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.

WILKINSON ASSET MANAGEMENT, LLC,

Respondent.

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Case No. 2017-24574-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 Indiana Code (“IC”) 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondents’ 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 IC 13-13-1-1.

 

2.             Respondent is Wilkinson Asset Management, LLC (“Respondent”), which operated The Retreat Northwest Apartments located at 1130 Racquet Club North Drive in Indianapolis, Indiana. Respondent hired Holt Construction Group, Inc. to perform renovations at an apartment located at 1005 Tennis Court Circle, Unit B, 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”) in conjunction with this Agreed Order via Certified Mail to:

 

Kimra Holcomb, CEO and President       Corporation Service Company,

Wilkinson Asset Management, LLC         Registered Agent

78 Centennial Loop, Suite E                    135 North Pennsylvania St. Suite 1610

Eugene, OR 97401                                 Indianapolis, IN 46204

 

5.             During an investigation on or about June 5, 2017 conducted by a representative of IDEM, the following violations were found:

 

a.             Pursuant to 326 IAC 14-10-4(1) Respondent shall remove all Regulated Asbestos Containing Material (“RACM”) from a facility being demolished or renovated before any activity begins that would break up, dislodge, or similarly disturb the material or preclude access to the material for subsequent removal.

 

Respondent failed to remove all RACM from the Site before renovation activities began, in violation of 326 IAC 14-10-4(1).

 

 

b.             Pursuant to 326 IAC 18-1-3(a)(5) Respondent shall not implement an asbestos abatement project without a State of Indiana issued abatement license.

 

Respondent failed to implement this asbestos project at the Site using currently licensed workers, in violation of 326 IAC 18-1-3(a)(5).

 

c.              Pursuant to 326 IAC 14-10-3(1), each owner or operator of a demolition or renovation activity is required to provide IDEM with written notice of the intention to demolish or renovate and update the notice as necessary.

 

Respondent failed to provide IDEM with a notification in violation of 326 IAC 14-10-3(1).

 

6.             Respondent received a letter from the Marion County Health Department on August 3, 2017 that the property was inspected on July 28, 2017 and was found to be in compliance.

 

7.             On June 18, 2018 Respondent ceased operating The Retreat Northwest Apartments.

 

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 the rules listed in the findings above at issue.

 

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

 

Jennifer Bailey, Enforcement Case Manager

Office of Air Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

4.             Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Seven Thousand Dollars ($7,000).  Said penalty amount shall be due and payable to the Asbestos Trust Fund within thirty (30) days of the Effective Date; the thirtieth day being the “Due 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.             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.

 

7.             Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

 

8.             This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

 

9.             No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondents’ status or responsibilities under this Agreed Order.

 

10.          Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

11.          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.

 

12.          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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

 

13.          Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondents 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 Respondents efforts to comply with this Agreed Order.

 

14.          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 violations specified in the NOV.

 

15.          Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (“U.S. 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 U.S. EPA or any other agency or entity.

 

16.          This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and IDEM has issued a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Wilkinson Asset Management, 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 November 7 , 2019

 

Matthew Stuckey, Deputy Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management