STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

ELSA, LLC,

Respondent.

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Case No. 2007-16807-A

 

 

AGREED ORDER

 

Complainant and 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 (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondent is ELSA, LLC (“Respondent”), which owns and operates the stationary fuel tank and exhaust systems manufacturing plant with ID No. 095-00048, located at 1240 South State Road 37, in Elwood, Madison County, Indiana (“Site”).

 

3.                  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 June 5, 2007 via Certified Mail to:

 

Kiyokazu Sakamoto, President

Yasuhiko Matsuoka, Registered Agent

ELSA Corporation

1240 South State Road 37

1240 South State Road 37

Elwood, IN 46036

Elwood, IN 46036

 

 

5.                  Based on an investigation conducted by representatives of IDEM and the Anderson Office of Air Management (“AOAM”), the following violations were found:

 

a.                  Pursuant to 326 IAC 8-2-9 and condition D.2.1 of Title V Permit Nos. 095-7668-00048 and 095-16479-00048, no owner or operator of a facility engaged in the surface coating of miscellaneous metal parts and products may cause, allow, or permit the discharge into the atmosphere of any volatile organic compounds in excess of three and five-tenths (3.5) pounds per gallon of coating, excluding water, delivered to a coating applicator that applies extreme performance coatings.

Based on the ongoing investigation, the Respondent was found to be using a high performance coating with a VOC content of 4.91 pounds per gallon of coating from May 2003 through June 2007, in violation of 326 IAC 8-2-9 and condition D.2.1 of Title V Permit No. 095-7668-00048.

Respondent contends that it believed that its coating was in compliance based on various communications regarding the proper method for determining VOC content.

 

b.                  Pursuant to 326 IAC 2-7-10.5(c)(1)(D)(i), any person proposing to make a modification shall submit an application to the commissioner concerning the modification.  Information on the nature and amount of the pollutant to be emitted, including an estimate of the potential to emit any regulated air pollutants is needed to assure all reasonable information is provided to evaluate compliance consistent with the permit terms and conditions, the underlying requirements of this title and the Clean Air Act (CAA), the ambient air quality standards set forth in 326 IAC 1-3, or the prevention of significant deterioration maximum allowable increase under 326 IAC 2-2.

Respondent did not provide the correct VOC calculations or updated 2003 MSDS for the high performance coating to IDEM in the 2003 permit modification application, in violation of 326IAC2-7-10.5(c)(1)(D)(i).

Respondent contends that it provided the MSDS that was available to it as of the time it submitted the application.

 

c.                  Pursuant to condition D.2.9 of the Significant Title V Permit Modification No. 095-20388-00048 and condition D.2.11 of Title V Permit No. 095-16479-00048, source shall perform daily inspections to verify the placement, integrity and particle loading of the filters from the surface coating booth stacks (S14, S15, S16, S17, S34, S35, S42 and S44).

Based on an inspection on March 9, 2006 and a review of the Respondent’s logs, it was determined that inspections for stacks S34, S35, S42 and S44 were not performed from November 2006 through March 9, 2007, in violation of  condition D.2.9 of the Significant Title V Permit Modification No. 095-20388-00048 and condition D.2.11 of Title V Permit No. 095-16479-00048.

Respondent contends that inspections were performed, but logs were not maintained.

 

d.                  Pursuant to condition D.2.10 of the Significant Title V Permit Modification No. 095-20388-00048 and condition D.2.12 of Title V Permit No. 095-16479-00048, to document compliance with condition D.2.10 of the Significant Title V Permit Modification No. 095-20388-00048 and condition D.2.12 of Title V Permit No. 095-16479-00048, the Permittee shall maintain a log of daily inspections.

Based on an inspection on March 9, 2006 and a review of the Respondent’s logs, it was determined that no logs were maintained for stacks S34, S35, S42 and S44 from November 2006 through March 9, 2007, in violation of  condition D.2.10 of the Significant Title V Permit Modification No. 095-20388-00048 and condition D.2.12 of Title V Permit No. 095-16479-00048.

 

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 Complainant or Complainant’s delegate, and has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  Respondent shall comply with 326 IAC 8, 326 IAC 2, Part 70 Permit No. 095-16479-00048 and any subsequent permit modifications.

 

3.                  Within Three Hundred Sixty Five (365) days of the Effective Date of the Agreed Order, Respondent shall perform its annual compliance audits under its ISO 14000 procedures.

 

4.                  Within Three Hundred Ninety Five (395) days of the Effective Date of the Agreed Order, Respondent shall submit an independent ISO 14000 report verifying the compliance of all coatings utilized in the facility.

 

5.                  All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Matthew Chaifetz, Enforcement Case Manager

Office of Enforcement – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

6.                  Respondent is assessed a civil penalty of Seventy Eight Thousand Dollars ($78,000.00).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.  In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, 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.

 

7.                  In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

 

Paragraph

Violation

Stipulated Penalty

3

Annual compliance audit under ISO 14000

$500 per week or part thereof

4

Submission of ISO 14000 report to verify compliant coatings are utilized

$500 per week or part thereof

 

8.                  Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for violation of this Agreed Order.  In lieu of any of the stipulated penalties set out above, 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.

 

9.                  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 – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

10.             This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns.  Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

11.             In the event that any terms of this 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 this Agreed Order did not contain the invalid terms.

 

12.             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 is not and shall not be interpreted to be a permit or a modification of an existing permit.  This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permit or any applicable Federal or State law or regulation.

 

14.             Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation.  Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

 

15.             Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

 

16.             Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action.  IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the EPA or any other agency or entity.

 

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

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

ELSA, LLC

 

 

 

By:

 

 

By:

 

 

Craig Henry

 

Printed:

 

 

Chief, Air Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on February 29, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement