STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT OF
) SS: ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CAUSE NO. 2001-10169-W
v. )
FLEX-N-GATE CORPORATION, D/B/A )
MASTER GUARD CORPORATION )
)
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.
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 IC 13-13-1-1.
(Master Guard Corporation II only), Total Chromium, Cadmium, Copper, Nickel, Lead, Zinc, Silver, Total Cyanide, pH, and Total Toxic Organics. The Permit for Master Guard Corporation I, INP 000102, became effective on January 1, 2001 and will expire March 31, 2005. The Permit for Master Guard Corporation II, INP 000188, became effective on January 1, 1998 and expired November 30, 2002.
4. IDEM has jurisdiction over the parties and subject matter of this action.
5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation, on March 9, 2001, via Certified Mail to:
Mr. William F. Goldstein, Vice-President Business Services/Legal
Flex-N-Gate Corporation, d/b/a
Master Guard Corporation in Indiana
7 Lincoln Square/ Box 487
Urbana, IL 61803-0487
6. Pursuant to 327 IAC 5-2-8(1) and Part II. of the Permits, the Respondent is required to
comply with all terms and conditions of the Permits. Any permit noncompliance constitutes violation of the Clean Water Act and IC 13 and is grounds for enforcement action.
The Respondent failed to meet the effluent limitations established in the Permit for Corporation I for: pH in the month of June, 1999; Nickel in the months of December, 1999 and October, 2000; Zinc in the months of December, 1999 and October, 2000. Respondent failed to meet the permit limits established in the Permit for Corporation II for: Oil & Grease in the months of January and December 1999; Nickel in the month of December, 1999; Total Chromium in the months of December, 1999 and March, 2000.
The Respondent asserts that, with respect to the allegations of interference set forth above, it satisfies the conditions of 327 IAC 5-18-3 (Effective on and after November 10, 2000) and 327 IAC 5-12-2(a)(2) (Effective prior to November 10, 2000) and therefore contends that it has an affirmative defense for such alleged violations.
8. On May 21, 2003, the Town of Veedersburg requested that IDEM modify its NPDES Permit to remove land application as a selected method of sludge disposal. On June 27, 2003, IDEM issued an NPDES Permit modification to the Town of Veedersburg, deleting land application as a selected method of sludge disposal.
9. 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.
10. 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. Within 60 days of the Effective Date of this Agreed Order, Respondent shall
develop and submit to IDEM, for approval, a Compliance Plan (CP) that identifies the actions that the Respondent will take to achieve and maintain compliance with the numeric effluent limitations contained in its IWP Permits for pH, Nickel, Zinc, Oil & Grease, and Total Chromium. The CP shall include an implementation and completion schedule, including specific milestone dates.
3. The CP is subject to the approval of IDEM. If the plan is deemed inadequate by IDEM, a revised CP shall be submitted within 15 days of receipt of notice from IDEM of the inadequacies thereof. If after the submission of the revised document(s) IDEM still finds the document(s) are inadequate, then IDEM may require further modification of the CP as necessary to meet IDEM's requirements. If further modification does not meet IDEM's approval, IDEM will suggest appropriate modification to be undertaken by Respondent within a specified time frame. If such modification is not timely undertaken or an alternative plan timely submitted by Respondent is not approved by IDEM, the Respondent will be liable for stipulated penalties.
The approved CP plan shall be incorporated into the Agreed Order and shall be
deemed an enforceable part thereof. The Respondent, upon written notification by IDEM, shall immediately implement the approved CP, and complete the actions contained in the approved CP in accordance with the schedule included in the approved CP. Upon completion of each action contained in the approved CP, the Respondent shall submit notification of completion of the action to IDEM. The notification shall include a description of the action completed, and the date it was completed.
months of the completion date (the APerformance Period"), demonstrate six consecutive months of compliance (ACompliance Demonstration) with the effluent limitations contained in its IWP Permits.
During the Performance Period, the Respondent shall be subject to stipulated
penalties, as specified in Paragraph 8 below, for violations of the effluent limitations contained in its IWP Permits. In the event that the Respondent fails to make the Compliance Demonstration, the Respondent shall, within 60 days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for its approval, a plan (Aaction plan@) that identifies the corrective actions that the Respondent will take to achieve and maintain compliance with the effluent limitations contained in its IWP Permits. The action plan, if required, shall include an implementation and completion schedule, including specific milestone dates.
inadequate by IDEM, a revised action plan shall be submitted within 15 days of receipt of notice from IDEM of the inadequacies thereof. If after the submission of the revised document(s) IDEM still finds the document(s) are inadequate, then IDEM may require further modification of the action plan as necessary to meet IDEM's requirements. If further modification does not meet IDEM's approval, IDEM will suggest appropriate modification to be undertaken by Respondent within a specified time frame. If such modification is not timely undertaken or an alternative action plan timely submitted by Respondent is not approved by IDEM, the Respondent will be liable for stipulated penalties.
The approved action plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon written notification by IDEM, shall immediately implement the approved action plan, and complete the actions contained in the approved action plan in accordance with the schedule included in the approved action plan. Upon completion of each action contained in the approved action plan, the Respondent shall submit notification of completion of the action to IDEM. The notification shall include a description of the action completed, and the date it was completed.
sent to :
Dave Knox, case manager
Water Enforcement Section
Office of Enforcement
Indiana Department of Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015
7. Respondent is assessed a Civil Penalty of Forty-Eight Thousand Dollars ($48,000).Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date.
8. In the event the following terms and conditions are violated, the Complainant may assess
and the Respondent shall pay a stipulated penalty in the following amounts:
Paragraph Violation Penalty
|
Order Paragraph 2 |
Failure to develop and submit the CP within the timeframe required |
$500 per week late |
|
Order Paragraphs 3
|
Failure to respond within the time required to any notice of deficiency, or failure to comply with any milestone date set forth in the approved CP |
$500 per week late |
|
Order Paragraph 4 |
Failure to comply with effluent limitations contained in IWP Permits during Performance Period |
$1000 per violation |
|
Order Paragraph 4 |
Failure to submit the action plan within the timeframe required |
$500 per week late |
|
Order Paragraph 5 |
Failure to respond within the time required to any notice of deficiency, or failure to comply with any milestone date set forth in the approved action plan |
$500 per week late |
receives written notice that the Complainant has determined a stipulated penalty is due.
Assessment and payment of stipulated penalties shall not preclude the Complainant from
seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of assessment of the stipulated penalty given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
10. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:
Cashier
IDEM
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060.
11. In the event that the civil penalty required by paragraph 7 is not paid within 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.
12. "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite the 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 changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.
The Respondent shall notify IDEM by calling the case manager within three calendar days and by writing no later than seven calendar days after it has knowledge of 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 its claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude the Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM.
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 directly attributable to the event constituting the force majeure.
13. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The 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
an existing Permit, nor shall it in any way relieve Respondent of its obligation to comply with the requirements of its applicable IWP Permits or with any other applicable federal or state law or regulation.
manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, its IWP Permits, or state law.
16. 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 the Agreed Order did not contain the invalid terms.
17. 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 by contract require that all contractors, firms, and other persons acting for it comply with the terms of this Agreed Order.
18. This Agreed Order shall remain in effect until Respondent has complied with paragraphs 2 through 11 of this Agreed Order and IDEM issues a Resolution of Cause letter.
Remainder of Page Left Blank Intentionally
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: _________________________ By: _________________________
Mark Stanifer, Section Chief Scott Quartier, Vice-President
Office of Enforcement Quality & Environmental
Flex-N-Gate Corp. d/b/a
Master Guard Corp. in Indiana
Date: _______________ Date: _______________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT
:Department of Environmental Management
By: _________________________ By: _______________________
Hala Silvey, S. Andrew Bowman,
Office of Legal Counsel Bingham McHale L.L.P.
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________________ DAY OF ____________________, 2003.
FOR THE COMMISSIONER:
_Signed 10/30/03___
Felicia A. Robinson
Deputy Commissioner for Legal Affairs