Complaint,Petition: Commonwealth of PA Dept of Environmental Protection v. McLaurin

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(I Transfer from Another Jurisdiction [1 Declaration of Takin:
|| Lead Plaintiff's Name: Lead Defendant’s Name:
Commw. of Pa., Dep't of Envtl. Prot. Lester E. MeLaurin, Jr.
Dollar Amount Requested: (within arbitration limits
Are money damages requested? [] Yes I No (check one) Plloutside arbitration limits
Is this a Class Action Suit? OYes EINo Is this an MDI Appeal? 1 Yes £ No

 

Name of Plaintiff/Appellant’s Attorney: Brian Glass
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Administrative Order

 

 

 

Updated 1/1/2011|
IN THE Court oF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA

COVER SHEET - NOTICE OF FILING OF MOTION OR PETITION UNDER
LOCAL RULES OF CIVIL PROCEDURE

CASE CAPTION: COMMONWEALTH OF PENNSYLVANIA, CIVIL CASE NO.
DEPARTMENT OF ENVIRONMENTAL PROTECTION v. |
LESTER E. MCLAURIN, JR. |

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NATURE OF MATTER FILED: (please check one) |

 

 

 

 

 

 

 

 

 

 

¥v Petition Pursuant to Rule 206.1 Response to Petition Notion for Judgment on the
leadings Pursuant to Rule 1034(a)
[Motion Pursuant to Rule 208.1 Response to Motion Summary Judgment

 

 

 

 

 

 

 

Pursuant to Rule 1035.2

 

 

Family Law Petition/Motion Pursuant to Rule 206.8

 

FILING PARTY IS RESPONSIBLE FOR SERVICE OF ne RULE RETURNABLE
DATE OR HEARING DATE UPON ALL PARTIES

A motion or petition was filed in the above captioned matter on the i of 4 , which:

 

 

 

equires you, Respondent, to file an Answer within twenty (20) days o the above date to this notice, or risk

 

the entry of an Order in favor of the Petitioner. Answers must be filed and time stamped by the Office of
Judicial Support by 4:30 PM on the following date 5

 

 

Requires all parties, to appear at a hearing/conference on the day of : >

 

 

 

 

at in Courtroom ) Delaware County Courthouse, Media, Penns: lvania. At this hearing/conference

you must be prepared to present all testimony and/or argument, and must a that your witnesses will be

present.

 

 

 

 

Was timely answered, thus requiring the scheduling of the following hearing in the above captioned matter
on: z at 10:00 AM in Courtroom __|

 

 

At this hearing, all parties must be prepared to present all testimony and argument and must ensure that

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Qualifies as an Uncontested Motion or Petition, and as such requires neither an answer from the Respondent

their witnesses will be present.

 

 

nor the scheduling of a hearing in this matter.

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Has been assigned to Judge :

 

 

 

 

 

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FOR OFFICE USE ONLY
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Processed by: | SSS

Mailing date:IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION — EQUITY

COMMONWEALTH OF PENNSYLVANIA, : Petition to Enforce)
DEPARTMENT OF ENVIRONMENTAL :
PROTECTION, : Neo

Petitioner, 3 |

Vv.

LESTER E. MCLAURIN, JR.
Respondent.

ORDER

AND NOW, this day of , 2018, upon

consideration of the foregoing petition, it is hereby ordered that;

(1) arule is issued upon the respondent to show cause whyjthe petitioner is not entitled

to the relief requested; |

 

(2) the respondent shall file an answer to the petition within twenty days of service upon
the respondent; |

(3) the petition shall be decided under Pa.R.C.P. No. 206%;

(4) an evidentiary hearing on disputed issues of material fact shall be held on |
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, 2018, at AEM: in Courtroom |

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of the Delaware County Courthouse; and |

(5) notice of the entry of this order shall be provided to alll parties by the petitioner.

BY THE COURT:

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IN THE COURT.OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION — EQUITY |

COMMONWEALTH OF PENNSYLVANIA, : (Petition to Enforce)
DEPARTMENT OF ENVIRONMENTAL : |
PROTECTION, : No.

Petitioner, : |

v. é |

LESTER E. MCLAURIN, JR.
Respondent.

AND NOW, this day of , 2018, upon
consideration of the Petition to Enforcement Administrative Order filed by Petitioner
Commonwealth of Pennsylvania, Department of Environmental Protection (“Department”), and

after hearing thereon, it is hereby ORDERED as follows:

1. Within (proposed 14) days of this Order, Respgndent Lester E. McLaurin, Jr.
(#Mr. McLaurin”) shall submit to the Department:

a. payment of all outstanding registration fees due to the Department for Tanks 001,

002, 003, 004, 005, and 006; and

b. written proof confirming payment of all past due Underground Storage Tank

Indemnification Fund (“USTIE”) fees for Tanks 001, 002, 003, 004, 005, and 006.Within (proposed 60) days of this Order, Mr. McLaurin shall permanently
close Tanks 001, 002, 003, 004, 005, and 006 and complete alsite assessment in
accordance with 25 Pa. Code §§ 245.452, 245.453, and 245455 and in a manner
consistent with the Department’s technical guidance docume ! it entitled “Closure
Requirements for Underground Storage Tank Systems,” Technical Guidance Number
263-4500-601. If contaminated soils, contaminated groundwater, or free product, as a
liquid or vapor, is discovered during tank closure or site assessment activities, Mr.
McLaurin shall perform corrective action in accordance with 25 Pa. Code Chapter 245,

Subchapter D, §§ 301 - 314 (relating to corrective action process for owners and

operators of storage tanks and storage tank facilities and other responsible parties).

Within (proposed 67) days of this Order, Mr. McLaurin shall amend the
registration of Tanks 001, 002,003, 004, 005, and 006 to reflect permanent closure,
prepare a complete closure report, and submit both the amended registration and closure

report tothe Department, in accordance with 25 Pa. Code § 945.452.

Mr. McLaurin shall allow the Department, its employees, agents and contractors full and

 

unrestricted access to the property at 3608 West 9" Street in Trainer Borough, Delaware
County, to conduct work under the Storage Tank and Spill Prevention Act, Act of July 6,
1989, P.L. 169, as amended, 35 P.S. §§ 6021.101-6021.21 5, and the underlying rules

and regulations. Work may include permanent closure of yne or more of the 6 registered

USTs and corrective action to address contamination that may be present at the Facility,

for which the Department may collect its costs as provided by 35 P.S. §§ 6021.107(h),
2 |
|6021.702(c) and (d), and 6021.1302(b). Performance of any work by the Department, its
employees, agents and contractors shall not relieve Mr. McLaurin of any liability under
the Tank Act, including without limitation liability under 35 P.S. §§ 6021.702,

6021.1302, and 6021.1307.
All submissions to the Department required by this Order shall be transmitted to the
attention of Carly Baker, EPS, Storage Tanks Program, PA Department of Environmental

Protection, Southeast Regional Office, 2 East Main Street, Norristown, PA 19401.

The Court shall retain jurisdiction over this matter.

BY THE COURT:IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA

CIVIL ACTION — EQUITY

COMMONWEALTH OF PENNSYLVANIA, Petition to Enforce)
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, No.

Petitioner,

LESTER E. MCLAURIN, JR.
Respondent.

NOTICE

You have been sued in court. If you wish to defend against the claims set forth in the

following pages, you must take action within twenty (20) days after

this complaint and notice are

served, by entering a written appearance personally or by attorney and filing in writing with the

court your defenses or objections to the claims set forth against you,

| You are warned that if you

 

fail to do so the case may proceed without you and a judgment may P entered against you by the

court without further notice for any money claimed in the complain

or for any other claim or

relief requested by the'plaintiff. You may lose money or property or other rights important to

you.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.

THIS OFFICE CAN PROVIDE YOU WITH INFORMATION AB!

OUT HIRING A LAWYER.

 

IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS

OFFICE MAY BE ABLE

TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER

LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

The Lawyer’s Reference Service
Front & Lemon Streets
Media, Pennsylvania 19063
(610) 566-6625IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA

CIVIL ACTION — EQUITY

COMMONWEALTH OF PENNSYLVANIA, : (Petition to Enforce)

DEPARTMENT OF ENVIRONMENTAL :

PROTECTION, : NO.CY-20|%-COAA RA
Petitioner, 2 3

Vv.

LESTER E. MCLAURIN, JR.
Respondent.

 

PETITION TO ENFORCE ADMINISTRATIVE ORDER

PETITION 10 ENEURL Eee Oe eo;

Petitioner, Commonwealth of Pennsylvania, Department of E}

(“Department” or “DEP”), by and through itundersigned counsel, pet

nvironmental Protection

titions this Court to enter an

Order enforcing an Administrative Order issued by DEP to Respondent, Lester E. McLaurin, Jr.,

 

on March 1, 2017. In'support of this Petition, DEP states as follows:

1. Jurisdiction of this Court is invoked pursuant to Secti

n 1305 of the Storage Tank

and Spill Prevention Act, 35 P.S. § 6021.1305 (“Such proceedings may be prosecuted in the

Commonwealth Court, or in the court of common pleas of the county

where the activity has

taken place, the condition exists or the public is affected, and to that end. jurisdiction is hereby

conferred in law and equity upon such courts”) (emphasis added). |

2: DEP is the agency with the duty and authority to sinister and enforce the

Storage Tank and Spill Prevention Act, Act of July 6, 1989, P.L. 169.

, as amended, 35 P.S. §§

6021.101-6021.2105 (“Tank Act”); the Land Recycling and Environmental Remediation

Standards Act, Act of May 19, 1995, P.L. 4, 35 P.S. §§ 6026.101-6026.909 (“Act 2”); Section1917-A of the Administrative Code of 1929, Act of April 9, 1929, PL. 177, as amended, 71 P.S.

§ 510-17 (“Administrative Code”); and the regulations promulgated Hee

3. Lester E. McLaurin, Jr. (“Mr. McLaurin”) is an indivi iual who resides at

415 South Old Middletown Road, Media, PA 19063.

4. Trainer Auto & Truck Services (“Facility”) is a former automobile service center

and retail gasoline station located at 3608 West 9" Street in Trainer Borough, Delaware County.

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5; The Facility, including its storage tank systems, as that term is defined at 25 Pa:
Code § 245.1, is registered with DEP under the name Trainer Auto & Truck SVC, Facility

Identification Number 23-42913.

6. The Facility contains the following storage tanks, which are underground storage

tanks (“USTs”), as those terms are defined at 25 Pa. Code § 245.1, that were operating under
permits-by-rule pursuant to 25 Pa. Code §§ 245.211(2) and 245.212; an 8,000-gallon UST,
registered with DEP as Tank 001; an 8,000-gallon UST, registered with DEP as Tank 002; an
8,000-gallon UST, registered with DEP as Tank 003; a 6,000-gallon ost, registered with DEP
as Tank 004; a 5,000-gallon UST, registered with DEP as Tank 005; and a 550-gallon UST,

registered with DEP as Tank 006. |

Th Tank 001 stored diesel, which is a regulated substance, as that term is defined at

8. Tanks 002, 004, and 005 stored gasoline, which is a egulated substance, as that

25 Pa. Code § 245.1.

term is defined at 25 Pa. Code § 245.1.9. Tank 003 stored kerosene, which is a regulated substance, as that term is defined

at 25 Pa. Code § 245.1. |

10. Tank 006 stored used oil, which is a regulated substance, as that term is defined at

25 Pa. Code § 245.1.

11. Mr. McLaurin currently owns the real property on which the Facility is located

and owns or has an ownership interest in Tanks 001, 002, 003, 004, 005, and 006 at the Facility.

12. Mr. McLaurin is an owner, as that term is defined in 35 P.S. § 6021.103, anda

landowner, as that term is used in 35 P.S. §§ 6021.1302 and 6021.1310.

 

13. Asan owner and landowner, Mr. McLaurin is required to comply with the
applicable requirements of the Tank Act and its implementing regulations found at 25 Pa. Code

Chapter 245.

14. UST owners shall have their UST facility inspected by a certified inspector at the

frequency established in 25 Pa. Code §.245.411(b)-(d). 25 Pa. Code'§ 245.41 1(a).

15. | Whena UST system is temporarily closed for more than 12 months, owners shall
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permanently close the UST system if it does not meet the upgrading requirements in 25 Pa. Code

§ 245.422 (relating to upgrading of existing UST systems). 25 Pa. Code § 245.451(g)(1).

16. | Owners of USTs are required to pay annual registration fees in accordance with

25 Pa. Code §§ 245.41(a) and 245.42(b).

17. Anowner of a UST shall continuously participate in the USTIF. 25 Pa. Code §

245.704(a).18. On March 1, 2017, DEP issued an Administrative ole to Mr. McLaurin. A true

and correct copy of the Administrative Order and the cover letter er

Letter”) are attached hereto as Exhibit A and incorporated by referei e as if fully set forth

herein. |
'

a 5
‘losing it (hereinafter “Cover

 
  
 

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19. As set forth in the Administrative Order, by failing to have a Facility Operations
Inspection (“FOI”) performed at the Facility since March 9, 2005, Mr. McLaurin failed to have
his underground storage tank facility inspected by a certified inspector at the required inspection

frequency of at least once every three years, in violation of 25 Pa. C ide § 245.411.

20. Asset forth in the Administrative Order, by failing to} ermanently close Tanks
001, 002, 003, 004, 005, and 006, which tanks did not meet the en requirements that,
pursuant to 25 Pa. Code § 245.422, were due to’ be completed by Degember 22, 1998, and which
tanks Mr. McLaurin had registered as temporarily closed on = 20, 2002, and therefore

which had been temporarily closed for more than 12 months, Mr. MeLaurin violated 25 Pa. Code

§ 245.451(g)(1).

storage tank registration fees for Tanks 001, 002, 003, 004, 005, and|006, Mr. McLaurin failed to
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21. Asset forth in the Administrative Order, by failing to timely pay his annual
properly register these underground storage tanks, in violation of 25 Pa. Code §§ 245.41 and

245.42.
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22. Asset forth in the Administrative Order, by failing td timely pay his Underground
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Storage Tank Indemnification Fund (“USTIF”) fees, Mr. McLaurin failed to continuously

participate in USTIF, in violation of 25 Pa. Code § 245.704(a).

23. The Administrative Order directed Mr. McLaurin as follows:

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‘ |No later than March 31, 2017, Mr. McLaurin shall pay all outstanding
registration fees due to the Department for Tanks 001, 002, 003, 004, 005
and 006.

No later than March 31, 2017, Mr. McLaurin ba submit written proof to
the Department confirming payment of all due USTIF fees for Tanks
001, 002, 003, 004, 005 and 006.

No later than May 30, 2017, Mr. McLaurin must permanently close Tanks
001, 002, 003, 004, 005 and 006 and complete a site assessment in
accordance with 25 Pa. Code §§ 245.452, 2451453, and 245.455 and ina
manner consistent with the Department’s technical guidance document
entitled “Closure Requirements for Underground Storage Tank Systems”
or in a manner at least as protective of public health and safety and the
environment and which meets all statutory and regulatory requirements: If
contaminated soils, contaminated groundwater or free product as‘a liquid
or vapor is discovered during tank closure or site assessment activities,
corrective action shall be performed in accordance with 25 Pa. Code
Chapter 245, Subchapter D, §§ 301 — 314 (relating to corrective action
process for owners and operators of storage tank facilities and other
responsible parties).

During permanent closure as required by paragraph 3, but no later than 30
days following permanent closure of tanks 001, 002, 003, 004, 005 and
006, Mr. McLaurin must amend the tank registrations to reflect permanent
closure, prepare a complete closure report, and submit both the amended
registration and closure report to the Department, in accordance with 25
Pa. Code § 245.452.

Mr. McLaurin shall allow the Department, its employees, agents and
contractors full and unrestricted access to the Facility to conduct
observations and/or work under the Tank Act and the underlying rules and
regulations. Work may include permanent closure of one or more of the 6
registered USTs and corrective action to address contamination that may
be present at the Facility, for which the Department may collect its costs
as provided by 35 P.S. §§ 6021.107(h), 6021.702(c) and (d), and
6021.1302(b). Performance of any work by the Department, its
employees, agents and contractors shall not relieve Mr. McLaurin of any
liability under the Tank Act, including without limitation liability under 35
P.S. §§ 6021.702, 6021.1302, and 6021.1307.

There shall be no extensions of the due dates established by the
regulations or this Order without prior written approval from the
Department. All requests for deadline extensions shall be submitted to the
Department in writing.t

7. All submissions required by this Order shall be transmitted to the
Department to the attention of:

Carly Baker, EPS
Storage Tanks Program
PA Department of Environmental Protection
Southeast Regional Office
2 East Main Street
Norristown, PA 19401

Exhibit A, Administrative Order at 4-5.

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24. On March 1, 2017, the Department mailed the i Order to the

residence of Mr. McLaurin. See Exhibit A, Cover Letter.

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25.  OnMarch 3, 2017, the United States Post Office confirmed that it delivered the

Administrative Order. A true and correct copy of the delivery confirmation is attached hereto as

Exhibit B and incorporated by reference as if fully set forth herein. |
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26. On July 17, 2017, Mr. McLaurin provided verbal confirmation to the Department

that he received the Administrative Order.

27. In the Administrative Order, the Department provided Mr. McLaurin with an
explanation of the right to appeal and the procedure for appealing the Administrative Order. See
Exhibit A, Administrative Order at 6. |

28. | Mr. McLaurin did not appeal the Administrative oni within the thirty-day time
limit for filing an appeal with the Environmental Hearing Board, see 35 P.S. § 6021.1313 (“Any
person aggrieved by an order or other administrative action of the department issued pursuant to
this act shall have the right, within 30 days, to appeal the action to the Environmental Hearing
Board in accordance with 2 Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of
Commonwealth agencies) and the act of July 13, 1988 (P.L. 530, a 94), known as the

Environmental Hearing Board Act.”). A true and correct copy of a Lerman of OfficialRecords certifying that no appeal had been filed as of December 26, 2017, is attached hereto as

Exhibit C and incorporated by reference as if fully set forth herein.

29. The Administrative Order is a final order of the Department that cannot now be

collaterally attacked or challenged. Interstate Traveller Services, Inc! v. Department of

 

Environmental Resources, 406 A.2d 1020, 1023-24 (Pa. 1979); Commonwealth v. Derry
Township, 351 A.2d 606, 609-10 (Pa. 1976) (“No appeal was taken ty Derry to the

Environmental Hearing Board. The failure to appeal made that order final and foreclosed any
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attack on its content or validity in the enforcement proceeding.”); Department of Environmental

}
Resources v. Wheeling-Pittsburgh Steel Corp., 375 A.2d 320, 324-25 (Pa. 1977) (“Inthe instant
case, Wheeling was notified of its right to appeal the September 25, i972 order. No appeal was
taken; therefore, Wheeling is precluded from attacking the validity ot content of either the order

or the underlying regulations in the instant enforcement proceeding.”).

30. On June 5, 2017, having received no indication that Mr. McLaurin had complied
with the Administrative Order, DEP issued a letter to Mr. McLaurin advising him of the

consequences of non-compliance, including the filing of this Petition. A true and correct copy of
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the June 5, 2017 letter is attached hereto as Exhibit D.

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B13 On July 11, 2017, still having received no indication that Mr. McLaurin had

complied with the Administrative Order, DEP conducted an inspection of the Facility.

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32. At the time of the July 11, 2017 inspection, Tanks 001, 002, 003, 004, 005, and

006 contained water, which is an indication of a release per 25 Pa. Code § 245.304(a)(4).
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34. DEP has received no payment of outstanding registration fees due to the

33. The Facility is near residential properties.

Department for Tanks 001, 002, 003, 004, 005, and 006.35. | DEP has received no written proof confirming payment of all past due USTIF
fees for Tanks 001, 002, 003, 004, 005, and 006.

36. DEP has received neither an amended registration, reflecting permanent closure

of Tanks 001, 002, 003, 004, 005, and 006, nor a closure report.

37. | Mr. McLaurin has failed to comply with the requirements of the Administrative

Order, in violation of an order of DEP.

38. The violations described in this Petition constitute a public nuisance under

Section 1304 of the Tank Act, 35 P.S. § 6021.1304.

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39. The violations described in this Petition constitute unlawful conduct under

Section 1310 of the Tank Act, 35 P.S. § 6021.1310.

40. DEP does not have independent authority, and is without an adequate remedy at

law, to compel Mr. McLaurin to comply with the Administrative Order.
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WHEREFORE, the Commonwealth of Pennsylvania, Department of Environmental
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Protection respectfully requests that this Honorable Court issue an Order:

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1. Directing Mr. McLaurin to comply with the March 1, 2017 Administrative Order,

as provided in the Department’s proposed order;

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2. Granting the Department such other relief as this Co | deems just and equitable;
and T
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|3:

Retaining jurisdiction over this case until Mr. McLaurin has fully complied with

the March 1, 2017 Administrative Order and all Orders of this Court:

Date:

/-3-(8

Respectfully submitted,

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRO!

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NMENTAL PROTECTION:

 

Brian Glass
Assistant Counsel

Office of Chief Counsel, Southeast Regional Counsel

Attorney ID # 89405
Department of Environmental
2 East Main Street
Norristown, PA 19401-4915
Telephone: 484-250-5870
Facsimile: 484-250-5931
E-mail: briaglass@pa.gov

ProtectionIN THE COURT OF COMMON PLEAS OF DELA
PENNSYLVANIA

CIVIL DIVISION

Common. of Pa., Dep't of Envtl. Prot.
NO.

vs.

Lester E. McLaurin, Jr.

VERIFICATION

Petition to Enforce A
| verify that the statements made in this t To

WARE COUNTY,

dministrative Order

are true and correct to the best of my knowledge, information, and belief. | understand

that false statements made herein are subject to the penalties o|

4904, relating to unsworn falsification to authorities.

18 PA. C.S,Subsection

}
Date: I 3/2018 Lab Bales)
OEXHIBIT Apennsylvania

a DEPARTMENT OF ENVIRONMENTAL
PROTECTION

March 1, 2017

Delivery Confirmation No. 9114 9014 9645 1011 1926 24

Mr. Lester E. McLaurin, Jr.
415 South Old Middletown Road
Media, PA 19063

Re: Storage Tank Program
Administrative Order
Facility ID No. 23-42913
Trainer Auto & Truck Service
3608 West 9" Street
Trainer Borough
Delaware County

Dear Mr. McLaurin:

Enclosed is an Administrative Order of the Department of Environmental Protection (DEP) concerning
violations of operational and registration regulations for the regulated storage tank systems at the above
referenced facility. This Administrative Order is being issued pursuant to the Storage Tank and Spill
Prevention Act (Act). Failure to comply with the provisions of this Administrative Order may subject
you to the penalty provisions of the Act.

Nothing contained in this Administrative Order is intended, nor shall it be construed, to relieve or limit
your obligations to comply with any existing or subsequent statute, regulation, permit or order. In
addition, nothing set forth in this Administrative Order is intended, nor shall it be construed, to authorize
any violation of any statute, regulation, order or permit issued or administered by the Department. The
performance of any work by DEP, its employees, agents and contractors as provided for in the
Administrative Order shall not relieve you of any liability under the Act, including without limitation
liability under 35 P.S. §§ 6021.702, 6021.1302 and 6021.1307.

Further contact with DEP regarding this Administrative Order should be directed to Carly Baker,
Environmental Protection Specialist, by email at carlbaker@pa.gov or by telephone at 484.250.5714.

ae

Thomas D. Canigiani, Jr.
Regional Manager
Environmental Cleanup and Brownfields

          

ce: Trainer Borough
Mr. Glass, OCC
PA DEP (6)
Facility File

Southeast Regional Office
2 East Main Street | Norristown, PA 19401-4915 | 484.250.5960 | Fax 484.250.5961 | www.dep.pa.gov|
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION

In the matter of: . |

: : |
Lester E. McLaurin, Jr. : Violations of the
Storage Tank and Spill Prevention Act
and 25 Pa. Code Chapter 245

ADMINISTRATIVE ORDER

FINDINGS

Now, this March ur 2s 2017, the Commonwealth of Pennsylvania, Department of

Environmental Protection (“Department”) issues this Administrative Order after it has found and
Pp

determined the following:

A.

|

The Department is the agency with the duty and authority to administer and enforce the
Storage Tank and Spill Prevention Act, Act of July 6, 1989, P.L. 169, No. 32, as
amended, 35 P.S. §§ 6021.101et seq., (“Tank Act”); the Land Recycling and
Environmental Remediation Standards Act, Act of May 19, 1995, P.L. 4, No. 1995-2, 35
P.S. §§ 6026.101 et seq., (“Act 2”); Section 1917-A of the Administrative Code of 1929,
Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-17 (“Administrative Code”)
and the regulations promulgated thereunder.

 

Trainer Auto & Truck Services (“Facility”) is an automobile service center and retail
gasoline station located at 3608 West 9" Street, Trainer Borough, Delaware County. The
Facility, including its storage tank systems, as that term is defined at 25 Pa. Code § 245.1,
is registered with the Department under the name Trainer Auto & Truck SVC, Facility
Identification Number 23-42913.

Lester E. McLaurin, Jr. (“Mr: McLaurin”) currently owns the real property on which the
Facility i is located and owns or has an ownership interest in the storage tanks, as that term
is defined in 35 P.S. § 6021.103, at the Facility. Mr. McLaurin is an owner as that term is
defined in 35 P.S. § 6021.103, and a landowner, as that term is used in 35 P.S. §§
6021.1302 and 6021.1310.

The following underground storage tanks (“USTs”), as that term is defined at 25 Pa.
Code § 245.1, have been or are currently located at the Facility and are operating under
permits-by-rule pursuant to 25 Pa. Code §§ 245.211(2) and 245.212:001 | 8,000 | Diesel Fr 1 01/1 998
002 | 8,000 | Gasoline T 11/01/1998
003 | 8,000 | Kerosene T 11/01/1998
004 | 6,000 | Gasoline Ay 11/01/1998
005 _| 5,000 | Gasoline T 11/01/1998
006 550_| Used Oil T 11/01/1998
Table Key: T= Temporarily Out of Service (TOS)

 

On January 22, 1999, the Department sent a notice of violation (“NOV”) to Mr.
McLaurin notifying him that Tanks 001, 002, 003, 004, 005 and 006 did not meet
upgrade requirements that were due to be completed by December 22, 1998. The
Department’s letter requested that he immediately stop operating the tanks, register them

as temporarily closed, and upgrade, replace, or permanently close the USTs by December
22, 1999.

On December 20, 2002, an amended registration form was submitted to the Department
by Mr. McLaurin to register Tanks 001, 002, 003, 004, 005 and 006 in TOS status with
an effective date of November 1, 1998.

Notices were sent by the Department to Mr. McLaurin concerning the status and closure
requirements of all 6 USTs on the following dates:

1. August 15,.2002- Letter requesting tank construction information and
permanent closure iftanks do not meet upgrade requirements.

2. March 25, 2005- Letter stating the USTs do not meet upgrade requirements
and need to be permanently closed.

3. February 17, 2010- Letter requesting status of TOS tanks and intentions for
the tanks going forward.

4. September 28, 2010- Second letter requesting status of TOS tanks and
intentions for the tanks going forward.

5. August 21, 2014- Copy of site visit narrative form noting violations and
requirement to permanently close Tanks 001-006.

6. ‘November 4, 2016- Copy of site visit narrative form noting violations and
requirement to permanently close Tanks 001-006.

To date, Tanks 001, 002, 003, 004, 005 and 006 have not been permanently closed.

The most recent facility operations inspection (“FOI”) of which the Department has
documentation was performed on March 9, 2005.

The Department informed Mr. McLaurin of his FOI requirements through
correspondence sent on the following dates: ;January 23, 2007- Letter indicating FOI due date of March 9, 2007.
May 25, 2007- NOV for failure to have FOI performed.

April 25, 2012- Letter requesting FOI be performed.

August 21, 2014- Copy of site visit narrative noting FOI violation.

ee Poe

To date, Mr. McLaurin owes the Department $3,850 in past ale annual UST registration
fees. : :

To date, Mr. McLaurin owes $7,152.29 in past-due Underground Storage Tank
Indemnification Fund (“USTIF”) fees. |

STATUTORY AND REGULATORY REQUIREMENTS

When a UST system is temporarily closed for more than 12 months, owners shall
permanently close the UST system if it does not meet upgrade requirements in 25 Pa.
Code § 245.422 (relating to upgrading of existing UST: systems). 25 Pa, Code §
245.451(g)(1)

i

Owners of USTs shall have their UST facility inspected by a Department-certified
inspector as required by 25 Pa. Code § 245.411(a), at a:frequency established in 25 Pa.
Code § 245.411(b)-(d). |

Owners of USTs are required to pay annual registration fees in accordance with 35 P.S.
§§ 6021.502(a) and 6021.503(a) and 25 Pa. Code §§ 245.41(a) and 245.42(b). Fees are
payable no later than 60 days after the invoice date, per 25 Pa. Code § 245.42(g).

Owners of USTs must meet the financial responsibility requirements set forth in 35 P.S.
§§ 6021.701(a) and 6021.701(b) and 25 Pa. Code Chapter 245, Subchapter H.

An owner of a UST who fails to comply with 25 Pa. Code Chapter 245, Subchapter H is
subject'to the enforcement provisions in Chapter 13 of the Tank Act, 35 P.S. §§
6021.1301-6021.1315 per 25 Pa. Code § 245.708.

An owner or operator of a UST shall continuously participa in USTIF. 25 Pa. Code §
245.704(a).

In order to continuously participate in USTIF, an owner or operator must meet the
eligibility requirements set forth in Section 706 of the Tank Act, 35 P.S. § 6021.706.

One of the requirements for continuous participating in USTIF is the payment of current
USTIF fees. 35 P.S. § 6021.706(2). |f.

VIOLATIONS

Mr. McLaurin’s failure to permanently close Tanks 001, 002,

violates 25 Pa. Code § 245.451(g)(1).

003, 004, 005 and 006

Mr. McLaurin’s failure to have an FOI performed at the Facility since March 9, 2005

violates 25 Pa. Code § 245.411.

Mr. McLaurin’s failure to pay registration fees as required viglates 35 PS. §§

6021.502(a) and 503(a) and 25 Pa. Code §§ 245.41 and 245.42.

Mr. McLaurin’s failure to pay USTIF fees fails to meet the eligibility requirements for

USTIF set forth in 35. P.S. § 6021.706.

Mr. McLaurin’s failure to meet USTIF eligibility requiremen

245.704, the requirement to continuously participate in USTIF.

Mr. McLaurin’s failure to continuously participate in USTIF

pices 25 Pa. Code §

 

fails to comply with the

financial responsibility requirements in 35 P.S. §§ 6021. 701(a) and 6021.701(b) and 25
Pa. Code Chapter 245, Subchapter H, which subjects him to the enforcement provisions
in Chapter 13 of the Tank Act, 35 P.S. §§ 6021.1301-6021.1315 per 25 Pa. Code §

245.708.

Mr. McLaurin’s violations, as described in paragraphs U, V, W and Y, constitute a public
nuisance under 35 P.S. § 6021.1304 and unlawful conduct under 35 P.S. § 6021.1310,

and subject him to the enforcement provisions in Chapter 13

ORDER

of the Tank Act.

NOW THEREFORE, under the authority of Sections 107, 1302, 1304, and 1309 of the
Storage Tank and Spill Prevention Act, 35 P.S. §§ 6021.107,
6021.1309 and Section 1917-A of the Administrative Code, 71
ORDERED that:

No later than March 31, 2017, Mr. McLaurin shall pay all out:
due to the Department for Tanks 001, 002, 003, 004, 005 and

6021.1302, 6021.1304, and
P.S. § 510-17, it is hereby

standing registration fees
06.

No later than March 31, 2017, Mr. McLaurin shall submit written proof to the Department

confirming payment of all past due USTIF fees for Tanks 001),

006.

No later than May 30, 2017, Mr. McLaurin must permanently
004, 005 and 006 and complete a site assessment in accordan¢
245.452, 245.453, and 245.455 and in a manner consistent wi

002, 003; 004, 005 and

f close Tanks 001, 002, 003,
ce with 25 Pa. Code §§
th the Department’stechnical guidance document entitled “Closure Requirements f¢ or Underground Storage
Tank Systems” or in a manner at least as protective of public health and safety and the
environment and which meets all statutory and regulatory requi ements. If contaminated
soils, contaminated groundwater, or free product as a liquid or vapor is discovered during
tank closure or site assessment activities, corrective action shall be performed in
accordance with 25 Pa. Code Chapter 245, Subchapter D, §§ 301 — 314 (relating to
corrective action process for owners and operators of storage facilities and other

responsible parties).

During permanent closure as required by paragraph 3, but no later than 30 days following
permanent closure of tanks 001, 002, 003, 004, 005 and 006, Mr. McLaurin must amend
the tank registrations to reflect permanent closure, prepare a complete closure report, and
submit both the amended registration and closure report to the Department, in accordance
with 25 Pa. Code § 245,452.

Mr. McLaurin shall allow the Department, its employees, agents.and contractors full and
unrestricted access to the Facility to conduct observations and/or work under the Tank
Act and the underlying rules and regulations. Work may include permanent closure of

one or more of the 6 registered USTs and corrective action to address contamination that
may be present at the Facility, for which the Department may jcollect its costs as provided
by 35 P.S. §§ 6021.107(h), 6021.702(c) and (d), and 6021.1302(b). Performance of any
work by the Department, its employees, agents and contractors shall not relieve Mr.
McLaurin of any liability under the Tank Act, including without limitation liability under
35 P.S. §§ 6021.702, 6021.1302, and 6021.1307. :

There shall be no extensions of the due dates established by the regulations or this Order
without prior written approval from the Department. All requests for deadline extensions
shall be submitted to the Department in writing.

All submissions required by this Order shall be transmitted to the Department to the
attention of: |

Carly Baker, EPS
Storage Tanks Program
PA Department of Environmental Protection
Southeast Regional Office |
2 East Main Street
Norristown, PA 19401|
APPEALS |

' Any person aggrieved by this action may appeal, pursuant to Section 4 of the Environmental
Hearing Board Act, 35 P.S. Section 7514, and the Administrative Agency Law, 2 Pa.C.S.
Chapter. 5A, to the Environmental Hearing Board, Second Floor, Rachel Carson State Office
Building, 400 Market Street, P.O. Box 8457, Harrisburg, PA 17105- 8457, 717-787-3483. TDD
users may contact the Board through the Pennsylvania Relay Service, 800-654-5984. Appeals
must be filed with the Environmental Hearing Board within 30 days|of receipt of written notice
of this action unless the appropriate statute provides a different time period.

Copies of the appeal form and the Board's rules of practice and proc sdure may be obtained from
the Board. The appeal form and the Board's rules of practice and procedure are also available in
braille or on audiotape from the Secretary to the Board at 717-787- 3483. This paragraph does
not, in and of itself, create any right of appeal beyond that permitted by applicable statutes and
decisional law.

IF YOU WANT TO CHALLENGE THIS ACTION, YOUR APP. MUST REACH THE
BOARD WITHIN 30 DAYS. YOU DO NOT NEED A LAW TO FILE AN APPEAL
WITH THE BOARD.

IMPORTANT LEGAL RIGHTS ARE AT STAKE, HOWEVER, $0 YOU SHOULD SHOW
THIS DOCUMENT TO A LAWYER AT ONCE. IF YOU.CANNOT AFFORD A LAWYER,
YOU MAY QUALIFY FOR FREE, PRO, BONO REPRESENTATION. CALL THE
SECRETARY TO THE BOARD (717-787-3483) FOR MORE INFORMATION.

FOR THE DEPARTMENT OF
ENVIRONMENTAL PROTECTION:

 

Regional Manager
Environmental Cleanup ProgramEXHIBIT BUSPS.com® - USPS Tracking®

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3/6/2017EXHIBIT C|
|
COMMONWEALTH OF PENNSYLVANIA —|
— ENVIRONMENTAL HEARING BOARD —|

|

CERTIFICATION OF OFFICIAL ees

|
I, Christine A. Walker, Secretary to the Environmental Hearing Board of the

Commonwealth of Pennsylvania pursuant to Section 3(f) of the Environmental

Hearing Board Act, 35 P.S. §7513(f), in accordance with the provisions of

|
DO HEREBY CERTIFY that, as legal custodian of the records and

42 Pa.C.S.A. § 6103(a) and (b):

|
documents maintained by the Environmental Hearing Board, and after having
: 7

caused to be made a thorough examination of the records, as of December 26,
|

2017, no appeal of the Department’s March 1, 2017, Administrative Order issued

|
to Lester E. McLaurin, Jr., has been filed. |
|

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the

seal of the Environmental Hearing Board to be affixed.

|
|
|
|

birch Melee

“CHRISTINE A. WALKER
Secretary to the Environmental Hearing Board

 

|
\
|
Dated: December 26, 2017
|
|

|
2nd Floor - Rachel Carson State Office Building | 400 Market Street, P.O. Box 8457 | Harrisburg, PA 17105-8457 | 717-787-3483 | Fax 717.783.4738 |
http://ehb.courtapps.com |EXHIBIT DWB” pennsylvania
wa DEPARTMENT OF E IONMENTAL
— "PROTECTION

June 5, 2017

DELIVERY CONFIRMATION NO. 9114 9014 9645 1011 1932 8

Mr. Lester E, McLaurin, Jr,

415 South Old Middletown Road

Media, PA 19063

Re: — Storage Tank Program
Facility ID No, 23-42913
Trainer Auto & Truck Service
3608 West 9" Street
Trainer Borough
Delaware County

|

Dear Mr. McLaurin:
On March 1, 2017, the Department of Environmental Protection (DEP) issued an Administrative
Order (Order) requiring the payment of registration fees, proof of payment of Underground
Storage Tank Indemnification Fund (USTIF) fees, and the permanent! closure of the underground
storage tanks (USTs) at the above referenced facility. The Order was not appealed and is final.
In accordance with the Order, the outstanding registration fees and proof of USTIF payment _
were due no later March 31, 2017, andthe permanent closure of the USTs was to be performed
no later than May 30, 2017. To date we have not received any documentation from you related
to these actions. Yow have failed to comply with the requirements of the Order.

|
When there is non-compliance with an Order, DEP has the option to file a petition requesting the
issuance of a court order enforcing DEP’s Order. Violation of any such court order can have
serious consequences. DEP usually files these Petitions to Enforce in Commonwealth Court.
This would require your presence at one or more hearings in Harrisburg.

|
DEP is also authorized to assess penalties for violations of the Storage Tank and Spill Prevention
Act and of the applicable regulations. Penalties may be assessed foreach violation for each day
that it occurs. The fact that no penalties have been assessed to date for the violations that
triggered issuance of the Order does not mean that DEP will not do so in the future. Moreover,
DEP can also assess additional penalties for a failure to comply with the Order. Nevertheless,
prompt compliance with DEP’s Order will reduce the likelihood of future penalty assessments
and, in the event that penalties are assessed, may reduce the saiaiea i that assessment,
It is in your best interest to comply with the requirements in the Order as soon as possible. No
later than June 26, 2017, please contact me in writing about the steps that you have taken to
comply with the Order and/or your intention to comply with the Order.

Southeast Regional Office
2 East Main Street | Norristown, PA 19401-4915 | 484.250.5960 | Fax 484.250.5861 | ww.depweb.state.pa.us

|
|June 5, 2017

Mr. Lester E. McLaurin, Jr.

|
|
|
|
|
— ————eE acme

|
Should you have any questions regarding this matter, please feel free to contact me at
484.250.5714.

Sincerely,

Carly Baker
Environmental Protection Specialist
Environmental Cleanup and Brownfields

cc: Trainer Borough
B. Glass, Esq., OCC, DEP

PA DEP (3)
ReIN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION — EQUITY

COMMONWEALTH OF PENNSYLVANIA, $ (Petition to Enforce)
DEPARTMENT OF ENVIRONMENTAL :
PROTECTION, : No.

Petitioner, :

Vv.

LESTER E. MCLAURIN, JR.
Respondent. |

'

|

CERTIFICATE OF SERVICE |

 

|
Thereby certify that I am this day serving the forgoing “Petition to Enforce
Administrative Order” upon the persons and in the manner indicated below, which service
|

satisfies the requirements of Pa.R.C.P. 400 and 402:

Service by the Sheriff of Delaware County to:

Lester E. McLaurin, Jr.
415 South Old Middletown Road
Media, PA 19063

E57}

Brian Glass

Assistant Counsel

Office of Chief Counsel, So
Attorney ID # 89405
Department of Environmental Protection
2 East Main Street

Norristown, PA 19401-4915
Telephone: 484-250-5870
Facsimile: 484-250-5931
E-mail: briaglass@pa.gov

Date: kB U2

theast Regional Counsel

 

| FILED
} 01-05-2018 03:23 PM

| OFFICE OF JUDICIAL SUPPORT
DELAWARE COUNTY, PA.