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STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. DON EBERMAN
D/B/A EBERMAN CONSTRUCTION, Respondent. |
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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 Don Eberman d/b/a Eberman
Construction (“Respondent”), who owns Eberman Construction located at 1025 Art
Gallery Road, in Bedford, Lawrence County, Indiana.
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:
Don Eberman d/b/a
Eberman Construction
1025 Art Gallery Road
Bedford, IN 47421
5.
During investigations on September 22, 2017 and
September 25, 2017 conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 326 IAC 4-1-2, open burning
is prohibited unless exempted by rule or an approval is obtained.
Respondent burned the building located at 6962 W. County Road 175 S in French
Lick, IN (“Site”), in violation of 326 IAC 4-1-2.
b. Pursuant to 326 IAC 14-10-1(a)(1), prior
to the commencement of the demolition or renovation, the owner or operator
shall use an Indiana-licensed inspector to thoroughly inspect 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 (ACM).
Respondent failed to use an Indiana-licensed
asbestos inspector to inspect the building located at 6972 W. County Road 175 S
in French Lick, IN prior to the commencement of demolition activities, in
violation of 326 IAC 14-10-1(a)(1).
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 prior to the demolition of the building located at 6962 W.
County Road 175 S in French Lick, IN, in violation of 326 IAC 14-10-3(1).
6.
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 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:
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Jennifer Bailey, Case Manager |
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Compliance and Enforcement Branch –
Mail Code 61-53 |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
4.
Respondent is assessed and agrees to pay a
civil penalty of Three Thousand Four Hundred Dollars ($3,400). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”.
5.
Civil penalties are payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number
of this action and shall be mailed to:
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IDEM
Accounts Receivable |
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IGCN,
Rm 1340 |
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100
N. Senate Ave. |
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Indianapolis,
IN 46204 |
6.
This Agreed Order shall apply to and be binding
upon Respondent and his successors and assigns. Respondent’s signatories to
this Agreed Order certify that he are fully authorized to execute this Agreed
Order and legally bind the party he represent.
No change in ownership, corporate, or partnership status of Respondent
shall in any way alter his 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 Environmental Management Special 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 his obligation to comply with the
requirements of his applicable permit 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.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
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Don Eberman d/b/a Eberman
Construction |
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By: |
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By: |
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David
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Enforcement
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Office
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COUNSEL
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Date: |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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,
2019. |
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For
the Commissioner |
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Signed
on October 1, 2019 |
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Matthew
Stuckey, Deputy Assistant Commissioner |
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Office
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Indiana
Department of Environmental Management |
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