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STATE
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. UNIVERSITY OF NOTRE DAME DU LAC, 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 Indiana created by Indiana
Code (“IC”) 13-13-1-1.
2.
Respondent
is University
of Notre Dame du Lac which
owns/operates a power
plant for heating and electrical generation with Plant ID No. 141-00013, located at 100 Facilities
Building, in Notre Dame, St Joseph County, Indiana.
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via Certified Mail
to:
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Father
John Jenkins CSC President |
Mary
Ann F. Saggese, Registered Agent |
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University
of Notre Dame du Lac |
Plews Shadley Racher & Braun LLP |
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203
Main Building |
1346
North Delaware Street |
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Notre
Dame, Indiana 46556 |
Indianapolis,
Indiana 46202-2415 |
4.
Respondent operates a natural gas Boiler No.
B-6. This boiler is
subject to 40 CFR 60, Subpart Db and 326 IAC 3-5 for continuously monitoring of
NOx and O2. Respondent operates
three diesel fired generators (No. 8, 9 and No. 10) used for emergency and peak
power generation. These generators are subject to 326 IAC 20-82-1 and 40 CFR
63, Subpart ZZZZ.
During an investigation of records conducted by a
representative of IDEM, the following violations were found:
1.
Pursuant to Significant Permit Modification
141-24424-00013 condition D.7.13, Part 70 Permit 141-26998-00013 condition D.7.13,
326 IAC 3-5 and 40 CFR 60, Appendix F, 5.1.1, Respondent is required to
conduct a Relative Accuracy Test Audit
(RATA) at least once every four calendar quarters for Boiler No. B-6.
On January 12, 2012, the Compliance Data Section received RATA test protocol
from the source, dated January 6, 2012. On the cover letter, Respondent
indicated that the annual RATA testing had not been conducted on these monitors
since the initial RATA certification conducted on November 27-29, 2007, in violation
of Significant Permit Modification 141-24424-00013 condition D.7.13, Part 70
Permit, 141-26998-00013, condition D.7.13, 326 IAC 3-5 and 40 CFR 60, Appendix
F, 5.1.1.
2.
Pursuant to Significant Permit Modification
141-24424-00013 condition D.7.13, Part 70 Permit 141-26998-00013 condition D.7.13,
326 IAC 3-5 and 40 CFR 60.48b(b) Respondent is required to install, calibrate,
maintain, and operate a continuous emission monitoring system (CEMS) and record
the output of the system for measuring NOx and O2 for Boiler No. B-6.
Respondent’s failure to perform RATAs resulted in the submittal of invalid data
for the NOx and O2 CEMS from January 1, 2009 until January 17, 2012 in
violation of Significant Permit Modification 141-24424-00013 condition D.7.13,
Part 70 Permit 141-26998-00013 condition D.7.13, 326 IAC 3-5 and 40 CFR
60.48b(b).
3.
Pursuant to Part 70 Permit 141-26998-00013
condition D. 5.15, 326 IAC 20-82-1 and
40 CFR 63, Subpart ZZZZ Respondent is required to conduct annual carbon
monoxide destruction testing for the three diesel fired generators (Nos. 8, 9
and 10) used for emergency and peak power generation. The annual compliance
testing date for generator Nos. 8, 9, and 10 was September 8, 2011.
On December 8, 2011 Respondent submitted to the Office of Air Quality a request
for an extension of the annual compliance testing date, indicating that
generator Nos. 8 and 9 were not tested by the September 8, 2011 test date, in
violation of Part 70 Permit 141-26998-00013 condition D. 5.15, 326 IAC 20-82-1
and 40 CFR 63, Subpart ZZZZ.
5.
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 statutes, rules, and permit conditions listed in the findings
here and above at issue.
3.
All
submittals required by this Agreed Order, unless Respondent is notified otherwise
in writing by IDEM, shall be sent to:
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Richard
Reynolds, 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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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
4.
Respondent
is assessed a civil penalty of Forty Six Thousand Nine Hundred Five Dollars,
($46,905). Within thirty (30) days of
the Effective Date of the Agreed Order, Respondent shall pay a portion of this
penalty in the amount of Seventeen Thousand Five Hundred Five Dollars ($17,505).
Said penalty amount shall be due and payable to the Environmental Management
Special Fund. In lieu of payment of the remaining civil penalty, Respondent
shall perform and complete a Supplemental Environmental Project (“SEP”).
Respondent estimates that this SEP will cost Thirty Thousand Seven Hundred
Sixty Five Dollars ($30,765). Within
Thirty (30) days of completing this SEP, Respondent shall submit written notice
and documentation to IDEM which substantiates all actions taken and costs
incurred with respect to the SEP. In the
event that the cost of the SEP is less than the remaining gravity portion of
Twenty Nine Thousand Four Hundred Dollars ($29,400), Respondent shall perform
an additional SEP estimated to cost Seven Thousand Five Hundred Dollars
($7,500). In the event that the cost of
both SEPs together is less than the $29,400 gravity portion of the civil
penalty, Respondent shall pay (100%) of the difference between this amount and
the actual cost of the SEPs.
As
a Supplemental Environmental Project, Respondent shall replace one gas powered
service vehicle with one electric powered service vehicle. The cost for
conversion to this electric vehicle is estimated to be $30,765.00. Respondent shall replace one gas powered
service vehicle with one electric powered service vehicle by no later than one
hundred and twenty (120) days from the date this order is effective. The replaced gas powered service vehicle
shall be removed from the University’s vehicle fleet inventory upon replacement
with the electric vehicle. Implementation of this SEP will reduce the CO2
equivalent emissions of a single vehicle by 38%, and increase public awareness.
If
the actual cost of the electric vehicle SEP is less than the remaining gravity
portion of Twenty Nine Thousand Four Hundred Dollars ($29,400), the Respondent
shall perform a second SEP. The second
SEP to remove 31 PCB capacitors at the University’s Hesburgh
Library is estimated to cost Seven Thousand Five Hundred Dollars ($7,500) and
shall be initiated within one hundred and twenty (120) days from the date this
order is effective. If the University
proceeds with this second SEP, the project shall be completed no later than two
hundred and forty (240) days from the date this order is effective.
In
the event that Respondent does not complete the electric vehicle SEP within 120
days (and, if applicable, the PCB
removal SEP within 240 days) from the date this order is effective, the full
amount of the civil penalty as stated in paragraph (#4) 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
thirty (30) days after the Effective Date of this Agreed Order until the full
civil penalty is paid.
5.
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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100
North Senate Avenue |
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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 the monies due to IDEM pursuant to this Agreed Order are not
paid on or before their Due Date, Respondent shall pay interest on the unpaid
balance at the rate established by IC 24-4.6-1.
The interest shall be computed as having accrued from the Due Date until
the date that Respondent pays any unpaid balance. Such interest shall be payable to the
Environmental Management Special Fund and shall be payable to IDEM in the
manner specified in Paragraph 5, above.
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.
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 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
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University
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Dave
Lawrence, Deputy Director |
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COUNSEL
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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 OF |
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2012. |
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For
the Commissioner |
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Signed
on November 20, 2012 |
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Keith
Baugues, Assistant Commissioner |
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Office
of Air Quality |
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Indiana
Department of Environmental Management |
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