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STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT                     )    SS:    OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT OF        )
ENVIRONMENTAL MANAGEMENT,            )
                                )
                Complainant,            )
                                )    CAUSE NO. H-12625
            v.                    )
                                )
DESIGNTEC OF KENTUCKY, INC.,            )
                                )
HERB LIGON, and                        )
                                )
RANDY THOMAS,                        )
                                )
                Respondents.            )

NOTICE AND ORDER OF THE

COMMISSIONER OF THE

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

VIA CERTIFIED MAIL NO.___________        VIA CERTIFIED MAIL NO.___________

To:    Designtec of Kentucky, Inc.            Mr. Herb Ligon
    c/o Mr. Christopher Fitzpatrick        c/o Mr. Christopher Fitzpatrick
    Woodward, Hobson & Fulton        Woodward, Hobson & Fulton
    2500 National City Tower            2500 National City Tower
    Louisville, Kentucky 40202-3175        Louisville, Kentucky 40202-3175

VIA CERTIFIED MAIL NO.___________

    Mr. Randy Thomas
    c/o Mr. Christopher Fitzpatrick
    Woodward, Hobson & Fulton
    2500 National City Tower
    Louisville, Kentucky 40202-3175


    This Notice and Order of the Commissioner of the Department of Environmental Management is issued against Designtec of Kentucky, Inc., Herb Ligon, and Randy Thomas (collectively the "Respondents"), for violation of 329 IAC 3.1 (and IC 13-30). Article 3.1 of Title 329 incorporates many of the federal hazardous waste management standards found in 40 CFR 260 through 40 CFR 273. This Order is issued pursuant to IC 13-30-3-4, IC 13-30-3-10, and IC 13-30-3-11, and is based on violations found during an investigation conducted by the Office of Solid and Hazardous Waste Management. During that investigation, it was determined that the Respondents were in violation of 329 IAC 3.1 and IC 13-30, as specified below.

FINDING OF VIOLATION

    1.    Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management (hereinafter referred to as "IDEM"), a department of the State of Indiana created by IC 13-13-1-1.

    2.    Complainant has jurisdiction over the parties and subject matter of this action.

    3.    An administrative search warrant was served by representatives of IDEM on a parcel of property, otherwise known as the Designtec Facility ("Designtec"), located at 917 Vincennes Street (State Road 61) in Petersburg, Pike County, Indiana on December 21, 1994.

    4.     Records obtained by IDEM, while serving the administrative search warrant, revealed the shipment of several thousand gallons of liquid hazardous waste by Appalachian Environmental Transportation, Inc. ("AET") from Cumberland Terminals, Inc. ("Cumberland") in Nashville, Tennessee, to Designtec in Petersburg, Pike County, Indiana, between July 7 and July 18, 1994. Several shipments occurred, which included the following hazardous wastes:

        a.    five thousand (5,000) gallons of hazardous waste manifested (non- hazardous waste manifest No. 94001) from Cumberland, transported by AET via tanker truck, and received by Designtec on July 7, 1994;

        b.    five thousand (5,000) gallons of hazardous waste manifested (non- hazardous waste manifest No. 94002) from Cumberland, transported by AET via tanker truck, and received by Designtec on July 7, 1994;

        c.    five thousand (5,000) gallons of hazardous waste manifested (non- hazardous waste manifest No. 94003) from Cumberland, transported by AET via tanker truck, and received by Designtec on July 7, 1994;

        d.    five thousand (5,000) gallons of hazardous waste manifested (non- hazardous waste manifest No. 94004) from Cumberland, transported by AET via tanker truck, and received by Designtec on July 8, 1994;

        e.    five thousand (5,000) gallons of hazardous waste manifested (non- hazardous waste manifest No. 94005) from Cumberland, transported by AET via tanker truck, and received by Designtec on July 8, 1994;

        f.    five thousand (5,000) gallons of hazardous waste manifested (non- hazardous waste manifest No. 94006) from Cumberland, transported by AET via tanker truck, and received by Designtec on July 8, 1994;

        g.    five thousand (5,000) gallons of hazardous waste manifested (non- hazardous waste manifest No. 94007) from Cumberland, transported by AET via tanker truck, and received by Designtec on July 11, 1994;

        h.    five thousand (5,000) gallons of hazardous waste manifested (no manifest No. was provided) from Cumberland, transported by AET via tanker truck, and received by Designtec on July 11, 1994; and

        i.    three thousand two hundred (3,200) gallons of hazardous waste manifested (no manifest No. was provided) from Cumberland, transported by AET via tanker truck, and received by Designtec on July 18, 1994.

        A total of forty-three thousand two hundred (43,200) gallons of liquid hazardous waste was transported, using non-hazardous waste manifests, from Cumberland to Designtec.

    5.    Based upon an investigation of Designtec on November 22 and December 22, 1994, December 8, 1995, March 18, 1996, and February 7 and June 18, 1997 , by the Office of Solid and Hazardous Waste Management (hereinafter referred to as the "OSHWM") of the IDEM, the IDEM contends that the following violations were in existence or observed at the time of the inspections:

        a.    Pursuant to IC 13-30-2-1(11), IC 13-30-2-1(12), 329 IAC 3.1-7-3, and 329 IAC 3.1-7-6, a person may not cause or allow the transportation of a hazardous waste without a manifest if a manifest is required by law and, in addition, a person may not deliver any hazardous waste to a hazardous waste facility that is not approved or does not hold a permit from IDEM. Based upon the information gathered by IDEM, Respondents transported or allowed the transport of hazardous waste for receipt at its facility without hazardous waste manifests or a hazardous waste permit.

        b.    Pursuant to IC 13-30-2-1(10), 329 IAC 3.1-1-10, and 40 CFR 264.1, no person may commence or engage in the operation of any hazardous waste facility without having first obtained a permit from IDEM. Specifically, a facility that receives hazardous waste from off-site without a permit is a hazardous waste storage facility, and, therefore, is subject to the requirements of 40 CFR Part 264 and the permit requirements of 40 CFR Part 270. Based upon information gathered by IDEM, Respondents had received hazardous waste from off-site and stored such hazardous waste for greater than three (3) years without obtaining a permit and complying with the requirements of 40 CFR Part 264.

        c.    Pursuant to 40 CFR 268.50(a)(2), the storage of hazardous waste restricted from land disposal under 40 CFR 268 Subpart C is prohibited, unless the owner/operator of a hazardous waste treatment, storage, or disposal facility stores such wastes in tanks, containers, or containment buildings solely for the purpose of the accumulation of such quantities of hazardous waste as necessary to facilitate proper recovery, treatment, or disposal. Based upon the information gathered by IDEM, Respondents received hazardous waste from off-site and stored such hazardous waste restricted from land disposal in tanks and containers for greater than three (3) years without a demonstration of a need to store to facilitate proper recovery, treatment, or disposal.
    
        d.    Pursuant to 329 IAC 3.1-15-4, an owner or operator of a hazardous waste storage facility must establish financial assurance for closure of the facility. Based upon the information gathered by IDEM, Respondents failed to establish financial assurance for closure of the facility.

        e.    Pursuant to 329 IAC 3.1-15-8, an owner or operator of a hazardous waste storage facility must demonstrate financial responsibility for claims arising from the operation of said facility from sudden and accidental occurrences that cause injury to persons or property. Based upon the information gathered by IDEM, Respondents failed to demonstrate financial responsibility for claims arising from the operations of its facility from sudden and accidental occurrences that cause injury to persons or property.

        f.    Pursuant to 40 CFR 268.50(a)(2), the storage of hazardous waste restricted from land disposal under 40 CFR 268 Subpart C is prohibited, unless the owner/operator of a hazardous waste treatment, storage, or disposal facility stores such wastes in tanks, containers, or containment buildings solely for the purpose of the accumulation of such quantities of hazardous waste as necessary to facilitate proper recovery, treatment, or disposal and, further, each container or tank is clearly marked to identify its contents

and is also marked with the date each period of accumulation had begun. Based upon the information gathered by IDEM, Respondents failed to mark its numerous fifty-five (55) gallon drums, located within the Garage and Office, and six (6) hazardous waste tanks, located adjacent to State Road 61, with the words "Hazardous Waste," and the date upon which the period of accumulation had begun.

        g.    Pursuant to 40 CFR 264.16, owners and operators of hazardous waste facilities must initiate and maintain a training program for those involved in the management of hazardous waste. Based upon the information gathered by IDEM, Respondents failed to initiate and maintain a training program for those involved in the management of hazardous waste.

        h.    Pursuant to 40 CFR 264 Subpart D, owners and operators of hazardous waste facilities must develop, maintain, and implement, as necessary, a contingency plan. Based upon the information gathered by IDEM, Respondents failed to develop, maintain, and implement, as necessary, a contingency plan for their hazardous waste facility.

        i.    Pursuant to 40 CFR 264 Subpart C, owners and operators of hazardous waste facilities must establish emergency arrangements with local authorities and provide access to communication or alarm systems. Based upon the information gathered by IDEM, Respondents failed to establish emergency arrangements with local authorities and provide access to communication or alarm systems.

        j.    Pursuant to 40 CFR 264 Subpart J, owners and operators of hazardous waste tank systems must properly install, inspect, and maintain such systems and provide for adequate secondary containment. Based upon the information gathered by IDEM, Respondents failed to properly inspect and maintain its hazardous waste tank system and provide for adequate secondary containment (Tank Nos. 1, 2, 3, 4, 5, & 6).

        k.    Pursuant to IC 13-30-2-1 and 40 CFR 264.31, a person shall not deposit any contaminants upon the land in a place and manner that creates or would create a pollution hazard that violates or would violate a rule adopted by one (1) of the boards. Based upon the information gathered by IDEM, Respondents allowed hazardous wastes to be spilled or otherwise deposited upon the land, at the following locations, in a manner that caused or threatened to cause a pollution hazard in violation of one (1) or more rules adopted by one (1) of the boards :

            (i).    the Garage; and


            (ii).    the Loading Dock and areas of the gravel driveway.

    6.    Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation on August 7, 1997, via Certified Mail to:

        Designtec of Kentucky, Inc.        Mr. Herb Ligon
        c/o Mr. Christopher Fitzpatrick    c/o Mr. Christopher Fitzpatrick
        Woodward, Hobson & Fulton    Woodward, Hobson & Fulton
        2500 National City Tower        2500 National City Tower
        Louisville, Kentucky 40202-3175    Louisville, Kentucky 40202-3175

        Mr. Randy Thomas            Mr. Jack Gregory
        c/o Mr. Christopher Fitzpatrick    2027 College Avenue
        Woodward, Hobson & Fulton    Vincennes, Indiana 47591
        2500 National City Tower        
        Louisville, Kentucky 40202-3175    

    7.    Designtec of Kentucky, Inc., Herb Ligon, Randy Thomas, and Jack Gregory each received the Notice of Violation on August 11, 1997. Since that time, IDEM has learned that Mr. Jack Gregory is no longer living.

    8.    On December 3, 1997, a Special Notice Letter was issued to Respondents requesting, among other items, that all solid, special, and hazardous wastes be properly characterized and removed from Designtec by no later than January 2, 1998. To date, Respondents have not met the requirements of the Special Notice Letter.

    9.    Due to Respondents' failure to meet the requirements of the Special Notice Letter, IDEM performed a removal action at Designtec on April 27 & 28, 1998, removing certain solid, special, and hazardous waste streams from the facility. While the Respondents failed to comply with the Special Notice Letter, this Order is not an administrative order under IC 13-25-4-9. IDEM specifically reserves the right to pursue a cost recovery action under IC 13-25-4-9.

    10.    The Notice of Violation contained an offer to enter into an Agreed Order containing actions required to correct the violations.

    11.    More than sixty (60) days have elapsed since Respondents were offered the opportunity to enter into an Agreed Order.

    12.    Despite repeated attempts to contact the Respondents in an effort to resolve this matter, the Respondents have not entered into an Agreed Order resolving these violations.


II. ORDER

    1.    Within forty-five (45) days of the effective date of the Order, Respondents shall submit to IDEM for approval a closure plan, pursuant to 40 CFR 264 Subpart G, for

        a.    Tank Nos. 1, 2, 3, 4, 5, and 6;

        b.    The Garage; and

        c.    The Office.

    2.    Upon IDEM's approval of the closure plan, referenced in Order No. 1 above, Respondents shall implement the plan as approved, and in accordance with the timeframes contained therein.

    3.    Within forty-five (45) days of the effective date of the Order, Respondents shall establish financial assurance for the closure of its hazardous waste storage facility pursuant to 329 IAC 3.1-15-4.

    4.    Within forty-five (45) days of the effective date of the Order, Respondents shall demonstrate financial responsibility for claims arising from the operation of said facility from sudden and accidental occurrences that cause injury to persons or property pursuant to 329 IAC 3.1-15-8.

    5.    All submittals required by this Order, unless notified otherwise in writing, shall be sent to:

            Matthew T. Klein
            Hazardous Waste Section
            Office of Enforcement
            Indiana Department of Environmental Management
            100 North Senate Avenue
            P.O. Box 6015
            Indianapolis, Indiana 46206-6015

    6.    The Respondents shall pay a civil penalty of Eighty-Three Thousand Dollars ($83,000) for violation of 329 IAC 3.1 and IC 13-30-2-1. This penalty shall be remitted to the Department of Environmental Management within thirty (30) days of the effective date of this Commissioner's Order. Checks shall be made payable

to the Environmental Management Special Fund, with the Cause Number indicated on the check(s) and mailed to: Cashier, Indiana Department of Environmental Management, 100 North Senate Avenue, P.O. Box 7060, Indianapolis, Indiana 46207-7060.

    7.    Respondents shall pay an additional civil penalty of One Thousand Dollars ($1,000) per day for each day of noncompliance with the terms of this Order.

    8.    This Order shall apply to and be binding upon the Respondents, its officers, directors, principals, agents, successors, subsidiaries, and assigns.

    9.    The Respondents shall provide a copy of this 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 Order comply with the terms of this Order.

EFFECTIVE DATE OF ORDER

    Pursuant to IC 13-30-3-5, this Order takes effect twenty (20) days following receipt unless you request review of this Order, before the twentieth day after receipt, by filing a written request for review with the Office of Environmental Adjudication, and serving a copy of the request for review upon the Commissioner of the Indiana Department of Environmental Management. Pursuant to IC 4-21.5-3-7, you may request that the Office of Environmental Adjudication conduct a hearing to review this Order, under IC 4-21.5, in its entirety, or you may limit your request for review to specific findings of fact and/or orders contained in this Order. Requests for review must be submitted to the Office of Environmental Adjudication and the Commissioner of the Indiana Department of Environmental Management at the following addresses:

Director                    Commissioner
Office of Environmental Adjudication    Indiana Dept. of Environmental Management
ISTA Building                Indiana Government Center North
150 W. Market Street                100 N. Senate
Suite 618                    P.O. Box 6015
Indianapolis, Indiana 46204            Indianapolis, Indiana 46206-6015

    Failure to properly submit a request for review, before the twentieth day following receipt of this Order of the Commissioner, waives your right to administrative review of this Order pursuant to IC 4-21.5-3-7 and your right to judicial review of the Order pursuant to IC 4-21.5-5- 4. The petition for administrative review must contain the following information:

        (1)    Name, address, and telephone number of each person filing the petition.

        (2)    Identification of the interest of each petitioner in the subject of the petition.
        (3)    Statement of facts demonstrating that the petitioner is:
                (A)    a person to whom the order is directed;
                (B)    aggrieved or adversely affected by the order; or
                (C)    entitled to review under any law.
        (4)    Statement with particularity the legal issues proposed for consideration in the proceedings.    

    The petition for administrative review should also contain the following information:
        
        (1)    Identification of any persons represented by the person making the request pursuant to IC 4-21.5-3-15.
        (2)    Statement identifying the person against whom administrative review is sought.
        (3)    A copy of the notice of the commissioner's action issued by the department of environmental management which is the basis of the petition for administrative review.
        (4)    Statement indicating the identification of petitioner's attorney or other representative.

    If you have procedural or scheduling questions regarding your request for review you may contact the Office of Environmental Adjudication at (317) 232-8591.

    Dated at Indianapolis, Indiana this ________________ day of _________________ 1999.

                    _[Signed on December 28, 1999]_________
                    Lori F. Kaplan
                    Commissioner

cc:    OLQ 1B2 File
    Pike County Health Department
    Pike County Solid Waste Management District
    Mr. Roger Wilson, Office of Solid and Hazardous Waste Management
    Mr. Scott Storms, Office of Legal Counsel
    Ms. Judy Dicus-Thomann, Southwest Regional Office

Converted by Andrew Scriven