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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:

                 The utility tunnels adjacent to the sublevel bathrooms located in the basement of the building formerly designated as Building No. 50 at FIC. This building is located at 900 East Franklin Street in Evansville, Indiana.

                 The burial site located west of Buildings No. 50 and 54 at FIC, next to the railroad tracks.
    

                 The burial site located north of the power plant/boiler house at FIC, near the sewer drain.

                 The burial site on real property owned by Jerry Fruth, which is located at 11701 Vienna Road, in Wadesville, Indiana.
    
                 The white van (Indiana license plate No. 3201885) discovered in June 1996, at 810 Louisiana Street, Evansville, Indiana. This van contained ACM removed from building No. 52 at FIC.

    12.    This Order resolves the violations of 326 IAC 14-10 observed at the demolition and abatement project involving building No. 60, located at 950 East Virginia Street, Evansville, Indiana. These violations were observed during the period between December 1995 and May 1996.

    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.

          Respondents shall remove and dispose of all ACM which is currently located in the utility tunnels adjacent to the sublevel bathrooms located in the basement of the building formerly designated as Building No. 50 at FIC, as specified in paragraph 11(a) in the above Findings of Fact. This building is located at 900 East Franklin Street in Evansville, Indiana. This project shall be completed no later than August 1, 1998 , and be implemented in accordance with 326 IAC 14- 10, 326 IAC 18-3 and 329 IAC 10-8-4. In addition, the ACM shall be disposed of at a municipal solid waste landfill that has been approved by IDEM to accept ACM.

          Respondents shall conduct a source wide asbestos inspection, to be used in the development of a Management Plan ("Plan"). This Plan shall include an inventory of all ACM present at FIC, including the location, category, and condition. In addition, the Plan shall include the Respondents' intentions with regard to removal or management of the ACM. These inspections shall be conducted by an Indiana accredited inspector. This Plan shall be submitted to IDEM for approval no later than June 1, 1998 . Respondents agree to correct and/or revise the Plan in order to receive IDEM's final approval.

          Respondents shall remove and dispose of the ACM currently buried at the locations specified in paragraph 11 sections b through d in the above Findings of Fact. These projects shall be implemented in accordance with 326 IAC 14-10, 326 IAC 18-3 and 329 IAC 10-8-4. In addition, the ACM shall be disposed of at a municipal solid waste landfill that has been approved by IDEM to accept ACM. This project shall be completed no later than October 1, 1998.

    5.    Respondents shall submit to IDEM a copy of the disposal records, which they will receive from the municipal solid waste landfill, for the disposal of the ACM generated as a result of the projects detailed in Order paragraphs 2 and 4. The records for the project detailed in Order paragraph 2 shall be submitted no later than October 1, 1998. The records for the projects detailed in Order paragraph 4 shall be submitted no later than November 1, 1998.

    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

Converted by Andrew Scriven