STATE
OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. ESSROC CEMENT CORPORATION, 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 Essroc Cement Corporation (“Respondent”), which owns
and operates the source with Plant ID No. 017-00005, located at 3084 West
County Road 225 South, in Logansport, Cass County, Indiana (“Respondent”).
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”) via Certified Mail
to:
Francesco
Carantani, President Essroc Cement Corporation |
National
Registered Agents, Inc., Registered Agent |
3251
Bath Pike |
150
West Market Street, Suite 800 |
Nazareth,
PA 18064 |
Indianapolis,
IN 46204 |
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5.
Respondent
owns and operates a stationary Portland cement manufacturing plant.
6.
During
an investigation conducted by a representative of IDEM, the following violation
was found:
a. Pursuant to
40 CFR 63, Subpart EEE, Appendix, Section 5.4 and Permit T017-26351-00005,
Administrative Amendment 017-32431-00005 Condition E.4.2, if the relative
accuracy (RA) from the RATA or the calibration error (CE) from the Annual
Calibration Audit (ACA) exceeds the criteria in the applicable Performance
Specifications (PS), hazardous waste burning must cease immediately. Hazardous waste burning cannot resume until
the owner or operator takes corrective measures and audits the CEMS with a RATA
to document that the analyzer is operating within the specifications.
Respondent continued to burn hazardous waste after conducting the invalid test,
in violation of 40
CFR 63, Subpart EEE, Appendix, Section 5.4 and Permit T017-26351-00005,
Administrative Amendment 017-32431-00005 Condition E.4.2.
7.
Respondent
timely conducted the ACA pursuant to PS 8A. Improper
cylinder gases were used during the ACA.
Test gases were balanced in air when the Respondent’s analyzer was
calibrated with gases balanced in nitrogen.
The test results were invalid because improper gases were used to
conduct the ACA.
8.
Respondent
was informed by the contracted testing company that the conducted test was
successful. Respondent was issued a report
stating it had passed. Respondent
reasonably understood that it had passed the ACA. Respondent had no knowledge of any issues
with the ACA until it inquired into the mailed report stating it had passed.
9.
Respondent
took prompt action to ensure compliance once aware of a problem with the
ACA. The analyzer was evaluated by a
third party that issued a Proof of Performance.
Each valid test conducted on the analyzer demonstrated it performed in
compliance.
10.
Respondent
conducted subsequent PS 8A testing using the proper cylinder gases on August 8,
2013, with acceptable results.
11.
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 EEE, Appendix, Section 5.4 and Permit
T017-26351-00005, Administrative Amendment 017-32431-00005 Condition E.4.2.
3.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Marty
Yeates, Compliance and Enforcement Manager |
Compliance
and Enforcement Branch – Mail Code 61-53 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
4.
Respondent
is assessed and agrees to pay a civil penalty of Six Thousand Five Hundred
Sixty-Three Dollars ($6563.00). Said penalty amount shall be due and
payable to the Environmental Management Special Fund within thirty (30) days of
the Effective Date; the 30th day being the “Due Date”.
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 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 4, 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 IDEM issues a Resolution of Case letter
to Respondent.
TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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Essroc
Cement Corporation |
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By: |
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By: |
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Craig
L. Henry, Chief |
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Printed: |
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Compliance
and Enforcement Section 3 |
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Title: |
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Office
of Air Quality |
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COUNSEL
FOR IDEM: |
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COUNSEL
FOR RESPONDENT: |
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By: |
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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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2014. |
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For
the Commissioner |
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Signed
on September 15, 2014 |
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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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