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.

Corn Island Shipyard, Inc.,

Respondent.

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Case No. 2009-19237-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 Corn Island Shipyard, Inc.(“Respondent”), Don R. Foertsch owns/operates the stationary shipyard fabrication and repair facility with Plant ID No. 147-00047, located at 9447 East SR 66 in Grandview, Spencer County, Indiana (the “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 (“NOV”)  via Certified Mail to

 

Don Foertsch, President

PO Box 125

Lamar, IN 47550

 

5.            Stationary shipyard fabrication and repair facility

 

6.            During a records review on October 10, 2008 conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to 326 IAC 2-5.1-3(a), prior to commencing construction of any emissions unit which has potential emissions of twenty-five (25) tons or more per year of any of the regulated pollutants specified in section (E) of this Rule, the source shall apply for and obtain a construction permit.

Respondent constructed stationary shipyard fabrication and repair facility without first applying for and obtaining a construction permit, in violation of 326 IAC 2-5.1-3(a).

 

b.         Pursuant to 326 IAC 2-8-2, a source or facility which has allowable emissions of twenty-five (25) tons or more per year of any regulated pollutant shall apply for and obtain an operating permit prior to commencing operation.

Respondent began operating a stationary shipyard fabrication and repair facility without first applying for and obtaining an operating permit, in violation of 326 IAC 2-8-2.

 

7.            An air permit application was received by IDEM on May 27, 2009.  Federally Enforceable State Operating Permit (FESOP) was issued to Corn Island Shipyard Inc. on December 1, 2009.   Fourth Quarter 2009 and First Quarter 2010 Quarterly Report timely received by IDEM.

 

8.            Respondent submitted a Self-Disclosure letter, dated October 10, 2008, to IDEM.  IDEM agrees that the submitted Self-Disclosure meets the Non-Rule Policy regarding Self-Disclosure and Environmental Audits as adopted April 5, 1999.  Respondent is assessed no gravity portion of the civil penalty.  This reflects a reduction based upon evidence submitted by the Respondent evaluated against the Self-Disclosure Non-Rule policy.

 

9.            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 2-5.1-3 and 326 IAC 2-5-3.

 

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

 

Tammy Haug, Compliance and Enforcement Manager

Indiana Department of Environmental Management

Southwest Regional Office

P. O. Box 128

Petersburg, IN 47567-0128

 

4.         Respondent agrees to pay avoided FESOP fees in the amount of Five Thousand Six Hundred Twenty Five [$5,625.00] Dollars.  Avoided FESOP fees are assessed for the period of January 1. 2006 to December 31, 2008, during which Respondent was operating without the required  FESOP permit.  Said fee amount shall be due and payable to IDEM within thirty (30) days of the Effective Date.

 

5.         FESOP fees are payable by check to “IDEM.”  A cover letter shall accompany the check specifying that Five Thousand Six Hundred Twenty Five [$5,625.00] Dollars in FESOP fees shall be deposited into the Title V Investments 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

 

6.         This Agreed Order shall apply to and be binding upon Respondent and his/her/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 he/she/they represent.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter their status or responsibilities under this Agreed Order.

 

7.         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.

 

8.         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.

 

9.         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.

 

10.       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.

 

11.       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.

 

12.       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.

 

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

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Corn Island Shipyard, Inc.,

 

 

 

By:

 

 

By:

 

 

Craig Henry, Chief

 

Printed:

 

 

Compliance and Enforcement Section IV

 

Title:

 

 

Office of Air Quality

 

 

 

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

 

, 2011.

 

 

For the Commissioner

 

 

 

Signed on January 14, 2011

 

Keith Baugues

 

Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management