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. 2010-19165-H
					)
jefferson homebuilders inc,					)
A/K/A CULPEPER WOOD PRESERVERS,					)
					)
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 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 Jefferson Homebuilders Inc., also known as Culpeper Wood Preservers, (“Respondent”), which owns and/or operates the facility with United States Environmental Protection Agency ("EPA") ID No. number IND 103634135, located at 701 Mausoleum Road in Shelbyville, Shelby County, Indiana (the “Site”).

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

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation ("NOV") via Certified Mail to:

Joseph R. Daniel, Jr., President	Peter Deprez, Registered Agent for
Jefferson Homebuilders Inc.	Jefferson Homebuilders Inc.
14939 Alpine Bay Look	24 E. Polk St.
Gainesville, VA 20155	Shelbyville, IN 46176

5. Respondent treats sawed lumber with wood preservatives for household and commercial use.

6. Respondent last notified the U.S. EPA of small quantity generator hazardous waste activities on February 13, 2008. However, as part of its operations, Respondent manages F035 hazardous waste on drip pads which have not undergone closure, thereby subjecting the facility to the large quantity generator requirements of 40 CFR 262.34(a), as well as to the drip pad standards of 40 CFR 265, Subpart W.

7. 329 IAC 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270, and Part 273 including these identified below.

8. During an investigation including an inspection on March 9 & 23, 2010, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 40 CFR 262.34(a)(2), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that the date when the accumulation begins is clearly marked and visible for inspection on each container.

As noted during the inspection, Respondent accumulated hazardous waste on-site, without a permit, and did not mark hazardous waste containers with accumulation start dates. Three (3) containers located in the designated hazardous waste storage area along the north wall of the treater building were not marked with accumulation start dates.

Respondent corrected the violation at the time of the inspection.

b. Pursuant to 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that, while being accumulated on-site, each container and tank is labeled or marked clearly with the words "Hazardous Waste."

As noted during the inspection, Respondent accumulated hazardous waste on-site, without a permit, and did not label or clearly mark hazardous waste containers with the words "Hazardous Waste." Three (3) containers located in the designated hazardous waste storage area along the north wall of the treater building were not marked with the words "Hazardous Waste."

Respondent corrected the violation at the time of the inspection.

c. Pursuant to 40 CFR 262.34(c)(1)(ii), a generator may accumulate as much as 55 gallons of hazardous waste in containers at or near the point of generation without a permit and without complying with 40 CFR 262.34(a), provided that the containers are marked with either the words "Hazardous Waste" or with other words describing the contents.

As noted during the inspection, Respondent accumulated hazardous waste in containers at or near the point of generation without a permit and did not properly mark satellite accumulation containers with either the words “Hazardous Waste” or with other words describing the contents. Two (2) satellite drums, one located in the treater building north wall west and the other along the north wall east, were not marked with the words "Hazardous Waste."

A follow-up inspection by IDEM on October 28, 2010 determined that satellite drums were being properly labeled at that time.

d. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.52, the content of the contingency plan must include the following: a description of appropriate actions, arrangements with local emergency response teams, contact information for the emergency coordinators, emergency equipment, and an evacuation plan.

As noted during the inspection, Respondent's contingency plan did not include all of the required information. The plan did not include an evacuation plan.

Respondent provided a copy of the evacuation plan after the inspection.

e. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(d)(1-4), certain hazardous waste training related documents and records including job title, job descriptions, a description of the type and amount of required training, and completion documents with respect to the hazardous waste management training must be maintained on-site.

As noted during the inspection, Respondent did not maintain all of the required hazardous waste training related documents and records on-site.

f. Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and aboveground tanks with the words “Used Oil.”

As noted during the inspection, Respondent did not label one (1) used oil container located in the maintenance shop with the words “Used Oil.”

Respondent presented information at a settlement conference between the two parties on September 1, 2010, documenting that the used oil container has been provided with a label.

g. Pursuant to 40 CFR 262.34(a)(1) referencing 40 CFR 265.443(a)(4)(i), existing drip pads which lack an underlying synthetic liner and leakage detection system must be sealed, coated, or otherwise covered, and free of cracks or gaps, such that its hydraulic conductivity is less than or equal to 1x10^-7 centimeters per second.

As noted during the inspection, Respondent could not demonstrate that its drip pads, both to the west and to the east of the treater cylinders, met the hydraulic conductivity specification of 1x10^-7 centimeters per second. The drip pads had numerous visible cracks and a few gaps at concrete seams, which likely compromised the hydraulic conductivity specification. The pads last had a general seal coating applied in 2002. Some larger cracks had been filled with epoxy in 2009. The most recent written drip pad assessment, dated March 20, 2009, was based merely on a visual examination of the pads without a quantitative determination of the hydraulic conductivity. At least several of the cracks and gaps presently visible, particularly in the west pad south of the tram, appeared to be inadequately sealed.

Respondent presented information at a settlement conference between the two parties on September 1, 2010, indicating that Stonhard had completed repair of the pad on April 30, 2010, and that Argo Consulting Engineers, Inc. had inspected the whole pad and the repairs made by Stonhard on July 29, 2010, and had determined that the pad did meet the hydraulic conductivity standard of 1x10^-7 centimeters per second at the time of its inspection.

On September 9, 2010, Respondent submitted to IDEM a drawing of the repairs made. IDEM conducted a follow-up inspection on October 28, 2010, and determined that the repairs made appeared to be adequate. However, Respondent had not recorded the deficiencies and repairs made in the operating record.

h. Pursuant to 40 CFR 262.34(a)(1) referencing 40 CFR 265.443(a)(4)(ii) & (g), existing drip pads which lack an underlying synthetic liner and leakage detection system must have an annual written assessment, reviewed and certified by an independent qualified registered professional engineer, evaluating and attesting to the extent to which the drip pads meet the design and operating standards in 40 CFR 265.443.

As noted during the inspection, Respondent had not provided annual written assessments, reviewed and certified by an independent qualified registered professional engineer, evaluating and attesting to the extent to which Respondent's drip pads met the design and operating standards in 40 CFR 265.443. Respondent's operating record indicated that drip pad assessments had not occurred for 2005 through 2008. The assessments which had been done in 2001, 2003, 2004, and 2009 did not quantitatively evaluate the pads' hydraulic conductivity.

i. Pursuant to 40 CFR 262.34(a)(1) referencing 40 CFR 265.443(c) & (m), existing drip pads which lack an underlying synthetic liner and leakage detection system must remain free of cracks, gaps, corrosion, or other deterioration that could cause hazardous waste to be released from the drip pads. Such conditions must be identified and documented in the operating record along with remedial actions to be taken.

As noted during the inspection, Respondent drip pads, both to the west and to the east of the treater cylinders, had numerous visible cracks, and a few gaps at concrete seams, particularly in the west pad south of the tram. The pads last had a general seal coating applied in 2002. Some larger cracks had been filled with epoxy in 2009, but several cracks or gaps visible on the day of inspection did not appear to be adequately sealed. These specific deficiencies had not been explicitly identified and documented in the operating record with remedial actions taken as required in 40 CFR 265.443(m).

9. In recognition of the settlement reached, Respondent 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 rules listed in the findings here and/or above at issue.

3. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure the date when accumulation begins is clearly marked and visible for inspection on each container of hazardous waste.

4. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that a "Hazardous Waste" label is placed on each container of hazardous waste.

5. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(c)(1)(ii). Specifically, Respondent shall ensure that satellite containers holding hazardous waste are marked with a "Hazardous Waste" label.

6. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.52. Specifically, Respondent shall ensure that the contingency plan includes the following: a description of appropriate actions, arrangements with local emergency response teams, contact information for the emergency coordinators, emergency equipment, and an evacuation plan.

7. Within thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR 265.16(d)(1-4). Specifically, Respondent shall amend its hazardous waste management personnel training records to include job title, job descriptions, a description of the type and amount of required training, and completion documents with respect to the training. Respondent shall maintain the documents at the facility, and shall submit a copy of the documents to IDEM within thirty five (35) days of the Effective Date.

8. Upon the Effective Date, Respondent shall ensure compliance with 329 IAC 13-4-3(d). Specifically, Respondent shall ensure that all used oil containers and aboveground tanks are labeled with the words “Used Oil.”

9. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 265.443(a)(4)(ii) & (g). Specifically, Respondent shall ensure that annual written assessments, evaluating and attesting to the extent to which the drip pads meet the applicable design and operating standards, are provided. Respondent shall ensure that the assessments justify the basis on which compliance with technical standards, such as hydraulic conductivity, is claimed.

10. With thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR 265.443(m). Specifically, Respondent shall identify and document all cracks, gaps, or other deterioration in the drip pads (including those repaired on April 30, 2010), and record the remedial action taken to correct such deficiencies. Respondent shall submit demonstration that these steps have been taken to IDEM within thirty five (35) days of the Effective Date.

11. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 265.443(c). Specifically, Respondent shall ensure that the drip pads are maintained such that they are free of gaps, corrosion, or other deterioration that could cause hazardous waste to be released from the drip pad.

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

Brenda Lepter, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

13. Respondent is assessed a civil penalty of Eleven Thousand Six Hundred Dollars ($11,600). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date. In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

14. 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:

Failure to comply with Order paragraph no. 7	$500 per week
Failure to comply with Order paragraph no. 10	$1,000 per week

15. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties set out above, Complainant may seek any other remedies or sanctions available by virtue of Respondent’s violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

16. Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this action and shall be mailed to:

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

17. This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. Respondent’s 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 Respondent shall in any way alter its status or responsibilities under this Agreed Order.

18. 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.

19. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

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 its obligation to comply with the requirements of its applicable permit or any applicable Federal or State law or regulation.

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 same violations specified in the NOV.

23. 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 Respondent may incur as a result of such communications with the 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.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
COUNSEL FOR COMPLAINANT:				COUNSEL FOR RESPONDENT:
For the Department of Environmental Management
By: ________________________				By: ________________________
	Deputy Attorney General
Date: _______________________				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_________	DAY OF	_______________,	201_.
				For the Commissioner:
				Signed on January 31, 2011
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality