STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. MULTISERV A DIVISION OF
HARSCO CORPORATION, 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
2.
Respondent is
MultiServ a division of Harsco Corporation (“Respondent”), which owns and operates
a stationary slag and kish processing plant with Title V Permit No.
089-7066-00341, (“Permit”) located at 3001 Dickey Road, in East Chicago, Lake 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 on December 12, 2006 via Certified
Mail to:
Derek
C. Hathaway, President |
CT
Corporation System |
Harsco
Corporation |
Registered
Agent for Harsco Corporation |
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5.
During an
investigation on August 30, 2006 conducted by a representative of IDEM, the
following violations were found:
a. Pursuant to 326 IAC 6-4, a
source shall be in violation of this rule if fugitive dust is observed crossing
the boundary or property line of a source.
During the investigation fugitive dust was observed crossing the property line
nine (9) times, in violation of 326 IAC 6-4.
b.
Pursuant to 326 IAC
6.8-10-3(3)(c), slag and kish handling activities at integrated iron and steel
plants shall comply with the following particulate emissions limits, the
opacity of fugitive particulate emissions from transfer from pots and trucks
into pits shall not exceed twenty percent (20%) on a six minute average.
During
the investigation opacity was observed at the pot dump station by a certified
inspector, the average opacity was determined to be twenty-six point nine
percent (26.9%), in violation of 326 IAC
6.8-10-3(3)(c).
6.
This Agreed
Order, and compliance with its terms and conditions, shall resolve all
violations cited in the Notice of Violation issued to Respondent listed in
Finding of Fact No. 4.
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 326
IAC 6-4 and 326 IAC 6.8-10-3(3)(c)
3.
Within sixty
(60) days of the Effective Date, Respondent shall submit to IDEM copies of
environmental training records and materials addressing dusting issues from the
time of the violations through the Effective Date.
4.
All submittals
required by this Agreed Order, unless Respondent is notified otherwise in
writing by IDEM, shall be sent to:
Matthew
Chaifetz, Enforcement Case Manager |
Office
of Enforcement – Mail Code 60-02 |
Indiana
Department of Environmental Management |
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5.
Respondent is
assessed a civil penalty of Twelve Thousand Dollars ($12,000.00). 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.
6.
In the event the
terms and conditions of paragraph three (3) are violated, Complainant may
assess and Respondent shall pay a stipulated penalty of One Hundred Dollars
($100.00) per week or part thereof.
7.
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.
8.
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 |
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9.
This Agreed
Order shall apply to and be binding upon Respondent and its successors and assigns.
Respondent’s signatory to this Agreed Order certifies that he or she is fully
authorized to execute this Agreed Order and legally bind the party he or she
represents. No change in ownership,
corporate, or partnership status of Respondent shall in any way alter its status
or responsibilities under this Agreed Order.
10.
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.
11.
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.
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 its obligation to
comply with the requirements of its applicable permit or any applicable Federal
or State law or regulation.
13.
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.
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 as expressly specified in this Agreed Order, including that IDEM may not,
and hereby waives its right to, seek additional civil penalties for the same violations
specified in the NOV.
15.
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.
16.
This Agreed
Order shall remain in effect until IDEM issues a Resolution of Case letter to
Respondent.
TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Craig Henry |
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Chief, Air Section |
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Title: |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: |
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By: |
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Deputy Attorney General |
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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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, 2007. |
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For The Commissioner: |
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Signed on May 4, 2007 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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