32: Geo west virginio department of environmental protection Division of Water and Waste Management Earl Ray Tomblin, Governor 601 52?? Street SE Randy C. Hu??man. Cabinet Secretary Charleston, WV 25304 Phone: (304) 926-0470 Fax: (304) 926-0488 CONSENT ORDER ISSUED UNDER THE HAZARDOUS WASTE MANAGEMENT ACT WEST VIRGINIA CODE, CHAPTER 22, ARTICLE 18 AND THE GROUNDWATER PROTECTION ACT WEST VIRGINIA CODE, CHAPTER 22, ARTICLE 12 TO: Executive Air DATE: July 20, 2016 ATTN: Mr. Scott Miller 400 Eagle Mountain Road ORDER NO.: 6-16 Charleston, WV 2531 1 INTRODUCTION This Consent Order is issued by the Director of the Division of Water and Waste Management (hereinafter ?Director?), under the authority of West Virginia Code, Chapter 22, Article 18, Section I et seq. and Chapter 22, Article 12, Section 1 et seq. to Executive Air. FINDINGS OF FACT In support of this Order, the Director hereby ?nds the following: Executive Air operates a General Aviation Facility located in Charleston, Kanawha County, West Virginia and has been assigned EPA ID No. WVD988775573. On November 4, 2015, US EPA Region 3 noti?ed West Virginia Department of Environmental Protection (WVDEP) of the discovery of thirty-seven (37) drums containing liquid wastes, reportedly generated by Executive Air, at a location near the intersection of Park Avenue and Washington Street West in Charleston, West Virginia. The containers were sampled on November 9, 2015, and twenty-seven (27) of the containers were determined to be RCRA hazardous wastes, with EPA waste codes D001, D008, D018, and 0039. On November 20, 2015, WVDEP personnel conducted a Spill Investigation at Executive Air. During the investigation, it was discovered that the rain water release valve for the fuel tank secondary containment was open, allowing an unknown quantity of fuel to Promoting a healthy environment. Executive Air Consent Order Page2 escape to the environment. A violation of the following section of WV Legislative Rules was observed and documented: a. 47CSR5 8 Section 7.1 Executive Air allowed a petroleum product to ?ow onto the land surface in such a manner that could imliaot groundwater quality. . On December 2, 2015, WVDEP personnel conducted a Compliance Evaluation Inspection (CEI) at Executive Air. During the inspection, violations of the following sections of the Code of Federal Regulations were observed and documented: a. Executive Air offered hazardous waste, speci?cally the aforementioned drums, to a transporter who had not obtained an EPA ID number. b. 4OCFR262.11- Executive Air failed to make a hazardous waste determination for M.A.R.S. cart fuel ?lters and ?re! soaked PIG pads. c. - Executive Air failed to clearly mark or label tanks and containers of used oil with the words "Used Oil". d. as referenced by -Executive Air failed to label containers clearly with an Accumulation Start Date. e. as referenced by Executive Air failed to label containers clearly with the words "Hazardous Waste". f. as referenced by - Executive Air failed to keep containers of hazardous waste closed when not adding or removing waste. As a result of the aforementioned violations, Notice of Violation (NOV) No. 1512-254 was issued to Executive Air. . On February 11, 2016, WVDEP personnel reaponded to a complaint concerning continued storage of waste at the facility, conducted a records review of the facility, and documented violations of the following sections of the Code of Federal Regulations and WV Legislative Rules. a. 4OCFR262.11 Executive Air failed to complete a hazardous waste determination for the aforementioned twenty-seven (27) drums of hazardous waste. b. 40CFR265 .51 as referenced by - Executive Air failed to develop a hazardous waste contingency plan. c. 4OCFR265.16 as referenced by Executive Air failed to provide training and written job descriptions for their employees. d. - Executive Air initially failed to prepare a hazardous waste manifest for the aforementioned drums to document and track waste leaving the facility. Executive Air then failed, a?er having been noti?ed, to ensure proper completion of the manifest for ?nal removal to a designated facility for diSposal. e. as referenwd by - Executive Air failed to perform Land Disposal Restriction testing and tracking requirements. f. 33CSR20 Section - Executive Air failed to re-notify the Secretary of hazardous waste activity. As a result of the aforementioned violations, NOV No. 1602-258 was issued to Executive Air. ExewtiveAirConsentOrder P8393 6. On June 9, 2016, WVDEP personnel and representatives of Executive Air met to discuss the terms and conditions of this Order. During this meeting, WVDEP personnel con?rmed that Executive Air had achieved compliance with all of the aforementioned Codes and Rules. ORDER FOR COMPLIANCE Now, therefore, in accordance with Chapter 22, Article 18, Section 1 et seq. and Chapter 22, Article 12, Section 1 et seq. of the West Virginia Code, it is hereby agreed between the parties, and ORDERED by the Director: 1. Executive Air shall immediately take all measures to initiate compliance with all pertinent laws and rules. Because of Executive Air?s Code of Federal Regulations violations, Executive Air shall be assessed a civil administrative penalty of sixty-eight thousand three hundred nine dollars ($68,309) to be paid to the West Virginia Deparnnent of Environmental Protection for deposit in the Hazardous Waste Management Fund within thirty (30) days of the e??ective date of this Order. Payments made pursuant to this paragraph are not tax- deductible for purposes of State or federal law. Payment shall include a reference to the Order No. and shall be mailed to: Chief Inspector Environmental Enforcement - Mail Code #031328 WV-DEP 601 57?? Street SE Charleston, WV 25304 OTHER PROVISI NS . Executive Air hereby waives its right to appeal this Order under the provisions of Chapter 22, Article 18, Section 20 and/or Chapter 22, Article 12, Section 11 of the Code of West Virginia. Under this Order, Executive Air agrees to take all actions required by the terms and conditions of this Order and consents to and will not contest the Director?s jurisdiction regarding this Order. However, Executive Air does not admit to any factual and legal determinations made by the Director and reserves all rights and defenses available regarding liability or responsibility in any proceedings regarding Executive Air other than proceedings, administrative or civil, to enforce this Order. The Director reserves the right to take further action if compliance with the terms and conditions of this Order. does not adequately address the violations noted herein and reserves all rights and defenses which he may have pursuant to any legal authority, as well as the right to raise, as a basis for supporting such legal authority or defenses, facts other than those contained in the Findings of Fact. . Ifany event occurs which causes delay in the achievement of the requirements of this Order, Executive Air shall have the burden of proving that the delay was caused by circumstances beyond its reasonable control which could not have been overcome by due Executive Air Consent Order Page 4 diligence force majeure). Force majeure shall not include delays caused or contributed to by the lack of suf?cient funding. Within three (3) working days after Executive Air becomes aware of such a delay, noti?cation shall be provided to the Director/Chief Inspector and Executive Air shall, within ten (10) working days of initial noti?cation, submit a detailed written explanation of the anticipated length and cause of the delay, the measures taken and/or to be taken to prevent or minimize the delay, and a timetable by which Executive Air intends to implement these measures. If the Director agrees that the delay has been or will be caused by circumstances beyond the reasonable control of Executive Air force majeure), the time for performance hereunder shall be extended for a period of time equal to the delay resulting from such circumstances. A force majeure amendment granted by the Director shall be considered a binding extension of this Order and of the requirements herein. The determination of the Director shall be ?nal and not subject to appeal. 4. Compliance with the terms and conditions of this Order shall not in any way be construed as relieving Executive Air of the obligation to comply with any applicable law, permit, other order, or any other requirement otherwise applicable. Violations of the terms and conditions of this Order may subject Executive Air to additional penalties and injunctive relief in accordance with the applicable law. 5. The provisions of this Order are severable and should a court or board of competent jurisdiction declare any provisions to be invalid or unenforceable, all other provisions shall remain in full force and effect. 6. This Order is binding on Executive Air, its successors and assigns. 7. This Order shall terminate upon Executive Air?s noti?cation of full compliance with the ?Order for Compliance? and veri?cation of this noti?cation by WVDEP. gym/KM #092ch Mr. Scott Miller Executive Air Public Notice beg1_n' Date Public Notice end: Date Scott G. Mandirola. Director i VEB Division of Water and Waste Managemen SEP 0 8 '88 ENVIRONMENTAL ENFORCEMENT Photo Attachment 11/9/2015 Drums of Executive Air waste liquids at Elkview location. 11/9/2015 -- Damaged Executive Air waste drum at Elkview location. Photo Attachment 6 UBRHK Aviation Laboratories 300 Eagle Mountain Charleston: 2531 ?l 1 Executive Air 190? 0192714 12/2/2015 Used Oil not marked or labeled with the words ?Used Oil? at Executive Air facility. Photo Attachment 12/2/2015 - Absorbent pads soaked with aviation fuels at Executive Air facility. 07I19I16 Page1 of 5 Hazardous Waste Base Penalty Calculation (pursuant to Responsible Party: Executive Air EPA ID Number: WVD988775573 Generator Classi?cation: Episodic LQG Enter and rate each ?nding as to Potential and Extent. Potential for Harm Factor 1) Factor Range 51' Ia) HarmtoRCRAProgram lto3 3 3 7'lb) Probability of Exposure 0to3 lo) Potential Seriousness of lto 3 A 7 Contamination ?mgFactor 2) Extent of Deviation Factor Factor Range Degree of Non- .- . . Compliance ?Potential for Harm Factors la. - Harm to the RCRA Program - All regulatory requirements are fundamental to the continued integrity of the RCRA Program - Violations that undermine the statutory or regulatory purposes or procedures for implementing the RCRA program may have serious implications and merit substantial penalties. Examples include but are not limited to: failure to notify as a generator, failure to respond to an info request, failure to prepare or maintain a manifest, and operating disposal without a permit lb. - Probability of Exposure - factors to be considered include but are not limited to: evidence of a release, evidence of waste mismanagement, and adequacy of provisions for detecting and preventing a release lc. - Potential Seriousness of Contamination - factors to consider include but are not limited to quantity and toxicity of wastes (potentially) released, likelihood or fact of transport by way of environmental media air and groundwater), and existence, size and proximity of receptor populations local residents, ?sh, wildlife) and sensitive environmental media surface waters and aquifers.) Note: Rate as for Minor, 2 for Moderate and 3 for Major. Rate as 0 if it does not apply. Page 2 of 5 Continue rating Findings of Facts (FOF) here, if necessary. Otherwise, continue on Page 3. 1) Potential for Harm Factor Factor Range a) Harm to RCRA Program 1 to 3 b) Probability of Exposure 0 to 3 Potential Seriousness of 1 to 3 c) Contamination Average Potential for Harm Factor 2) Extent of Deviation Factor Factor Range Degree of Non- 1 to 3 Compliance Extent of Deviation from Requirement Page 3 of 5 Major Moderate Minor If $8,000 to e? 3 Major $10,000 $6,000 to $8,000 $5,000 to $6,000 Harm to $4,000 to Hum? Hem" Moderate $5,000 $3,000 to $4,000 $2,000 to $3,000 or the $1,500 to ?mm? Minor $2,000 $1,000 to $1,500 Up to $1,000 potential For Extent of Multiplel FOF Harm Deviation Penalty Factor Base Penalty 4a Major Major $8.660 1' $8,660 4b Major Major $8,660 '7 1 $8,660 46 Minor Minor $1,000 ,7 1 $1,000 4f Moderate Minor $2,330 .. 1 $2,330 5a Major Major $8,660 1 $8,660 5c Moderate Moderate $4,000 1 $4,000 so Major Major $8,660 1 $8,660 5e Major Major $8,660 . 7171 $8,660 5f Moderate Minor $2,330 .. _7 1 $2,330 0 FALSE FALSE FALSE "1 $0 0 FALSE FALSE FALSE 1' $0 0 FALSE FALSE FALSE 7 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 7 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 1 . $0 0 FALSE FALSE FALSE 7 v1 $0 0 FALSE FALSE FALSE 1? $0 Total Base Penalty $52,960 Page 4 of 5 Penalty Adjustment Factors (pursuant to 33CSR27-6.2) Penalty Adjustment Factors 6.2.b.l - Good faith efforts to comply or lack of good faith - 10% decrease to 10% increase 6.2.b.2 - Degree of Willfulness and or Negligence - 0% to 30% increase 6.2.b.3 - Cooperation with the Secretary - 0% to 10% decrease 6.2.b.4 - History of Non-Compliance - 0% to 100% increase - based upon review of last three (3) years - Warning maximum of 5% each, N.0.V. maximum of 10% each, previous Order maximum of 25% each 6.2.13.5 - Ability to pay a civil administrative penalty - 0% to 100% decrease 6.2.b.6 - Economic Bene?t of non-compliance 6.2.b.7 - Sta?? Investigative Costs 6.2.b.8 - Other relevant factors determined on a case-by-case basis Base Penaltv Adiustments (pursuant to 33CSR27-6.2) Page 5 of 5 Base Penalty Penalty Adjustment Factor Increase Decrease Adjustments 6.2.b.l - Good Faith - Increase $0 6.2.b.l - Good Faith - Decrease 10 ($5.296) 6.2.b.2 Willfulness and/or negligence 30 $l5,888 6.2.b.3 - Cooperation with the Secretary $0 6.2.b.4 - Compliance/noncompliance history $0 6.2.b.5 - Ability to Pay an Administrative Penalty $0 6.2.b.6 - Economic Bene?t (?at monetary increase) $0 $0 6.2.b.7 - Staff Investigative Costs (?at monetary increase) $4,727 $4,727 6.2.b.8 - Additional Other Factors - Increase (?at monetary increase) $0 6.2.10.8 - Additional Other Factors - Decrease (?at monetary decrease) $0 Public Notice Cost (?at monetary increase) $30 $30 Penalty Adjustments $15,349 Penalty $68,309 Estimated Economic Benefit Estimated Item Bene?t (S) Monitoring Reporting Installation Maintenance of Pollution Control Equipment expenses and cost of equipment/materials needed for compliance Permit Application or Modi?cation Competitive Advantage Estimated Economic ?ene?t $0 Comments: Economic bene?t not warranted.