STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

ELITE ENVIRONMENTAL SERVICES, INC.,

Respondent.

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Case No. 2008-17707-A

 

 

AGREED ORDER

 

Complainant and 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 (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondent is Elite Environmental Services, Inc. (“Respondent”), a licensed asbestos abatement contractor, which implemented an asbestos abatement project at 4700 Darlington Road in Newburgh, Warrick County, Indiana (“Site”).

 

3.                  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 (“NOV”) on April 17, 2008  via Certified Mail to:

 

James Gribbins, President

Elite Environmental Services, Inc.

1400 E. Columbia Street

Evansville, IN 47711

 

5.                  During an investigation including an inspection on February 6, 2008 conducted by a representative of IDEM, the following violation was found:

 

a.         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 after removal, in violation of 326 IAC 14-10-4(6)(A).

After being notified during IDEM’s inspection that asbestos material was not adequately wetted, properly handled and disposed of, representatives of Respondent immediately wetted the asbestos material, placed it in new bags and stored it in a locked and labeled dumpster.

 

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 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 14-10-4(6)(A).

 

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

 

Mary Kelley, 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 Seven Thousand Eight Hundred Seventy Five Dollars ($7,875.00). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of One Thousand Five Hundred Seventy Five Dollars ($1575.00). Said penalty amount shall be due and payable to the Asbestos Trust Fund. In lieu of payment to IDEM of the remaining civil penalty, Respondent shall make a cash payment to the Indiana Finance Authority (“IFA”) to fund a Supplemental Environmental Project (“SEP”) of activities related to brownfield redevelopment at a brownfield site (“Brownfield Site”) in Evansville, Indiana.  Respondent will make a payment in the amount of Six Thousand Three Hundred Dollars ($6,300.00) to fund SEP activities at the Brownfield Site.  Respondent shall make such payment to the IFA within thirty (30) days of the Effective Date of this Agreed Order.  Payment to the IFA satisfies Respondent’s obligation to undertake a SEP to offset a portion of the civil penalty assessed in this matter.  Implementation of this SEP will benefit the community by rejuvenating neighborhoods, increasing the tax base, mitigating threats to human health and the environment, and/or reducing blight.

 

The Brownfield Site at which the SEP proceeds will be spent will be agreed upon among Complainant, Respondent, the City of Evansville, and the IFA, and will be subject to final approval by the Brownfield Program.  The IFA will account for the SEP payment in a Brownfield Site and/or community-specific account and will require the City of Evansville to execute a financial assistance agreement with the IFA, under which the Brownfield Program will oversee the work undertaken at the Brownfield Site funded by SEP proceeds.  The IFA will notify IDEM’s Enforcement Case Manager when SEP-funded activities at the Brownfield Site are complete.

 

In the event that Respondent does not make its SEP payment within thirty (30) days of the Effective Date of this Agreed Order, the full amount of the civil penalty as stated in this paragraph, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due to IDEM within fifteen (15) days from Respondent's receipt of IDEM’s notice to pay.  Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

 

Payment for the SEP is payable by check to the “Indiana Finance Authority.”  The text “SEP-City of Evansville” and the Case Number of this action shall be included in the memo line of the check.  The check shall be mailed to:

 

Andrea Robertson

Indiana Brownfield Program - SEP

100 N. Senate Avenue

Room 1275

Indianapolis, Indiana  46204

 

Respondent shall provide Complainant with documentation of payment to the Indiana Finance Authority within one (1) week of such payment.

 

5.         The civil penalty is 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 their 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.         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 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 their obligation to comply with the requirements of their applicable permit or any applicable Federal or State law or regulation.

 

10.       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.

 

11.       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.

 

12        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.

 

13.       This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Elite Environmental Services, Inc.

 

 

 

By:

 

 

By:

 

 

Craig Henry

 

Printed:

 

 

Chief, Air Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

COUNSEL FOR INDIANA FINANCE AUTHORITY

For the Indiana Brownfield Program

 

By:

 

 

 

 

Assistant Director & General Counsel

 

Date:

 

 

 

 

 

COUNSEL AND/OR AUTHORIZED REPRESENTATIVE

For the City of Evansville, Indiana

 

By:

 

 

 

 

 

Date:

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on November 7, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement