Letter Regarding Case No. 08-E-137 Consent Agreement … · Mr. Carl Stratemeier Chairman ... .J Jeff Poyer --T7 ~ '°Dod2.£1.:. SEDO ... to KDHE to resume responsibility for any

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~~--l' KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT

October 28, 2008

Mr. Carl Stratemeier Chairman Airosol Company, Inc. PO Box 120 Neodesha, Kansas 66757

Re: Case No. 08-E-137

Dear Mr. Stratemeier:

Kathleen Sebelius, Governor Roderick L Bremby, Secretary

www.kdheks.gov

Enclosed please find an executed Consent Agreement and Final Order in the above-referenced case. Thank you and if you have any questions or require any additional information, please do not hesitate to contact Paul Marx at (785) 296-5334.

Senior Administrative Assistant

/sap enclosure

c/enc: Rick Bean Chris Carey ~

.J Jeff Poyer --T7 ~ '°Dod2.£1.:. SEDO

LEGAL SERVICES

RECEIVED OCT .2 9 2008

e•111 BUREAU OF •nlRONMENTAL REMEDIATION

CURTIS STATE OFFICE BUILDING, 1000 SW JACKSON ST., STE. 560, TOPEKA, KS 66612-1368

Voice 785-296-5334 Fax 785-296-7119

BEFORE THE KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT

Curtis State Office Building 1000 SW Jackson; Suite 540

Topeka, Kansas

In the Matter of the Pollution at:

) ) ) ) ) ) ) ) )

Consent Agreement And

Airosol Company, Inc. Neodesha, Kansas

Final Order: 08-E-137

CONSENT AGREEMENT AND FINAL ORDER

The Kansas Department of Health and Environment [KDHE], and Airosol Company, Inc.

[RESPONDENT], (collectively, the PARTIES) hereby enter into the following Consent Agreement and

Final Order [ORDER].

FINDINGS OF FACT

l. The KDHE issued RESPONDENT an Administrative Order (Case No. 08-E-083) dated July 3,

2008 [ADMINISTRATIVE ORDER], in which it found that the AIR.OSOL facility located at 525

North 11th Street in Neodesha, Kansas was a source of pollution, which threatened human

health and the environment, and ordered REsPONDENT to commence with a program to

Airosol Company, Inc. Consent Agreement and Final Order - FINAL 10-08-08

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investigate and remediate the contamination. Pursuant to the ADMINISTRATIVE ORDER,

RESPONDENT was required to talce certain actions to identify the extent of the environmental

contamination and control the source(s) of contamination and tbreat(s) to human health and

the environment.

2. On July 17, 2008, the RESPONDENT advised KDHE that the company was not in a fmancial

condition to meet the terms of the ADMINISTRATIVE ORDER.

3. A meeting was held on August 28, 2008 between representatives ofKDHE and RESPONDENT

to discuss ADMINISTRATIVE ORDER requirements and, with consideration of AIROSOL's

financial constraints, possible alternatives for fulfilling the requirements of the

ADMINISTRATIVE ORDER.

4. On September 30, 2008, KDHE issued a Notice of Work Takeover letter to RESPONDENT

indicating that RESPONDENT was in violation of the ADMINlSTRA TIVE ORDER since the

REsPONDENT has not performed the work required by the ADMINJSTRA TIVE ORDER in a

timely manner.

5. The PARTIES, acknowledging that it is in their mutual best interest and for the benefit of

protecting human health and the environment to reach an accommodation relative to the

investigation and remediation at the AIROSOL SITE, as defined in Section II., paragraph C of

the ADMINISTRATIVE ORDER , agree to the following terms and condition, and enter into this


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ORDER.

CONCLUSION OF LAW

I. KDHE is a duly authorized agency of the State of Kansas, created by act of the legislature.

2. The Secretary of KO HE [SECRETARY] has general authority and responsibility to protect the

waters and soils of the state under the authority of K.S.A. 65-161, et seq., and possesses

general jurisdiction in matters involving hazardous wastes and hazardous waste cleanup

(K.S.A. 65-3430, et seq.), and in matters involving hazardous substances and the hazardous

substance cleanups under the authority of the Kansas Environmental Response Act (K.S.A.

65-3452a, et seq.).

3. KDHE has general jurisdiction of matters involving hazardous substance and hazardous

substance cleanups under the authority of the Kansas Environmental Response Act (K..S.A.

65-3452a et seq.), as well as solid and hazardous waste and its cleanup (K.S.A. 65-3401 et

seq. and K.S.A. 65-3430 et seq.) and has general authority and responsibility to protect the

waters and soils of the state under the authority ofK.S.A. 65-161 et seq.

4. RESPONDENT, by its failure to comply with the ADMINISTRATIVE ORDER, is in violation of its

terms, and KDHE has the right to invoke the provisions of the Work Takeover provision,

paragraph 8, found on page 18 of the ADMINISTRATIVE ORDER in the subsection entitled,


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Remediation Order General Provisions.

CONSENT AGREEMENT AND FINAL ORDER

L Pursuant to KDHE issuance of a Notice of Work Takeover on September 30, 2008,

RESPONDENT shall agree to permit KDHE, its agents and/or contractors full access to its

property for the purpose of taking such action, which in the sole discretion of KDHE, is

necessary for the investigation and remediation of any environmental contamination found at

the SITE. KDHE shall give RESPONDENT no less than two business days advance notice of

any need to access the property and shall make a good faith effort to avoid or minimize any

interference with Respondent's business activities. Once properly validated and considered

final, KDHE will provide RESPONDENT with copies of all laboratory analytical data and other

documentation reflecting the results of the investigation and/or remediation activities

performed pursuant to the work takeover provisions of this ORDER.

2. RESPONDENT shall pay KDHE for all costs, direct and indirect, that it incurs to implement the

work takeover provision, up to a maximum of One Hundred Thousand Dollars

($100,000.00). If additional work is required by KDHE to complete the investigation and

remediation that would cause the total costs to exceed this amount, then another consent

agreement will be issued to address the additional costs.


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3. RESPONDENT shall pay KDHE for all past costs incurred by KDHE in connection with the

AIR.OSOL facility through June 28, 2008, as outlined in paragraph 1, found on page 25 of

the ADMINISTRATIVE ORDER, in the section entitled, Reimbursement of Costs in the amount

of $27,055.14.

4. KDHE agrees the Administrative Penalty outlined in Section A., page 13 of the

ADMINISTRATIVE ORDER, in the section entitled, Administrative Penalty and Order may be

held in abeyance and dismissed in the event RESPONDENT complies with the terms outlined

in this ORDER.

5. KDHE shall submit invoices to RESPONDENT on a monthly basis reflecting costs incurred

during the previous period, together with the total amount incurred, less payments made.

6. Under this ORDER, RESPONDENT shall remit to KDHE One Hundred Thirty-Six Thousand,

Nine Hundred and Eighty Dollars and Ninety Cents ($136,980.90). This amount represents

the following:

Estimated remediation costs Past costs assessed in ADMINISTRATIVE ORDER

$100,000.00 $27,055.14

plus interest, which shall accrue on the outstanding balance at the nominal rate of three

percent (3.00%) compounded monthly on the amount outstanding until the total principal

and accrued interest are paid in full.


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7. Payments shall be made in sixty (60) monthly payments of Two Thousand, Two Hundred,

Eighty-Three Dollars and One Cent ($2,283.01) in accordance with the payment schedule

that appears as Exhibit 1.

8. The first installment shall be paid by Respondent within thirty (30) days following receipt by

RESPONDENT of a copy of this fully executed ORDER. Payment of each subsequent

installment shall be made on or before the 18th day of each subsequent month.

9. Payment of each installment shall be made by RESPONDENT mailing a certified or cashier's

check payable to:

Kansas Department of Health and Environment Bureau of Environmental Remediation Attn: Administrative Section 1000 SW Jackson Street, Suite 410 Topeka, Kansas 66612-1367

10. Each installment payment shall be accompanied by a transmittal letter that shall identify this

matter by case name and number.

11. Notwithstanding any other provision of this ORDER, should RESPONDENT fail to make any of

the installment payments in accordance with the terms of this ORDER, KDHE may require

RESPONDENT to pay upon demand the following:


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a. the total estimated cost of the remediation and past costs (One Hundred Twenty-

Seven Thousand, Fifty- Five Dollars and Fourteen Cents ($127,055.14), plus accrued

interest, LESS any amounts paid to KDHE pursuant to this ORDER; and

b. the penalty of Seven Thousand Five Hundred Fifty Dollars ($7,500.00) assessed in

the ADMINISTRATIVE ORDER.

12. RESPONDENT may pay the entire remaining balance of the principal at any time during the

term of this ORDER. Upon receipt of the remaining balance of the principal, future interest

charges will be forgiven.

13. When KDHE bas determined that remediation of the SITE is complete, and has so notified

RESPONDENT in writing, and if the costs incurred by KDHE have not exceeded One Hundred

Thousand Dollars ($100,000.00), KDHE shall remit to RESPONDENT any of the unspent

portions of the principal remaining.

14. At any time while this ORDER is in effect, RESPONDENT may elect to submit a written request

to KDHE to resume responsibility for any remaining work to be performed pursuant to the

ADMINISTRATIVE ORDER. RESPONDENT must demonstrate to KDHE the financial ability to

resume such responsibility and, upon KDHE approval of such request, establish and maintain

financial assurance in a manner acceptable to KDHE. In the event Work Takeover is

terminated by KDHE, RESPONDENT shall pay the entire remaining principal and interest


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balance as reimbursement for work performed to that point by KDHE under the Work

Takeover provision.

15. RESPONDENT may make additional payments of any amount at any time during the term of ,Jl, •. crf

this_IORDER. KDHE and Respondent agree that all prepayments will be applied towards

future payments instead of the principal balance unless the full principal balance is paid

pursuant to paragraph 12 of this ORDER. The balance of all prepayments will be identified

separately on invoices. If the prepayment balance is greater than Two Thousand, Two

Hundred, Eighty-Three Do liars and One Cent ($2,283. 01 }, the RESPONDENT may request all

or part of the prepayment balance be applied to the installment payment due. Such requests

shall be submitted in writing in accord with the deadlines stated above.

16. RESPONDENT agrees to undertake all actions required by the terms and conditions of this

ORDER.

17. KDHE and the RESPONDENT agree that the foregoing Findings of Fact and Conclusions of

Law are correct By signing this voluntary ORDER, RESPONDENT accepts the terms and

conditions contained herein. Upon the SECRETARY'S signature, it will become the Final

ORDER in this case.

18. In any action by KDHE to enforce the terms of this ORDER, RESPONDENT agrees not to

contest the authority or jurisdiction of the SECRETARY to issue this ORDER.


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19. RESPONDENT shall provide a copy of this ORDER to any subsequent owners or successors

before ownership rights are transferred. RESPONDENT shall provide a copy of this ORDER to

all contractors, subcontractors, laboratories and consultants that are retained to conduct any

work performed under this ORDER, within fourteen (14) days after the effective date of this

ORDER or the date of retaining their services. Notwithstanding the terms of any contract,

RESPONDENT is responsible for compliance with this ORDER and for ensuring that its

contractors and agents comply with this ORDER.

20. RESPONDENT voluntarily and knowingly waives any and all rights conferred upon it by the

Kansas Administrative Procedure Act [KAPA], K.S.A. 77-501, et seq. RESPONDENT

voluntarily and knowingly waives the right to an appeal and review of this ORDER and

matters leading up to the execution of this ORDER under the Kansas Act for Judicial Review

and Civil Enforcement of Agency Action, K.S.A. 77-601 et seq. KAP A authorizes KDHE to

enter into an informal settlement of this matter without the necessity of proceeding to a

formal hearing, K.S.A. 77-505.

21. This ORDER shall apply to and be binding upon KDHE and RESPONDENT, its agents,

successors and assigns. The signatories to this ORDER certify that they are authorized to

execute and legally bind the parties they represent to this ORDER. No change in the

ownership or corporate status of RESPONDENT shall alter its responsibilities under this

ORDER.


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Dated the~ay of October, 2008.

AJR.OSOL COMP ANY, INC.

Name: Carl Stratemeier

Title: President and Registered Agent

Date: 0 n· 9 , ! o OX


KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT

Si~arue:~ «t: Name: ~ L- re.:-:'f

Title: See~

Date: 1~/z3/oy

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Exhibit 1 - Loan Amortization - Airosol Company Site, Neodesha, Kansas Inputs Key Figures

\Annual loan ~v.men~·-· ---·---- --· .. ___ -t-· ___ $27,396.12 Mo!'m.\Y_~~ts --·-- ·- ·-·· ----- --·----- --········$f,283.01 [filerest 9ver ~IJ'Tl of loan -· . ---·----· __ _ ______ I __ $~.925.76 ;Sum_Qf~-~YJ!lenlS _____ ·- ·---·· ··--- .... _ .. L .. U~~.980.90

Documents

Letter Regarding Case No. 08-E-137 Consent Agreement … · Mr. Carl Stratemeier Chairman ... .J Jeff Poyer --T7 ~ '°Dod2.£1.:. SEDO ... to KDHE to resume responsibility for any