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.

BLUFFTON MOTOR WORKS LLC,

Respondent.

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Case No. 2008-18135-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 Bluffton Motor Works LLC (“Respondent”), Part 70 Permit No. T179-18074-00010, which owns and operates a stationary source manufacturing electric motors for agricultural, construction and marine equipment located at 410 East Spring Street, Bluffton, Wells County, IN (“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”) to:

 

Christopher Crowe, Facility Engineer

Bluffton Motor Works LLC

Bluffton Motor Works LLC

Corporation Service Company

410 Spring Street

251 E. Ohio Street  Ste 500

Bluffton, IN  46714

Indianapolis, IN 46204

 

5.                  During an inspection on May 13, 2008 conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to 40 CFR 63 Subpart MMMM 63.3883, for an existing affected source, the compliance date is the date three (3) years after January 2, 2004.

Based on the inspection on May 13, 2008 and the Notification of Compliance Status Report submitted on December 21, 2007, Respondent did not demonstrate compliance by January 2, 2007, in violation of 40 CFR 63 Subpart MMMM 63.3883.

 

b.         Pursuant to 40 CFR 63.3890(b)(1)and Section E.1.2 of Part 70 Permit # T179-18074-00010, for each existing general use coating affected source, limit organic HAP emissions to no more that 2.6 lb organic HAP per gallon coating solids used during each 12 month compliance period.

Based on an inspection conducted by IDEM on May 13, 2008, Respondent was using coatings which exceeded the 2.6 lb organic HAP per gallon coating solids in violation of 40 CFR 63.3890 (b)(1).

 

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 63.3890(b)(1) and Section E.1.2 of Part 70 Permit T179-18074-00010 which limits the organic HAP emissions for each general use coating affected source to 2.6 lb organic HAP per gallon coating solids used during each 12 month compliance period.

 

3.                  All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Deborah Cole, Compliance and Enforcement Manager

Compliance and Enforcement Branch – Mail Code 60-02A

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

4.                  Respondent is assessed a civil penalty of Twenty One Thousand Dollars ($21,000).  Within forty-five days (45) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Four Thousand Two Hundred Dollars ($4,200.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within forty-five (45) days of the Effective Date.  In the event that the civil penalty is not paid within forty-five (45) 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.

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 Ft. Wayne, Allen County, Indiana. Respondent will make a payment in the amount of Sixteen Thousand Eight Hundred Dollars ($16,800) to fund SEP activities at the Site. Respondent shall make such payment to the IFA within forty-five (45) days of the Effective Date of this Agreed Order.  Payment to the IFA satisfies Respondent’s obligation to undertake a SEP to offset a portion of the civil penalty assessed in this matter. Implementation of this SEP will benefit the community by rejuvenating neighborhoods, increasing the tax base, mitigating threats to human health and the environment, and/or reducing blight.

The Brownfield Site at which the SEP proceeds will be spent will be agreed upon among Complainant, Respondent, The City of Ft. Wayne and the IFA and will be subject to final approval by the Brownfields Program.  The IFA will account for the SEP payment in a Brownfield Site and/or community –specific account and will require the City of Ft. Wayne to execute a financial assistance agreement with the IFA, under which the Brownfield Program will oversee the work undertaken at the Site funded by SEP proceeds.  The IFA will notify IDEM’s Compliance and Enforcement Case Manager when SEP-funded activities at the Site are complete.

In the event that Respondent does not make its SEP payment within forty-five (45) 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 Fort Wayne” and the Case Number of this action shall be included on the memo line of the check. The check shall be mailed to:

 

Andrea Robertson

Indiana Brownfields Program-SEP

100 North Senate Avenue

Room 1275

Indianapolis, IN 46204

 

Respondent shall provide Complainant with documentation of payment to the Indiana Finance Authority within one (1) week of such payment.

 

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 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.

 

7.                  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.

 

8.                  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.

 

9.                  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.

 

10.             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.

 

11.             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.

 

12.             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.

 

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

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Bluffton Motor Works LLC

 

 

 

By:

 

 

By:

 

 

Craig Henry, Chief

 

Printed:

 

 

Compliance and Enforcement Section 4

 

Title:

 

 

Office of Air Quality

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Deputy Attorney General

 

 

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR INDIANA FINANCE AUTHORITY

For the Indiana Brownfields Program

By:

 

 

 

 

Assistant Director & General Counsel

 

Date:

 

 

 

 

 

CITY OF FT. WAYNE

For the City of Fort Wayne

By:

 

 

 

 

Thomas Henry, Mayor

Date:

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2009.

 

 

For the Commissioner:

 

 

 

Signed on July 22, 2009

 

Daniel Murray

 

Assistant Commissioner

 

Office of Air Quality