STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

METALLURGICAL PROCESS MATERIALS, LLC,

Respondent.

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Case No. 2006-16357-A

 

 

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.

 

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 Metallurgical Process Materials, LLC formerly known as Oxbow Carbon and Minerals, LLC (“Respondent”), which owns and operates a custom blended metallurgical processing source, which only colors and packages, with MSOP Permit No. 029-11447-00023, (“Permit”) located at 133 Franklin Street, in Aurora, Dearborn 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 19, 2006 via Certified Mail to:

 

Mr. Dennis Wheeland, Plant Manager        Corporation Service Company, Registered Agent

Metallurgical Process Material, LLC          251 East Ohio Street

133 Franklin Street                                       Suite 500

Aurora, Indiana 47001                                  Indianapolis, Indiana 46204

 

5.                  During a compliance test on September 7, 2006, the following violation was found:

 

a.         Pursuant to MSOP Permit No. 029-11447-00023 (“Permit”), issued to, condition D.1.1 as required by 326 IAC 6-1-2 (modified to 6.5-1-2), the particulate matter emissions from facilities shall not exceed three-hundredths (0.03) grain per dry standard cubic foot (“dcsf”).

During a stack test conducted on September 7, 2006, results for the briquette load out bin and bucket elevator equipped with a baghouse exhausting from stack S4, indicated an emission of 0.135 grain/dscf, in violation of Permit condition D.1.1 as required by 326 IAC 6.5-1-2.

 

6.                  A retest was conducted on November 15, 2006 after replacement of torn bag and cleaning exhaust.  Results indicated compliance with Permit condition D.1.1 as required by 326 IAC 6.5-1-2.

 

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 Permit condition D.1.1 as required by 326 IAC 6.5-1-2.

 

3.                  Within sixty (60) days of the Effective Date, Respondent shall incorporate into the Preventative Maintenance Plan (“PMP”) the annual testing and evaluation of at least one random dust collector bag removed from Unit 4.  The testing is to be completed by the supplier/manufacturer or certified independent laboratory.  The evaluation would consist of, at minimum; permeability, burst strength, and a visual check for any potential wear related problems.  The bag selected for testing may not be the replacement from the prior year.  All testing and evaluation reports shall be maintained in accordance the Section C – General Record Keeping Requirements of the valid Permit.  The addition to the Preventive Maintenance Plan for Unit 4 serving the briquette load out bin and bucket elevator, described above, shall remain in effect until the next renewal period for the facilities FESOP permit.  During the permit renewal review, IDEM personnel will determine if the Preventive Maintenance Plan for Unit 4 serving the briquette load out bin and bucket elevator shall be continued, continued with modification or discontinued.

 

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

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

5.                  Respondent is assessed a civil penalty of Nine Thousand Dollars ($9,000.00).  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 the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

 

Paragraph
3 – incorporation of testing and evaluation into PMP

Penalty
$500.00 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

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

9.                  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.

 

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 their 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 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 Respondent has complied with all terms and conditions of this Agreed Order.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Craig Henry

 

Printed:

 

 

Chief, Air Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Office of Legal Counsel

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2007.

 

 

For The Commissioner:

 

 

 

Signed on April 24, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement