STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. A-4333(b) or 1998- )3309, A-4487 or 1999-3471-A & A-4563 or 1999-3555-A
)
INCORP, INC., )
)
Respondent. )
AGREED ORDER
The Complainant and the 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.
I. FINDINGS OF FACT
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is INCORP, Inc. (hereinafter referred to as "Respondent"), an asbestos abatement contractor licensed in the State of Indiana located at 2628 B North Cullen Avenue in Evansville, Indiana.
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to: Brad Solemn, Registered Agent:
INCORP, Inc. C. T. Corporation System
2628 B North Cullen Ave. One North Capitol
Evansville, IN 47715 Indianapolis, IN 46204
5. Respondent implemented an asbestos removal project at Indiana State University, Jones Hall, 455 North Fifth Street in Terre Haute, Indiana on or about June 4, 1998 to which the requirements of 326 IAC 14-10 applied, pursuant to 326 IAC 14-10-1(c).
6. Rule 326 IAC 14-10-4(9) requires that visible contamination of asbestos be collected upon the completion of removal operations.
7. Rule 326 IAC 14-10-4(10) requires that upon completion of the cleanup requirements, an Indiana licensed supervisor shall perform a final visual inspection of the work area for visible suspect asbestos debris. If visible suspect asbestos debris is discovered, the requirements of subdivision (9) shall be repeated until all visible asbestos debris has been removed. The supervisor must then certify in writing that the final visual inspection was conducted and the work area is free of all visible asbestos debris.
8. On June 4 & 5, 1998, representatives of the IDEM conducted an inspection at Indiana State University, Jones Hall, 455 North Fifth St., Terre Haute, IN. During the inspections the inspectors observed RACM debris on top of an air handler in mechanical room # 2 and in the wall of the break room following the final visual inspections by the accredited supervisors, a violation of Rule 326 IAC 14-10-4(9) and 326 IAC 14-10-4(10).
Following the June 5, 1998 inspection, representatives of the Respondent returned to Jones Hall and cleaned up the RACM debris identified by the IDEM representatives. An Indiana Licensed supervisor performed a final visual inspection of the work area following the clean up.
10. The project supervisors for the asbestos removal projects involved in the violations were William Rumley, Indiana accreditation number 191807020 and Gary W. Still, Indiana accreditation number 190931108.
11. Respondent implemented an asbestos removal project at the Indiana Army Ammunition plant, 11452 Highway 62, Charlestown Indiana on or about October 6, 1998 to which the requirements of 326 IAC 14-10 applied, pursuant to 326 IAC 14-10-1(c).
12. Rule 326 IAC 14-10-4(6) requires that asbestos be adequately wetted, properly handled and disposed of to ensure asbestos fibers will not be released during or after removal.
13. On October 8, 1998, a designated representative of the Office of Air Management, IDEM conducted an inspection at the Indiana Army Ammunition plant, 11452 Highway 62, Charlestown Indiana. During the inspection, the inspector observed dry friable asbestos debris on the containment floor. In addition, the inspector determined that the asbestos in ten (10) sealed waste bags was inadequately wet, a violation of Rule 326 IAC 14-10-4(6).
14. The project supervisor for the asbestos removal project involved in the violation was Bill Cox, Indiana accreditation number 190903079.
15. Respondent implemented an asbestos removal project at the Rockville Jr./Sr. High School, 506 N. Beadle St., Rockville, Indiana on or about May 27, 1999 to which the requirements of 326 IAC 14-10 applied, pursuant to 326 IAC 14-10-1(c).
16. On May 27, 1999, a representative of the OAM, IDEM conducted a routine inspection at Rockville Jr./Sr. High School. The inspector noted that the barriers and warning signs had been removed. The inspector observed RACM debris on a pair of boots, on the floor of a decon shower and scattered throughout the work area, violations of Rule 326 IAC 14-10-4(9) and 326 IAC 14-10-4(10).
17. The project supervisor for the asbestos removal project involved in the violations was Jerry Rosser, Indiana accreditation number 193522059. .
18. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed 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.
II. ORDER
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Craig Henry, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
3. Respondent is assessed a civil penalty of Twenty Three Thousand Dollars ($23,000.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.
4. Civil penalties are payable by check to the Asbestos Trust Fund. Checks shall include the Cause Number of this action and shall be mailed to:
Cashier
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
5. In the event that the civil penalty required by paragraph 3 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.
6. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.
7. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.
8. The 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.
9. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order.
This Agreed Order is the final resolution of the above referenced violations, except as they relate to asbestos contractor licensing. Further enforcement actions with respect to Respondent's asbestos contractor license, based on the violations noted above, shall be stayed during a period of one (1) year from the payment of the civil penalty required by Order Item 3 above. In the event no Notices of Violation are issued during the one (1) year period for any non-minor deviation or potential for harm, as set out in IDEM's Civil Penalty Policy, then this Agreed Order shall be considered a Final Resolution of all above-referenced violations, including any actions with respect to the Respondent's asbestos contractor license. In the event a Notice of Violation is issued for any non-minor deviation or potential for harm, as set out in IDEM's Civil Penalty Policy during the one (1) year period, the stay will be lifted and the above-referenced violations, along with the new violation(s), will be considered in any action regarding the Respondent's asbestos contractor license.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management INCORP, Inc.
By: _________________________ By: _________________________
David P. McIver
Chief, Air Section
Office of Enforcement Printed: ______________________
Title: ________________________
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Office of Legal Counsel
Department of Environmental Management
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 199___.
For the Commissioner:
Adopted October 27, 2000
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement
10.11.12.1.2.3.