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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-4310 and A-4361
                            )
KLEEN ALL OF AMERICA, INC. and        )
ALLIANCE ENVIRONMENTAL, INC.,        )
                            )
        Respondents.                )            

AGREED ORDER

    The Complainant and the Respondents 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.    Respondents are Kleen All of America, Inc., an asbestos removal contractor and Alliance Environmental, Inc., an asbestos consultant (hereinafter referred to as "Respondents"), which were involved in an asbestos removal project at Ben Davis High School, located at 1200 N. Girls School Road in Indianapolis, Indiana.

    3.    The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

    4.    Respondents are operators of a renovation activity pursuant to 326 IAC 14-10- 2(33) and are subject to the requirements established in 326 IAC 14-10. Respondent Alliance contends it is not an operator under the definition of 326 IAC 14-10-2(33).

    5.    Pursuant to IC 13-30-3-3, IDEM issued Notices of Violation via Certified Mail to:

            Mr. Randall McMillan, President    CT Corporation
            Kleen All of America, Inc.        Kleen all of America, Inc.
            1036 William Flynn Hwy.        1 North Capitol
            Glenshaw, PA 15116        Indianapolis, IN 46204

            Mr. R. Bruce Wallace, President and Registered Agent
            Alliance Environmental, Inc.
            1433 Sadlier Circle, West Drive
            Indianapolis, IN 46239

    6.    Rule 326 IAC 14-10-4(3) requires when RACM is stripped from a facility component while it remains in place in the facility, adequately wet the RACM during the stripping operation.

    7.    Rule 326 IAC 14-10-4(6)(A) requires for all RACM, including material that has been removed or stripped, adequately wet the material and ensure that it remains wet until collected and contained or treated for disposal and is disposed of in accordance with 40 CFR 61.150 and 329 IAC 10-8-4 (RACM shall be adequately wet throughout all stages of disposal).

    8.    Rule 326 IAC 14-10-4(9) requires that upon completion of stripping and removal operations for demolition projects described in section 1(a) of this rule and renovation projects described in section 1(c) through 1(f) of this rule, collect visible contamination of asbestos by employing one (1) or both of the following cleaning procedures:

            (A) Vacuum all surfaces in the work area using a vacuum equipped with a HEPA filter and remove all standing water.

            (B) Wet wipe or wet mop all surfaces in the work area and remove all standing water.

    9.    Rule 326 IAC 14-10-4(10) requires upon completion of the cleanup requirements identified in subdivision (9), an Indiana licensed supervisor, prior to the removal of the warning signs or other demarcation of the work area, shall perform a final visual inspection of the work area for visible suspect RACM debris. If visible suspect RACM debris is discovered, then the requirements of subdivision (9) shall be repeated until all visible suspect RACM debris has been removed.
        Upon completion of the above, the licensed supervisor shall certify in writing that

the final visual inspection was completed and the work area is free of all visible suspect asbestos debris. This certification shall also include the date of the final visual inspection, the location of the asbestos removal project and the licensed supervisor's signature. The certification shall be retained by the contractor for a period of at least three (3) years from the date of the final visual inspection and must be made available upon request from the department. A copy of the certification shall also be sent to the building owner.

    10.    Rule 326 IAC 14-10-4(11) requires that for any RACM or suspect RACM,

            (A) Any stripped, disturbed or removed friable asbestos materials that are in a leak-tight wrapping and left at a facility or stored elsewhere prior to disposal, must be securely stored in a manner that restricts access by unauthorized persons to the material. The material must be stored in locked containers, rooms, trucks or trailers. Asbestos warning signs or labels must be prominently displayed on the door of the locked containers, rooms, trucks or trailers. If such secure areas are not available, other security measures must be employed, including the use of barriers, security guards or other measures approved by the Commissioner. Asbestos warning labels must be posted in all areas where asbestos is stored.

            (B) When an ongoing asbestos project is interrupted for any nonemergency situation, all RACM that was disturbed, stripped or removed must be wetted and placed into leak-tight wrapping and stored in a manner consistent with 11(A). If the RACM that was stripped, disturbed, or removed is not, or cannot be collected, and placed into leak- tight wrapping and stored during the abatement interruption, an accredited Indiana worker or supervisor, must remain at the job site to prevent unauthorized persons from entering the work area. Asbestos warning signs or labels must be posted on all entrances and exits to the work area.

    11.    Rule 326 IAC 18-1-8(2) requires that each asbestos contractor shall ensure that the current certificate of accreditation and photographic identification card belonging to each project supervisor and worker is kept on the job site during all asbestos projects. The certificate of accreditation and photographic identification card shall be kept outside the work area, and shall be available for inspection by the Department of Environmental Management.

    12.    On July 7, 1998, inspectors from IDEM and the City of Indianapolis conducted an inspection at the Site. Inspectors observed dry, friable regulated asbestos containing materials (RACM) on the floor inside containment as well as seven (7)

open asbestos waste bags and one (1) sealed bag containing dry RACM also inside containment, a violation of 326 IAC 14-10-4(6). Inspectors also observed employees of Kleen All of America, Inc. in the act of stripping RACM from the ceiling without the use of water, a violation of 326 IAC 14-10-4(3). A check of accreditation cards revealed that two (2) Kleen All of America, Inc. workers were found to have expired accreditation cards, violations of 326 IAC 18-1-8(2).

    13.    On July 16, 1998, inspectors from IDEM and the City of Indianapolis conducted another inspection at the Site. Inspectors observed dry, RACM on the floor inside containment, a violation of 326 IAC 14-10-4(6) as well as a dry, friable piece of RACM just outside a breach in the containment, violations of 326 IAC 14-10-4(6) and 326 IAC 14-10-4(11). A piece of wet RACM debris was observed in a cart and several asbestos waste bags outside containment were being stored for disposal in an unsecured area, violations of 326 IAC 14-10- 4(11).

    14.    On August 14, 1998 and August 16, 1998 IDEM inspectors observed that dry, friable asbestos debris remained at the project site in several areas after the completion of the project. The fact that this material was dry is a violation of 326 IAC 14-10-4(6). The fact that this material remained in the work areas after the completion of the project demonstrates that all surfaces in the work area were not wet wiped or wet mopped, a violation of 326 IAC 14-10-4(9)(B) and that a final visual inspection had not been properly performed, a violation of 326 IAC 14-10- 4(10).

    15.    In recognition of the settlement reached, Respondents waive any right to administrative and judicial review of this Agreed Order.

    16.    Respondents enter into this Agreed Order solely in order to avoid further expenses and uncertainties of litigating the contested issues of fact or law which exist between Respondents and Complainant. Pursuant to IC 13-30-3-3, nothing contained in this Agreed Order is to be construed as an admission by Respondents that the violations stated in this Agreed Order occurred.

    17.    Nothing in this Agreed Order shall be construed to create any rights in, or grant any cause of action to any person not a Party to this Agreed Order.

II. ORDER

    1.    This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or his delegate, and has been received by the Respondents. 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:

        Lynne Donahue, Enforcement Case Manager
        Office of Enforcement
        Indiana Department of Environmental Management
        100 N. Senate Avenue
        P. O. Box 6015
        Indianapolis, IN 46206-6015
            
    3.    Respondents are assessed a civil penalty of Forty Three Thousand Two Hundred Dollars ($43,200). Thirteen Thousand Four Hundred Fifty Dollars ($13,450) shall be due and payable to the Asbestos Trust Fund within thirty (30) days of the Effective Date of this Agreed Order. Five installments of Five Thousand Nine Hundred Fifty Dollars ($5,950) shall be due and payable to the Asbestos Trust Fund over the following five (5) months with each payment due every thirty (30) days until penalty is paid in full.

    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 as established, Respondents 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 Respondents, their officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondents' 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 Respondents shall in any way alter their 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 Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.

    9.    This Agreed Order shall remain in effect until Respondents have complied with all terms and conditions of this Agreed Order.

TECHNICAL RECOMMENDATION:        KLEEN ALL OF AMERICA, INC.:
Department of Environmental Management

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: ______________________

                            ALLIANCE ENVIRONMENTAL, INC.:

                            By: _________________________
                
                            Printed: ______________________
    
                            Title: ________________________                         
                            Date: ________________________

                            COUNSEL FOR RESPONDENT:


                            By: ________________________


                            Date: ______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 199___.

                            
                            For the Commissioner:
                            

                            Signed 1/4/99
                            Felicia Robinson George
                            Assistant Commissioner of Enforcement
                            

Converted by Andrew Scriven