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.

ESSROC CEMENT CORPORATION,

Respondent.

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Case No. 2007-16753-A
                2007-17410-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.  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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondent is Essroc Cement Corporation (“Respondent”), which owns and operates the portland cement manufacturing facility with Plant ID No. 019-00008, located at Highway 31, in Speed, Clark 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 April 18, 2007 via Certified Mail to:

 

George Gregory, President

CT Corporation System

Essroc Cement Corporation

251 East Ohio Street, Suite 1100

3241 Bath Pike

Indianapolis, IN 46204

Nazareth, PA 18064

 

 

5.                  Based on stack tests conducted on September 13 and 14, 2006, the following violations were found:

 

a.         Pursuant to 40 CFR 63, Subpart LLL and condition D.3.5 of Part 70 Permit No. 19-0616-00008 issued June 15, 2004 (“Permit”), the combined particulate matter (“PM”) emissions from the kiln #2 ( EU27), the fuel oil-fired heater for kiln #2 (EU69) and kiln #2 bypass (EU28)  shall not exceed 0.30 pounds per ton of feed to kiln #2.

Respondent conducted compliance testing at the Site on September 13, 2006, which demonstrated combined PM emissions from the kiln #2 to be 0.31 pounds per ton of feed with the Loesche Mill turned off, in violation of 40 CFR 60 Subpart UUU and condition D.3.5 of the Permit.

 

b.         Pursuant to 40 CFR 63, Subpart LLL and condition D.3.5 of the Permit, the combined particulate matter (“PM”) emissions from the kiln #2 ( EU27), the fuel oil-fired heater for kiln #2 (EU69) and kiln #2 bypass (EU28)  shall not exceed 0.30 pounds per ton of feed to kiln #2.

Respondent conducted compliance testing at the Site on September 14, 2006, which demonstrated combined PM emissions from the kiln #2 to be 0.34 pounds per ton of feed with the Loesche Mill turned on, in violation of 40 CFR 60 Subpart UUU and condition D.3.5 of the Permit.

 

6.                  Respondent waived a Notice of Violation for the violation based on the stack re-test conducted on November 30, 2006.

 

Pursuant to 40 CFR 63, Subpart LLL and condition D.3.5 of the Permit, the combined particulate matter (“PM”) emissions from the kiln #2 ( EU27), the fuel oil-fired heater for kiln #2 (EU69) and kiln #2 bypass (EU28)  shall not exceed 0.30 pounds per ton of feed to kiln #2.

Respondent conducted compliance testing at the Site on November 30, 2006, which demonstrated combined PM emissions from the kiln #2 to be 0.34 pounds per ton of feed with the Loesche Mill turned off, in violation of 40 CFR 60 Subpart UUU and condition D.3.5 of the Permit.

 

7.                  Respondent performed stack tests on June 8, 2007 and June 12, 2007 which demonstrated emissions being approximately 0.03 pounds per ton of feed to kiln #2, in compliance with 40 CFR 60 Subpart UUU and condition D.3.5 of the Permit.

 

8.                  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 40 CFR 63, subpart LLL and Part 70 permit No. 019-25019-00008 and any subsequent permit modifications.

 

3.                  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

 

4.                  Respondent is assessed a civil penalty of Twenty-Two Thousand Dollars ($22,000.00).  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.

 

5.                  Civil 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

 

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 Findings of Fact No. 4 and described in Findings of Fact No. 6.

 

7.                  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.

 

8.                  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.

 

9.                  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.

 

10.             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.

 

11.             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.

 

12.             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 or described in Findings of Fact No. 6.

 

13.             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.

 

14.             This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Essroc Cement Corp.

 

 

 

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 January 28, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement