STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. C & D
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 Indiana created by Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is C&D Technologies, Inc.
(“Respondent”), which owns/operates the facility with Plant ID No. 045-00008,
located at 200 West Main Street in Attica, Fountain 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”) via Certified Mail to:
Christina Rheault, CEO and Registered Agent |
C&D Technologies,
Inc. |
1400 Union
Meeting Road |
PO Box
3053 |
Blue Bell,
PA 19422-0858 |
5.
Respondent owns and operates a lead battery
manufacturing plant with Plant I.D. No. 045-00008 located at 200 West Main
Street in Attica, Fountain County, Indiana (the “Site”).
6.
During a stack test investigation conducted
by a representative of IDEM, the following violations were found:
a. Pursuant to 40 CFR 60, Subpart KK and
Condition D.1.2 of Federally Enforceable State Operating Permit 045-34583-00008
(“Permit”), emissions of lead shall not exceed
0.000437 grains per dry standard cubic foot (gr/dscf) of exhaust.
Respondent exceeded this limit during
stack testing conducted on March 9, 2015, with a recorded lead (Pb) stack
emission rate for EU 0300E (stack 230) of 0.000767gr/dscf, in violation of 40
CFR Subpart KK and Condition D.1.2 of the Permit.
b. Pursuant to Condition C.17 of
Respondent’s Permit, a retest to demonstrate compliance of a failed stack test
shall be performed no later than one hundred eighty (180) days after the date
of the failed test.
Respondent failed to retest within one hundred eighty (180) days; the retest of
stack 230 was performed on February 16, 2016, 344 days after failed test, in
violation of Condition C.17 of the Permit.
7.
The results of Respondent’s retest on
February 16, 2016, demonstrated compliance with 40 CFR 60, Subpart KK and
section D.1.2 of the Permit.
8.
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 60,
Subpart KK, and conditions of Respondent’s current FESOP 045-34583-00008,
including conditions D.1.2 and C.17 of the Permit.
3.
Within One hundred twenty (120) days of the
Effective Date of this Agreed Order, Respondent shall conduct performance stack
testing pursuant to 326 IAC 3-6 to verify that lead emissions from stack 230
are complying with condition D.1.2 of the Permit and 40 CFR 60, Subpart KK.
4.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Erin
Bassett, 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 |
5.
Respondent is assessed and agrees to pay a
civil penalty of Fourteen Thousand dollars ($14,000.00). 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”.
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:
Paragraph |
Violation |
Stipulated Penalty |
Three (3) |
Failed to
test stack 230 within 120 days of the effective date of this Agreed Order. |
Two
Hundred and Fifty dollars ($250.00) per week. |
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 a 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:
IDEM
Office of Legal Counsel |
IGCN,
Rm N1307 |
100
N Senate Ave |
Indianapolis,
IN 46204 |
9.
This Agreed Order shall apply to and be
binding upon Respondent and its successors and assigns. Respondent’s signatory to this Agreed Order
certifies that it is fully authorized to execute this Agreed Order and legally
bind the party it represents. No change
in ownership, corporate, or partnership status of Respondent shall in any way
alter its status or responsibilities under this Agreed Order.
10.
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.
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 permit 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 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.
TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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C&D
Technologies, Inc. |
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By: |
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Janusz Johnson, Chief |
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Printed: |
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Compliance
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Office
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COUNSEL
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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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2016. |
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For
the Commissioner |
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Signed
on December 27, 2016 |
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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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