STATE OF INDIANA    )            BEFORE THE INDIANA DEPARTMENT                     )    SS:    OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                                )
            Complainant,                )
                                )     CAUSE NO. A-3608
            v.                    )
                                )
THE HAMILTON FOUNDRY &                 )
MACHINE CO.                        )
                                )
            Respondent.                )

    The Commissioner and the Respondent, being desirous of settling and compromising this action without hearing or adjudication of any issue of fact or law, hereby consent to the entry of the following Findings of Fact and Order.

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

    2.    Complainant has jurisdiction over the Respondent and the subject matter of this action.

    3.    The Hamilton Foundry and Machine Co., (hereinafter referred to as "Respondent"), owns and operates a gray iron foundry referred to as the Decatur Casting Division. The Decatur Casting Division is located at 822 Dayton Avenue in Decatur, Indiana.

    4.    On November 8, 1995, Respondent submitted a permit application to IDEM's Office of Air Management for Decatur Casting Division. The application stated that the following equipment was installed and commenced operating during the indicated dates:

    6.    On November 8, 1995, Respondent submitted a permit application to IDEM's Office of Air Management for the equipment listed in paragraph four (4) above. Operation Permit, OP 001-5004, was issued on May 15, 1996.

    7.    Operation Condition 6(e) of Construction Permit CP 001-5004 requires that the Hunter Pouring and Cooling Line operate with specified air pollution control equipment to reduce emissions of particulate matter (PM). Upon review of the permit application it was determined that the Hunter Pouring and Cooling Line was operating without a baghouse, thereby violating Operation Condition 6(e).

    8.    Operation Condition 6(d) of Construction Permit CP 001-5004 requires that Dideon #1 Shakeout System operate with specified air pollution control equipment to reduce PM emissions. Upon review of the permit application it was determined that the Dideon #1 Shakeout System was operating without a baghouse, thereby violating Operation Condition 6(d).

    9.    Pursuant to IC 13-7-11-2(b), IDEM issued a Notice of Violation via Certified Mail dated August 23, 1996, to:

        Jason Powell                        Dennis M. Borda                     Manager                        Registered Agent for
        Environment, Health & Safety        Hamilton Foundry & Machine Co.
        Hamilton Foundry & Machine Co.        Decatur Casting Division
        200 Industrial Drive                    822 Dayton Avenue
        Harrison, OH 45030            Decatur, IN 46733

    11.    In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order and agrees not to contest the jurisdiction of Complainant to enter into this Order.

    WHEREFORE, based upon the Findings of Fact and upon the consent of the parties, it is hereby ORDERED that:

    1.    By May 1, 1998, Respondent shall install and operate baghouses E6 and E7 in order to control PM emissions. The baghouse E6 shall be in operation when any part of the sand system is in operation and baghouse E7 shall be in operation anytime when the Hunter Pouring and Cooling Line is in operation unless modified by a permit from IDEM's Office of Air Management or consent of the Commissioner.

    2.    Unless IDEM otherwise notifies Respondent in writing, all submittals required by this Agreed Order shall be sent to:

        Air Enforcement Section Chief
        Office of Enforcement
        Indiana Department of
        Environmental Management
        P.O. Box 6015
        Indianapolis, Indiana 46206-6015

    3.    Respondent is assessed a Civil Penalty of Eight Thousand Dollars ($8,000). Said Penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Order.

    4.    In the event the baghouses referred to in paragraph one (1) are not installed and operational by May 1, 1998, the Complainant may assess and the Respondent shall pay a stipulated penalty of One Thousand Dollars ($1,000) per day for each day for each baghouse that

is not installed and operational or for each baghouse that is not operating when the pouring and cooling line or sand system are operating respectively.

    Said stipulated penalty shall be due and payable within thirty (30) days after Respondent receives written notice from IDEM that a stipulated penalty is due. Assessment and payment of said stipulated penalty shall not preclude the Complainant from seeking any injunctive relief against the Respondent for violation of the Agreed Order.

    In addition to assessment of the stipulated penalty given above, the Complainant may seek other remedies or sanctions available by virtue of Respondent's violation of this Agreed Order, including, but not limited to, civil penalties pursuant to IC 13-30-4-1.

    5.    "Force Majeure" for purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent's best efforts to fulfill the obligation. The requirement that the Respondent exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include financial inability to complete the work required by this Agreed Order or increases in cost to perform the work.

    The Respondent shall notify IDEM by calling within three (3) calendar days and by writing no later than seven (7) calendar days after any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is force majeure. The decision of whether an event is a force majeure shall be made by IDEM. Said decision shall be communicated to the Respondent.

    If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is attributable to the event constituting the force majeure.

    6. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number and shall be mailed to:

        Cashier
        IDEM

    7.    In the event that the civil penalty required by paragraph three (3) is not paid within thirty (30) days of the Effective Date of this Agreed Order or the payment of the stipulated penalties assessed pursuant to paragraph four (4) are not made within thirty (30) days of Respondent's receipt of IDEM's demand, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall begin to accrue on the date the civil penalty or stipulated penalty is due until the full civil penalty is paid.

    8.    This Order shall apply to and be binding upon the Respondent, its officers, directors, successors, legal representatives and assigns. The Respondent's signatories to this 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 Order.

    9.    The Respondent shall provide a copy of this Order, if in force, to any subsequent owners or successors before ownership rights are transferred.

    10.    Respondent shall comply with all applicable laws and all rules of any board created by Title 13 of the Indiana Code.

    11.    This Order shall be valid and enforceable the date this Order is adopted by the Complainant or his delegatee. However, all time periods shall run from the date Respondent receives this Order (the "Effective Date"). This Agreed Order shall remain in effect until two years from the Effective Date of this Order.

TECHNICAL RECOMMENDATION:        RESPONDENT
Department of Environmental                Hamilton Foundry & Machine Co.
Management

By:                 By:
Air Section            
Office of Enforcement                    Printed:

                                Title:

COUNSEL FOR COMPLAINANT                COUNSEL FOR RESPONDENT
Department of Environmental
Management

By:                 By:
Office of Legal Counsel
                    Date:

Date:         

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

THIS DAY OF , 199 .

                                FOR THE COMMISSIONER

                                Signed on September 22, 1997
                                Patrick Carroll, Director
                                Office of Enforcement

Converted by Andrew Scriven