STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2001-10344-A
)
FOAMEX, LP, )
)
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 (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is Foamex, LP (ARespondent@), located at 3005 Commercial Road, in Fort Wayne, Allen County, Indiana (ASite@).
3. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.
4. Pursuant to IC 13-30-3-3, on February 14, 2002, IDEM issued a Notice of Violation via Certified Mail to:
'21' Foam Company, Inc. FMXI, Inc.
General Partner General Partner
375 Park Avenue, 11th Floor 375 Park Avenue, 11th Floor
New York, New York 10152 New York, New York 10152
Prentice-Hall Corporation System
Registered Agent
251 East Ohio Street, Suite 500
Indianapolis, Indiana 46204
5. A records review, on August 31, 2000, was conducted by a representative of IDEM=s Office of Air Quality (OAQ). The following violation was in existence or observed at the time of this records review:
a. Pursuant to Operation Permit No. T003-7680-00225 ("Permit"), Section B.11 (Annual Compliance Certification) the permittee shall annually submit a compliance certification report to the Commissioner by July 1 of the following year. This facility/source failed to submit an Annual Compliance Certification for 1999 by July 1, 2000, a violation of Section B.11 of the Permit.
6. The Respondent submitted the Annual Compliance Certification for 1999 on March 28, 2001.
7. 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 is assessed a civil penalty of Three Thousand and Four Hundred Dollars ($3,400). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.
3. 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
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
4. In the event that the civil penalty required by Order paragraph 2, 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.
5. 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.
6. 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.
7. 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.
8. 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
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: ________________________
Jay Rodia
Office of Legal Counsel
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2002.
For the Commissioner:
Signed June 7, 2002
___________________________
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs