Link to original WordPerfect Document here

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-3581
            v.                    )    CAUSE NO. A-3750
                                )
PREFERRED ENVIRONMENTAL             )
SERVICES, INC.,                        )
                                )
            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. 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.

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 (13-7-2-11 prior to July 1, 1996).


    2.    Respondent is Preferred Environmental Services, Inc. ("Respondent"), who is an Indiana licensed asbestos abatement contractor located at 1100 North Adams in Henderson, Kentucky.

    3.    The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
    4.    Respondent implemented an asbestos removal project at National City Bank located at Third and Locust in Evansville, Indiana, on or about March 7, 1996, to which the notification and emission control requirements of 326 IAC 14-10 applied, pursuant to 326 IAC 14-10-1(c).

    5.    Rule 326 IAC 14-10-4(9) states, upon completion of stripping and removal operations, collect visible contamination of asbestos by employing one (1) or both of the following cleaning procedures: (A) Vacuum all surfaces in the work area using a vacuum equipped with a HEPA filter and remove all standing water; (B) Wet wipe or wet mop all surfaces in the work area and remove all standing water.

    6.    Rule 326 IAC 14-10-4(10) states, upon completion of the cleanup requirements identified in subdivision (9), an Indiana accredited supervisor, prior to the removal of the warning signs or other demarcation of the work area, shall perform a final visual inspection of the work area for visible suspect RACM debris. If visible suspect regulated asbestos-containing material (RACM) debris is discovered, then the requirements of subdivision (9) shall be repeated until all visible suspect RACM debris has been removed. Upon completion of the above, the accredited supervisor shall certify in writing that the final visual inspection was completed and the work area is free of all visible suspect asbestos debris. This certification shall also include the date of the final visual inspection, the location of the asbestos removal project and the accredited supervisor's signature. The certification shall be retained by the contractor for a period of at least three (3) years from the date of the final visual inspection and must be made available upon request from IDEM. A copy of the certification shall also be sent to the building owner.    

    7.    On March 7, 1996, a representative of IDEM conducted an inspection of the above mentioned project. The inspector noted that the warning signs and containment had been removed and observed visible ACM contamination on top of a duct in the basement and on the steps of a ladder on site, a violation of 326 IAC 14-10-4(9) and 326 IAC 14-10-4(10).

    8.    The area was immediately demarcated with asbestos warning tape until it could be recleaned.

    9.    The project supervisor for the asbestos removal project involved in the violation(s) is Kenny Miller, accreditation number 103620033.
    10.    For the above alleged violations, pursuant to IC 13-30-3-3 (IC13-7-11-2(b) prior to July 1, 1996), IDEM issued a Notice of Violation on July 2, 1996, via Certified Mail to:

            David Coudret, President
            Preferred Environmental Services, Inc.
            1100 North Adams
            Henderson, KY 42420

    11.    On or about October 2, 1996, Respondent implemented an asbestos removal project at 329 Main Street, Evansville, Indiana, to which the notification and emission control requirements of 326 IAC 14-10 applied, pursuant to 326 IAC 14-10-1(c).

    12.     Rule 326 IAC 14-10-4(6) states, "for all RACM, 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 61.150 and 329 IAC 2-21 (RACM shall be adequately wet throughout all stages of disposal)."

    13.    On October 2, 1996, a representative of IDEM conducted an inspection of the above-mentioned asbestos removal project. The inspector observed that the one sealed bag of asbestos-containing waste was inadequately wet, a violation of 326 IAC 14-10-4(6).

    14.     Rule 326 IAC 14-10-4(11)(A) states, "for any RACM or suspect RACM, 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."

    15.    During the same inspection on October 2, 1996, the inspector observed the asbestos-containing waste was being stored in a room that was not locked, a violation of 326 IAC 14-10-4(11).

    16.    The project supervisor for the asbestos removal project involved in the violations is David Coudret, accreditation number 191116027.


    17.    For the October 2, 1996, alleged violations, pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation on February 12, 1997, via Certified Mail to:

            David Coudret, President
            Preferred Environmental Services, Inc.
            1100 North Adams
            Henderson, KY 42420

    18.    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 Two Thousand Dollars ($2,000). This penalty reflects a significant reduction by IDEM based upon evidence submitted by the Respondent which adequately demonstrated an inability to pay a penalty in the amount commensurate with the alleged violations. 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.

    3.    The civil penalty is payable by check to the Asbestos Trust Fund. Checks shall include the Cause Numbers A-3581 and A-3750, and shall be mailed to:

             Cashier
            IDEM
            P.O. Box 7060
            Indianapolis, Indiana 46206-7060.
    
    4.    In the event that the civil penalty required by paragraph 2 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.

    5.    This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The 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 this 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 by contract require that all contractors, firms, and other persons acting for it 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:            PREFERRED ENVIRONMENTAL
Department of Environmental Management            SERVICES, INC.:

By:             By:
    David P. McIver
    Acting 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

Date:                 Date:

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

THIS DAY OF , 199 .

                        
                        For the Commissioner:

                        signed 1/30/98
                        
                        David J. Hensel, Director
                        Office of Enforcement

Converted by Andrew Scriven