|
STATE OF |
) |
|
BEFORE THE INDIANA
DEPARTMENT |
||
|
|
|||||
|
COMMISSIONER OF THE
DEPARTMENT Complainant, v. EXIDE TECHNOLOGIES, 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
Exide Technologies, Inc. (“Respondent”), which owns and operates a secondary
lead smelting company with Plant I.D. No. 035-00028 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 June 23, 2006 via Certified
Mail to:
|
Gordon
Ulsh, President |
CT
Corporation System, Registered Agent for |
|
Exide
Technologies, Inc. |
Exide
Technologies, Inc. |
|
210
Carnegie Center, |
|
|
|
|
5.
Pursuant to IC
13-30-3-3, IDEM issued a Notice of Violation on September 26, 2006 via
Certified Mail to:
|
Gordon
Ulsh, President |
CT
Corporation System, Registered Agent for |
|
Exide
Technologies, Inc. |
Exide
Technologies, Inc. |
|
210
Carnegie Center, |
|
|
|
|
6.
Pursuant to IC
13-30-3-3, IDEM issued an Amended Notice of Violation on December 11, 2006 via
Certified Mail to:
|
Gordon
Ulsh, President |
CT
Corporation System, Registered Agent for |
|
Exide
Technologies, Inc. |
Exide
Technologies, Inc. |
|
210
Carnegie Center, |
|
|
|
|
7.
During
investigations conducted by representatives of IDEM, the following violations
were found:
a.
Pursuant to IC 13-30-2-1, a person may not discharge, emit, cause, allow, or threaten to
discharge, emit, cause or allow any contaminant or waste into the environment
in any form that causes or would cause pollution that violates or would violate
rules, standards, or discharge or emission requirements adopted by the
appropriate board under the environmental management laws.
b.
326 IAC 1-3-4
establishes the maximum permissible ambient air quality level for lead to be
1.5 micrograms lead per cubic meter of air, averaged over a calendar quarter
and measured as elemental lead.
Respondent caused lead to be emitted from the Site in excess of 1.5 micrograms
per cubic meter of air averaged over a calendar quarter during the 2nd
and 3rd Quarters of 2004, violations of IC 13-30-2-1 and 326 IAC 1-3-4.
c.
Pursuant to 326
IAC 20-13-7(e)(4), the owner or operator shall submit a quarterly report
including ambient air quality monitoring network data to IDEM and if a
violation of the quarterly NAAQS for lead occurred, identify the cause of the
violation and corrective actions taken to address the violation.
Respondent failed to identify the cause of the lead violations or corrective
actions taken to address the violations in the 2nd and 3rd
Quarters 2004 reports, violations of 326 IAC 20-13-7(e)(4).
d.
Pursuant to 326
IAC 3-5-3, the owner or operator shall conduct the applicable performance
specifications tests in accordance with 40 CFR 60, Appendix B not later than
forty-five (45) unit operating days after monitor replacement date.
Respondent installed a new Total Hydrocarbon (THC) monitor on or around October
10, 2003 and failed to perform all required tests necessary to certify that
monitor within 45 days, a violation of 326 IAC 3-5-3.
e.
Pursuant to 40
CFR 63.544(b), 326 IAC 20-13 and Permit No. 035-14180-00028 condition D.1.5(a)
process fugitive emission sources shall be equipped with an enclosure hood
meeting the requirements of 40 CFR 63.544(b) or be located in a total enclosure
subject to general ventilation that maintains the building at a lower than ambient
pressure to ensure in-draft through any doorway opening.
Respondent failed to maintain lower than ambient pressure in the plant building
evidenced by the observation of smoke exiting the building on May 5, 2006,
violations of 40 CFR 63.544, 326 IAC 20-13 and Permit No. 035-14180-00028
condition D.1.5(a).
f.
Pursuant to 40
CFR 63.545(a), 326 IAC 20-13 and Permit No. 035-14180-00028 condition D.1.6,
Respondent shall prepare and at all times operate according to a procedures
manual that describes the measures that will be put in place to control
fugitive dust emission sources.
Respondent’s Fugitive Dust Control Program states that the building will
be maintained under constant negative pressure with emissions vented to a
control device.
Respondent’s Daily Value Logs from the pressure monitor shows negative pressure
was not maintained during various times between November 7, 2005 and December
17, 2005, in violation of 40 CFR 63.544(b), 40 CFR 63.545(a), 326 IAC 20-13 and
Permit No. 035-14180-00028 condition D.1.6.
g.
Pursuant to 40
CFR 63.545(c)(4), 326 IAC 20-13, and Permit No. 035-14180-00028 condition
D.1.11, emission control equipment shall be in operation at all times that the
associated processes are in operation.
Respondent failed to control emissions from the North-South running lead pig
casting machine with the refinery baghouse.
The collection duct for the baghouse was sealed off and observed in this
condition on May 5, 2006, May 11, 2006 and August 25, 2006. This is in violation of 40 CFR 63.545(c)(4),
326 IAC 20-13, and Permit No. 035-14180-00028 condition D.1.11.
h.
Pursuant to
Permit No. 035-14180-00028 condition D.1.15, the Permittee shall record the
total static pressure drop across baghouses and scrubbers. When for any one reading the pressure drop is
outside the normal ranges, the Permittee shall take response steps in
accordance with condition C.16.
Respondent operated the North scrubber outside the normal range from September
17, 2005 through September 25, 2005 and November 27, 2005 without taking
corrective actions, in violation of Permit No. 035-14180-00028 condition D.1.15
and C.16. Records show no readings on
November 24, 2005.
i.
Pursuant to 40
CFR 63.550 and Permit No. 035-14180-00028 condition D.1.20(b)(4) quarterly
reports shall be submitted summarizing fugitive dust control measures including
explanation when procedures in the procedures manual were not followed and the
corrective actions taken.
Respondent failed to report periods when there were failures of the negative
pressure system during the 4th Quarter of 2005, violations of 40 CFR
63.550 and Permit No. 035-14180-00028 condition D.1.20(b)(4).
8.
Respondent hired
an independent contractor on August 13, 2007 to fulfill its ambient monitoring
and analysis obligations.
9.
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 all applicable air regulations and permit conditions.
3.
Respondent shall
hire a qualified independent consultant to perform an Environmental Audit
(“Audit”). A qualified consultant is one
that has knowledge and experience regarding the requirements listed in
paragraph 3a of this Order and shall not be present employees of Respondent. The
Audit shall include a review and evaluation of current compliance for all
facility operations with environmental requirements covering the Audit scope
that follows.
a.
The Audit review
shall be limited to operating records from June 2007 to the present to review
current compliance with the following environmental requirements:
i.
40 CFR 63,
Subpart X
ii.
326 IAC 20-13
iii.
326 IAC 1-3-4
(Ambient Air Monitoring Standards)
iv.
40 CFR Parts 50,
53 and 58
v.
IDEM’s current
Quality Assurance Manual
vi.
Fugitive Dust
Control Plan
vii.
326 IAC 3-5,
(CEMS Operation)
viii.
Part 70 Operating
Permit, T035-22352-00028 (excluding items included in the Petition for
Administrative Review submitted October 9, 2007)
b.
Respondent must
submit a request for approval from IDEM of the scope of the Audit and qualified
consultant selected to perform the Audit no later than 60 days after the
Effective Date of this Order.
c.
The results of
the Audit shall be documented in a final audit report prepared by the
consultant and provided to IDEM and Respondent.
The report shall provide the consultant’s determination on whether
compliance with environmental requirements is being met by Respondent’s current
mode of operations limited to June 2007 to the present. In instances where environmental requirements
are not being met, the report shall provide reasonable suggestions for
improving or modifying Respondent’s operation in order to satisfy the
environmental requirements.
d.
The final audit
report shall be provided to IDEM and Respondent within 120 days after IDEM
approval of the independent contractor.
e.
Respondent shall
submit a proposal to IDEM for approval within 60 days after the final audit
report is provided to IDEM and Respondent, specifying which improvements from
the final audit report it proposes to implement. IDEM shall review the proposal and either
approve or comment on the proposal within 30 days after receipt of the
proposal.
f.
Respondent shall
implement the IDEM-approved suggestions
and improvements necessary to ensure compliance with 40 CFR 63, Subpart X and
326 IAC 20-13 within 120 days after IDEM approves the proposal. If additional time is required to complete
necessary improvements, Respondent may request additional time and IDEM may
grant an extension.
i.
Respondent shall
submit an updated standard operating procedures manual to IDEM’s Office of Air Quality,
Compliance Branch within 90 days after the final audit report is provided to
IDEM and Respondent. The updated manual
shall be compliant with 40 CFR 63, Subpart X.
ii.
Respondent shall
submit an updated monitoring/quality assurance plan to IDEM’s Air Monitoring
Branch within 90 days after the final audit report is provided to IDEM and
Respondent. The updated plan shall be
compliant with 40 CFR Parts 50, 53 and 58 and IDEM’s current Quality Assurance
Manual.
4.
Respondent shall
provide to IDEM’s Air Monitoring Branch, quarterly ambient monitor data in
accordance with 40 CFR Parts 50, 53 and 58 and IDEM’s current Quality Assurance
Manual.
5.
All submittals
required by this Agreed Order, unless otherwise specified in this Order, as
well as documentation of submittals directed to other agency offices required
by this Order, shall be sent to:
|
Lynne
Sullivan, Enforcement Case Manager |
|
Office
of Enforcement – Mail Code 60-02 |
|
Indiana
Department of Environmental Management |
|
|
|
|
6.
Respondent is
assessed a civil penalty of One Hundred Fifteen Thousand Four Hundred Dollars
($115,400). Within thirty (30) days of
the Effective Date of the Agreed Order, Respondent shall pay a portion of this
penalty in the amount of Twenty-Three Thousand Eighty Dollars ($23,080). Said penalty amount shall be due and payable
to the Environmental Management Special Fund.
In lieu of payment to IDEM of the remaining civil penalty, Respondent
shall make a cash payment to the Indiana Finance Authority (“IFA”) to fund a
Supplemental Environmental Project (“SEP”) of activities related to brownfield
redevelopment at a brownfield site (“Brownfield Site”) in
The Brownfield Site at which the SEP proceeds will be
spent will be agreed upon among Complainant, Respondent, the City of
In the event that Respondent does not make its SEP
payment within thirty (30) days of the Effective Date of this Agreed Order, the
full amount of the civil penalty as stated in this paragraph, plus interest
established by IC 24-4.6-1-101 on the remaining amount, less the portion of the
civil penalty Respondent has already paid, will be due to IDEM within fifteen
(15) days from Respondent's receipt of IDEM’s notice to pay. Interest, at the rate established by IC
24-4.6-1-101, shall be calculated on the amount due from the date which is
thirty (30) days after the Effective Date of this Agreed Order until the full
civil penalty is paid.
Payment for the SEP is payable by check to the
“Indiana Finance Authority.” The text
“SEP-City of
|
Andrea
Robertson |
|
|
|
|
|
Room
1275 |
|
|
Respondent
shall provide Complainant with documentation of payment to the Indiana Finance
Authority within one (1) week of such payment.
7.
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 |
Penalty |
|
3b – failure to submit Audit request w/i 60 days of
Effective Date of Order |
$250 per day |
|
3d – failure to submit audit report w/i 120 days of
contractor approval |
$500 per day |
|
3e – failure to submit implementation proposal w/i
60 days of final audit report |
$500 per day |
|
3f – failure to submit updated SOP manual w/i 90
days of final audit report |
$500 per week |
|
3f – failure to submit updated monitoring plan w/i
90 days of final audit report |
$500 per week |
|
3f – failure to implement improvements w/i 120 days
of IDEM’s approval of the implementation proposal |
$1000 per week/per improvement |
|
4 – failure to submit quarterly ambient air
monitoring reports for four consecutive quarters from the Effective Date of
this Order |
$5,000 per quarter |
8.
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.
9.
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 |
|
|
|
|
10.
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.
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.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
Respondent shall
perform the requirements of this Order in the manner and within the time limits
set forth herein, unless the performance is prevented or delayed by evens which
constitute a force majeure. Force majeure, for purposes of this
Agreed Order, is defined as any event arising from causes totally beyond the
control and without fault of 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 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 (1)
changed business or economic conditions; (2) financial inability to complete
the work required by this Agreed Order; or (3) increases in costs to perform
the work.
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 Respondent contends is a force majeure. Such notification shall describe (1) the
anticipated length of the delay; (2) the cause or causes of the delay; (3) the
measures taken or to be taken by Respondent to minimize the delay; and (4) the
timetable by which these measures will be implemented. 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. 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.
18.
This Agreed
Order shall remain in effect until Respondent has complied with all terms and
conditions of this Agreed Order.
|
TECHNICAL RECOMMENDATION: |
|
RESPONDENT: |
|||||
|
Department of Environmental Management |
|
Exide Technologies, Inc. |
|||||
|
|
|
|
|||||
|
By: |
|
|
By: |
|
|||
|
|
Craig Henry |
|
Printed: |
|
|||
|
|
Chief, Air Section |
|
Title: |
|
|||
|
|
Office of Enforcement |
|
|
|
|||
|
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 |
|
, 2007. |
|||
|
|
|||||||
|
|
For the Commissioner: |
||||||
|
|
|
||||||
|
|
Signed on November 21, 2007 |
||||||
|
|
Robert B. Keene |
||||||
|
|
Assistant Commissioner |
||||||
|
|
Office of Legal Counsel and Enforcement |
||||||