STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

SPECTRONICS INC.,

Respondent.

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Case No. 2008-17792-W

 

 

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 Spectronics Inc. (“Respondent”), which owns and operates an electroplating facility, located at 5622 Vann Road, in Newburgh, Warrick County, Indiana (the “Site”). Respondent is authorized to discharge rinse water and spent cleaning and plating baths to Town of Newburgh Publicly Owned Treatment Works (POTW), in accordance with IWP Permit No. INP000225 (the “IWP Permit”).

 

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 3, 2008, via Certified Mail to:

 

James Rine, Manager

Mark Rine, Registered Agent

Spectronics Inc.

Spectronics Inc.

5622 Vann Road

5622 Vann Road

Newburg, IN  47629

Newburg, IN  47629

 

5.         Pursuant to 327 IAC 5-2-8(1), and Part I.A.1 of the IWP Permit, Respondent is required to comply with all terms and conditions of the IWP Permit. Any permit noncompliance constitutes violation of the Clean Water Act and IC 13 and is grounds for enforcement action.

 

6.         Pursuant to 327 IAC 5-18-8(a), industrial users shall comply with applicable pretreatment standards and requirements adopted by the board pursuant to IC 13-14-8-7(a)(8). If state pretreatment standards and national pretreatment standards are applicable to an industrial user, the industrial user shall comply with the more stringent standards.

 

7.         Pursuant to 40 CFR 433.15(a), except as provided in 40 CFR 403.7, any source subject to this subpart that introduces pollutants into a POTW must comply with 40 CFR Part 403 and achieve the pretreatment standards for new sources (PSES) as specified.

 

8.         Part I.A.1 of the IWP Permit sets forth the effluent limitations applicable to the discharge from Respondent’s facility, via Outfall 001, to Town of Newburgh POTW.

A review of record on February 2008 by IDEM staff indicated that a chronic non-compliance history for nickel, silver and copper as follows:

 

-         Daily maximum for Nickel was exceeded for January, February, August, September, October, November, and December 2007.

-         Daily maximum for Copper was exceeded for January, and November 2007.

-         Monthly average for Silver was exceeded for March, and daily maximum was exceeded for October 2007.

-         Daily maximum for Silver was exceeded for February 2006.

-         Monthly average and daily maximum for Silver were exceeded for May 2005.

-         Daily maximum for Silver was exceeded for July, October, and December 2005.

-         Daily maximum for Nickel was exceeded for October 2005.

-         Daily maximum for Copper was exceeded for July, October, November and December 2005.

 

These reported values are in violation of 327 IAC 5-2-8(1), 327 IAC 5-18-8(d), 40 CFR 433.15(d), and the IWP permit.

 

9.         On June 18, 2008, Respondent submitted a proposed compliance plan to achieve compliance with effluent limitations. IDEM reviewed and approved the compliance plan.

 

10.       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 all applicable provisions of the Indiana Administrative Code (“IAC”), including but not limited to IAC 327 IAC 5-2-8(1) and 327 IAC 5-18-8(a), as well as 40 CFR 433.15(a) and Part I.A.1 of the IWP Permit.

 

3.         Upon the Effective Date, Respondent shall implement the approved Compliance Plan (“CP”) that includes a description of the actions that Respondent will take to achieve and maintain continuous compliance with effluent limitations, and an implementation schedule, including specific milestone dates for initiating and completing the actions required. The approved CP shall be incorporated into this Agreed Order as Attachment A and shall be deemed an enforceable part thereof.

 

4.         Upon the Effective Date, Respondent shall be subject to stipulated penalties, as described in Order Paragraph 10 below, for failure to immediately implement the approved CP and adhere to the milestone dates therein.

 

5.         Respondent shall, within six (6) months of completion of the CP required by Order Paragraph 3 above (Performance Period), demonstrate six months of compliance (Compliance Demonstration) with the effluent limitations contained in its IWP Permit. During the performance Period, Respondent shall be subject to stipulated penalties, as described in Order Paragraph 10 below, for failure to comply with effluent limitations.  In the event that Respondent fails to make the Compliance Demonstration, Respondent shall, within sixty (60) days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, an “Additional Action Plan” which identifies the additional actions that Respondent will take to achieve and maintain compliance with the effluent limitations contained in its IWP Permit. The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

6.         The Additional Action Plan, if required, shall be subject to IDEM approval. In the event IDEM determines that the plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM.

Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved Additional Action Plan and adhere to the milestone dates therein. The approved Additional Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. Failure achieve compliance at the conclusion of work under an Additional Action Plan will subject Respondent to additional enforcement action.

 

7.         Beginning on the Effective Date and continuing until the completion of implementation of the CP, as required by Paragraph 3 above, Respondent shall, at all times, prevent effluent exceedances by operating its wastewater treatment facilities as efficiently and effectively as possible.

 

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

 

Jamal Naas, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Enforcement – Mail Code 60-02

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

9.         Respondent is assessed a civil penalty of Seven Thousand Five Hundred Dollars ($7,500).  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.

 

10.       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 & 4

Failure to immediately implement the approved CP and adhere to the milestone dates therein.

$1000 per violation per week

5

Exceeding effluent limitation after completion of implementation of the CP.

$1000 per violation

6

Failure to submit Additional Action Plan (if required) or respond to IDEM comments

$500 per week late, or part thereof

6

Failure to implement Additional Action Plan (if necessary)

$500 per week late, or part thereof

 

11.       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.

 

12.       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

 

13.       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 he is fully authorized to execute this Agreed Order and legally bind the party he represents.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

14.       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.

 

15.       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.

 

16.       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.

 

17.       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.

 

18.       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.

 

19.       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.

 

20.       This Agreed Order shall remain in effect until Respondent complies with the terms of Order Paragraph Nos. 3 through 12 and IDEM issues a Resolution of Case letter.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Spectronics Inc.

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement 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 July 14, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement