|
STATE OF |
) |
|
BEFORE THE INDIANA
DEPARTMENT |
||
|
|
|||||
|
COMMISSIONER OF THE
DEPARTMENT Complainant, v. THYSSENKRUPP WAUPACA,
INC., Respondent. |
) |
|
|||
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
2.
Respondent is ThyssenKrupp Waupaca, Inc. (“Respondent”), which owns and
operates the stationary gray and ductile iron foundry with Plant ID No.
123-00019, located at
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 on
5.
During an
investigation conducted by representatives of IDEM, including compliance
testing performed at the Site on
a. Pursuant to
Title 5 Permit T123-9234-00019, condition D.2.1(a), particulate matter
("PM") emissions from stack S07 shall be limited to 0.005 grains per
dry standard cubic foot (gr/dscf) and 7.8 lbs/hr.
During compliance testing conducted at the Site on
b. Pursuant to Title 5 Permit T123-9234-00019, condition
D.2.2, lead emissions from stack S07 shall be limited to 0.0019 lbs/hr.
During compliance testing conducted at the Site on
c. Pursuant to Title 5 Permit T123-9234-00019, condition
D.2.3, Beryllium emissions from stack S07 shall be limited to 0.000017 lbs/hr.
During compliance testing conducted at the Site on
d. Pursuant to Title 5 Permit T123-9234-00019, condition
D.1.5, VOC emissions from stack S09 shall be limited to 3.2 lbs/hr. and 0.02
lbs/ton.
During compliance testing conducted at the Site on
e. Pursuant to Title 5 Permit T123-9234-00019, condition
D.3.2, lead emissions from stack S16 shall be limited to 0.005 lbs/hr.
During compliance testing conducted at the Site on
6.
Compliance
testing was performed at the Site on May 10 and 11, 2005. Stack S07 tested in compliance for PM, Pb and Be at 45% of the maximum
permitted capacity. However, compliance
during operations greater than 45% cannot be determined. Stack S09 tested in compliance for VOC. Stack S16 tested in compliance for Pb at 22% of the maximum permitted capacity. However, compliance during operations greater
than 22% cannot be determined.
7.
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 the most recent effective permit.
3.
Respondent shall
use only 18-ounce duo-density bags in the Stack S07 baghouse
unless or until such time that compliance with PM, Pb
and Be limits can be demonstrated during compliance testing conducted pursuant
to 326 IAC 3-6 using another type of bag.
Respondent shall indicate the change of bag type for testing purposes on
the test protocol. Bags may not be
changed within twenty-one days prior to the test date.
4.
Respondent shall
install and operate a bag leak detection system on stack S07 in accordance with
the requirements of 40 CFR Part 63.7710 within sixty (60) days of the Effective
Date of this Order.
5.
Respondent shall
not operate the emission units exhausting to S07 at a rate greater than 70 tons
per hour until testing is performed in accordance with the provisions of 326 IAC 3-6 demonstrating compliance at a greater production
rate.
6.
Respondent shall
not operate the emission units exhausting to S16 at a rate greater than 50 tons
per hour until testing is performed in accordance with the provisions of 326 IAC 3-6 demonstrating compliance at a greater production
rate.
7.
Respondent shall
test for opacity, PM, Pb and Be for all facilities
exhausting to stack S07 and opacity, PM, Pb and Be
for all facilities exhausting to stack S16 within sixty (60) days of the
Effective Date of this Order using methods as approved by the Commissioner to
demonstrate compliance with the total stack limits listed in Condition D.2.1,
D.2.2, D.2.3 and D.3.2 of permit T123-9234-00019. All facilities exhausting to stack S07 and
S16 shall be in operation during the stack tests in order for the tests to be
considered valid. All testing shall be
performed according to the provisions of 326 IAC 3-6 (Source Sampling
Procedures), utilizing any applicable procedures and analysis methods specified
in 40 CFR 51, 40 CFR 60, 40 CFR 61, 40 CFR 63, 40 CFR 75, or other procedures
approved by IDEM, OAQ. This Order does
not require Respondent to meet the requirement of 326 IAC 3-6-3(b)(1) for
testing required in this condition since the results will provide the basis for
a permit modification application to de-rate production.
Test
protocols shall be submitted to:
|
Indiana
Department of Environmental Management |
|
Compliance
Data Section, Office of Air Quality |
|
Mail
Code 61-50 |
|
|
|
|
no later than thirty-five
(35) days prior to the intended test date.
8.
If Respondent
fails to demonstrate compliance with the emission limits during the testing
required in paragraph 7, the Respondent shall perform a re-test within ninety
(90) days of the failed test and will be subject to additional civil penalties.
9.
If Respondent
demonstrates compliance with the emission limits during the testing required in
paragraph 7, the Respondent shall submit a permit modification application within
ninety (90) days of the Effective Date of this Order to include the following
requirements:
a.
De-rate the
maximum production of the operation of the facilities exhausting to Stacks S07
and S16 to the level at which compliance with the PM, Pb
and Be limits were demonstrated during the testing
required in paragraph 7 of this Order.
b.
Install and
operate a bag leak detection system on stack S07 in accordance with the
requirements of 40 CFR Part 63.7710.
c.
Use only
18-ounce duo-density bags in the Stack S07 baghouse
unless or until such time that compliance with PM, Pb
and Be limits can be demonstrated during compliance
testing conducted pursuant to 326 IAC 3-6 using another type of bag. Permittee shall
indicate the change of bag type for testing purposes on the test protocol. Bags may not be changed within twenty-one days
prior to the test date.
The
permit modification application shall include a copy of this Order and shall be
submitted to:
|
IDEM
Air Permits Administration |
|
Attn:
Incoming Application |
|
|
|
|
10.
Respondent shall
test for opacity, PM, Pb and Be for all facilities
exhausting to stack S07 and opacity, PM, Pb and Be
for all facilities exhausting to stack S16 using methods as approved by the
Commissioner, between January 1, 2009 and March 31, 2009 to demonstrate
compliance with the total stack limits listed in Condition D.2.1, D.2.2, D.2.3
and D.3.2 of permit T123-9234-00019. All
facilities exhausting to stack S07 and S16 shall be in operation during the
stack tests in order for the tests to be considered valid. All testing shall be performed according to the provisions
of 326 IAC 3-6 (Source Sampling Procedures), utilizing any applicable
procedures and analysis methods specified in 40 CFR 51, 40 CFR 60, 40 CFR 61,
40 CFR 63, 40 CFR 75, or other procedures approved by IDEM, OAQ.
Test
protocols shall be submitted to:
|
Indiana
Department of Environmental Management |
|
Compliance
Data Section, Office of Air Quality |
|
Mail
Code 61-50 |
|
|
|
|
no later than thirty-five
(35) days prior to the intended test date.
11.
Copies of all
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
|
Lynne
Sullivan, Enforcement Case Manager |
|
Office
of Enforcement – Mail Code 60-02 |
|
Indiana
Department of Environmental Management |
|
|
|
|
12.
Respondent is
assessed a civil penalty of Ninety Thousand Dollars ($90,000). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. In the event that the
civil penalty is not paid within thirty (30) days of the Effective Date,
Respondent 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.
13.
In the event the
terms and conditions of the following paragraphs are violated, Complainant may
assess and Respondent shall pay a stipulated penalty in the following amount:
|
Paragraph |
Violation |
Stipulated
Penalty |
|
3 |
Failure to use 18-oz duo density bags |
$1000 per day |
|
4 |
Failure to install and operate bag leak detection
system on S07 within 60 days |
$1000 per day |
|
5 |
Exceeds production rate for S07 |
$1000 per day |
|
6 |
Exceeds production rate for S16 |
$1000 per day |
|
7 |
Failure to test S07 and S16 within 60 days |
$1000 per week |
|
8 |
Failure to re-test within 90 days (if necessary) |
$1000 per week |
|
9 |
Late permit modification application |
$1000 per week |
|
10 |
Untimely 2009 testing of S07 and S16 |
$1000 per week |
|
11 |
Late copies of submittals to Enforcement |
$500 per week |
14.
Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties set
out above, Complainant may seek any other remedies or sanctions available by
virtue of Respondent’s violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
15.
Civil and
stipulated 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:
|
Indiana
Department of Environmental Management |
|
Cashier
– Mail Code 50-10C |
|
|
|
|
16.
“Force Majeure”, for purposes of this Agreed Order, is defined as
any event arising from causes totally beyond the control and without fault of
the Respondent 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 Respondent 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 changed
business or economic conditions, financial inability to complete the work
required by this Agreed Order, or increases in costs to perform the work.
The
Respondent shall notify IDEM by calling the case manager within three (3)
calendar days and by writing no later than seven (7) calendar days after it has
knowledge of 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 Respondent to
minimize the delay, and the timetable by which these measures will be
implemented. The Respondent shall
include with any notice all available documentation supporting its claim that
the delay was attributable to a force majeure. Failure to comply with the above requirements
shall preclude Respondent from asserting any claim of force majeure
for that event. The Respondent 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.
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 directly attributable to the event
constituting the force majeure.
17.
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.
18.
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.
19.
The 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.
20.
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
permit or any applicable Federal or State law or regulation.
21.
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.
22.
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.
23.
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.
24.
This Agreed
Order shall remain in effect until the Respondent’s Title 5 renewal permit and
permit modifications required by this Order are issued or for a period of five
(5) years after the Effective Date of the Agreed Order, whichever is earlier.
|
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
||||||
|
Department of Environmental Management |
ThyssenKrupp Waupaca,
Inc. |
||||||
|
|
|
||||||
|
By: _________________________ |
By:
_________________________ |
||||||
|
|
Craig Henry Chief, Air Section |
|
|||||
|
|
Office of Enforcement |
Printed: ______________________ |
|||||
|
|
|
||||||
|
|
Title: ________________________ |
||||||
|
|
|
||||||
|
Date: __________________ |
Date: _______________________ |
||||||
|
|
|
||||||
|
|
|
||||||
|
COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
||||||
|
For the Department of Environmental
Management |
|
||||||
|
|
|
||||||
|
By: ______________ |
By: ________________________ |
||||||
|
|
Deputy Attorney General |
|
|||||
|
|
|
||||||
|
Date: _______________________ |
Date: ______________________ |
||||||
|
|
|||||||
|
APPROVED AND ADOPTED BY
THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
|||||||
|
MANAGEMENT
THIS |
______ |
DAY OF |
________________________ |
, 200 |
___ |
. |
|
|
|
|||||||
|
|
For the Commissioner: |
||||||
|
|
|
||||||
|
|
Signed |
||||||
|
|
Robert
B. Keene |
||||||
|
|
Assistant Commissioner |
||||||
|
|
Office of Legal Counsel
and Enforcement |
||||||
|
|
|
||||||