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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. EXIDE TECHNOLOGIES, INC., 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
Exide Technologies, Inc. (“Respondent”), which owns and operates a secondary
lead smelting company with Plant I.D. No. 035-00028 located at
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 February 20, 2009 via
Certified Mail to:
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Mr.
Gordon Ulsh, President |
CT
Corporation System |
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Exide
Technologies, Inc. |
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5.
During an
investigation conducted by representatives of IDEM, the following violations
were found:
a. Pursuant
to IC 13-30-2-1, a person may not discharge, emit, cause, allow, or threaten to
discharge, emit, cause or allow any contaminant or waste into the environment
in any form that causes or would cause pollution that violates or would violate
rules, standards, or discharge or emission requirements adopted by the
appropriate board under the environmental management laws.
b.
326 IAC 1-3-4
establishes the maximum permissible ambient air quality level for lead to be
1.5 micrograms lead per cubic meter of air, averaged over a calendar quarter
and measured as elemental lead.
c.
Respondent
experienced a short duration event (fire in the process dryer) that caused
ambient lead concentrations from the Site to exceed 1.5 micrograms per cubic
meter of air averaged over a calendar quarter during the 2nd Quarter
of 2008, in violation of IC 13-30-2-1 and 326 IAC 1-3-4. The average lead emissions for that quarter
were reported to be 2.33 micrograms per cubic meter.
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 all applicable federal and state environmental statutes, rules and
permits.
3.
By October 15,
2009, Respondent shall construct a total enclosure sheet metal structure around
the Rotary Dryer Kiln baghouse to minimize the potential release of fugitive
lead emissions from the Rotary Dryer Kiln baghouse structure.
4.
Respondent shall
update its Standard Operating Procedure Manual for Fugitive Dust Control by
October 31, 2009 to include cleaning and maintenance of baghouse enclosures as
specified by paragraph 3 of this Order, to
minimize the potential release of fugitive lead emissions.
5.
By October 31,
2009, Respondent shall replace the existing 135 ft enclosed/covered auger at
the Ventilation baghouse with a 25 ft enclosed/covered auger to convey baghouse
dust directly into the Bin Room.
6.
Respondent shall
install upgraded bags in the Refinery baghouse according to the following
schedule.
a.
By October 31,
2009, Respondent shall install upgraded bags in one cell of the Refinery
baghouse as specified in Attachment 1.
b.
Respondent shall
evaluate performance of the upgraded bags between six (6) to eight (8) months
of installation to determine if bag performance has been improved.
c.
Provided that
performance of upgraded bags has been improved, Respondent shall replace the
remaining bags in the Refinery baghouse with the upgraded bags within ninety
(90) days of the successful performance evaluation. Respondent may utilize an equivalent baghouse
bag as specified in Attachment 1 during the initial replacement phase and
during any subsequent changes.
d.
In the event
that the evaluation of the upgraded bags demonstrates unacceptable performance,
Respondent shall submit a proposal for approval by IDEM to evaluate an
alternative bag for evaluation within thirty (30) days of the performance
evaluation specified in 6b.
e.
Within thirty
(30) days of IDEM approval, Respondent shall initiate the steps in paragraph 6
of this Order. Should the events in
paragraphs 6.d and 6.e. not produce a successful trial and performance
evaluation, Respondent has the option to continue utilizing the baghouse bags
that were in place during the most recent performance test that demonstrated
compliance with the applicable emission standards.
7.
Respondent shall
provide a written notification to IDEM within fifteen (15) days of completion
of each project required in paragraphs 3, 4, and 5. Respondent shall provide details and
documentation of each completed project in the next subsequent status report
after the completion of each project.
This information shall be submitted to IDEM as specified in paragraph 8
of this Order.
8.
Respondent shall
provide a status report to IDEM on the 15th of each month to include
an update of the project required in paragraph 6 including and until the date
the project is complete.
9.
All submittals
required by this Agreed Order, unless Respondent is notified otherwise in
writing by IDEM, shall be sent to:
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Lynne
Sullivan, Compliance and Enforcement Manager |
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Compliance
and Enforcement Branch – Mail Code 61-53 |
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Indiana
Department of Environmental Management |
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10.
Respondent is
assessed a civil penalty of Ninety-Seven Thousand Five Hundred Dollars
($97,500). Within forty-five (45) days
of the Effective Date of the Agreed Order, Respondent shall pay a portion of
this penalty in the amount of Nineteen Thousand Five Hundred Dollars ($19,500) to the Environmental Management
Special Fund, noting the case number on the check. In lieu of payment of the remaining civil
penalty, Respondent shall make a payment in the amount of Seventy-Eight
Thousand Dollars ($78,000) to the Environmental Management Special Fund, noting
“DieselWise Indiana Initiative” on the check, to be used for diesel emission
reduction projects in
11.
In the event
that the civil penalty as stated in paragraph 10 above 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.
12.
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 paragraph 10 above, 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 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 forty-five (45) days after the Effective Date of this Agreed
Order until the full civil penalty is paid.
13.
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:
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Paragraph |
Violation |
Stipulated
Penalty |
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3 |
Install enclosure on Rotary Dryer Kiln baghouse by
October 15, 2009. |
$1,000 per week |
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4 |
Update SOP Manual by October 31, 2009. |
$500 per week |
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5 |
Replace Ventilation baghouse auger by October 31,
2009. |
$1,000 per week |
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6a |
Upgrade bags in one cell of Refinery baghouse by
October 31, 2009. |
$1,000 per week |
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6b |
Evaluate performance of upgraded bags between 6 – 8
months of installation. |
$500 per week |
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6c |
Upgrade remaining bags in Refinery baghouse within
90 days of successful performance evaluation. |
$1,000 per week |
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6d |
Submit proposal for alternative bag, if necessary. |
$500 per week |
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6e |
Install alternative upgraded bags, if necessary. |
$1,000 per week |
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7 and 8 |
Provide reports on project status |
$100 per week per report |
14.
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.
15.
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:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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16.
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.
17.
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.
18.
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.
19.
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 permits or any applicable
Federal or State law or regulation.
20.
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.
21.
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.
22.
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.
23.
Respondent shall
perform the requirements of this Order in the manner and within the time limits
set forth herein, unless the performance is prevented or delayed by events
which constitute a force majeure. Force majeure, for purposes of this
Agreed Order, is defined as any event arising from causes totally beyond the
control and without fault of Respondent that delays or prevents the performance
of any obligation under this Agreed Order despite Respondent’s best efforts to
fulfill the obligation. The requirement
that Respondent exercise “best efforts to fulfill the obligation” includes
using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any
potential force majeure event (1) as
it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the
greatest extent possible. Force majeure does not include (1)
changed business or economic conditions; (2) financial inability to complete
the work required by this Agreed Order; or (3) increases in costs to perform
the work.
Respondent
shall notify IDEM by calling the case manager within three (3) calendar days
and by writing no later than seven (7) calendar days after it has knowledge of
any event which Respondent contends is a force majeure. Such notification shall describe (1) the
anticipated length of the delay; (2) the cause or causes of the delay; (3) the
measures taken or to be taken by Respondent to minimize the delay; and (4) the
timetable by which these measures will be implemented. Respondent shall include with any notice all
available documentation supporting its claim that the delay was attributable to
a force majeure. Failure to comply with
the above requirements shall preclude Respondent from asserting any claim of
force majeure for that event. Respondent shall have the burden of demonstrating
that the event is a force majeure. The
decision of whether an event is a force majeure shall be made by IDEM.
If
a delay is attributable to a force majeure, IDEM shall extend, in writing, the
time period for performance under this Agreed Order, by the amount of time that
is directly attributable to the event constituting the force majeure.
24.
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.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Exide Technologies, Inc. |
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By: |
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By: |
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Craig Henry, Chief |
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Printed: |
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Compliance and Enforcement Section 4 |
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Title: |
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Office of Air Quality |
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Date: |
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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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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
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, 2009. |
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For the Commissioner: |
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Signed on October 20, 2009 |
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Daniel Murray |
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Assistant Commissioner |
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Office of Air Quality |
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Attachment 1
