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BEFORE
THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER
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Complainant, |
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Case
Nos. 2006-15340-A, 2006-15341-A, 2006-15342-A, 2006-15343-A and 2006-15344-A |
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BRUCE
CARTER ASSOCIATES, LLC, |
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Respondent. |
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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
2.
Respondent is Bruce Carter Associates, LLC
("Respondent"), which owns and operates an environmental consulting
company, located at
3.
Respondent provided consulting services including Phase I
and/or Phase II Site Investigations at the Indiana Copper Corporation located
at 666 Lincoln Blvd. in Marion, Grant County, Indiana (“Site 1”); the William
H. Pfarrer Plating Company located at US Highway 35 South in Walton, Cass
County, Indiana (“Site 2”); 66, 68, 70, 72-74 S. Broadway in Peru, Miami
County, Indiana (“Site 3”); the Bront and Mafcote buildings located at 401 and
410 S. Carroll Street in Wabash, Wabash County, Indiana (“Site 4”); and
Richardson’s Dry Cleaners located at 608 E. Broadway Street in Logansport, Cass
County, Indiana (“Site 5”). The services
included inspection of the buildings for the presence, quantity and condition
of asbestos containing materials.
4.
The Indiana Department of Environmental Management (“IDEM”)
has jurisdiction over the parties and the subject matter of this action.
5.
The Respondent waives issuance of a Notice of Violation and
to the settlement period of sixty (60) days as provided for by IC 13-30-3-3.
6.
A records review was conducted of the Sites by a
representative of IDEM’s Office Air Quality (OAQ). The following violations were in existence or
observed at the time of this review:
a. Pursuant to 326 IAC 18-1-3(a)(1), no person shall inspect for
asbestos containing materials at a facility without current licensing by IDEM.
The Respondent used an inspector not currently licensed to perform asbestos
inspections to inspect the facilities for asbestos on June 3, 2004 at Site 1,
on January 26, 2005 at Site 2, on March 25, 2005, April 11, 2005 and May 25,
2005 at Site 3, on March 3, 2005 at Site 4 and on May 19, 2005 at Site 5,
violations of 326 IAC 18-1-3(a)(1).
7.
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 Respondent. This
Agreed Order shall have no force or effect until the Effective Date.
2.
Respondent shall comply with 326 IAC 18-1.
3.
Respondent shall send David King to a licensed training
course provider to re-take the asbestos inspector course within sixty (60) days
of the Effective Date of this Order.
4.
Respondent shall re-apply to IDEM’s Asbestos Section for an
asbestos inspector license for David King within fourteen (14) days after
successful completion of the training course.
5.
Respondent shall provide documentation of completion of
paragraphs 3 and 4 within seventy-five (75) days of the Effective Date of this
Order.
6.
Respondent shall hire an independent licensed asbestos
inspector or perform a thorough asbestos inspection pursuant to 326 IAC 14-10-1
of Site 1, Site 2 and Site 5 using a licensed asbestos inspector at
Respondent’s expense within one-hundred and eighty (180) days of the Effective
Date of this Order.
7.
Respondent shall provide asbestos awareness training subject
to IDEM approval and ensure all Respondent’s employees attend within
one-hundred and eighty (180) days of the Effective Date of this Order.
8.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
Lynne Sullivan, Enforcement Case Manager
Indiana Department of Environmental Management
Office of Enforcement – Mail Code 60-02
9.
Respondent is assessed a civil penalty of Twelve Thousand
Four Hundred Dollars ($12,400). 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.
Violation Penalty
Failure to comply with Order paragraph 3 $100
per week
Failure to comply with Order paragraph 4 $100
per week
Failure to comply with Order paragraph 5 $100
per week
Failure to comply with Order paragraph 6 $300
per week
Failure to comply with Order paragraph 7 $100
per week
10.
In the event the terms and conditions of the following
paragraphs are violated, the Complainant may assess and the Respondent shall
pay a stipulated penalty in the following amount:
11.
Stipulated penalties shall be due and payable within thirty
(30) days after Respondent receives written notice that the Complainant has
determined a stipulated penalty is due.
Assessment and payment of stipulated penalties shall not preclude the
Complainant from seeking any additional relief against the Respondent for violation
of the Agreed Order. In lieu of any of
the stipulated penalties given above, the Complainant may seek any other
remedies or sanctions available by virtue of Respondent’s violation of this
Agreed Order or Indiana law, including, but not limited to, civil penalties
pursuant to IC 13-30-4.
12.
Civil and stipulated 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’s Office - Mail
Code 50-10C
1.
In the event that the civil penalty required by Order
paragraph 9 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.
2.
This Agreed Order shall apply to and be binding upon the
Respondent, its successors 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.
3.
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.
4.
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.
5.
This Agreed Order shall remain in effect until Respondent
has complied with all terms and conditions of this Agreed Order.
The remainder of this page
intentionally left blank.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
Bruce
Carter Associates, LLC |
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By:
__________________________ |
By:
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David P. McIver Chief, Air Section |
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Office of Enforcement |
Printed:
__________________ |
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Title:
________________________ |
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Date:
__________________________ |
Date:
________________________ |
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COUNSEL
FOR COMPLAINANT: |
COUNSEL
FOR RESPONDENT: |
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Department
of Environmental Management |
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By:
___________________________ |
By:
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Office of Legal Counsel |
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Date:
___________________________ |
Date:
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____
DAY OF _______________, 20__.
For the Commissioner:
Signed on June 11, 2006
Matthew T. Klein
Assistant Commissioner for
Compliance & Enforcement