STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

DUKE ENERGY of INDIANA, Inc.,

Respondent.

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Case No. 2007-17008-A

 

 

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 Duke Energy Indiana, Inc. (Respondent) which owns the 70’s building located at the Duke Energy Plainfield Facility, 1000 East Main in Plainfield, Hendrix County, Indiana (“Site”).

 

3.            Respondent hired Patterson-Horth as its general contractor for a renovation at the “70’s Building.”  Patterson-Horth hired Pat Wilson d/b/a American Asbestos Inspections as a subcontractor to perform an asbestos abatement project as part of the renovation work.

 

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

 

5.            Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) on May 26, 2010 via Certified Mail to:

 

Mr. Jim Stanley

Duke Energy Indiana, Inc.

1000 E. Main Street

Plainfield, IN 46168

 

6.            On May 30, 2007, IDEM received an anonymous complaint concerning asbestos removal at the “70’s Building” located at Respondent’s facility in Plainfield, Indiana.  The complainant was concerned that the proper asbestos abatement work practices were not being followed.

 

7.            During an investigation  including a complaint inspection on May 31, 2007, conducted by a representative of IDEM, the following violations were found:

 

a.            Pursuant to 326 IAC 14-10-3, owner or operator of a demolition or renovation activity must provide IDEM with written notice of intention to renovate a facility where at least 160 square feet of asbestos containing material will be disturbed.

 

The IDEM inspector determined Respondent failed to notify IDEM of the removal of greater than 160 square feet of asbestos containing fireproofing at the Site, in violation of 326 IAC 14-10-3.

 

b.            Pursuant to 326 IAC 14-10-4(3), owner or operator of a demolition or renovation activity shall ensure that asbestos containing material be adequately wetted during stripping/removal operations.

The IDEM inspector determined Respondent failed to ensure that asbestos containing fireproofing was adequately wet during the stripping/removal operation at the Site, in violation of 326 IAC 14-10-4(3).

 

c.            Pursuant to 326 IAC 14-10-4(6)(A), owner or operator of a demolition or renovation activity shall ensure that stripped asbestos containing materials be adequately wetted, properly handled and disposed of to ensure asbestos fibers will not be released during or after disposal.

The IDEM inspector determined Respondent failed to ensure that stripped asbestos containing material was adequately wetted and properly handled during or after removal at the Site, in violation of 326 IAC 14-10-4(6)(A).

 

8.            Upon learning of the results of the inspection, Respondent immediately removed American Asbestos Inspection personnel from the Site.  Indiana Licensed Asbestos Abatement Contractor, Sunbelt Insulation, was contracted by Duke Energy to complete the asbestos abatement project and, at Respondent’s request, was on Site the day following the IDEM inspection.  During a follow up inspection on June 4, 2007, Sunbelt Insulation was determined to be in compliance with Indiana’s asbestos regulations.

 

9.            Complainant has a pending administrative action against Pat Wilson d/b/a American Asbestos Inspections.

 

10.         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 rules listed in the findings here and above at issue.

 

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

 

Mr. John Clevenger, Compliance and Enforcement Manager

Compliance and Enforcement Branch – Mail Code 61-53

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

4.            Respondent is assessed and agrees to pay a civil penalty of Forty Two Thousand ($42,000) Dollars.  Said penalty amount shall be due and payable to the Asbestos Trust Fund within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.

 

5.            Civil penalties are payable by check to the “Asbestos Trust 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

 

6.            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.

 

7.            In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1.  The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance.  Such interest shall be payable to the Asbestos Trust Fund, and shall be payable to IDEM in the manner specified in Paragraph 5, above.

 

8.            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.

 

9.            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.

 

10.         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 their obligation to comply with the requirements of their applicable permits or any applicable Federal or State law or regulation.

 

11.         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 efforts to comply with this Agreed Order.

 

12.         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.

 

13.         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.

 

14.         This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Duke Energy of Indiana

 

 

 

By:

 

 

By:

 

 

Craig Henry, Chief

 

Printed:

 

 

Compliance and Enforcement Section III

 

Title:

 

 

Office of Air Quality

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2012.

 

 

For the Commissioner

 

 

 

Signed on November 19, 2012

 

Keith Baugues, Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management