STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE )

DEPARTMENT OF ENVIRONMENTAL )

MANAGEMENT, )

)

Complainant, )

)

vs. ) Cause No. A-3959, SW-328,

) H-13507

)

)

FREMON KLINE, )

)

Respondent. )

VIA CERTIFIED MAIL No.

To: Fremon Kline

P.O. Box 10

Troy, Indiana 47558

This Notice and Order of the Commissioner of the Department of Environmental Management is issued against Fremon Kline (the Respondent) for violation of the Indiana Environmental Management Act. This Order is issued pursuant to IC 13-30-3-4, IC 13-30-3-10 and 11 and IC 4-21.5-3-6 and is based on violations found during investigations conducted by representatives of the Indiana Department of Environmental Management (IDEM). During these investigations it was determined that the Respondent was in violation of IC 13-30-2-1 (3)(4) & (5), IC 13-20-13-2(1) & (2), 329 IAC 10-4-2, 329 IAC 10-4-3, 329 IAC 12-5-1, 329 IAC 3.1-9-1, 326 IAC 14-10-1(a), 326 IAC 14-10-3(1), 326 IAC 14-10-4(6), 326 IAC 14-10-4(9), 326 IAC 14-10-4(11), 326 IAC 18-3-3(a) as specified below:

1. Count I, SW-328

• IDEM conducted inspections at the Site on November 22, 1996, and April 21, 1997. During these inspections, the Respondent was found in violation of 329 IAC 10-4-2 and -3, which require, respectively, that no person shall cause or allow the storage, containment, processing, or disposal of solid waste in a manner which creates a threat to human health or the environment, including the creation of a fire hazard, vector attraction, air or water pollution; and the prohibition of open dumping and open dumps, as those terms are defined in IC 13-11-2-146 & -147. These violations are based on the fact IDEM observed that the Respondent had caused or allowed an open dump of waste tires to exist at the Site.

• On the inspections noted above, the Respondent was found in violation of IC 13-30-2-1 (3), (4) & (5), which state, respectively, that a person: may not deposit any contaminants upon the land in a place and manner that creates or would create a pollution hazard that violates or would violate a rule adopted by one (1) of the boards; may not deposit or cause to allow the deposit of any contaminants or solid waste upon the land, except through the use of sanitary landfills, incineration, composting, garbage grinding, or another method acceptable to the solid waste management board; may not dump or cause or allow the open dumping of garbage or of any other solid waste in violation of rules adopted by the solid waste management board. These violations are based on the fact IDEM observed that the Respondent had caused or allowed an open dump of waste tires to exist at the Site.

• On the inspections noted above, the Respondent was found in violation of 329 IAC 12-5-1, which states that no person shall operate a waste tire storage site, except as provided in this rule, after February 21, 1994. This violation is based on the fact that during these inspections IDEM observed the Respondent was operating an illegal waste tire storage site.

• On the inspections noted above, the Respondent was found in violation of IC 13-20-13-2 (1) and (2), which state, respectively, that a person may not maintain a waste tire storage site unless the person: has registered the waste tire storage site under this chapter or IC 13-7-23 (before its repeal); and holds a valid certificate of registration issued under section 3 of this chapter or IC 13-7-23-7 (before its repeal). This violation is based on the fact that the Site is not registered with IDEM as a waste tire storage site.

2. Count II, H-13507

On or about March 4, 1997, IDEM began remediation activities at the Site. During the course of the remediation activities, the Respondent was found in violation of 329 IAC 3.1-9-1 which adopts the applicable federal standards (40 CFR 264) for owners and operators of hazardous waste treatment, storage, or disposal facilities (TSDs). This violation is based on the fact that the Respondent stored hazardous waste on-site for greater than ninety (90) days without a permit (as required in 40 CFR 270.1) and without notifying the Commissioner of waste activities as required in 329 IAC 3.1-1-10 and IC 13-30-2-1.

3. Count III, A-3959

• IDEM conducted an asbestos inspection at the Site on April 24, 1997. During this inspection, the Respondent was found in violation of Rule 326 IAC 14-10-1(a) which requires the owner or operator of a demolition or renovation activity, prior to the commencement of the demolition or renovation, to employ 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. This violation is based on the fact that an Indiana Accredited asbestos inspector did not inspect the facility for the presence of RACM prior to commencement of demolition.

• During the inspection noted above, the Respondent was found in violation of Rule 326 IAC 14-10-3(1) which requires the owner or operator of a facility to provide the Commissioner with written notice of intention to demolish or renovate and to update the notice as necessary. This violation is based on the fact that the Respondent did not submit a notification to the Office of Air Management, IDEM prior to commencement of the demolition.

C. During the inspection noted above, the Respondent was found in violation of Rule 326 IAC 14-10-4(6) which requires that all Regulated Asbestos Containing Material (RACM), including material that has been removed or stripped, be adequately wet and shall remain adequately wet throughout all stages of disposal.

This violation is based on the fact that RACM stored in drums at the site was determined to be inadequately wet.

D. During the inspection noted above, the Respondent was found in violation of Rule 326 IAC 14-10-4(9) which requires that upon completion of stripping and removal operations for demolition and renovation projects, the owner or operator shall 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 High Efficiency Particulate Air (HEPA) filter and remove all standing water.

(B) Wet wipe or wet mop all surfaces in the work area and remove all standing water.

This violation is based on the fact that the inspector noted RACM debris on the ground at the base of the cracking tower.

E. During the inspection noted above, the Respondent was found in violation of Rule 326 IAC 14-10-4(11) which requires that 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.

This violation is based on the fact that the RACM stored at the site was not secured in a manner that would restrict access by unauthorized persons.

F. During the inspection noted above, the Respondent was found in violation of Rule 326 IAC 18-3-3(a) which requires that effective April 1, 1991, no person shall implement an asbestos removal project at at a facility subject to 326 IAC 14-10 without accreditation by the Commissioner.

This violation is based on the fact that an asbestos removal project was implemented at the site by the Respondent, who was not accredited by the Commissioner to perform asbestos removal.

4. On September 4, 1997, a Notice of Violation was issued, pursuant to IC 13-30-3-3 to the Respondent for violation of IC 13-30-2-1 (3)(4) & (5), IC 13-20-13-2(1) & (2), 329 IAC 3.1-9-1, 326 IAC 14-10-1(a), 326 IAC 14-10-3(1), 326 IAC 14-10-4(6), 326 IAC 14-10-4(9), 326 IAC 14-10-4(11), 326 IAC 18-3-3(a).

5. The Notice of Violation contained an offer to enter into an Agreed Order containing actions required to correct the violation.

6. More than sixty (60) days have elapsed since the Respondent was offered the opportunity to enter into an Agreed Order.

7. The Respondent has not entered into an Agreed Order resolving this violation.

1. The Respondent shall immediately cease and desist violation of IC 13-30-2-1 (3)(4) & (5), IC 13-20-13-2(1) & (2), 329 IAC 10-4-2, 329 IAC 10-4-3, 329 IAC 12-5-1, 329 IAC 3.1-9-1, 326 IAC 14-10-1(a), 326 IAC 14-10-3(1), 326 IAC 14-10-4(6), 326 IAC 14-10-4(9), 326 IAC 14-10-4(11), 326 IAC 18-3-3(a).

2. The Respondent shall pay a civil penalty of Thirty-Six Thousand Eight Hundred Fifty Dollars ($36,850.00) for violation of IC 13-30-2-1 (3)(4) & (5), IC 13-20-13-2(1) & (2), 329 IAC 10-4-2, 329 IAC 10-4-3, 329 IAC 12-5-1, 329 IAC 3.1-9-1, 326 IAC 14-10-1(a), 326 IAC 14-10-3(1), 326 IAC 14-10-4(6), 326 IAC 14-10-4(9), 326 IAC 14-10-4(11), 326 IAC 18-3-3(a). Within thirty (30) days of the effective date of this Order, the Respondent shall pay the total cash penalty in two separate payments, as follows: one check made payable to the Environmental Management Special Fund in the amount of Sixteen Thousand Eight Hundred Fifty Dollars ($16,850.00) and bearing the cause numbers SW-328 and H-13507; a second check made payable to the Asbestos Trust Fund in the amount of Twenty Thousand Dollars ($20,000.00) and bearing the cause number A-3959.

• Civil Penalty checks shall include the appropriate cause number and shall be mailed to:

Cashier

IDEM

100 North Senate Avenue

P. O. Box 7060

Indianapolis, Indiana 46207-7060

Pursuant to IC 13-30-3-5, this Order takes effect twenty (20) days following receipt unless you request review of this Order, before the twentieth day after receipt, by filing a written request for review with the Office of Environmental Adjudication and serving a copy of the request for review upon the Commissioner of the Indiana Department of Environmental Management. Pursuant to IC 4-21.5-3-7, you may request that the Office of Environmental Adjudication conduct a hearing to review this Order, under IC 4-21.5, in its entirety, or you may limit your request for review to specific findings of fact and/or orders contained in this Order.

Requests for review must be submitted to the Office of Environmental Adjudication and the Commissioner of the Indiana Department of Environmental Management at the following addresses:

Director Commissioner

Office of Environmental Adjudication Department of Environmental Management

ISTA Building, Suite 618 IGCN, 100 North Senate

150 West Market Street P.O. Box 6015

Indianapolis, IN 46204 Indianapolis, IN 46206-6015

Failure to properly submit a request for review, before the twentieth day following receipt of this Order of the Commissioner, waives your right to administrative review of this Order pursuant to IC 4-21.5-3-7 and your right to a judicial review of the Order pursuant to IC 4-21.5-5-4. The request for review must contain the following information:

A statement of facts demonstrating that

(a) You are the person to whom this Order is specifically directed;

(b) You are aggrieved or adversely affected by this Order; or

(c) You are entitled to review by law.

The following information should be included in order to expedite review by the Office of Environmental Adjudication:

Identification of the cause number of this Order, the specific findings of fact and/or orders to be reviewed, and the legal basis for your challenge to this Order. In addition, your request for review should include the name, address, and phone number of the entity or individual to whom this Order is specifically directed. If you have procedural or scheduling questions regarding your request for review, you may contact the Office of Environmental Adjudication at 317-232-8591.

Dated at Indianapolis, Indiana, this day of , 1998.

Signed 4/3/98

______________________________

John M. Hamilton

Commissioner

cc: Janice Loughlin, US EPA, Region 5

Spencer County Health Department

Spencer County Solid Waste Management District

Spencer County G2A File

Frank Profit, Office of Air Management

http://www.ai.org/idem/