STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

LEHIGH CEMENT COMPANY LLC,

Respondent.

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Case No. 2017-24769-A, 2018-
Case Nos. 25283-A, and 2018-25467-A

 

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 Indiana Code (“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 Lehigh Cement Company LLC (“Respondent”), which owns and operates the Portland cement manufacturing plant with Plant I.D. No. 019-00008 located at 301 Highway 31 in Speed, Clark County, Indiana (the “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:

Jonathan Morrish, President

Corporation Service Company,

Lehigh Cement Company LLC

Registered Agent

300 E. John Carpenter Freeway

135 N. Pennsylvania St, Suite 1610

Irving, Texas  75062

Indianapolis, IN  46204

 

5.             During an investigation conducted by representatives of IDEM, the following violations were found:

 

Based on the Enforcement Action Letter issued to Respondent on October 2, 2017, case number 2017-24769-A contains the following violations:

 

a.       Pursuant to 326 IAC 2-7-10.5, an owner or operator of a Part 70 source proposing to construct new emission units, modify existing emission units, or otherwise modify the source shall submit a request for a modification approval.

Pursuant to 326 IAC 2-7-3, no Part 70 source may operate after the time that is required to submit a timely and complete application.

Respondent constructed and operated two crushing units from July 6, 2017 through November 30, 2017 without proper permitting, in violation of 326 IAC 2-7-10.5 and 326 IAC 2-7-3.

b.       Pursuant to 40 CFR 63.1348(a)(5), if a source is subject to limitations on mercury emissions, it must demonstrate initial compliance with the mercury standards.  It must demonstrate compliance by operating a mercury CEMS or a sorbent trap based CEMS.  Compliance with the mercury emissions standards must be determined based on the first thirty operating days it operates a mercury CEMS or sorbent trap monitoring system after the compliance date of this rule.

Respondent failed to utilize the first thirty operating days to demonstrate initial compliance with the mercury standard, in violation of 40 CFR 63.1348(a)(5).

c.        Pursuant to 40 CFR 63.1343(b), the emission limit for existing kilns for mercury is 55 pounds/ MM tons of clinker on a 30-day rolling average.

Respondent exceeded the 55 pounds/ MM tons of clinker mercury emission limit from June 22, 2017 through June 26, 2017 during the initial thirty day operating period, in violation of 40 CFR 63.1343(b).

d.       Pursuant to 40 CFR 63.1346(a), the owner or operator of a kiln subject to a D/F emissions limitation must operate the kiln such that the temperature of the gas inlet to the kiln PM control device (“PMCD”) and alkali bypass PMCD, if applicable, does not exceed the applicable temperature limit determined by a performance test.

Respondent reported exceeding kiln baghouse inlet temperature for various periods from the second quarter 2016 through the second quarter 2017, in violation of 40 CFR 63.1346(a).

e.       Pursuant to 40 CFR 63.1343(c), the owner or operator of an open clinker storage pile must prepare, and operate in accordance with, the fugitive dust emissions control measures, described in their operation and maintenance plan.  The operation and maintenance plan must also describe the measures that will be used to minimize fugitive dust emissions from piles of clinker, such as accidental spillage, that are not part of open clinker storage piles. Temporary piles of clinker that result from accidental spillage or clinker storage cleaning operations must be cleaned up within three days.

Respondent reported that it identified an insufficient management system to control fugitive dust emissions from temporary open clinker piles.  The report indicated this occurred during the second and third quarter of 2015, in violation of 40 CFR 63.1343(c).

Based on the Enforcement Action Letter issued to Respondent on April 17, 2018, case number 2018-25283-A contains the following violation:

 

f.        Pursuant to 40 CFR 63.1343, Table 1 as referenced in Part 70 Permit No. 019-38903-00008 (“permit”), issued to Respondent on October 17, 2017, condition F.2.2, the emission limit for an existing kiln is 0.07 pounds of Particulate Matter (“PM”)/ton of clinker.

Respondent conducted stack testing of Kiln 1 on January 30, 2018 demonstrating emissions of 0.23 pounds PM/ton of clinker, in violation of 40 CFR 63.1343, Table 1, and permit condition F.2.2.

 

Based on the Enforcement Action Letter issued to Respondent on July 9, 2018, case number 2018-25467-A contains the following violations:

 

g.      Pursuant to Part 70 Permit No. 019-35842-00008, issued to Respondent on September 2, 2015, condition D.3.16(a), continuous opacity monitoring systems (“COMS”) for kiln #1 (EU20), kiln #2 (EU27), clinker cooler #1 (EU22) and clinker cooler #2 (EU 29) shall be installed, calibrated, maintained and operated for measuring opacity, which meet all applicable performance specifications of 326 IAC 3-5-2.

Respondent reported in the fourth quarter 2016 there were 42.7 hours out of 1174.6 operating hours of monitoring downtime of the COMS for clinker cooler #1, in violation of Part 70 Permit No. 019-35842-00008 condition D.3.16(a).

 

h.      Pursuant to Part 70 Permit No. 019-35535-00008, issued to Respondent on January 27, 2017, condition D.3.17(a), continuous opacity monitoring systems (“COMS”) for kiln #1 (EU20), kiln #2 (EU27), clinker cooler #1 (EU22) and clinker cooler #2 (EU 29) shall be installed, calibrated, maintained and operated for measuring opacity, which meet all applicable performance specifications of 326 IAC 3-5-2.

Respondent reported in the second quarter 2017 there were 540.8 hours out of 1394.5 operating hours of monitoring downtime of the COMS for clinker cooler #1, in violation of Part 70 Permit No. 019-35535-00008 condition D.3.17(a).

 

Based on the Enforcement Action Letter issued to Respondent on April 1, 2019, case number 2019-26065-A contains the following violation:

 

i.             Pursuant to 40 CFR 63.1343(b), the emission limit for existing kilns for mercury is 55 pounds/MM tons of clinker on a 30-day rolling average.

Respondent exceeded the mercury emission 30-day rolling average for thirty consecutive 30-day averaging periods, the first 30-day averaging period ended December 17, 2018, and the thirtieth 30-day period ended, January 15, 2019, in violation of 40 CFR 63.1343(b).

 

6.             Respondent ceased operating the unpermitted crushers in August 2017 and contracted crushing needs with permitted source in December 2017.

 

7.             Respondent has demonstrated compliance with the 55 pound of mercury per million tons of clinker.

 

8.             Respondent is managing temporary open clinker piles pursuant to 40 CFR 63.1343(c).

9.             Respondent conducted a re-test of the Kiln 1 on June 26, 2018 and demonstrated compliance with the limit in 40 CFR 63.1343, Table 1, and permit condition F.2.2.

 

10.          Respondent installed a newer COMS system on its clinker cooler #1 in May 2018.

 

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 Part 70 permit 019-38903-00008, unless superseded by a modification or renewal.

 

3.             All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Matthew Chaifetz, 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 Ninety-Three Thousand Six Hundred Eighty-Seven Dollars and Fifty Cents ($93,687.50).  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

Accounts Receivable

IGCN, Rm  N1340

100 N Senate Ave

Indianapolis, IN  46204

 

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 has issued a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Lehigh Cement Company LLC

 

 

 

By:

 

 

By:

 

 

David P. McIver, Chief

 

Printed:

 

 

Enforcement Section

 

Title:

 

 

Office of Air Quality

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2020.

 

 

For the Commissioner:

 

 

 

Signed on February 3, 2020

 

Matthew Stuckey Deputy Assistant

 

Commissioner

 

Office of Air Quality