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.

JMARK INVESTMENTS, LLC,

Respondent.

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Case No. 2005-14904-A

 

 

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.  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, a department of the State of Indiana created by IC 13-13-1-1.

 

2.         Respondent is JMark Investments, LLC (“Respondent”), who implemented an asbestos abatement project located at 216 North Sixth Street, in Lafayette, Tippecanoe 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, IDEM issued a Notice of Violation via Certified Mail to:

 

Mr. Jay Reynolds, Registered Agent

529 Main Street

Lafayette, Indiana 47901

 

5.         An inspection, 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 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).

 

b.         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.

 

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 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 326 IAC 18-1-3(a)(5), 326 IAC 14-10-1, 326 IAC 14-10-4(6)(A), and 326 IAC 14-10-3(1).

 

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

 

Lynne Sullivan, Enforcement Case Manager

Office of Enforcement – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

4.                  Respondent is assessed a civil penalty of Nine Thousand Dollars ($9,000).  Said penalty amount shall be due and payable to the Asbestos Trust Fund within thirty (30) days of the Effective Date.  In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, 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.

 

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 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.

 

8.                  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 its obligation to comply with the requirements of its applicable permit or any applicable Federal or State law or regulation.

 

9.                  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’s efforts to comply with this Agreed Order.

 

10.             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, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

 

11.             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.

 

12.             This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

JMark Investments, LLC

 

 

 

By:

 

 

By:

 

 

Craig Henry

 

Printed:

 

 

Acting Chief, Air Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

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

 

, 2007.

 

 

For The Commissioner:

 

 

 

Signed on February 6, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement