STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

vs. ) Case No. 2000-9035-A

) 2000-9695-A

) 2001-10399-A

)

LEHIGH CEMENT CO., )

)

Respondent. )

AGREED ORDER

The Complainant and the 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.

I. FINDINGS OF FACT

1. Complainant is the Commissioner ("Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Lehigh Cement Co. (formerly Lehigh Portland Cement Co.) ("Respondent"), which operates the Portland cement facility located at 121 North First Street, in Mitchell, Lawrence Co., Indiana ("Site").

3. The Indiana Department of Environmental Management ("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 via Certified Mail to:

Richard D. Kline, President CT Corporation System, Registered Agent

Lehigh Portland Cement Co. One North Capitol

7660 Imperial Way Indianapolis, IN 46204

Allentown, PA 18195

• A records review, on February 22, 2000, June 12, 2000, September 7, 2000, March 10, 2001 and June 26, 2001 was conducted regarding the Site by a representative of IDEM's Office of Air Quality (OAQ). The following violations were in existence or observed at the time of these reviews:



• Pursuant to 326 IAC 5-1-2(1)(A), visible emissions from a source or facility located in an attainment area for particulate matter shall not exceed an average of forty percent (40%) opacity in any one (1) six (6) minute averaging period. The Fourth Quarter 1999 Excess Emissions Report indicates Respondent's opacity was in excess of 40% for 94.7 hours or 4.31% of 2204 hours of operation for Kiln #1/2. This is a violation of 326 IAC 5-1-2(1)(A).

b. The First Quarter 2000 Excess Emissions Report indicates Respondent's opacity was in excess of 40% for 91.4 hours or 4.89% of 1870 hours of operation for Kiln #1/2. This is a violation of 326 IAC 5-1-2(1)(A).

c. The Second Quarter 2000 Excess Emissions Report indicates Respondent's opacity was in excess of 40% for 79.5 hours or 3.74% of 2128 hours of operation for Kiln #1/2. This is a violation of 326 IAC 5-1-2(1)(A).

d. The First Quarter 2001 Excess Emissions Report indicates the Respondent's continuous opacity monitor for Kiln #1/2 was not operational for 70.9 hours or 3.28% of 2159 hours of operation. This is a violation of 326 IAC 3-5-1(c)(5).

• The First Quarter 2001 Excess Emissions Report also indicates Respondent's opacity was in excess of 40% for 109.4 hours or 5.07% of 2159 hours of operation for Kiln #1/2. This is a violation of 326 IAC 5-1-2(1)(A).

6. 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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with 326 IAC 5-1-2.

3. Documentation of all submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Lynne Sullivan, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

4. Respondent is assessed a civil penalty of Fifty Three Thousand Nine Hundred Dollars ($53,900). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

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:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

6. In the event that the civil penalty required by Order paragraph 4, is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

7. This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

8. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

9. The 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 shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management LEHIGH CEMENT CO.

By: _________________________ By: _________________________

David P. McIver

Chief, Air Section Printed: ______________________

Office of Enforcement

Title: ________________________

Date: ________________________ Date: ________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Office of Legal Counsel

Department of Environmental Management

Date: _______________________ Date: ______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 20__.

For the Commissioner:

Signed 4/24/02

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs