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. 2003-12667-H

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† )

ESSROC CEMENT CORP.,†††††††††††††††††††††††††††††††††††††† )

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† )

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, 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 Indiana created by IC 13-13-1-1.

2. Respondent is Essroc Cement Corp. ("Respondent"), which operates the facility with U.S. EPA ID No. IND 005081542, located at 3084 West County Road 225 South, in Logansport, Cass County, 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 on April 29, 2003, via Certified Mail, for a violation observed by IDEM on August 28, 2002, to:

Robert Rayner, President

C T Corporation System, Registered Agent for

Essroc Cement Corp.

Essroc Cement Corp.

3251 Bath Pike

One North Capital Ave., Suite 700

Nazareth, PA. 18064

Indianapolis, IN 46204

Respondent waives issuance of a Notice of Violation and to the settlement period of 60 days, as provided for by IC 13-30-3-3, for a violation observed by IDEM on June 12, 2003.

5. Respondent notified the U.S. EPA of hazardous waste storage activities on June 16, 1986. Respondent has a Hazardous Waste Management Permit, issued by IDEM on September 30, 2003.

6. Respondent is a producer of cement, using rotary kilns in the production process. Hazardous waste is burned as a supplemental fuel in this process.

7. Inspections, on August 28, 2002 and July 12, 2003, were conducted at the Site by a representative of IDEMís Office of Land Quality ("OLQ"). The following violation was in existence or observed at the time of these inspections:

Pursuant to 40 CFR 265.71(b), if a facility receives, from a rail or water transporter, hazardous waste which is accompanied by a shipping paper containing all the information required on the manifest, the owner or operator, or his agent, must sign and date each copy of the manifest or shipping paper to certify that the hazardous waste covered by the manifest or shipping paper was received, and immediately give the rail or water transporter at least one copy of the manifest or shipping paper. Respondent failed to sign and date each copy of the manifest or shipping paper and immediately give rail transporters at least one copy of the manifest or shipping paper. As observed on August 28, 2002, Respondent failed to immediately give rail transporters at least one copy of the signed and dated manifests or shipping papers for the hazardous waste in rail cars GATX-53982, UTLX-30077, and GATX-22615. As observed on June 12, 2003, Respondent failed to immediately give rail transporters at least one copy of the signed and dated manifests or shipping papers for the hazardous waste in rail car UTLX 47641. Respondent's representative indicated that manifests were not signed off on until rail cars were sampled and the waste placed into the permitted storage area.

8. 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 five days of the Effective Date of this Agreed Order, in order to address Finding 7 above, Respondent shall comply with the following language until such time as the appeal of the language found in the Final Hazardous Waste Management Permit, first paragraph of "Activities During Staging & Storage" of subsection 4.2.1.0, "Rail Car Tanker Staging & Storage (Area 1)", Section 4, "Process Description, page 19 of 55, issued by IDEM on September 30, 2003, is resolved: At that time, the language of the Permit shall prevail.

"The Permittee shall be allowed to 'stage' incoming containerized wastes in designated areas. Upon arrival at ESSROC, the shipping papers or switch list which accompanies each rail car tanker will be signed, and the staging period will begin. The staging period will expire in 72 hours, not including non-operating days, of entering the facility boundary (or contiguous property controlled by ESSROC) unless ESSROC rejects all or part of the shipment. An operating day is defined as any 24 hour period during which at least a partial shift is worked by employees who process, treat, place into storage, or dispose of hazardous waste at the facility. Within the staging period, each rail car tanker will be sampled and analyzed as outlined in Section 3, Waste Analysis Plan. If the analytical results demonstrate that the waste in the rail car tanker is acceptable, the manifest associated with that rail car tanker will be signed immediately, or if the manifest has not yet been received, it will be signed immediately upon receipt. If the analytical results demonstrate that the waste in the rail car tanker is unacceptable, the rail car tanker will be managed as a rejected rail car tanker."

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

Brenda Lepter, 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 Five Thousand Dollars ($5,000). 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.†† 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:

Violation

Penalty

Failure to comply with Order paragraph 2

$500 per day

6. Stipulated penalties shall be due and payable within 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 Respondentís violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

7. 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:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

8.†† In the event that the civil penalty required by Order paragraph 4 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.

9.†† 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.

10. 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.

11. 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.

12. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent. 

TECHNICAL RECOMMENDATION:†††††††††††††††††††††††††††††††††† RESPONDENT:

Department of Environmental Management†††††††††††††††††††

By:†††††† __________________________††††††††††††††††††††††††††††††† By:†††††† ________________________

Nancy L. Johnston, Chief

Office of Enforcement†††††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††† Printed: __________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††† Title:†††† ________________________

Date:††† __________________________†††††††††††††††††† ††††††††††† Date:††† ________________________

 

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 _______________, 2004.

For the Commissioner:

Signed on 5/17/04

Felicia A. Robinson

Deputy Commissioner for

Legal Affairs