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STATE OF |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. DALTON CORPORATION, Respondent. |
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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, except a proceeding to enforce this order.
I. FINDINGS OF FACT
1.
Complainant
is the Commissioner (“Complainant”) of the Indiana Department of Environmental
Management, a department of the State of
2.
Respondent
is Dalton Corporation (“Respondent”), which owns and operates gray iron
foundries, including 1) the Warsaw Manufacturing Facility (“the Warsaw Site”),
located at 1900 East Jefferson Street in Warsaw, Kosciusko County, Indiana; and
2) the Kendallville Manufacturing Facility, (“the Kendallville Site”), located
at 200 West Ohio Street in Kendallville, Noble County, Indiana.
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 Notices of Violation via Certified Mail:
a.
on
March 6, 2002, in Case Nos. 2001-11054-A and 2001-11055-A, related to the
violations described in Paragraph Nos. 5(a)(i) and (ii) herein;
b. on
January 9, 2006, in Case No. 2003-13016-A, related to the violations described
in Paragraph Nos. 5(b) through 5(f) herein;
c. on
January 10, 2006, in Case No.2004-14166-A, related to the violation described
in Paragraph No. 5(g)(i) herein;
d. on
January 9, 2006, in Case No. 2005-14756-A, related to the violations described
in Paragraph No. 5(c) herein;
e. on
January 9, 2006, in Case No. 2005-14863-A, related to violations described in
Paragraph No. 5(i) herein; and
f. on
January 10, 2006, in Case No. 2005-14940-A, related to violations described in
Paragraph No. 5(j) herein, to:
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Mr. Joseph L. Derita, President |
Mr. Ron Schmucker, Registered
Agent |
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Dalton Corporation |
For Dalton Corporation |
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g. Respondent
waives issuance of a Notice of Violation and the settlement period of sixty
(60) days as provided for by IC 13-30-3-3 as related to the violations
described in Paragraph Nos. 5(a)(iii) and 5(g)(2) herein.
5.
Inspections
were conducted at one or both of the Sites on October, 11, 2000, January 9,
2001, October 31, 2001, October 16 2002, and on April 30, 2003, by an IDEM
representative. The following violations
were in existence or observed at the time of these inspections:
a.
Pursuant
to 326 IAC 6-4-2(4), no source shall allow fugitive dust to visibly cross the
boundary or property line of a source.
i. On
October 11, 2000, January 9, 2001, and October 24, 2001, Respondent allowed
fugitive emissions from the cupola charge door, the “B” scrubber, and the east
side of the roof, to cross property lines at ground level at its Kendallville
Site, violations of 326 IAC 6-4-2(4).
ii.
On
October 31, 2001, Respondent allowed fugitive emissions from the scrap yard and
smoke from the Herman II cooling stacks to cross property lines at ground level
at its Warsaw Site, violations of 326 IAC 6-4-2(4).
iii. On
October 16, 2002, Respondent allowed fugitive emissions from the scrap yard and
smoke from the Herman II cooling stacks to cross property lines at ground level
at its Warsaw Site, violations of 326 IAC 6-4-2(4).
b.
Pursuant
to the Part 70 Significant Source Modification No. 085-14027-00003, issued to
the Warsaw Site on February 22, 2002, as amended by administrative amendment
No. 085-15816-00003 on August 23, 2002, and as amended by administrative
amendment No. 085-18455-00003 on February 16, 2004 (“Permit”) condition No.
C.10, within ninety (90) days of the Permit issuance, Respondent shall prepare
a Compliance Response Plan (“CRP”) for each compliance monitoring condition of
the Permit.
Based on an inspection at the Warsaw
Site conducted on April 30, 2003, Respondent failed to prepare a CRP within
ninety (90) days of the Permit issuance, a violation of the Permit condition
No. C.10.
c.
Pursuant
to the Permit condition Nos. C.2, D.1.4, D.3.3, D.5.3, and D.6.3, within ninety
(90) days of the Permit issuance, Respondent shall prepare and maintain
Preventive Maintenance Plans (“PMP”) for each facility.
Respondent failed to prepare and
maintain PMP for each facility within ninety (90) days of the Permit issuance,
violations of the Permit condition Nos. C.2, D.1.4, D.3.3, D.5.3, and D.6.3.
d.
Pursuant
to the Permit condition Nos. D.3.9, D.3.12, D.5.8, D.5.11, and D.6.7,
Respondent shall maintain records of quarterly baghouse and wet scrubber
inspections at each applicable facility.
Respondent failed to maintain
records of quarterly baghouse and wet scrubber inspections at each applicable
facility for the time period between October, 2002, and April, 2003, violations
of the Permit condition Nos. D.3.9, D.3.12, D.5.8, D.5.11, and D.6.7.
e.
Pursuant
to the Permit condition No. D.5.7, Respondent shall conduct pressure drop
readings and take corrective actions, while operating scrubber D (#1) at less
than minimum flow rate.
Respondent failed to conduct
pressure drop readings and take corrective actions, while operating the
above-mentioned scrubber at less than minimum flow rate, a violation of Permit
condition No. D.5.7.
f.
Pursuant
to Permit condition Nos. D.5.10 and D.6.6, Respondent shall take corrective
actions if baghouses F, G, R, Y, H, K and X (now designated Nos. 1, 2, 9, 13,
3, 6, and 12 respectively) operate outside of the pressure drop range as set
out in Permit condition Nos. D.5.10 and D.6.6.
Respondent failed to take corrective
actions, while operating the above mentioned baghouses outside of the pressure
drop range, violations of condition Nos. D.5.10 and D.6.6.
g. 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 six-minute period.
i.
During
an inspection at the Kendallville Site on July 1, 2004, opacity of visible
emissions from this source’s return sand handling operations building was in
excess of 40% six-minute average in violation of 326 IAC 5-1-2(1)(A); and
ii.
During
a surveillance inspection at the Warsaw Site on March 17, 2006, opacity of
visible emissions from this source’s Herman II line stacks was in excess of 40%
six-minute average in violation of 326 IAC 5-1-2(1)(A).
h. Pursuant to condition No. D.5.7 of significant source
modification No. SSM 085-14027-0003, issued to the Warsaw Site on
February 22, 2002, as amended by administrative amendment number 085-15816-00003
on August 23, 2002, and as amended by administrative amendment No.
085-18455-00003 on February 16, 2004 Respondent shall: 1) record the total static pressure drop and flow rate
for scrubbers B, C, D, and E (now designated as #3, #2, #1, and #4 wet
collectors) at least once per shift, when associated processes are
in operation and when venting to the atmosphere; and 2) take response steps in accordance with the Compliance
Response Plan (“CRP”), when the static pressure drop is below the minimum of 8
inches of water and/or the flow rate is below the minimum of 200 gallons per
minute; or the values established during the latest stack test, respectively.
According to findings of an
inspection at the Warsaw Site on July 18, 2005, Respondent failed to:
i. record the static pressure drop for scrubbers B, C,
D, and E in its daily log recordings for shift C on July 11, 12, 13, 14, and
17, 2005, while operating the associated processes and venting into the
atmosphere at the Warsaw Site; and
ii. take response steps in accordance with the CRP during
shift C on July 11, 12, 13, 14, and 17; and during shift A on July 8 and 11,
2005, when the scrubbers’ flow rate dropped below 200 gallons per minute in
violation of permit condition No. D.5.7.
i. Pursuant to condition No. D.1.2(e) of significant
source modification No. SSM 085-18009-0003, issued on December 9, 2003,
particulate matter (“PM“) emissions from the Herman III shakeout and sand
handling process shall not exceed 0.034 pounds per ton (lb/ton) of metal and
sand throughput.
Average PM emissions measured during a stack test,
conducted at the Warsaw Site, at the Herman III shakeout and sand handling
process, on May 17, 2005, were 0.066 lb/ton, in violation of permit condition
D.1.2(e).
j. Stack
tests were conducted at the Warsaw Site on January 18 and 20, and on July 12
and 13, 2005.
i. Pursuant to permit No. 085-14027-00003 issued on
February 22, 2002, condition No. D.5.1(a), PM emissions from the Herman III
shakeout and sand handling process shall not exceed 0.034 lb/ton of metal and
sand throughput.
Average PM emissions measured during the January 2005
stack test were 0.048 lb/ton of metal and sand throughput in violation of
permit condition No. D.5.1(a).
ii. Pursuant to permit condition No. D.5.1(b), PM10
emissions from the Herman III shakeout and sand handling process shall not
exceed 0.058 lb/ton of metal and sand throughput.
Average PM10 emissions measured during the January
2005 stack test were 0.083 lb/ton of metal and sand throughput in violation of
permit condition No. D.5.1(b).
iii. Pursuant to permit condition No. D.5.1(c), VOC
emissions from the Herman III shakeout and sand handling process shall not
exceed 0.115 lb/ton of metal and sand throughput.
Average VOC emissions measured during the July 2005
stack test were 0.272 lb/ton of metal and sand throughput in violation of
permit condition No. D.5.1(c).
iv. Pursuant to permit condition No. D.4.1(e), VOC
emissions from the Herman III pouring process shall not exceed 0.163 lb/ton of
metal throughput.
Average VOC emissions measured during the July 2005
stack test were 1.09 lb/ton of metal throughput in violation of permit
condition No. D.4.1(e).
v. Pursuant to permit condition No. D.4.1(i), VOC
emissions from the Herman III cooling process shall not exceed 0.687 lb/ton of
metal throughput.
Average VOC emissions measured during the July 2005
stack test were 1.346 lb/ton of metal throughput in violation of permit
condition No. D.4.1(i).
6.
In
January 2000, Respondent purchased one replacement sweeper; repaired a water
truck; purchased a truck; and installed new application equipment on it at the
Warsaw Site.
7.
Respondent
did not begin operation of the new hot box core making line, which was the
subject of the Permit, and which would trigger the requirements described above
in Paragraph Nos. 5(b) through 5(f), until October 1, 2002.
8.
In
May 2002, Respondent engineered and installed two (2) new afterburners and
constructed a refractory brick mixing ring in the cupola at the Kendallville Site
to create better combustion of the off-gases and to prevent emissions at the
charge door.
9.
Respondent
installed a clean water advanced oxidation system at the Herman II sand
handling system at the Warsaw Site, and began operating and optimizing this system
in December 13, 2002.
10.
Respondent
constructed an extension for the Scrubber B exhaust stack at the Kendallville
Site.
11.
The
February 16, 2004, amendments to the permit, referred to in Paragraph No. 5(h)
above, changed pressure drop ranges of several of the baghouses and the water
flow rate of some of the scrubbers in order to more accurately reflect proper
operating ranges.
12.
Respondent
began repairing its sand handling facility building to prevent VE to being
emitted on July 2, 2005, as soon as it discovered opacity violations referred
to in Paragraph No. 5(j).
13.
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 perform sweeping of the Warsaw Site scrap yard at least once an operating
shift, whenever truck traffic is present or the cupola is operating, unless
there is at least one tenth of an inch (1/10”) of rain within the past
twenty-four (24) hours or one inch (1”) of snow on the ground; or unless the
ambient air temperature is below 32° Fahrenheit. Additionally, Respondent shall perform
watering of the Warsaw Site scrap yard at least once a day, whenever truck
traffic is present or the cupola is operating, from April through October,
unless there is at least one tenth of an inch (1/10”) of rain within the past
twenty-four (24) hours or one inch (1”) of snow on the ground; or unless the
ambient air temperature is below 32° Fahrenheit.
3.
Respondent
shall conduct visual observations of the Warsaw Site scrap yard at least once
per shift, every day during the daylight hours, whenever truck traffic is
present or the cupola is operating. The
visual observations shall be made at a time not less than two (2) hours after
either sweeping or watering has been performed.
Should any visible airborne dust be observed within ten (10) feet of the
fence line, generated by either wind, vehicular traffic, or any other
activities, Respondent shall perform additional sweeping or watering
immediately after the observation.
Compliance with this Paragraph and Paragraph No. 2 above does not
relieve Respondent from its duty to comply with the requirements of 326 IAC
6-4, nor reduce Respondent’s liabilities for any noncompliance with those
requirements.
4.
To
document compliance with Order Paragraph Nos. 2 and 3 above, Respondent shall
keep written records of the visual observations and results, and of the scrap
yard sweeping or watering events, and of the weather conditions prohibiting
sweeping of the paved areas and/or watering of the yard. The records shall include the date and time
of each observation or event. Respondent
shall keep the records at the Warsaw Site for at least five years and make them
available to IDEM’s representative upon request. Respondent shall notify IDEM’s current Office
of Air Quality inspector by phone and in writing of every event of deviation
from the requirements specified in Order Paragraph Nos. 2 and 3 above, and of
each observation of visible dust leaving the property at or near ground level,
by phone at (317) 233-8437 and in writing via fax at (317) 233-6865 within
twenty-four (24) hours of the event or observation or by the next business day.
5.
Respondent
shall eliminate visible emissions excursions from the B scrubber, lasting sixty
(60) or more seconds and traveling beyond the Kendallville Site’s property
boundaries at ground level in violation of 326 IAC 6-4. If such an excursion occurs, Respondent shall
immediately take all corrective actions necessary to return to compliance,
including but not limited to, production decrease or cessation.
6.
For
the Scrubbers B and C, Respondent shall acquire suitable equipment to monitor
scrubber water clarity, density, and conductivity within 120 days after the
Effective Date of this Agreed Order.
Within 180 days of the Effective Date of this Agreed Order, Respondent
shall conduct a compliance stack test at the B and C Scrubbers pursuant to 326
IAC 3-6. During the stack test,
Respondent shall conduct VE observations and at least three (3) runs of
simultaneous measurements of the scrubbers’ water clarity, density, and
conductivity. If Respondent passes the
compliance stack tests, and no VE cross the property line, the average values
of these runs shall become monitoring criteria for scrubber water clarity,
density, and conductivity for each scrubber respectively. Respondent may establish new monitoring
criteria for scrubber water parameters during any successful compliance stack
test conducted pursuant to 326 IAC 3-6 in the absence of VE. Respondent shall take the response actions
necessary should scrubber water clarity, density, or conductivity exceed by ten
percent (10%) or more the monitoring criteria in order to return those values
to the proper level.
Alternatively to monitoring and keeping record of the B and C scrubbers water
clarity, density, and conductivity, Respondent shall implement a periodic
maintenance program, including, but not limited to replacement of at least
twenty-five percent (25%) of circulated water with addition of the
corresponding amount of make-up water to the scrubbers’ clarifier during the
first week of every operating quarter; weekly addition of the flocculants in
quantities recommended by the scrubbers’ manufacturers and other relevant
activities.
7.
To
document compliance with Order Paragraph No. 5, Respondent shall once each
shift, when a mold line is in operation, conduct emissions observations of the
Kendallville Site B scrubber, and monitor and document its pressure drop, flow
rate, and either monitor water clarity, density, and conductivity; or
alternatively, of the scrubbers periodic maintenance activities as described in
Paragraph No. 6. Respondent shall record
the observations and results of the parametric monitoring along with any corrective
actions taken. The records shall include
the date and time of the observation and the fact that parametric monitoring
was performed. Respondent shall keep the
records at the Kendallville Site for at least five (5) years and make them
available to IDEM’s representative upon request.
8.
Respondent
shall notify IDEM’s current Office of Air Quality inspector by phone and in
writing of every event of deviation from the requirements specified in Order
Paragraph Nos. 5 and 7, and of each observation of visible dust lasting longer
than sixty (60) seconds and leaving the property boundary at or near ground
level from Scrubber B, by phone at (317) 233-8437 and in writing via fax at
(317) 233-6865 within twenty-four hours of the event or observation or by the
next business day.
9.
Should
the records and deviation reports, pursuant to Order Paragraph Nos. 6 and 7, or
IDEM’s inspections document visible emissions lasting longer than sixty (60)
seconds from the B scrubber traveling beyond the Kendallville Site’s property
boundaries at or near ground level three (3) times in the initial twelve (12)
months after the Effective Date of this
Agreed Order, Respondent shall install and operate a secondary control device
such as a cartridge filter, baghouse, or additional scrubber to significantly
reduce particulate matter emissions and opacity from the B scrubber within one
hundred eighty(180) days of IDEM’s notice that the secondary control device is
required. Alternatively, Respondent
shall replace the B scrubber with a new control device that achieves greater
control of particulate matter and opacity emissions and/or augment the existing
control system with advanced oxidation system on sand handling and shakeout
process of mold lines. Respondent shall
apply for a permit modification to replace/augment the B scrubber within sixty
(60) days of IDEM’s notice that secondary control is required, and shall
install the new control device within one hundred eighty (180) days of
receiving the permit modification. To
the extent that the terms of such permit conflict with the terms of this Agreed
Order pertaining to monitoring, records keeping, or maintenance requirements of
Scrubber B, the terms of the permit shall control. Nothing in this Order precludes IDEM from
conducting separate enforcement actions following a discovery of additional 326
IAC 6-4 violations at the B scrubber.
10.
Respondent
shall once each shift, when a mold line is in operation, conduct emissions
observations of the Kendallville Site C scrubber, and monitor and document its
pressure drop, flow rate, and either monitor and record the scrubber water
clarity, density, and conductivity; or alternatively monitor and record the
scrubber’s periodic maintenance activities as described in Order Paragraph No.
6. Respondent shall take appropriate response
actions should scrubber water clarity, density, and conductivity exceed the
monitoring criteria. Respondent shall
record the observations and results of the parametric monitoring along with any
corrective actions taken. The records
shall include the date and time the observation and parametric monitoring was
performed. Respondent shall keep the
records at the Kendallville Site for at least five (5) years and make them
available to IDEM’s representative upon request.
11.
Respondent
shall eliminate visible emissions from the cupola charge opening at the
Kendallville Site, lasting sixty (60) or more seconds, traveling beyond the
Kendallville Site’s property boundaries at ground level in violation of 326 IAC
6-4. If such visible emissions occur,
Respondent shall immediately take all necessary corrective actions, including,
but not limited to, production decrease or cessation.
12.
To
document compliance with Order Paragraph No. 11, Respondent shall once each
shift that the cupola is in operation, conduct visible emissions observations
from the Kendallville Site cupola charge opening, and monitor and document its
work practices, such as upper stack temperature, and maintenance practices,
such as afterburner and brick ring preventive maintenance. Respondent shall record the daily
observations along with the work practice information, and corrective action
taken. Respondent shall keep the records
at the Kendallville Site for at least five (5) years and make them available to
IDEM’s representative upon request.
Respondent shall notify IDEM’s current Office of Air Quality compliance
inspector by phone at (317) 233-8437 and in writing via fax at (317) 233-6865
about every observation of visible dust crossing the property boundary at or
near ground level from the cupola charge door within twenty-four (24) hours of
the observation or by the next business day.
13.
Respondent
shall eliminate visible emissions from the Herman II sand handling system,
including the mold cooling, pouring, and shakeout operations, lasting sixty
(60) or more seconds, traveling beyond the Warsaw Site’s property boundaries at
or near ground level pursuant to 326 IAC 6-4.
If such visible emissions occur, Respondent shall immediately take all
necessary corrective actions, including, but not limited to, production
decrease or cessation.
14.
To
document compliance with Order Paragraph No. 13, Respondent shall, once each
shift during daylight hours, conduct emissions observations at the Herman II
cooling stacks; and once each shift, when the Herman
II line is in operation, monitor operating parameters of the Sonoperoxone
system, including, but not limited to, hydrogen peroxide usage in gallons per
hour of muller operation, the ozone generator plasma voltage, and the
ultrasonic power in watts. Respondent
shall record the observations and results, and the parametric monitoring along
with any corrective actions taken. The
records shall include the date and time of the observation and the fact that
parametric monitoring was performed.
Respondent shall keep the records at the Warsaw Site for at least five
(5) years and make them available to IDEM’s representative upon request. Respondent shall notify IDEM’s current Office
of Air Quality compliance inspector by phone at (317) 233-8437 and in writing
via fax at (317) 233-6865 about every observation of visible emissions from the
Herman II sand handling system, including the mold cooling, pouring, and
shakeout operations, crossing the property boundary at ground level within
either twenty-four (24) hours after the observation or by the next business
day.
15.
Respondent shall comply with all applicable requirements of 326
IAC 2 when implementing any modification or change required in this Agreed
Order.
16.
Respondent shall comply with all monitoring, recordkeeping, and
reporting requirements set forth in the Part 70 Significant Source Modification
number 085-14027-00003, issued on February 22, 2002, as amended by
administrative amendment number 085-15816-00003 on August 23, 2002, and as
amended by permit amendment number 085-18455-00003 on February 16, 2004, until
such time, when a combined Part 70 operating permit issued by OAQ becomes valid
and effective. Upon the Effective Date
of this Part 70 permit, Respondent shall comply with the combined Part 70
operating permit.
17.
Within thirty (30) days of the Effective Date of this Agreed
Order, Respondent shall submit copies of the CRP and PMP for each operation
pursuant to the Part 70 Significant Source Modification number 085-14027-00003,
to the OAQ compliance inspector and to the Office of Enforcement.
18.
All
submittals required by this Agreed Order, unless otherwise specified, and
unless notified otherwise in writing, shall be sent to:
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Michael Stonik |
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Office of Enforcement |
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Indiana Department of Environmental Management |
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19.
Respondent
is assessed a civil penalty of Eighty-Four Thousand One Hundred Seventy-Five
Dollars ($84,175.00). Within thirty (30)
days after the Effective Date of the Agreed Order, Respondent shall pay a
portion of this penalty in the amount of Eight Thousand Four Hundred Eighteen
Dollars ($8,418.00). Said penalty amount shall be due and payable
to the Environmental Management Special Fund.
a.
In
lieu of payment of the remaining civil penalty, Respondent shall perform and
complete a Supplemental Environmental Project (“SEP”). Respondent estimates that this SEP will cost Eight Hundred Forty Six Thousand
Dollars ($846,000.00). Within thirty
(30) days after completing this SEP, Respondent shall submit written notice and
documentation to IDEM, which substantiates all actions taken and costs incurred
with respect to the SEP. In the event
that the cost of the SEP is less than One Hundred Fifty-One Thousand Five
Hundred Fourteen Dollars ($151,514.00), Respondent shall pay fifty percent (50%) of the difference between the minimum
acceptable expense as determined by offset ratio 2:1 ($151,514.00) and the
actual cost of the SEP.
b.
Respondent
shall use the remaining balance, if any, remaining after the SEP completion (as
specified in Order Paragraph No. 19(a)), to offset the appropriate portion of
the civil penalties in related Case Nos. 1998-3320-A and 2001-3321-A. The balance shall be calculated as a
difference between the final documented actual SEP cost and the minimum
acceptable expense of One Hundred Fifty-One Thousand Five Hundred Fourteen
Dollars ($151,514.00). The offset ratio
shall be 2:1.
20.
As
a SEP, Respondent shall purchase, install, operate, and optimize a blackwater
advanced oxidation system (Sonoperoxone® or equivalent system) on its Herman II
mold line at its Warsaw Site as described in Appendix A attached to this Agreed
Order. Respondent shall have the project
completed not later than one (1) year after the Effective Date of this Agreed
Order. Implementation of this SEP will
result in an estimated seventeen percent (17%) reduction in the current amount
of VOC emissions from the Herman II mold line.
21.
In
the event that the Respondent does not complete the SEP within one (1) year
after the Effective Date of this Agreed order, the full amount of the civil
penalty as stated in Order Paragraph No. 19 above, plus interest established by
IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty
Respondent has already paid, will be due within fifteen (15) days from
Respondent's receipt of IDEM’s notice to pay.
Interest, at the rate established by IC 24-4.6-1-101, shall be
calculated on the amount due from the date which is thirty (30) days after the
Effective Date of this Agreed Order until the full civil penalty is paid.
22.
In
the event the terms and conditions of the following paragraphs are violated,
the Complainant may assess and the Respondent shall pay a stipulated penalty in
the following amount:
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Violation |
Penalty |
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Failure to comply with Order |
Five Hundred Dollars ($500) |
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Paragraph No. 2 of this |
per each complete or incomplete |
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Agreed Order |
week of violation. |
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Failure to comply with Order |
Five Hundred Dollars ($500) |
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Paragraph No. 3 of this |
per each complete or incomplete |
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Agreed Order |
week of violation |
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Failure to comply with Order |
Five Hundred Dollars ($500) |
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Paragraph No. 4 of this |
per each complete or incomplete |
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Agreed Order |
week of violation |
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Failure to comply with Order |
Five Hundred Dollars ($500) |
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Paragraph No. 7 of this |
per each complete or incomplete |
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Agreed Order |
week of violation |
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|
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Failure to comply with Order |
Five Hundred Dollars ($500) |
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Paragraph No. 12 of this |
per each complete or incomplete |
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Agreed Order |
week of violation |
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Failure to comply with Order |
Five Hundred Dollars ($500) |
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Paragraph No. 14 of this |
per each complete or incomplete |
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Agreed Order |
week of violation |
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Failure to comply with Order |
Five Hundred Dollars ($500) |
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Paragraph No. 17 of this |
per each complete or incomplete |
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Agreed Order |
week of violation |
23.
Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
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 any of the stipulated
penalties 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.
24.
Civil
and stipulated 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:
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Indiana Department of
Environmental Management |
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Cashier’s Office |
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25.
In
the event that the civil penalty required by Order Paragraph No. 20 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.
26.
“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 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 (3) calendar days and by writing no later than seven (7) 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 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.
27.
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.
28.
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.
29.
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.
30.
Respondent
shall submit to OAQ Part 70 Significant Source Modification (“SSM”)
applications to incorporate certain Order Paragraphs of this Agreed Order as
follows below, into Part 70 operating permits issued, respectively, to:
a.
i.
Order
Paragraphs Nos. 2 through 4 setting requirements for the scrap yard; and
ii. Order
Paragraphs Nos. 13 and 14 setting requirements for Herman II line.
b.
Kendallville
Site:
i.
Order
Paragraphs Nos. 5 through 8 and 10 setting requirements for Scrubbers B and C;
and
ii. Order
Paragraphs Nos. 11 and 12 setting requirements for cupola charge door.
31.
Except
for Order Paragraph No. 19(b), this Agreed Order shall remain in effect for a
period of five (5) years after the Effective Date of the Agreed Order, or until
Respondent has complied with all terms and conditions of this Agreed Order,
whichever is longer. Order Paragraph No.
19(b) of this Agreed Order shall remain in effect until the expiration date of
the final settlement reached in C ase Nos. 1998-3320-A and 2001-3321-A.
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
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Signed on May 25, 2006 |
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Matthew T. Klein |
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Appendix A