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. 2003-12728-A
)
NEWCO METALS PROCESSING, INC., )
)
Respondent. )
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.
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 Newco Metals Processing, Inc. ("Respondent"), which owns and operates a hammermill facility at its secondary aluminum processing source, located at 4653 Peerless Road in Bedford, Indiana, Lawrence County ("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, on May 15, 2003, IDEM issued a Notice of Violation via Certified Mail to:
Mr. Elwin Kipp Barber
President and Registered Agent
Newco Metals Processing, Inc.
7268 South State Road 13
Pendleton, IN 46064
5. An inspection, on January 22, 2003, was conducted at the Site by a representative of IDEM's Office of Air Quality (OAQ). The following violations were in existence or observed at the time of this inspection:
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 twenty-four (24) consecutive readings.
This Source's visible emissions from the hammermill facility had 78.75% opacity during the 24 consecutive readings between 1:53 and 2:00 p.m. on January 22, 2003, a violation of 326 IAC 5-1-2(1)(A).
6. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed 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 comply with all the provisions of the Part 70 permit No. T093-7641-05064 ("Permit") and all its subsequent amendments and modifications.
3. Within one hundred and eighty (180) days of the Effective Date of this Agreed Order, Respondent shall complete the installation of the additional ductwork to connect the hammermill to the baghouse, currently controlling the rotary dryer. After the completion, the hammermill shall be operated only when the baghouse is operating.
4. Within one hundred and eighty (180) days of the Effective Date of this Agreed Order or not later than the completion date of the baghouse connection project, whichever comes first, Respondent shall update its emergency management plan (EMP) to include immediate hammermill shut down in the case of the baghouse failure.
5. Within one hundred and eighty (180) days of the Effective Date of this Agreed Order, Respondent shall publish and implement a standard operating procedure (SOP) for the hammermill operators; retrain the operators; and post the SOP in the accessible hammermill production area.
6. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit an application for a Permit modification to the OAQ to reflect changes in the facility description, control, monitoring, etc. applicable requirements, and the EMP. Respondent shall submit a copy of the application to the Office of Enforcement.
7. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Mr. Michael Stonik, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
8. Respondent is assessed a civil penalty of One Thousand Two Hundred Dollars ($1,200.00). 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.
9. 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, IN 46207-7060
10. In the event that the civil penalty required by Order paragraph 8 of this Agreed Order, 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.
11. "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.
12. 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.
13. 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.
14. 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.
15. 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 Newco Metals Processing, Inc.
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:
Office of Legal Counsel
Department of Environmental
Management
Date: Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , 200__.
For the Commissioner:
Signed on November 19, 2003
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs