STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. )
Sims Plumbing and Heating Company ) Case No. 2000-9177-A and
and Lanham Enterprises, Inc. d/b/a ) Case No. 2000-9573-A
Comley-Bushfield Company )
)
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. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation cited herein. Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents may have in any future administrative or judicial proceeding.
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. Respondents are subcontractor, Sims Plumbing and Heating Company and general contractor, Lanham Enterprises, Inc. d/b/a Comley-Bushfield Company (ARespondents@), who implemented an asbestos abatement project located at the Nachand Fieldhouse in Jeffersonville, Clark 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 October 26, 2000, via Certified Mail to:
Morris Lanham, President BTH, Inc., Registered Agent
Lanham Enterprises, Inc. d/b/a 400 West Market Street, 32nd Floor
Comley-Bushfield Company Louisville, Kentucky 40202
1001 East Market Street
Louisville, Kentucky 40206
Irene Sims, Sole Officer and Registered Agent
Sims Plumbing and Heating Company
3208 Millers Lane
Louisville, Kentucky 40216
5. A representative of IDEM's Office of Air Quality (OAQ) conducted an inspection on March 2, 2000 at the Site. 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.
c. Pursuant to 326 IAC 18-1-3(a)(1), no person shall inspect for asbestos containing materials at a facility without current licensing by IDEM. The IDEM inspector noted that this asbestos project was not inspected by a currently licensed inspector.
6. Violations which were cited under 326 IAC 14-10-4(9) and 326 IAC 14-10-4(10), as cited on the October 26, 2000 Notice of Violation, have been removed from the proposed Agreed Order and civil penalty calculation. IDEM is unable to confirm that the visible asbestos contamination cited in those violations originated from the Respondent's asbestos abatement project.
7. 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.
2. Respondents are assessed a civil penalty of Six Thousand Four Hundred Dollars ($6,400). The civil penalty shall be paid in the following manner: Three Thousand Two Hundred Dollars ($3,200) 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 Three Thousand Two Hundred Dollars ($3,200) is to be paid in five (5) monthly installments of Six Hundred and Forty Dollars ($640) due and payable to the Asbestos Trust Fund on or before the following dates:
June 30, 2001 July 30, 2001 August 30, 2001 September 30, 2001 October 30, 2001
3. Civil penalties are payable by check to the Asbestos Trust Fund. Checks shall include the Case 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, 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.
5. This Agreed Order shall apply to and be binding upon the Respondents, their successors and assigns. The signatories of the Respondents 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 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 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.
8. This Agreed Order shall remain in effect until Respondents have paid the civil penalty in accordance with the provisions of Section II, paragraph 2, of this Agreed Order.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Sims Plumbing and Heating Company
By: _________________________ By: _________________________
David P. McIver
Chief, Air Section Printed: ______________________
Office of Enforcement
Title: ________________________
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: RESPONDENT
Department of Environmental Management Lanham Enterprises, Inc. d/b/a Comley-
Bushfield Company
By: _________________________ By: _________________________
Jay Rodia, Attorney
Office of Legal Counsel Printed: ______________________
Department of Environmental Management
Title: ________________________
Date: _______________________ Date: ________________________
COUNSEL FOR RESPONDENT:
Lanham Enterprises, Inc. d/b/a Comley-
Bushfield Company
By: ________________________
Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2001.
For the Commissioner:
Signed 6/13/01
___________________________
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement