STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CAUSE NO. A-3492
v. ) CAUSE NO. A-3511
) CAUSE NO. A-3635
FRANKLIN INDUSTRIAL CENTER, INC., ) CAUSE NO. A-3639
and ) CAUSE NO. A-3640
) CAUSE NO. A-3892
JERRY LYNN FRUTH ) CAUSE NO. SW-341
)
)
Respondents. )
AGREED ORDER
The Complainant and the Respondents 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. Respondents are Franklin Industrial Center, Inc. (hereinafter referred
to as "Franklin"), an Indiana corporation, and Jerry Lynn Fruth (hereinafter
referred to as "Fruth"). Fruth is Chief Operating Officer and one of two
equal shareholders of Franklin. Franklin owns Franklin Industrial Center
(FIC), an industrial complex located in Evansville, Vanderburgh County,
Indiana. Franklin and Fruth are hereinafter collectively referred to as
"Respondents."
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction
over the parties and subject matter of this action.
4. The Respondents waive their right to issuance of a Notice of Violation
and to the settlement period of sixty (60) days as provided for by IC 13-30-3-3.
5. Rule 326 IAC 14-10 details the requirements for the removal and handling
of asbestos containing material (ACM).
6. Rule 326 IAC 18-3 details the accreditation requirements with regard
to asbestos removal projects.
7. Statute IC 13-30-2-1 and Rules 329 IAC 10-4-2 and 10-4-3 detail prohibited
acts as they relate to the storage, containment, processing and disposal
of solid waste.
8. Rule 329 IAC 10-8-4 details asbestos disposal requirements with regard
to special waste.
9. Respondents have implemented numerous renovation projects at FIC
during the period from 1992 to present. In the course of implementing these
projects, the Respondents failed to comply with applicable asbestos removal,
handling, storage, disposal and accreditation regulations as specified
in 326 IAC 14-10, 326 IAC 18-3 and 329 IAC 10-8-4. In addition, Respondents
violated 329 IAC 10-4-2 and -3 by allowing the storage, containment, processing
and disposal of solid waste in a manner which creates a threat to human
health or the environment.
10. In recognition of the settlement reached, Respondents waive any
right to administrative and judicial review of this Agreed Order.
11. This Order is a full compromise, settlement and release of any and
all acts or violations which were known by Complainant prior to the Effective
Date of this Agreed Order with respect to the Respondents, including Franklin
and its officers, stockholders, directors and employees, and the ACM located
at the following disposal/storage sites:
13. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order
does not constitute an admission by Fruth or Franklin, and its officers,
stockholders, directors, and employees, of any violation contained herein,
but shall be used solely for the purpose of settling the unique issues
in this action and shall not constitute any evidence or admission by any
party hereto which could be used by any third person or non-party as a
precedent in any other proceeding or for any other purpose. Respondents
agree to the provisions of the Order below and to be bound by those provisions
solely in order to avoid further expenses and uncertainties of litigating
contested issues of fact or law. Payment of the civil penalty is to settle
this matter promptly, cooperatively and amicably, and is not to be construed
as an admission of the alleged violations.
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 Respondents. This Agreed Order shall have
no force or effect until the Effective Date.
6. Respondents shall give the municipal
solid waste landfill that they have identified as the disposal site for
the ACM twenty-four (24) hour notification prior to disposal.
7. All submittals required by this Agreed
Order, unless notified otherwise in writing, shall be sent to:
Matthew Stuckey/Janet Arnold, Enforcement Case Managers
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
8. Respondent is assessed a civil penalty
in the amount of Two Hundred Seventeen Thousand Three Hundred Dollars ($217,300).
This penalty reflects a significant reduction by IDEM based upon evidence
submitted by the Respondents which adequately demonstrated an inability
to pay a penalty in the amount commensurate with the alleged violations.
This civil penalty is subject to the conditions of Order paragraphs 9 through
12.
9. On or before April 1, 1998, Respondent
shall pay a portion of the civil penalty, as specified in Order paragraph
8, in the amount of Twenty-Five Thousand Dollars ($25,000).
10. A portion of the civil penalty, as
specified in Order paragraph 8, in the amount of Forty-Six Thousand Fifty
Dollars ($46,050), shall be paid in thirty (30) consecutive monthly installments
of One Thousand Five Hundred Thirty-Five Dollars ($1535). These payments
shall be due and payable by check to the Environmental Management Special
Fund on or before the first day of each consecutive month. The first of
these payments shall be due May 1, 1998. Checks shall reference Cause number
SW-341 and be mailed to the address specified in Order paragraph 19.
11. Respondents has agreed to transfer
ownership of the real property, located at 754-756 East Franklin Street,
in Evansville, Vanderburgh County, Indiana, to the Tri-State Food Bank,
Inc. Respondents will voluntarily donate this property to the aforementioned
non-profit organization in exchange for a reduction in the civil penalty.
In response, the civil penalty specified in Order paragraph 8 has been
reduced by Forty-Six Thousand Two Hundred Fifty Dollars ($46,250). Upon
completion of this transaction, Respondents shall submit written notice
and documentation to IDEM, which substantiates that the transfer is complete.
In the event that Respondents do not complete this transaction on or before
April 1, 1998, Respondents shall pay the full amount of the reduction,
Forty-Six Thousand Two Hundred Fifty Dollars ($46,250). This payment will
be due within fifteen (15) days from receipt of IDEM's notice to pay.
12. As a Supplemental Environmental Project
(SEP), in lieu of paying One Hundred Thousand Dollars ($100,000) of the
assessed civil penalty to IDEM, Respondents agree to voluntarily pay this
portion of the penalty directly to the Vanderburgh County Health Department,
to be used to fund clean-up operations at the open dump located at 2910
South Red Bank Road, in Evansville, Vanderburgh County, Indiana. Respondents
shall complete this transaction on or before August 1, 1998. Upon completion
of this transaction, Respondents shall submit written notice and documentation
to IDEM, which substantiates that the transfer is complete. In the event
that Respondents do not complete this transaction on or before August 1,
1998, Respondents shall pay this portion of the civil penalty ($100,000)
to IDEM. This payment will be due within fifteen (15) days from receipt
of IDEM's notice to pay.
13. "Force Majeure", for purposes of this
Agreed Order, is defined as any event arising from causes beyond the control
of the Respondents that delays or prevents the performance of any obligation
under this Agreed Order despite Respondent's best efforts to fulfill the
obligation. The requirement that the Respondents exercise "best efforts
to fulfill the obligation" includes using best efforts to anticipate any
potential force majeure event and best efforts to address the effects of
any potential force majeure event (1) as it is occurring and (2) following
the potential force majeure event, such that the delay is minimized to
the greatest extent possible. "Force Majeure" does not include financial
inability to complete the work required by this Agreed Order or increases
in costs to perform the work.
14. The Respondents shall notify IDEM by
calling within three (3) calendar days and by writing no later than seven
(7) calendar days after any event which the Respondent contends is a force
majeure. Such notification shall describe the anticipated length of the
delay, the cause or causes of the delay, the measures taken or to be taken
by the Respondents to minimize the delay, and the timetable by which these
measures will be implemented. The Respondents shall include with any notice
all available documentation supporting their claim that the delay was attributable
to a force majeure. Failure to comply with the above requirements shall
preclude Respondents from asserting any claim of force majeure for that
event. The Respondents shall have the burden of demonstrating that the
event is a force majeure. The decision of whether an event is a force majeure
shall be made by IDEM. Said decision shall be communicated to the Respondents.
15. If a delay is attributable to a force
majeure, IDEM shall extend, in writing, the time period for performance
under this Agreed Order, by the amount of time that is attributable to
the event constituting the force majeure.
16. The civil penalty specified in Order
paragraph 8 is based on an estimation, provided by the Respondents, of
the ACM deposited in the locations specified in paragraph 11, sections
a-d, in the Findings of Fact. The Respondents estimate the total amount
of ACM to be twelve thousand (12,000) lineal feet. Upon completion of the
projects specified in Order paragraphs 2 and 4, the actual amount of ACM
will be determined. If this amount exceeds the original estimate by more
than five percent (5%), then a stipulated penalty will be assessed. This
stipulated penalty will be based on the percentage by which the actual
amount of ACM exceeds the original estimate. For the purposes of this Agreed
Order, this stipulated penalty will be determined using the following table:
Percentage Above Estimate Penalty Amount
0-5% $0
6-10% $15,000
11-20% $30,000
21-50% $60,000
51-75% $100,000
76-100% $150,000
>100% $200,000
17. Stipulated penalties will also be assessed
if Respondents fail to complete the projects referenced in Order paragraphs
2-5. These penalties will be assessed in the following manner:
a. If Respondents fail to complete the
project specified in paragraph 2 prior to August 1, 1998, a stipulated
penalty in the amount of Two Thousand Dollars ($2000) will be assessed.
For each 30-day period beyond August 1, 1998, during which the project
is not complete, Complainant will assess a additional stipulated penalty
of Two Thousand Dollars ($2000).
b. If Respondents fail to complete the
project specified in paragraph 3 prior to June 1, 1998, a stipulated penalty
in the amount of Two Thousand Dollars ($2000) will be assessed. For each
30-day period beyond June 1, 1998, during which the project is not complete,
Complainant will assess an additional stipulated penalty of Two Thousand
Dollars ($2000).
c. If Respondents fail to complete the
project specified in paragraph 4 prior to October 1, 1998, a stipulated
penalty in the amount of Two Thousand Dollars ($2000) will be assessed.
For each 30-day period beyond October 1, 1998, during which the project
is not complete, Complainant will assess and additional stipulated penalty
of Two Thousand Dollars ($2000).
d. If Respondents fail to submit the documentation
specified in paragraph 5 prior to the dates specified, a stipulated penalty
in the amount of Two Thousand Dollars ($2000) will be assessed. For each
30-day period beyond the dates specified, during which the submittals have
not been received, Complainant will assess an additional stipulated penalty
of Two Thousand Dollars ($2000).
18. Stipulated penalties shall be due and
payable within thirty (30) days after Respondents receive 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 Respondents 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 Respondents' violation of this Agreed Order, or Indiana law, including
but not limited to civil penalties pursuant to IC 13-30-4.
19. With the exception of the portion of
the civil penalty as specified in Order paragraph 10, all civil and stipulated
penalties are payable by check to the Asbestos Trust Fund. Checks shall
include the Cause Numbers of this action and shall be mailed to:
Cashier
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
20. If the civil penalty payments required
by Order paragraphs 9, 10, 11, and 12, or the stipulated penalties required
by Order paragraph 16 are not paid by the dates specified therein, then
Respondents 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.
21. This Agreed Order shall apply to and
be binding upon the Respondents, including Franklin and its officers, stockholders,
directors, employees, successors, subsidiaries, and assigns. The Respondents'
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 Respondents
shall in any way alter their status or responsibilities under this Agreed
Order.
22. 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.
23. The Respondents shall provide a copy
of this Agreed Order, if in force, to any subsequent owners or successors
before ownership rights are transferred. Respondents shall ensure that
all contractors, firms and other persons performing work under this Agreed
Order comply with the terms of this Agreed Order.
24. This Agreed Order shall remain in effect
until Respondents have complied with all terms and conditions of this Agreed
Order.
TECHNICAL RECOMMENDATION: FRANKLIN INDUSTRIAL
CENTER, INC.:
Department of Environmental Management
By: _________________________ By: _________________________
David P. McIver
Air Section Chief
Office of Enforcement Printed: ______________________
Date: _________________________ Title: ________________________
Date: ________________________
By: _________________________
Paul Higginbotham
Acting Solid Waste Section Chief
Office of Enforcement
Date: __________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR FRANKLIN
Department of Environmental Management
INDUSTRIAL CENTER, INC.:
By: ___________________________ By: ________________________
Office of Legal Counsel
Department of Environmental Management
Date: _________________________ Date: ______________________
JERRY L. FRUTH: COUNSEL FOR JERRY L. FRUTH:
By: _________________________ By: _________________________
Printed: ______________________
Title: ________________________ Date: ________________________
Date: ________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 199___.
For the Commissioner:
Signed on 3/27/98 David J. Hensel
Director
Office of Enforcement