STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2000-9034-A
)
Mr. Delbert E. Fellers, )
)
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 (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by
IC 13-13-1-1.
2. Respondent is Mr. Delbert E. Fellers, (ARespondent@), who implemented a demolition project located on the corner of Church Street and East First Street in Loogootee, Martin County, Indiana ("Site").
3. The Indiana Department of Environmental Management (AIDEM@) 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 on November 08, 2000, via Certified Mail to:
Mr. Delbert E. Fellers Tom Van Hoy, d/b/a
128 Church Street Van Hoy & Sons Contracting
Loogootee, Indiana 47553 P.O. Box 101
Loogootee, Indiana 47553
5. On January 12, 2000, IDEM, OAM inspected the Site and observed that demolition had been completed without prior inspection and proper notification to IDEM. The following violations were in existence or observed at the time of this inspection:
a. Pursuant to 326 IAC 14-10-1, the owner or operator of a renovation activity is required to have an Indiana licensed inspector thoroughly inspect the facility for the presence of asbestos prior to engaging in any activity that could disturb the asbestos. The IDEM inspector noted that the facility was not inspected by an Indiana licensed inspector prior to engaging in an activity that could disturb asbestos.
b. Pursuant to 326 IAC 14-10-3(2), each owner or operator of a demolition or renovation activity is required to provide written notification to IDEM at least ten (10) working days before any activity begins that could disturb asbestos. The IDEM inspector noted that the owner or operator failed to provide IDEM with a timely notification.
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 her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. Respondent is assessed a civil penalty of Five Hundred Dollars ($500). This penalty reflects a significant reduction based upon evidence submitted by the Respondent who adequately demonstrated an inability to pay the original penalty amount assessed based on IDEM's civil penalty policy. Said penalty amount shall be due and payable to the Asbestos Trust Fund within 30 days of the Effective Date of this Agreed Order. The civil penalty shall be paid in the following manner: Eighty-Five Dollars ($85) is due and payable to the Asbestos Trust Fund within thirty (30) days of the Effective Date of this Agreed Order. The remaining amount of Four Hundred and Fifteen Dollars ($415) is to be paid in five (5) monthly installments of Eighty-Three Dollars ($83) due and payable to the Asbestos Trust Fund on or before the following dates:
June 15, 2001 July 15, 2001 August 15, 2001
September 15, 2001 October 15, 2001
3. 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
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
4. In the event that the civil penalty required by Order paragraph 2, is not paid in accordance with the payment schedule set forth in Section II, Paragraph 2, 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.
5. 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.
6. 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.
7. 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.
8. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Mr. Delbert E. Fellers
By: _________________________ By: _________________________
David P. McIver
Chief, Air Section Printed: ______________________
Office of Enforcement
Title: ________________________
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Jay Rodia, Attorney
Office of Legal Counsel
Department of Environmental Management
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2001.
For the Commissioner:
Signed May 25, 2001
___________________________
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement