STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NOS. A-4068
) A-4150
) A-4175
) A-4201
) A-4213
)
CITY OF GARY, )
)
Respondent. )
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.
I. FINDINGS OF FACT
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.
2. Respondent is the City of Gary (hereinafter referred to as "Respondent").
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
Scott L. King, Mayor
City of Gary
401 Broadway
Gary, IN 46402
5. Rule 326 IAC 14-10-1(a) states that in order to determine which requirements of this section and sections 3 through 4 of this rule apply to the owner or operator of a demolition or renovation activity and prior to the commencement of the demolition or renovation, the owner or operator shall use an Indiana accredited asbestos inspector to inspect thoroughly the affected facility or part of the facility where the demolition or renovation operation will occur for the presence of asbestos, including Category I and Category II nonfriable asbestos-containing material. The requirements of sections 3 through 4 of this rule apply to each owner or operator of a demolition or renovation activity, including the removal of regulated asbestos-containing material (RACM). In a facility being demolished, all of the following apply:
(1) All the notification requirements of section 3 of this rule apply and a notification is required even if no asbestos is present.
(2) All the emission control requirements of section 4, except as provided in subsection (b) for ordered demolition operations, if the combined amount of regulated asbestos-containing material is:
(A) at least three (3) linear feet on pipes;
(B) at least three (3) square feet on other facility components;
(C) a total of at least seventy-five hundredths (0.75) cubic
feet on all facility components.
6. Rule 326 IAC 14-10-3(7) states that in no event shall RACM removal work (or any other activity, including site preparation that would break up, dislodge, or similarly disturb asbestos material) or demolition activities begin on a date other than the date contained in the most recent written notification.
7. Rule 326 IAC 14-10-4(8) states that for facilities described in section 1(b) of this rule undergoing an ordered demolition, adequately wet the portion of the facility that contains RACM and suspect RACM during the wrecking, cleanup, disposal, and related handling operations. An Ordered Demolition is defined in 326 IAC 14-10-2(31) as "demolition of a facility under an order of a state or local governmental agency, issued because the facility is both structurally unsound and in danger of imminent collapse."
8. Rule 326 IAC 14-10-4(11) states that for any RACM or suspect RACM,
(A) Any stripped, disturbed or removed friable asbestos materials that are in a leak-tight wrapping and left at a facility or stored elsewhere prior to disposal, must be securely stored in a manner that restricts access by unauthorized persons to the material. The material must be stored in locked containers, rooms, trucks or trailers. Asbestos warning signs or labels must be prominently displayed on the door of the locked containers, rooms, trucks or trailers. If such secure areas are not available, other security measures must be employed, including the use of barriers, security guards or other measures approved by the Commissioner. Asbestos warning labels must be posted in all areas where asbestos is stored.
(B) When an ongoing asbestos project is interrupted for any nonemergency situation, all RACM that was disturbed, stripped or removed must be wetted and placed into leak-tight wrapping and stored in a manner consistent with 11(A). If the RACM that was stripped, disturbed, or removed is not, or cannot be collected, and placed into leak-tight wrapping and stored during the abatement interruption, an accredited Indiana worker or supervisor, must remain at the job site to prevent unauthorized persons from entering the work area. Asbestos warning signs or labels must be posted on all entrances and exits to the work area.
9. Rule 326 IAC 18-3-3(a)(4) states that no person shall implement an asbestos removal project at a facility subject to 326 IAC 14-10 without accreditation by the Commissioner.
10. A-4068 - Demolition of 560-566 Washington St.
On 5/6/97, the Gary Building Commissioner ordered 560-566 Washington St. to be demolished under the city's "unsafe building" ordinance. On 5/7/97, the Gary Dept. of Redevelopment faxed an ordered demolition notification to IDEM that the buildings will be demolished that same day. When the IDEM inspector arrived at the demolition location on 5/12/97, the City of Gary had conducted the demolition of the regulated structure. The inspector observed dry asbestos pipe insulation debris on the ground and in a pile of demo debris, a violation of 326 IAC 14-10-4(8). The area was not secured from unauthorized access, a violation of 326 IAC 14-10-4(11). Follow-up inspections from 5/13/97 - 5/30/97 revealed that the RACM was not being wetted consistently and was not secured. On 6/5/97, the inspector observed that the RACM had been collected and placed in bags.
11. A-4150 - Demolition of former St. Ann's School at 6025 West 25th Ave.
On 5/27/97, the Gary Building Commissioner ordered the former St. Ann's School at 6025 West 25th Ave. to be demolished under the city's "unsafe building" ordinance. On 5/28/97 the Gary Dept. of Redevelopment faxed an ordered demolition notification to IDEM for the demolition of the school to take place on 5/29/97. When the IDEM inspector arrived at the site on 5/29/97, the City of Gary had already conducted the demolition of the regulated structure. The inspector observed dry asbestos insulation located on the ground and co-mingled with the demolition debris, a violation of 326 IAC 14-10-4(8). The RACM was not secure from access, a violation of 326 IAC 14-10-4(11). A follow-up inspection the next day revealed that the RACM was still dry. Allegedly, the debris was hosed down later that day. On 6/3/97, the inspector observed that a security guard was on site to secure the area. The area was demarcated and poly covered the apparently wet debris; however, the asbestos had not yet been removed. The asbestos removal project was competed on 6/23/97.
12. A-4213 - Demolition of 689-695 Broadway
On 10/16/97, an IDEM inspector observed that the City of Gary had conducted demolition of regulated structures at 689-695 Broadway. The inspector noted that the demolition debris contained RACM that was dry and friable, a violation of 326 IAC 14-10-4(8). Additionally, the RACM was not secure from access nor were asbestos warning signs or labels posted, a violation of 326 IAC 14-10-4(11). The inspector observed unaccredited City of Gary personnel disturbing regulated amounts of the dry, friable RACM, a violation of 326 IAC 18-3-3(a)(4).
13. A-4175 - Demolition of 1128 Monroe St.
On 1/14/98, an IDEM inspector observed that the City of Gary had conducted partial demolition of the regulated structure at 1128 Monroe St. It appeared that no asbestos had been disturbed as only the porch had been demolished. Demolition activity had ceased while a removal contractor was removing RACM from the house. A demolition notification had been submitted and was received by IDEM on 12/24/97, however, it was incomplete and did not indicate any asbestos was present that was to be removed prior to demolition. The City of Gary failed to have an accredited inspector thoroughly inspect the structure for the presence of asbestos, a violation of 326 IAC 14-10-1(a).
14. A-4201 - Demolition of 1330 Ellsworth
On 1/28/98, IDEM inspectors observed that the City of Gary had conducted demolition of the regulated structure at 1330 Ellsworth. The most recent notification submitted to IDEM stated that demolition would begin on 1/30/98. The demolition project at this site began before the date in the most recent notification, a violation of 326 IAC 14-10-3(7).
15. 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. The Respondent shall develop and implement a written procedure to ensure compliance with 326 IAC 18-3 and 14-10. Said procedure shall be submitted to IDEM within thirty (30) days of the Effective Date of this Order.
3. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Lynne Donahue, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
4. Respondent is assessed a civil penalty of Twenty Five Thousand Seven Hundred Fifty Dollars ($25,750). Ten Thousand Dollars ($10,000) of 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. Fifteen Thousand Seven Hundred Fifty Dollars ($15,750) shall be deferred and payable to the Asbestos Trust Fund only in the event that asbestos violations are observed within twelve (12) months of the Effective Date of this Agreed Order. In the event that asbestos violations are observed within that time period, the deferred amount will be payable within thirty (30) days of receipt of notice that full payment is due. Payment of the deferred amount shall not preclude Complainant from seeking civil penalties pursuant to IC 13-30-4 for the additional violations.
5. In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
Failure to submit written procedure
per Paragraph 2 of the Order $100 per day
6. 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.
7. Civil and stipulated 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
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
8. In the event that the civil penalty required by paragraph 4 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.
9. 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 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.
10. 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.
11. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
12. This Agreed Order shall remain in effect for a period of 2 years after the Effective Date of the Agreed Order.
TECHNICAL RECOMMENDATION: CITY OF GARY:
Department of Environmental Management
By: _________________________ By: _________________________
David P. McIver
Air Section Chief
Office of Enforcement Printed: ______________________
Title: ________________________
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
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 12/8/98
Felicia Robinson George
Assistant Commissioner of Enforcement