Bunker Hill Underground Storage Tank_Administrative Consent OrderMasterpiece on the Mississippi
Dubuque
Au- AmerlcaCity
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Bunker Hill Underground Storage Tank - Administrative Consent Order
DATE: April 16, 2010
City Attorney Barry Lindahl is recommending approval of an Administrative Consent
Order with the Iowa Department of Natural Resources agreeing to pay a $2,600 penalty
related to an underground storage tank.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michel C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Pat Prevenas, Acting Leisure Services Manager
THE CITY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi
BARRY LIND
CITY ATTOR
To:
DATE:
RE:
ichael C. Van Milligen
City Manager
April 16, 2010
Bunker Hill Underground Storage Tank — Administrative Consent
Order
The Iowa Department of Natural Resources was informed in January 2010 that the City
failed to report a suspected release to the Department after a leaking diesel pipe was
discovered during a compliance inspection of the Bunker Hill Golf Course underground
storage tanks in October 2009. The Department also claims that the City failed to timely
submit repair documentation showing the other deficiencies discovered during that
inspection had been repaired. The City's environmental attorney, Jane McAllister, has
negotiated the enclosed Administrative Consent Order. Under the terms of the Consent
Order, the City will agree to pay an administrative penalty. The penalty of $2,600.00 will
be paid with golf course enterprise funds.
The required repair work has been completed.
I recommend that that the attached Administrative Consent Order be submitted to the
City Council for consideration and approval.
BAL:tls
Attachment
cc: Pat Prevanas, Acting Leisure Services Manager
Jane McAllister, Esq.
F:\ USERS \tsteckle \Lindahl \BunkerHiII UST\ MVM_ BunkerHillUndergroundStorageTankAdminConsentOrder 041610.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944
TELEPHONE (563) 583 -4113 / FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org
Fields of Opportunities
CHESTER J. CULVER. GOVERNOR
PATTY JUDGE, LT. GOVERNOR
March 23, 2010
Mr. Mike Denman
Golf Course Supervisor
2200 Bunker Hill Road
Dubuque, IA 52001
RE: Administrative Consent Order
UST No. 198607133
Dear Mr. Denman:
The Iowa Department of Natural Resources (Department) was informed in January 2010 that the City
of Dubuque failed to report a suspected release to the Department after a leaking diesel pipe was
discovered during a third -party compliance inspection of the Golf Course's underground storage tanks
in October 2009. Additionally, the City also failed to timely submit repair documentation showing the
other deficiencies discovered during this same inspection had been repaired. Accordingly, this matter
was referred to the Department's Legal Services Bureau for enforcement.
Enclosed is an "Administrative Consent Order" for your consideration. I am offering you the
opportunity to enter into this agreement as an alternative to the issuance of a unilateral order, which
could include the assessment of higher penalties. Under the terms of this consent order, you agree to
pay an administrative penalty; see Section V and VI for more details.
If the terms of this consent order are satisfied, the Department agrees to defer additional enforcement.
Please review the terms of the order, consult your legal representative if you wish and either sign and
return the document or inform me of your intentions. The Department will assume you have declined
this offer if I do not hear from you by Friday April Q. 2010.
Sincerely,
a4lL"t
Mullen • Attorney
Iowa Department of Natural Resources
502 E 9th Street I Des Moines, IA 50319
Ph. 515.281.89341 tamara.mullen @dnr.iowa.gov
CC by email: Joe Sanfilippo (FO 1)
Brian Jergenson (FO 1)
Elaine Douskey (Wallace)
Karen Anderson (Wallace)
STATE OF IOWA
DEPARTMENT OF NATURAL RESOURCES
RICHARD A. LEOPOLD. DIRECTOR
CERTIFIED MAIL
WALLACE STATE OFFICE BUILDING 1502 EAST 9th STREET / DES MOINES, IOWA 50319 -0034
515.281 -5918 FAX 515-281-8895 www.iowadnr.gov
IN THE MATTER OF:
City of Dubuque
UST NO. 198607133
IOWA DEPARTMENT OF NATURAL RESOURCES
ADMINISTRATIVE CONSENT ORDER
Mail To: Mr. Mike Denman
Golf Course Supervisor
2200 Bunker Hill Road
Dubuque, IA 52001
I. SUMMARY
The Iowa Department of Natural Resources (Department) and the City of Dubuque (City)
have entered into this administrative consent order (Order) for the purpose of resolving
alleged violations of the Department's underground storage tank (UST) rules. The City
agrees to pay an administrative penalty of $ 2,600.00. See Section V and VI.
For questions regarding this Order contact the following:
Relating to technical requirements: Relating to Legal Issues:
Brian Jergenson Tamara Mullen, Attorney
IDNR — Field Office 1 Iowa Department of Natural Resources
909 West Main, Suite #4 502 E 9th Street
Manchester, IA 52057 Des Moines, Iowa 50319 -0034
Ph: (563) 927 -2640 Ph: 515/281 -8934
II. JURISDICTION
This Order is issued pursuant to Iowa Code sections 455B•474(1)(f)(11) and 455B.476
which authorize the Director to issue any order necessary to secure compliance with Iowa
Code Chapter 455B, Division IV, Part 8 and Environmental Protection Commission
(Commission) rules contained in 567 Iowa Administrative Code (I.A.C.) Chapter 1 35.
Iowa Code section 455B.1o9 and Commission rules at 567 I.A.C. Chapter 10 authorize the
Director to assess administrative penalties up to $10,000. Iowa Code section 17A.10
authorizes the use of informal settlements.
The City does not admit the statement of facts or conclusions of law herein, but agrees to
be bound by the provisions of Section V below.
III. STATEMENT OF FACTS
ADMINISTRATIVE
CONSENT ORDER
NO. 2010 -UT-
IOWA DEPARTMENT OF NATURAL RESOURCES
ADMINISTRATIVE CONSENT ORDER
City of Dubuque
1. The City is the registered owner of the municipal golf course and its two 560- gallon
USTs located at 2200 Bunker Hill Road, Dubuque, Iowa, 52001.
2. During a third -party UST compliance inspection on October 14, 2009, Mr. John Fine
of Rounds & Associates noticed a pipe leak in the uncontained diesel dispenser.
3. Mr. Fine's inspection report requested documentation of repair or replacement of the
fuel system within 6o days and specified it was the facility owner /operator's
responsibility to notify the Department of a suspected release.
4. The City never made any suspected release report to the Department.
5. The third party compliance inspection report set a deadline of December 26, 2009 for
the facility to document that appropriate repairs had been made to the fuel system, as
well as to provide proof that other deficiencies had been addressed.
6. The Department received an email notification on January 4, 2010 from Rounds &
Associates stating responses to the deficiencies had not been received and were
overdue.
7. On February 17, 2010, Field Office i's Brian Jergenson visited the site to conduct an
audit inspection and follow -up on deficiencies from the earlier third -party inspection.
8. During the inspection, Mr. Jergenson observed the pipe under the diesel dispenser
was wet with diesel. Stained soil was observed below the dispenser.
9. City staff stated Pipe Co, Inc. had been there the day before (February 16, 2010) and
had attempted to tighten the pipe fitting.
10. Mr. Jergenson concluded remaining deficiencies from the October 2009 inspection
had been addressed, although the City had not submitted proper documentation to
Rounds & Associates.
11. Field Office 1 issued a Notice of Violation to the City on February 25, 2010 for failure
to report a suspected release and to timely submit repair documentation.
12. The City has made the appropriate repairs.
13. The Department's Legal Services Bureau received an enforcement referral on March 8,
2010.
IV. CONCLUSIONS OF LAW
1. Iowa Code Chapter 455B, Division IV, Part 8 (sections 455B.471 - 455B.479)
establishes the UST program. Section 455B.47 declares that the release of regulated
substances, including petroleum products, from USTs constitutes a threat to the
public health and safety and to the natural resources of the state. Iowa Code section
455B.474 authorizes the Commission to adopt rules related to release detection and
2
IOWA DEPARTMENT OF NATURAL RESOURCES
ADMINISTRATIVE CONSENT ORDER
City of Dubuque
prevention, financial responsibility, tank closure, site assessment, risk classification,
and corrective action applicable to all owners and operators of USTs. The
Commission has adopted such rules at Chapters 567 I.A.C. 135 and 136.
2. Iowa Code section 455B.471(6) defines "owner" of USTs. These tanks were in service
after July 1, 1985. The City is an owner as defined and responsible for taking the
actions agreed upon in this Order.
3. Iowa Code section 455B.471(5) defines an "operator" of USTs as "a person in control
of, or having responsibility for, the daily operation of the underground storage tank "
The City is an operator as defined and responsible for taking the actions agreed upon
in this Order.
4. Petroleum or its constituent parts is a "regulated substance" as defined at Iowa Code
sections 455B.471(7) and (8). A "release" of a regulated substance has occurred at the
site as defined at Iowa Code section 455B.471(9).
5. Pursuant to 567 I.A.C. 135.6(1) "a ", "Reporting of Suspected Releases," owners and
operators of UST systems must report to the Department within 24 hours the
"discovery ... of released regulated substances at the UST site ...."
6. The above - stated facts demonstrate that the City failed to report a suspected release to
the Department, as evidenced by a leaking pipe and stained soil first witnessed on
October 14, 2009 and again on February 17, 2010.
7. Additionally, 567 I.A.C. 135.20(3) states that the "owner and operator shall ... upon
receipt of a compliance inspection report . . . which finds violations of the
department's rules ... take all actions necessary to correct any compliance violations
or deficiencies ....within 6o days of receipt of the inspector's report ...."
8. The facts listed above show that the City did not take corrective action within 6o days
to correct the leak in the uncontained diesel dispenser, only having Pipe Co., Inc. visit
the site and tighten the pipe 125 days later.
V. ORDER
1. The City agrees to pay a penalty of $2,600 to the order of the "Iowa Department of
Natural Resources" within 3o days after receipt of a fully executed Order.
VI. PENALTY
Iowa Code section 455B.477 authorizes the assessment of civil penalties in Iowa District
Court of up to $5,000 per day of violation for the violations involved in this matter. More
serious criminal sanctions are also available pursuant to that provision.
Iowa Code sections 455B.476 and 455B.109 authorize the Commission to establish by rule
a schedule of civil penalties up to $10,000 which may be assessed administratively. The
Commission has adopted this schedule with procedures and criteria for assessment of
3
IOWA DEPARTMENT OF NATURAL RESOURCES
ADMINISTRATIVE CONSENT ORDER
City of Dubuque
penalties. See 567 I.A.C. 10. Pursuant to this rule, the Department has determined that
the most effective and efficient means of addressing the above -cited violations is the
issuance of an Order with a penalty.
ECONOMIC BENEFIT. The City benefitted economically by not having the pipe leak
fixed and by not conducting a site check to determine the extent of contamination. Service
and parts charge is estimated to be $ioo and the site check is estimated at $1,500.
Therefore, $1,600 is assessed for this factor.
GRAVITY. Petroleum leaks of this nature in fuel systems can cause significant soil and
groundwater contamination. The extent of contamination and therefore its impact on
human health and the environmental are not presently known. It is the UST program's
priority to ensure leaks from UST systems are quickly reported, remedied, and assessed
for impact. Thus, $1,000 is assessed for this factor.
CULPABILITY. The City was negligent in not reporting a suspected release to the
Department as recommended by its compliance inspector. This negligence was magnified
by not having the fuel system serviced in a timely manner. Accordingly, $1,000 is
assessed for this factor.
Mitigation Factors: The City's financial assurance mechanism for the UST system is
self - insurance. Therefore, the financial burden for assessing the extent of contamination
through a site check and any future remediation will be paid for by the City. In light of
this, $1,000 is subtracted as a mitigating factor.
VII. WAIVER OF APPEAL RIGHTS
Iowa Code section 455B.47 and Chapter 567 I.A.C. Chapter 7 authorize a written notice of
appeal to the Commission. By signing this Order, the City waives all rights to appeal.
VIII. NONCOMPLIANCE
Failure to comply with this Order may result in the imposition of administrative or civil
penalties and referral to the Iowa Attorney General to obtain appropriate relief pursuant
to Iowa Code sections 455B.47 and 455B.477. Compliance with this Order resolves all
violations allegedly arising from the third -party compliance inspection referred to herein
and the Department inspection and Notice of Violation referred to herein.
Dated this day of , 2010.
Richard A. Leopold, Director
IOWA DEPARTMENT OF NATURAL RESOURCES
Michael Van Milligen
CITY OF DUBUQUE
City of Dubuque: Joe Sanfilippo, Brian Jergenson, Elaine Douskey; V.B.
Dated this day of , 2010.
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