STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

NSH I’VEST, LLC,

Respondent.

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Case No. 2017-24541-A

 

 

AGREED ORDER

 

Complainant and 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.  Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this order.

 

I.  FINDINGS OF FACT

 

1.             Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.             Respondent is NSH I’Vest, LLC (“Respondent”), which owns the property located at 715 East 17th Street in Indianapolis, Marion County, Indiana (“Site”).

 

3.             IDEM 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 (“NOV”) via Certified Mail on September 13, 2019 to:

 

Neil S Handley, President & Registered Agent

NSH I’Vest, LLC

7601 Newport Bay Drive, Unit 202

Indianapolis, 46240-3379

 

5.             All rule citations herein refer to the rule in effect at the time of the inspection unless otherwise noted.

 

6.             During an investigation including an inspection of the Site on May 3, 2017 conducted by a representative of IDEM, the following violations were found:

 

a.       Pursuant to 326 IAC 14-10-1(a), the owner or operator of a demolition or renovation activity shall 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.

 

Respondent failed to have the facility inspected by an Indiana licensed inspector prior to engaging in an activity that could disturb asbestos, in violation of 326 IAC 14-10-1(a).

b.       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.

 

Respondent failed to have this asbestos project inspected by a currently licensed inspector, in violation of 326 IAC 18-1-3(a)(1).

 

c.              Pursuant to 326 IAC 14-10-4(1), each owner or operator of a demolition or renovation activity is required to remove all regulated asbestos containing materials from a facility being demolished or renovated before any activity begins that could disturb the material.

 

Respondent failed to remove asbestos containing material in the facility before demolition or renovation activity began, in violation of 326 IAC 14-10-4(1).

 

d.             Pursuant to 326 IAC 14-10-4(2) & 326 IAC 14-10-4(6)(A), asbestos shall be adequately wetted, properly handled and disposed of to ensure asbestos fibers will not be released during or after removal.

 

Respondent failed to adequately wet or properly handle asbestos material during or after removal, in violation of 326 IAC 14-10-4(2) & 326 IAC 14-10-4(6)(A).

 

e.             Pursuant to 326 IAC 14-10-4(13), no person shall implement an asbestos project at a facility without current licensing by IDEM.

 

Respondent failed to implement this asbestos project using currently licensed workers, in violation of 326 IAC 14-10-4(13).

 

7.             Respondent stopped all activity until an asbestos abatement company inspected and removed the regulated asbestos containing material.

8.             Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 Complainant or Complainant’s delegate, and has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.             Respondent shall comply with rules listed in the findings above at issue.

 

3.             All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Lisa Hayhurst, Enforcement Case Manager

Compliance and Enforcement Branch – Mail Code 61-53

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

4.             Respondent is assessed and agrees to pay a civil penalty of Five Thousand Dollars ($5,000.00).  Said penalty amount shall be due and payable to the Asbestos Trust Fund in six (6) monthly payments, with the initial payment of Eight Hundred Thirty-Five Dollars ($835.00) due within thirty (30) days of the Effective Date; the 30th day being the “Due Date” and the remaining five (5) payments of Eight Hundred Thirty-Three Dollars ($833.00) each, with the second payment due within sixty (60) days of the Effective Date, the third payment due within ninety (90) days of the Effective Date, the fourth payment due within one hundred twenty (120) days of the Effective Date, the fifth payment due within one hundred fifty (150) days of the Effective Date, and the sixth payment due within one hundred eighty (180) days of the Effective Date.

 

5.             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:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

 

6.             This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

7.             In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1.  The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance.  Such interest shall be payable to the Asbestos Trust Fund, and shall be payable to IDEM in the manner specified in Paragraph 5, above.

 

8.             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 this Agreed Order did not contain the invalid terms.

 

9.             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.

 

10.          This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit.  This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

 

11.          Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation.  Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

 

12.          Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

 

13.          Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action.  IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the EPA or any other agency or entity.

 

14.          This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

NSH I’Vest, LLC

 

 

 

By:

 

 

By:

 

 

David P. McIver, Chief

 

Printed:

 

 

Enforcement Section

 

Title:

 

 

Office of Air Quality

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2019.

 

 

For the Commissioner

 

 

 

Signed on October 31, 2019

 

Matthew Stuckey, Deputy Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management