Topics:

Commissioner, Indiana Department of Environmental Management

Arthur Hicks

IDEM Case No. 2008-18353-A

Muncie, Delaware County, Indiana

2010 OEA 134, (10-A-E-4381)

[2010 OEA 1= 34, page 134 begins]

OFFICIAL S= HORT CITATION NAME: When referring to 2010 OEA 134 cite this as

&nbs= p; IDEM v. Arthur Hicks, 2010 OEA 134.

TOPICS= :

hearing

hearsay

asbestos

notification

demolition

penalty policy

potential for harm

extent of deviation

regulated asbestos containing material (RACM)

326 IAC 14-10-1(b)

326 IAC 14-10-3(1)

326 IAC 14-10-4(1)

PRESIDING = JUDGE:

Catherine Gibbs

PARTY REPRESENTATIVES:

IDEM: = ; Justin Barrett, Esq.

Respondent: = ; Arthur Hicks, pro se

ORDER ISSU= ED:

September 1, 2010

INDEX CATE= RGORY:

Air

FURTHER CA= SE ACTIVITY:

[none]

&nb= sp; = &nb= sp; = &nb= sp; =

[2010 OEA 1= 34, page 135 begins]

STATE OF INDIANA &= nbsp; &nbs= p; ) &= nbsp; BEFORE THE INDIANA OFFICE OF

&n= bsp; = ; &n= bsp; = ; ) &= nbsp; ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION &= nbsp; )<= /p>

IN THE MATTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

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COMMISSIONER, INDIANA DEP= ARTMENT )

OF ENVIRONMENTAL MANAGEME= NT, &= nbsp; ) &= nbsp;

<= /span>Complainant, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

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<= /span>v. &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) &= nbsp; CAUSE NO. 10-A-E-4381

&n= bsp; = ; &n= bsp; = ; &n= bsp; = ; )

ARTHUR HICKS, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

IDEM Case No. 2008-18353-= A, &= nbsp; &nbs= p; )

<= /span>Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; )

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER<= /u>

<= /span>This matter having come before the Court for the final hearing and the Court, be= ing duly advised and having read the pleadings, record, exhibits and having hea= rd the testimony finds that judgment should be entered and enters the following findings of fact, conclusions of law and final order:

Summary of Decision

= ; The Indiana Department of Environmental Management (IDEM) issued a Notice and O= rder of the Commissioner of the Department of Environmental Management (the CO) = to the Respondent on June 1, 2010. The Respondent appealed the issuance of the CO on June 16, 2010. The IDEM alleges that the Responde= nt violated 326 IAC 14-10-3(1) and 326 IAC 14-10-4(1) and seeks a penalty of $10,500. The violations arise= from the Respondent’s alleged failure to notify IDEM of a demolition proje= ct in Muncie Indiana and to remove asbestos containing material before beginning demolition. The Respondent denies violating th= ese rules. The Court heard testim= ony and admitted the offered evidence at a hearing held on August 13, 2010. The Court finds the Respondent in violation of 326 IAC 14-10-3(1) and orders the Respondent to pay a penalty = of $5,000 (five thousand dollars).

FINDINGS OF FACT

1. &n= bsp; Arthur Hicks (the Respondent) owns property located= at 705 East 18^th Street, Muncie, Delaware= County, Indiana (the Property). There were th= ree (3) buildings on the Property.

[2010 OEA 1= 34, page 136 begins]

&nb= sp;

2. &n= bsp; The Respondent notified the IDEM on August 4, 2008 = that he was going to demolish a building on the Property. The Respondent provided uncontrove= rted testimony[1] that he had been ordered to demolish the buildings by the City of Muncie as the res= ult of a fire. The Respondent did not provide any information regarding this order to the IDEM in the notification.

3. &n= bsp; The IDEM inspected the Property on August 12, 2008 = and found no violations.

4. &n= bsp; On December 17, 2008, the IDEM inspected the Proper= ty again. The inspector determin= ed that a different building, other than the building observed on August 12, h= ad been demolished. On this date= , the inspector found and sampled suspect material. This material was friable. The material consisted of mag bloc= k and air cell insulation.

5. &n= bsp; The samples were analyzed and revealed the presence= of asbestos. The material was regulated asbestos containing material (RACM).

6. &n= bsp; The inspector observed approximately 5 linear feet = of material similar to the sampled material in the debris pile.

7. &n= bsp; The Respondent testified that he hired an accredited asbestos inspector to inspect the Property prior to demolition[2] and that he was told that there was no asbestos present. The inspection report was not prod= uced.

8. &n= bsp; The Respondent hired a licensed contractor to remove and dispose of the RACM. The Respondent testified that this contractor told him that there was no RACM on the Property. The work was completed on or before July 16, 2009.

9. &n= bsp; The Respondent took a sample of the material and se= nt it to a laboratory for analysis. This sample did not contain asbestos.

Applicable Law

= ; The Office of Environmental Adjudication (“OEA”) has jurisdiction o= ver the decisions of the Commissioner of the IDEM and the parties to this controversy pursuant to I.C. § 4-21.5-7-3. This is an enforcement action brou= ght under I.C. § 13-30-3. The IDEM, in accordance with I.C. § 13-30-3-9, has the burden of proving t= hat the Respondent committed the alleged violations.

[2010 OEA 1= 34, page 137 begins]

= ; This office must apply a de novo standard of review to this proceeding wh= en determining the facts at issue. Indiana Dept. of Natural Resources v. Uni= ted Refuse Co., Inc., 615 N.E.2d 100 (Ind.<= /st1:place> 1993). Findings of fact must = be based exclusively on the evidence presented to the ELJ, and deference to the agency’s initial factual determination is not allowed. Id.; I.C. § 4-21.5-3-27(d). Further, OEA is required to base i= ts factual findings on substantial evidence. Huffman v. Office of Envtl. Adjud., 811 N.E.2d 806, 809 (Ind. 2004)(appeal of O= EA review of NPDES permit); see also I.C. § 4-21.5-3-14; I.C. § 4-21.5-3-27(d).

      = ;      IDEM alleges that the Respondent violated 326 IAC 14-10-3(1) and 326 IAC 14-10-4(1). 326 IAC 14-10-3(1) states that an owner or operator of a demolition activity must notify the I= DEM of his intent to demolish the building.&nb= sp; 326 IAC 14-10-4(1) provides that the owner must remove all regulated asbestos containing material (RACM) prior to starting demolition.

      = ;      Pursuant to 326 IAC 14-10-1(b) the requirements of 326 IAC 14-10-3 and 326 IAC 14-10= -4 apply to a building being demolished under an order of a local government agency as follows:

<= span style=3D'mso-list:Ignore'>(b)&= nbsp;      In a facility being demolished under an order of a state or local government agency, because the facility is both structurally unsound and in danger of imminent collapse, all of the following shall appl= y:

(1)&= nbsp;           &nbs= p; Only the notification requirements in section 3 of = this rule and the emission control requirements in section 4(4) through 4(8) and 4(11) through 4(12) of this rule shall apply.

(2)&= nbsp;           &nbs= p; The owner or operator must assume that the debris in the wreckage is contaminated with RACM and dispose of all demolition debris= as RACM unless a licensed Indian= a inspector has thoroughly inspected the affected facility and certifies that= no RACM is present.=

(3)&= nbsp;           &nbs= p; All RACM and any asbestos-contaminated debris or assumed RACM shall be properly disposed of at a waste disposal site operate= d in accordance with the requirements of 40 CFR 61.150 and 329 IAC 10-8.

= ;     The IDEM used the Civil Penalty Policy[3] to determine the appropriate penalty in this matter. According to this policy, a civil penalty is calculated by “(1) determ= ining a base civil penalty dependent on the severity and duration of the violatio= n, (2) adjusting the penalty for special factors and circumstances, and (3) considering the economic benefit of noncompliance.”[4] The base civil penalty is calculat= ed taking into account two factors: (1) the potential for harm and (2) the extent of deviation.[5] The policy states that the potential for harm may be determined by considering “the likelihood and degree of exposure of persons or the environment to pollution” or “the degree of adverse effect of <= o:p>

[2010 OEA 1= 34, page 138 begins]

noncompliance on statutory or regulatory purposes or procedures for implementing the program”.[6] There are several factors that may= be considered in determining the likelihood of exposure. These are the toxicity and amount = of the pollutant, the sensitivity of the human population or environment exposed to the pollutant, the amount of time exposure occurs and the size of the viola= tor.[7] Extent of deviation is determined = by looking at whether the violation “significantly deviates from the requirements of the regulation, permit, or statute or only some of the requirements are implemented.”[8]

CONCLUSIONS OF LAW<= /b>

<= span style=3D'mso-list:Ignore'>1.&n= bsp;     The Office of Environmental Adjudication (“OEA”) has jurisdiction over the decisions of the Commissioner= of the IDEM and the parties to the controversy pursuant to I.C. § 4-21.5-= 7-3.

&n= bsp;

= 2.      Findings of fact that may be construed as conclusions of law and conclusions of law = that may be construed as findings of fact are so deemed.

= 3.      326 IAC 14-10 requires the owner of a building being demolished to notify the I= DEM of the demolition activity, regardless of whether RACM is present. The Respondent provided notificati= on prior to demolition of one of the buildings on the Property. The specific information[9] provided on the notification makes it clear that the notification was for o= ne building.

= 4.      No notifications were provided for any of the other buildings. The Respondent provided evidence t= hat he was ordered to demolish the buildings.&nbs= p; Under 326 IAC 14-10-1(b), he was required to provide notice of demol= ition activity to IDEM. The Respond= ent failed to provide notice of the demolition of the remaining buildings. Therefore, the Respondent violated= the provisions of 326 IAC 14-10-3(1).

= 5.      IDEM presented substantial evidence that RACM was present on the Property. The Respondent asserts that there = is no RACM on the Property based on his sample and on the statements of his inspe= ctor and the asbestos contractor that he hired to remove the RACM. However, the fact that the Respondent’s sample contained no asbestos does not negate the fact th= at the IDEM inspector found RACM. There was no evidence that the IDEM’s samples were flawed.

[2010 OEA 1= 34, page 139 begins]

= 6.      Further, neither the inspector nor the contractor hired by the Respondent testified = at the hearing so any statements made by the inspector or the contractor were hearsay and unsupported by direct evidence such as written documentation.[10] So, while the Respondent’s g= ood faith belief that there was no asbestos on the Property may have been reasonable, it does not contradict the fact that regulated asbestos contain= ing material was found on the Property.

= 7.      The uncontroverted evidence was that the Respondent undertook the demolition because of the city of Muncie<= /st1:City>’s order. Under 326 IAC 14-10-1(b), the Respondent= must comply with the notification requirements and the emissions control require= ments found in 326 IAC 14-10-4(4) through 4(8) and 4(11) through 4(12). The IDEM alleges that the Responde= nt violated 326 IAC 14-10-4(1). = As the Respondent was not required to comply with this subsection, he did not viol= ate 326 IAC 14-10-4(1).

&n= bsp;

<= span style=3D'mso-list:Ignore'>8.&n= bsp;     For the violation of 326 IAC 14-10-3(1), the ELJ determines that the potential for harm is moderate as “the likelihood and degree of exposure of persons or the environment to pollution” was moderate. Regulated asbestos containing mate= rial was present at the Property. = This is a known carcinogen. Furthe= r, there was no fence or security at the Property to minimize public exposure.=

<= span style=3D'mso-list:Ignore'>9.&n= bsp;     The extent of deviation is minor as the Respondent did notify the IDEM of the demolition = of one of the buildings on the Property and he complied with the requirement to have the Property inspected for asbestos.&= nbsp;

<= span style=3D'mso-list:Ignore'>10.&= nbsp; The IDEM did not produce evidence that economic benefits accrued or of aggravat= ing or mitigating circumstances.

<= span style=3D'mso-list:Ignore'>11.&= nbsp; For the violation of 326 IAC 14-10-3(1), the Respondent is assessed a penalty of $5,000 (five thousand dollars).

FINAL ORDER<= span style=3D'mso-bidi-font-weight:bold'>

     &= nbsp;      AND THE COURT, being duly advised, hereby ORDERS, JUDGES AND DECREES that the Respondent, is in violation of 326 IAC 14-10-3(1) and is assessed a penalty of five thousand dollars ($5,000).= This penalty shall be paid to the Environmental Management Special F= und in accordance with the directions contained by the Notice and Order of the Commissioner of the Indiana Department of Environmental Management.

[2010 OEA 1= 34, page 140 begins]

     &nbs= p;      You are hereby further notified that pursuant to provisions of I.C. § 4-21.5-7-5, the Office of Environmental Adjudication serves as the Ultimate Authority in the administrative review of decisions of the Commissioner of = the Indiana Department of Environmental Management. This is a Final Order subject to Judicial Review consistent with applicable provisions of I.C. § 4-21.5. Pursuant to I.C. &sec= t; 4-21.5-5-5, a Petition for Judicial Review of this Final Order is timely only if it is filed with a civil court of competent jurisdiction within thirty (30) days after the date this notice is served.

            IT IS SO ORDERED this 1st day of September, 2010 in Indianapolis, IN.

Hon. Catherine Gibbs
Environmental Law Judg= e

[2010 OEA 134: end of decision]

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2010 OEA 134 in .doc format

2010 OEA 134 in .pdf format

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