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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No.
2015-22958-S |
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ALCONEX SPECIALTY PRODUCTS INC, |
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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 Alconex Specialty Products Inc which
is located at 4204 W. Ferguson Road, in Fort Wayne, Allen 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 (“NOV”) on August 25, 2015, via Certified Mail to:
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C.
David McBane, President |
C. David McBane, Registered Agent |
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Alconex Specialty
Products Inc |
Alconex Specialty
Products Inc |
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4204 W.
Ferguson Road |
4204 W.
Ferguson Road |
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Fort
Wayne, IN 46809 |
Fort
Wayne, IN 46809 |
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Mark
Wilkins, Vice President |
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Alconex Specialty
Products Inc |
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4204 W.
Ferguson Road |
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Fort
Wayne, IN 46809 |
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5.
Respondent is a manufacturer of aluminum and
copper magnet wire and extrusions using the continuous extrusion process.
6.
During an investigation including inspections
conducted by a representative of IDEM on March 25, 2014; March 26, 2014; March
27, 2014; November 19, 2014; November 20, 2014; November 21, 2014; December 8,
2014; December 9, 2014; December 11, 2014; and January 7, 2015, the following
violations were found:
a. Pursuant to 327 Indiana Administrative Code
(“IAC”) 2-1-6(a)(1), all surface waters at all times and at all places,
including the mixing zone, shall meet the minimum conditions of being free from
substances, materials, floating debris, oil, or scum attributable to municipal,
industrial, agricultural, and other land use practices, or other discharges
that do any of the following:
1.
will settle to form putrescent or otherwise
objectionable deposits;
2.
are in amounts sufficient to be unsightly or
deleterious;
3.
produce color, visible oil sheen, odor, or
other conditions in such degree as to create a nuisance;
4.
are in concentrations or combinations that
will cause or contribute to the growth of aquatic plants or algae to such
degree as to create a nuisance, be unsightly, or otherwise impair the
designated uses; and
5.
are in amounts
sufficient to be acutely toxic to, or to otherwise severely injure or kill
aquatic life, other animals, plants, or humans.
As noted
during the inspections, Respondent spilled approximately 2,957 gallons of water
contaminated with lubricating oil into a storm drain leading to Bradbury Ditch. Material flowed through a rention pond on
Genova Products property located at 9501 Airport Drive, Fort Wayne,
Indiana. Material then flowed out of the
pond onto Brookwood Golf Club property and into Fairfield Ditch.
b. Pursuant to Indiana Code (“IC”)
13-18-4-5(a), a person may not throw, run, drain, or otherwise dispose into any
of the streams or waters of this state, or cause, permit, or suffer to be
thrown, run, drained, allowed to seep, or otherwise disposed into any waters,
any organic or inorganic matter that causes or contributes to a polluted
condition of any waters, as determined by 327 IAC 2-1-6(a)(1).
As noted
during the inspections, Respondent spilled approximately 2,957 gallons of water
contaminated with lubricating oil into a storm drain leading to Bradbury Ditch. Material flowed through a rention pond on
Genova Products property located at 9501 Airport Drive, Fort Wayne,
Indiana. Material then flowed out of the
pond onto Brookwood Golf Club property and into Fairfield Ditch.
7. 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 the statutes and
rules listed in the findings above.
3.
Within thirty (30) days of the Effective
Date, Respondent shall submit a best management practices plan that describes
processes for preventing and responding to any release from the facility.
4.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Janet Arnold, Technical
Environmental Specialist |
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Office of Land Quality |
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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 |
5.
Respondent is assessed
and agrees to pay a civil penalty of Twelve Thousand Five Hundred Dollars ($12,500). 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”.
6.
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 |
Penalty |
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Order Paragraph #3 |
$500 per week late |
7.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant
may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of stipulated penalty assessment shall not waive Complainant’s
right to collect such stipulated penalty or preclude Complainant from seeking
additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief
includes any remedies or sanctions available pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
8.
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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Office of Legal Counsel |
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IGCN, Room N1307 |
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100 North Senate Avenue |
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Indianapolis, IN 46204 |
9.
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 8, above.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental
Management |
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
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Printed: ______________________ |
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Office of
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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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
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DAY
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For the
Commissioner: |
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Signed
July 8, 2016 |
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Bruce H Palin |
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Assistant
Commissioner |
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Office of
Land Quality |
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