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-3510
)
WERNER ENVIRONMENTAL )
SERVICES, INC. )
)
Respondent )
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.
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(IC 13-72-2-11) prior to July 1, 1996).
2. Respondent is Werner Environmental Services, Inc. (hereinafter referred to as "Respondent"), an asbestos abatement contractor licensed in the State of Indiana located at 3526 East Raymond Street in Indianapolis, Indiana.
3. The Indiana Department of Environmental Management ("IDEM) has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-7-11-2(b) (currently IC 13-30-3-3), IDEM issued a Notice of Violation on June 19, 1996, via Certified Mail to:
Steve Werner, President
Werner Environmental Services, Inc.
6134 South Madison Avenue
Indianapolis, IN 46227
Agreed Order A-3510
Page 2
5. Respondent implemented an ordered demolition/asbestos removal project at the former Steller Chemical Plant located at 10 Kelly Avenue in Peru, Indiana on or requirements of 326 IAC 14-10 applied, pursuant to 326 IAC 14-10-1(b).
6. The facility was ordered demolished by the city of Peru, Indiana on or about December 6, 1995, to which the notification and requirements of 326 IAC 14-10-3 and the emission control requirements in section 4(4) through 4(8), and 4(11) through 4(12) apply, not 326 IAC 14-10-4(3), contrary to the citation in the Notice of Violation.
7. Rule 326 IAC 14-10-2(36) defines "regulated asbestos-containing material (RACE)" in part, as " "(A) Friable asbestos material;... or (D) Category II non-friable ACM that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of demolition or renovation operations regulated by this article..."
8. Rule 3226 IAC 14-10-4() states: "For all regulated asbestos-containing material (RACE), including material that has been removed or stripped: (A) 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 61.160 and 329 IAC 2-21 (RACE shall be adequately wet throughout all stages of disposal). (B) Carefully lower the materials to the ground and floor, not dropping, throwing, sliding, or otherwise damaging or disturbing the materials..."
9. On December 6, 1995, the inspector observed asbestos-containing transit in the dumpster which was dry and friable, a violation of 326 IAC 14-10-4(6)(A).
10. The inspector also observed two of Respondent's workers on the roof of the building drop two sections of asbestos-containing transit tot he ground, a violation of 326 IAC 14-10-4-(6)(B).
11. Respondent contends that the dropping of the transit panels observed by the inspector was an isolated incident caused by the below freezing temperatures causing frost on the panels which made the panels slippery and difficult to handle.
12. Rule 326 IAC 14-10-4(7)(B) states, during periods when wetting operations are suspended due to freezing temperatures, the owner or operator must (i) Record the temperature in the area containing the facility components at the beginning, middle, and end of each workday and keep daily temperature records available for inspection by the Commissioner at the demolition or renovation site and retain the temperature records for at least two (2) years; and (ii) Use one (1) or more of the Alternative emission control methods listed in the rule
Agreed Order A-3510
Page 3
13. During the above-mentioned inspection on December 6, 1995, the inspector noted that water was not being used and the water hose on site was frozen. However, a temperature log was not being maintained at the site and available for IDEM's inspection, a violation of 326 IAC 14-10-4-(7)(B).
14. On July 18, 1996, representatives of Respondent met with representatives of complainant to discuss resolution of this cause. At that time, Respondent submitted copies of daily project reports documenting that temperature readings had been taken daily by Respondent and an independent consultant and that wetting procedures had been suspended due to the freezing temperatures.
15. Analysis of air samples collected on December 6, 1966, indicate the asbestos fiber levels were below the clearance level of .01 fibers per cubic centimeter.
16. Respondent has revised it procedure for projects impacted by freezing weather so that a written temperature log that complies with the format described in 326 IAC 14-10-4(7)(B) will be maintained on site for the duration of the project.
17. The project supervisor for the asbestos removal project involved in the violations is Frank Smoot, Indiana accreditation number 190115042.
18. The alleged violation of 326 IAC 14-10-3(7) as cited in the Notice of Violation issued on June 19, 1996, is dismissed by Complainant.
19. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. 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:
Ginger Rees, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
Post Office Box 6015
Indianapolis, IN 46206-6015
Agreed Order A-3510
Page 4
3. Respondent is assessed a civil penalty of Four Thousand Dollars, ($4,000). Said penalty amount shall be due and payable to the Asbestos Trust Fund within sixty (60) 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 Cause Number of this action and shall be mailed to:
Cashier
Indiana Department of Environmental Management
Post Office Box 7060
Indianapolis, Indiana 46206-7060
5. In the event that the civil penalty required by paragraph 3 is not paid within sixty (60) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 244.6-1-101. The interest shall be continued to accrue until the civil penalty is paid in full.
6. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute 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.
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 Respondent 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 Respondent has complied with all terms and conditions of this Agreed Order.
Agreed Order A-3510
Page 5
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Werner Environmental Services, Inc.
By: Singed 3-24-97 By: Signed 4-28-97
Pat Carroll
Office of Enforcement Printed:
Title:
Date: Date:
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: Signed 3-5-97 By: N/A
Office of Legal Counsel
Department of Environmental Management
Date: Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS DAY OF , 199 .
For the Commissioner
Signed 5-15-97
Patrick Carroll, Director
Office of Enforcement