STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

OUR LADY OF VICTORY

MISSIONARY SISTERS, INC. &

VAN CONTRACTING, INC.,

Respondent.

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Case No. 2005-14572-A
                2005-14573-A



 

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.  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.  Respondents’ entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents 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, a department of the State of Indiana created by IC 13-13-1-1.

 

2.         Respondents are Our Lady of Victory Missionary Sisters, Inc.(“Owner”) and Van Contracting Inc. (“Operator”), (“Respondents”), who implemented an asbestos abatement project located at 1900 West Parkview Drive, in Huntington, Huntington County, Indiana (“Site”).

 

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

 

4.         Pursuant to IC 13-30-3-3, on May 11, 2006, IDEM issued a Notice of Violation via Certified Mail to:

 

Sister Jeanette Halbach, President and Registered Agent (Owners)

Our Lady of Victory Missionary Sisters, Inc.

1900 West Park Drive – Box 109

Huntington, Indiana 46750

 

Mr. Michael T. Van, President & Registered Agent (Operators)

Van Contracting Incorporated

380 South Towerview Drive

Columbia City, IN 46725

 

5.         An inspection on January 25, 2005, was conducted at the Site by a representative of IDEM’s Office of Air Quality (“OAQ”).  The following violations were in existence or observed at the time of this inspection:

 

a.                  Pursuant to 326 IAC 14-10-1, the owner or operator of a demolition or renovation activity is required to have an Indiana licensed inspector thoroughly inspect the facility for the presence of asbestos prior to engaging in any activity that could disturb the asbestos.

 

The IDEM inspector noted that the facility was not inspected by an Indiana licensed inspector prior to engaging in an activity that could disturb asbestos, a violation of 326 IAC 14-10-1.

 

b.         Pursuant to 326 IAC 18-1-3(a)(5), no person shall implement an asbestos project at a facility without current licensing by IDEM.

The IDEM inspector noted that this asbestos project was not implemented by currently licensed workers, a violation of 326 IAC 18-1-3(a)(5).

 

c.         Pursuant to 326 IAC 14-10-4(6)(A), asbestos shall be adequately wetted, properly handled and disposed of to ensure asbestos fibers will not be released during or after removal.

The IDEM inspector observed asbestos material that was not adequately wetted or properly handled during or after removal, a violation of 326 IAC 14-10-4(6).

 

d.         Pursuant to 326 IAC 14-10-3(1), each owner or operator of a demolition or renovation activity is required to provide IDEM with written notice of the intention to demolish or renovate and update the notice as necessary.

The IDEM inspector noted that the owner or operator failed to provide IDEM with a notification, a violation of 326 IAC 14-10-3(1).

 

6.                  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 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.         Respondents shall comply with 326 IAC 14-10-1.

 

3.                  Respondents are jointly and severally assessed a civil penalty of Five Thousand Six Hundred Twenty-Five Dollars ($5,625.00).  Said penalty amount shall be due and payable to the Asbestos Trust 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 Case Numbers of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Cashiers Office – Mail Code 50-10C

100 N. Senate Avenue

Indianapolis, IN  46204-2251

 

5.         In the event that the civil penalty required by Order paragraph No. 3 is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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 jointly and severally upon the Respondents, their successors 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.   Respondents 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 Respondents have complied with all terms and conditions of this Agreed Order.

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Our Lady of Victory Missionary Sisters, Inc.

 

 

 

By:

 

 

By:

 

 

David P. McIver

 

Printed:

Sister Jeanette Halback OLVM

 

Chief, Air Section

 

Title:

President

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

RESPONDENT:

 

 

Van Contracting, Inc.

 

 

 

 

 

 

By:

 

 

 

 

Printed:

Michael T. Van

 

 

 

Title:

Secretary/Treasure

 

 

 

 

 

 

 

 

Date:

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Office of Legal Counsel

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2006.

 

 

For The Commissioner:

 

 

 

Signed on August 24, 2006

 

Matthew T. Klein

 

Assistant Commissioner

 

of Compliance and Enforcement