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.

C&D TECHNOLOGIES, INC.,

Respondent.

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Case No. 2007-17311-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 C&D Technologies, Inc. (“Respondent”), which owns/operates a stationary custom   industrial battery manufacturing facility with Plant ID No. F045-00008, located at 200 W. Main Street in Attica, Fountain 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 (“NOV”) on November 15, 2007 via Certified Mail to:

 

Mr. Jeffrey A. Graves, President

National Registered Agents

C&D Technologies, Inc.

320 N. Meridian Street

1400 Union Meeting Road

Indianapolis, IN 46204

Blue Bell, PA 19422

 

 

5.         During an investigation conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to FESOP Permit Number 045-11285-00008 (“permit”), issued to Respondent on May 26, 2000, condition D.1.1(b) Lead Emissions [326 IAC 12, (40 CFR Part 60.370-60.374, Subpart KK)]; the grid casting facilities (EU 0100A, EU 01000B and EU 0200A) shall not emit any gases that contain in excess of 0.000175 grains of lead per dry standard cubic feet of exhaust.

During a stack test conducted on June 25, 2007, Respondent exceeded the allowable limit for lead emissions from their grid casting operation, EU 0200A (group 3, Stack 196) in violation of condition D.1.1(b) Lead Emissions [326 IAC 12, (40 CFR Part 60.370-60.374, Subpart KK)] of Permit No. 045-11285-00008, issued to Respondent on May 26, 2000.

 

b.         Pursuant to FESOP Permit Number 045-11285-00008, issued to Respondent on May 26, 2000, condition C.18(b), Actions Related to Noncompliance Demonstrated by a Stack Test [326 IAC 2-8-4] [326 IAC 2-8-5]; A retest to demonstrate compliance shall be performed within one hundred twenty (120) days of receipt of the original test results.

Respondent failed to conduct a retest to demonstrate compliance for their grid casting operation, EU 0200A (group 3, Stack 196) within one hundred twenty (120) days of receipt of the original non compliant test results in violation of condition C.18(b), Actions Related to Noncompliance Demonstrated by a Stack Test [326 IAC 2-8-4] [326 IAC 2-8-5] of Permit No. 045-11285-00008, issued to Respondent on May 26, 2000.

6.         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 condition D.1.1(b), Lead Emissions [326 IAC 12,  (40 CFR Part 60.370-60.374, Subpart KK)] of the permit.

 

3.         Respondent shall comply with condition C.18(b), Actions Related to Noncompliance  Demonstrated by a Stack Test [326 IAC 2-8-4] [326 IAC 2-8-5] of the permit.

 

4.         Respondent shall conduct lead emissions testing of their grid casting operation, EU 0200A(group3, stack 196) within sixty (60) days of the Effective Date of this Order, in accordance with the requirements of 326 IAC 3-6 to determine compliance with the applicable lead limit.

Test protocols shall be submitted to:

 

Indiana Department of Environmental Management

Compliance Data Section, Office of Air Quality

Mail Code 61-50

100 N. Senate Avenue

Indianapolis, IN 46204-2251

 

no later than thirty-five (35) days prior to the intended test date.

 

5.         Copies of test results required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Mary Kelley, Case Manager

Office of Enforcement – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

6.         Respondent is assessed a civil penalty of Fifteen Thousand Dollars ($15,000.00).  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.

 

7.                  In the event the terms and conditions of the following paragraph is violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

 

Paragraph

Violation

Stipulated Penalty

4.

Failure to conduct testing within time limits specified in paragraph 4.

$500.00/day

 

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

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

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 their 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 their obligation to comply with the requirements of their applicable permit 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 Notice of Violation.

 

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.       This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

C&D 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

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on February 18, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement