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STATE
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BEFORE
THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER
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Complainant, |
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Case
No. 2006-15396-A |
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CREATIVE
FOAM CORPORATION, |
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d/b/a
BREMEN CORPORATION |
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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.
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 Creative Foam Corporation d/b/a Bremen
Corporation ("Respondent"), which owns and operates the facility with
Plant ID No. 099-00033, located at
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 12, 2006, IDEM issued a
Notice of Violation via Certified Mail to:
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Mr.
Gerald L. Whitten, President |
Mr.
James J. Smith, Registered Agent for
Creative Foam Corporation |
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Creative
Foam Corporation d/b/a
Bremen Corporation |
d/b/a
Bremen Corporation |
5.
An inspection on December 8, 2006, was conducted at the Site
by a representative of IDEM’s Office Air Quality (OAQ). The following violations were in existence or
observed at the time of this inspection:
a.
Pursuant to Paragraph No. D.1.8 of Second SSM No.
099-20282-00033 (“Permit”) issued on November 30, 2005, during the period
between 30 and 36 months after September 14, 1999, Respondent shall perform
testing on the catalytic oxidizer to determine the overall VOC control
efficiency (capture and destruction). Testing of the catalytic oxidizer shall
be repeated at least once every two and one half (2.5) years for overall control
efficiency using methods approved by the Commissioner.
b.
Respondent failed to conduct the Oxidizer #1 testing within
the time required in the Permit, while continuing operating it in violation of
Paragraph No. D.1.8 of the Permit.
6.
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 his 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 permit condition which
Respondent was found to be in violation.
3.
Respondent is assessed a civil penalty of Nine Thousand
Dollars ($9,000). Within thirty (30)
days of the Effective Date of the Agreed Order, Respondent shall pay a portion
of this penalty in the amount of One Thousand Eight Hundred Dollars ($1,800).
Said penalty amount shall be due and payable to the Environmental Management
Special Fund. 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
at least Twenty One Thousand Six Hundred dollars ($21,600). Within 30 days of 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 Twenty One Thousand Six Hundred dollars ($21,600), Respondent shall pay thirty three percent (33%) of the difference between the
estimated cost of the SEP, Twenty One Thousand Six Hundred
dollars ($21,600) and the actual
cost of the SEP.
As a Supplemental Environmental Project, Respondent
shall pave approximately 34,020 square feet of existing crushed stone on the
west side of the property. Respondent
shall begin by cleaning the existing asphalt and grading the gravel parking
area. The new parking area will be paved
with three and a half inches of base mix and one and a half inches of surface
asphalt. The existing paved parking lot
will be covered with one and a half inches of surface asphalt. Each layer will be thoroughly compacted with
a roller. Implementation of this SEP
will control fugitive dust emissions.
4.
In the event that the Respondent does not complete the SEP
by August 31, 2007, the full amount of the civil penalty as stated in paragraph
three (3) 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.
5.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
Edward Judson, Enforcement Case Manager
Indiana Department of Environmental Management
Office of Enforcement – Mail Code 60-02
6.
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 paragraph 2 |
$100 per
week |
7.
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.
8.
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:
Indiana Department of
Environmental Management
Cashier’s Office - Mail
Code 50-10C
9.
In the event that the portion of the civil penalty required
by Order paragraph 3 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.
10.
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.
11.
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.
12.
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.
13.
This Agreed Order shall remain in effect until Respondent
complies with the terms of Order paragraph No. 3 or pays in full any remaining
portion of the civil penalty plus interest for which Respondent receives notice
to pay pursuant to Order paragraph No. 4.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
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By:
__________________________ |
By:
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David P. McIver Chief, Air Section |
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Office of Enforcement |
Printed:
__________________ |
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Title:
________________________ |
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Date:
__________________________ |
Date:
________________________ |
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COUNSEL
FOR COMPLAINANT: |
COUNSEL
FOR RESPONDENT: |
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Department
of Environmental Management |
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By:
___________________________ |
By:
________________________ |
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Office of Legal Counsel |
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Date:
___________________________ |
Date:
________________________ |
APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____
DAY OF _______________, 20__.
For the Commissioner:
Signed on November 6, 2006
Matthew T. Klein
Assistant Commissioner for
Compliance & Enforcement