraph # 6 |
$350 per
month late |
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Order
paragraph # 7 |
$250 per
month late |
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Order
paragraph # 8 |
$150 per
month late |
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Order
paragraph # 9 |
$150 per
month late |
13.
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.
14.
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 |
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Indianapolis, IN 46204 |
15.
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 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 Respondents pay any unpaid balance. Such
interest shall be payable to the “Underground Petroleum Storage Tank Trust
Fund,” and shall be payable to IDEM in the manner specified in Paragraph 14,
above.
16.
This Agreed Order shall apply to and be binding
upon Respondents and their successors and assigns. Respondents’ signatories to
this Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership,
corporate, or partnership status of Respondents shall in any way alter its
status or responsibilities under 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.
Respondents shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondents shall ensure that all contractors, firms
and other persons performing work under this Agreed Order comply with the terms
of this Agreed Order.
19.
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 its obligation to comply with the requirements of its applicable
permits or any applicable Federal or State law or regulation.
20.
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.
21.
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 same violations specified in the NOV.
22.
Nothing in this Agreed
Order shall prevent IDEM or anyone acting on its behalf from communicating with
the 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 EPA or any other agency or entity.
23.
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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Jennifer
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Land
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Compliance
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Office
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Date: |
4/22/2020 |
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COUNSEL FOR RESPONDENT: |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For
the Commissioner: |
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Signed 7/2/2020 |
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Peggy
Dorsey |
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Assistant
Commissioner |
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Office
of Land Quality |
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