STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT ) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CAUSE NO. A-2426
v. ) CAUSE NO. A-2463
) CAUSE NO. A-2625
USX CORPORATION ) CAUSE NO. A-2639
(U.S. STEEL GROUP), ) CAUSE NO. A-2677
) CAUSE NO. A-2711
Respondent. ) CAUSE NO. A-2722
) CAUSE NO. A-3027
) CAUSE NO. A-3143
) CAUSE NO. A-3152
) CAUSE NO. A-3239
) CAUSE NO. A-3240 (A)
) CAUSE NO. A-3240 (B)
) CAUSE NO. A-3240 (C)
) CAUSE NO. A-3240 (D)
) CAUSE NO. A-3240 (E)
) CAUSE NO. A-3240 (F)
) CAUSE NO. A-3343
) CAUSE NO. A-3414
) CAUSE NO. A-3415
) CAUSE NO. A-3458
) CAUSE NO. A-3524
) CAUSE NO. A-3893
) CAUSE NO. A-3894
) CAUSE NO. A-3895
) CAUSE NO. A-4037
) CAUSE NO. A-4285
) CAUSE NO. A-4290
) CAUSE NO. A-4313
AGREED ORDER
The Commissioner 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.
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management (hereinafter referred to as "IDEM"), a department of the State of Indiana created by IC 13-13-1-1.
2. USX Corporation, (hereinafter referred to as "Respondent"), is authorized to do business in Indiana, and owns and operates a fully integrated iron, steel, and coke manufacturing source located in Gary, Indiana.
3. Complainant has jurisdiction over the Respondent and the subject matter of this action.
4. Rule 326 IAC 5-1-2(2)(B) limits visible emissions from a facility located in Lake County to an average of twenty percent (20%) opacity in twenty-four consecutive readings.
5. Rule 326 IAC 6-1-10.1(k)(8)(C)(iii) limits the instantaneous opacity for Respondent's No. 1 Basic Oxygen Process (hereinafter referred to as "No.1 BOP Shop") facility to twenty-five percent (25%) except for an aggregate of five (5) minutes per hour.
6. Rule 326 IAC 6-1-10.1(k)(8)(D) limits the three (3) minute average opacity from Respondent's No. 2 Q-BOP roof monitor to twenty percent (20%).
7. Rule 326 IAC 6-1-10.1(k)(8)(I) limits the opacity to twenty percent (20%) during beach iron dumping and process vessel maintenance activities. Rule 326 IAC 6-1-10.1(p)(3)(F)(ii) requires the maintenance of the process vessels to be performed inside an enclosed structure.
8. Rule 326 IAC 6-1-10.2(c)(1) limits visible emissions from coke oven battery (hereinafter referred to as "COB") doors to ten percent (10%) of the observed doors.
9. Rule 326 IAC 6-1-10.2(c)(2) does not permit visible emissions from COBs for more than one hundred twenty-five (125) seconds during five (5) consecutive charging periods.
10. Rules 326 IAC 6-1-10.2(c)(3)(A) & (B) limit the visible emissions to twenty percent (20%) opacity during pushing operations at COBs located in Lake County, Indiana.
11. Rule 326 IAC 6-1-10.2(c)(5) limits visible emissions from COBs' offtake piping to five percent (5%) opacity. The visible emissions from any gooseneck cap opening shall not exceed twenty percent (20%) opacity.
12. Rule 326 IAC 6-1-10.2(c)(7)(A) limits the COBs' quench water to one thousand five-hundred milligrams per liter (1,500 mg/l) dissolved solids.
13. Rule 326 IAC 6-1-11.1(d)(8) limits the opacity from dust handling equipment to ten percent (10%).
14. Rule 326 IAC 6-1-11.1(d)(9) limits three (3) minute averages of visible emissions to twenty percent (20%) opacity for Respondent's No. 8 Blast Furnace roof monitor.
15. On August 1, 1994, an IDEM inspector observed a six minute average opacity exceeding twenty percent (20%) at Respondent's Blast Furnace No. 4, thereby violating 326 IAC 5-1-2(2)(B).
16. On August 15, 1994, an IDEM inspector observed a six minute average opacity exceeding twenty percent (20%) at Respondent's Blast Furnace No. 4, thereby violating 326 IAC 5-1-2(2)(B).
17. On February 2, 1995, an IDEM inspector observed the opacity from Respondent's No. 4 Blast Furnace exceeding twenty percent (20%) for a six minute average, thereby violating 326 IAC 5-1-2(2)(B).
18. On February 6, 1995, an IDEM inspector observed the opacity from Respondent's No. 4 Blast Furnace exceeding twenty percent (20%) for a six minute average, thus violating 326 IAC 5-1-2(2)(B).
19. On February 24, 1995, March 2, 1995, March 3, 1995, and March 10, 1995, an IDEM inspector observed three minute average opacities at Respondent's No. 2 Q-BOP exceed twenty percent (20%) opacity, thereby violating 326 IAC 6-1-10.1(k)(8)(D).
20. On March 14, 1995, an IDEM inspector observed visible emissions exceeding ten percent (10%) opacity from Blast Furnace No. 4's dust collector, thereby violating 326 IAC 6-1-11.1(d)(8).
21. On March 29, 1995, an IDEM inspector twice observed the opacity from Respondent's No. 4 Blast Furnace exceeding twenty percent (20%) for a six minute average, thus violating 326 IAC 5-1-2(2)(B).
22. On July 31, 1995, an IDEM inspector observed visible emissions exceeding ten percent (10%) opacity from Blast Furnace No. 4's dust collector, thereby violating 326 IAC 6-1-11.1(d)(8).
23. On September 12, 1995, an IDEM inspector observed visible emissions exceeding twenty percent (20%) opacity at COB No. 3 during charging and pushing processes, thereby violating rules 326 IAC 6-1-10.2(c)(1) and 326 IAC 6-1-10.2(c)(2).
24. On September 14, 1995, an IDEM inspector observed visible emissions exceeding twenty percent (20%) opacity at COB No. 2 during the pushing process, thus violating 326 IAC 6-1-10.2(c)(1).
25. On October 25, 1995, an IDEM inspector observed the opacity from Respondent's No. 4 Blast Furnace exceeding twenty percent (20%) for a six minute average, thereby violating 326 IAC 5-1-2(2)(B).
26. Between January 1, 1995 through August 30, 1995, Respondent dumped eighty-three (83) ladles of iron onto the ground ("Beach Dumping"), thereby violating 326 IAC 6-1-10.1(k)(8)(I) and 326 IAC 6-1-10.1(p)(3)(F)(ii).
27. On April 10, 1996, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed battery doors at COB No. 2, thereby violating 326 IAC 6-1-10.2(c)(1). Also, the inspector observed visible emissions exceeding twenty percent (20%) opacity during pushing at COB No. 2, thus violating 326 IAC 6-1-10.2(c)(3)(B).
28. On May 1, 1996, an IDEM inspector observed visible emissions from No. 4 Blast Furnace Cast House exceeding twenty percent (20%) opacity for twenty-four consecutive readings, thereby violating 326 IAC 5-1-2(2)(B).
29. On May 21, 1996, an IDEM inspector observed visible emissions exceeding twenty percent (20%) opacity during pushing at COB No. 2, thereby violating 326 IAC 6-1-10.2(c)(3)(B).
30. On May 21, 1996, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed doors at COB No. 3, thereby violating 326 IAC 6-1-10.2(c)(1).
31. On June 26, 1996, an IDEM inspector observed visible emissions exceeding twenty percent (20%) opacity during pushing at COB No. 2, thereby violating 326 IAC 6-1-10.2(c)(3)(B).
32. On July 31, 1996, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed doors at COB No. 2, thereby violating 326 IAC 6-1-10.2(c)(1).
33. On July 31, 1996, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed doors at COB No. 3, thereby violating 326 IAC 6-1-10.2(c)(1).
34. On July 31, 1996, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed doors at COB No. 7, thereby violating 326 IAC 6-1-10.2(c)(1).
35. On September 6, 1996, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed battery doors at COB No. 3 and COB No. 2, thereby violating 326 IAC 6-1-10.2(c)(1).
36. On September 6, 1996, an IDEM inspector observed visible emissions from COB No. 5's off-take piping exceeding 5% opacity, thus violating 326 IAC 6-1-10.2(c)(5).
37. On September 11, 1996, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed battery doors at COB No. 3, thus violating 326 IAC 6-1-10.2(c)(1).
38. On September 11, 1996, an IDEM inspector observed six consecutive readings of opacity exceeding twenty percent (20%) during pushing at COB No. 2 and visible emissions exceeding five percent (5%) opacity at the off-take piping, thereby violating rules 326 IAC 6-1-10.2(c)(3)(B) and 326 IAC 6-1-10.2(c)(5).
39. On November 11, 1996, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed battery doors at COB No. 2, thereby violating 326 IAC 6-1-10.2(c)(1). Also, the inspector observed visible emissions which exceeded twenty percent (20%) opacity during pushing at COB No. 2, thus violating 326 IAC 6-1-10.2(c)(3)(B).
40. On November 27, 1996, an IDEM inspector observed twenty-five (25) instantaneous opacity readings exceeding twenty-five percent (25%) at the No. 1 BOP Shop, thus violating 326 IAC 6-1-10.1(k)(8)(C)(iii).
41. On December 4, 1996, an IDEM inspector observed eight (8) visible emissions readings exceeding twenty-five percent (25%) opacity at the No. 1 BOP Shop, thereby violating 326 IAC 6-1-10.1(k)(8)(C)(iii).
42. On December 6, 1996, an IDEM inspector observed opacity exceeding twenty percent (20%) during pushing operations at COB No. 2, thereby violating 326 IAC 6-1-10.2(c)(3)(B).
43. On February 29, 1997, an IDEM inspector observed visible emissions exceeding twenty percent (20%) opacity during pushing at COB No. 3, thereby violating 326 IAC 6-1-10.2(c)(3)(B).
44. On March 22, 1996, the Agreed Order under Cause Numbers A-960 et al. became effective (the "1996 Order"). Included in the Order are requirements for compliance with the opacity standard at Respondent's Numbers 2, 3, 5, & 7 COB Underfiring Stacks. During the time period from April 1, 1996 to March 31, 1997, paragraph eight (8) of the Order required Numbers 2 and 3 COB Underfiring Stacks to demonstrate eighty-eight percent (88%) compliance with the opacity standard and Numbers 5 and 7 COB Underfiring Stacks to demonstrate eighty-five (85%) compliance. Upon review of the opacity reports for the time period of April 1, 1996 through November 30, 1997, numerous violations were noted. Pursuant to paragraph eight (8) of the Order, stipulated penalties are assessed for these violations (See Attachment A).
45. On April 18, 1997, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed battery doors at COB No. 5, thereby violating 326 IAC 6-1-10.2(c)(1).
46. On April 18, 1997, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed battery doors at COB No. 7, thereby violating 326 IAC 6-1-10.2 (c)(1).
47. On September 25, 1997, an IDEM inspector made three (3) observations of visible emissions exceeding twenty percent (20%) opacity from the No. 1 BOP Shop, thereby violating 326 IAC 6-1-10.1(k)(8)(C).
48. The 1996 Order requires Respondent to self monitor for visible emissions for the following facilities:
No. 1 BOP Shop Roof Monitors
No. 2 QBOP Shop Roof Monitors
No. 13 Blast Furnace Roof Monitors
Numbers 2, 3, 5 & 7 COB Underfiring Stacks
Numbers 2, 3, 5 & 7 COB Door Leaks
Numbers 2, 3, 5 & 7 COB Offtake Piping Emissions
Numbers 2 & 3 COB Precarbonization ESPs.
From April 1, 1996 through December 31, 1997 (through April 30, 1998 for No. 1 BOP Shop Roof Monitors), Respondent conducted the visible emissions evaluations and reported multiple violations at the facilities. Pursuant to the 1996 Order, stipulated penalties are assessed for these violations (See Attachments A & B).
49. On March 6, 1998, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed doors at COB No. 2, thereby violating 326 IAC 6-1-10.2(c)(1).
50. On March 6, 1998, an IDEM inspector observed visible emissions from more than ten percent (10%) of the observed doors at COB No. 3, thereby violating 326 IAC 6-1-10.2(c)(1).
51. On May 22, 1998, an IDEM inspector observed four (4) occurrences of three-minute averages of visible emissions exceeding twenty percent (20%) opacity at the No. 8 Blast Furnace top, thereby violating 326 IAC 6-1-11.1(d)(9).
52. On May 22, 1998, an IDEM inspector observed six minute averages of visible emissions exceeding twenty percent (20%) opacity from Blast Furnace No. 8's
cast house, thereby violating 326 IAC 5-1-2(2)(B).
53. In July 1998, IDEM conducted a records review Respondent's COBs. The records review revealed that Respondent's quench water exceeded the solids limit of 1,500 mg/l for one hundred and eighty-four (184) occurrences during the time period of December 1993 through May 1998, thereby violating 326 IAC 6-1-10.2(c)(7)(A).
54. IDEM is hereby dismissing the following causes: A-2426, A-2463, A-2625, A-2639, A-2722, A-3027 and A-3239.
55. Respondent waives its right to issuance of a Notice of Violation and to the settlement period of sixty (60) days provided by IC 13-30-3-3.
56. This Agreed Order resolves the violations listed in this Order through the Effective Date of this Order to the extent such violations occurred at Respondent's Gary Works integrated steel mill and of the following rules:
326 IAC 5-1-2(2)(B), 326 IAC 6-1-10.1(k)(8)(C)(iii),
326 IAC 6-10.1(k)(8)(D), 326 IAC 6-1-10.1(k)(8)(I),
326 IAC 6-1-10.2(c)(1), 326 IAC 6-1-10.2(c)(2),
326 IAC 6-1-10.2(c)(3)(A), 326 IAC 6-1-10.2(c)(3)(B),
326 IAC 6-1-10.2(c)(5), 326 IAC 6-1-10.2(c)(7)(A),
326 IAC 6-1-11.1 (d)(8), and 326 IAC 6-1-11.1(d)(9).
57. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order and agrees not to contest the jurisdiction of Complainant to enter into this Order.
WHEREFORE, based upon the Findings of Fact and upon the consent of the parties, it is hereby ORDERED that:
1. By December 31, 1999, Respondent shall replace the large bell and one hot blast stove at No. 8 Blast Furnace or cease operation of No. 8 Blast Furnace until the replacements are completed. The replacement equipment shall be operated according to IDEM permit requirements.
2. (a) Within thirty (30) days after the Effective Date of this Agreed Order, Respondent shall provide certified visible emission observers, employed or hired by the Respondent, to self monitor Respondent's No. 8 Blast Furnace top for compliance with the following standard:
The visible emissions shall not exceed an average of twenty percent (20%) opacity in twelve (12) consecutive readings (a three minute average).
(b) Observations shall be made for a minimum of four (4) hours per day, five (5) days per week. The four (4) hour periods shall begin with the first fifteen (15) second reading each day and shall be continuous. Such observations shall be made according to U.S. EPA Reference Method 9 during the period Monday through Sunday each week. The emission point to be observed shall be the receiving hopper area at the blast furnace top. If at any time the emission plume originating from this emission point should combine with any other emission plume originating from an emission point other than the receiving hopper area of the blast furnace top, a "dash" shall be recorded and the fifteen second reading shall be deemed invalid. However, the readings shall proceed continuously until completed. Respondent shall calculate, summarize, and submit the summary listing of all exceedances to the Office of Air Management, Compliance Branch and Office of Enforcement, Air Section within thirty (30) days after the end of each calendar month in which the observations are made. IDEM has the right to Quality Assure the visible emissions monitoring program to insure compliance with 326 IAC 5-1-4.
(c) The visible emissions observations shall continue for ninety (90) days past the date the furnace is restored to service following the replacement of the large bell or ninety (90) days past the date the new blast furnace stove is placed into service, whichever is the later, unless any of the calendar month's compliance with the opacity standard is less than ninety-five percent (95%). In this case, the observation period shall be extended by one calendar month for each calendar month with less than 95% compliance of the opacity standard.
Visible emission observations shall not be conducted on days when the furnace is not producing iron. Respondent will provide IDEM, as part of the required monthly visible emissions report, a listing as to the dates and times that the required visible emission observations were not performed due to the furnace not being in production.
Respondent shall keep a record of all inspection and maintenance activities intended to control furnace hot blast temperature which could, due to extended stove off times, result in excessive loss of hot blast temperature and subsequent brief periods of furnace top visible emissions. Such records shall include the date of the outage, stove number, time the stove was taken out of service, time the stove was returned to service, and the reason of the outage. Any emissions associated with these inspection or maintenance activities, intended to control and maintain hot blast temperature may not be considered a violation of 326 IAC 5-1-4, provided reports of the inspection and maintenance activities are submitted to IDEM with the monthly visible emission reports already due to IDEM under this Order. The reports shall include at a minimum, a detailed description of the activities, the time the activities occurred, and information sufficient to allow IDEM to correlate activities with the furnace top emissions. Respondent shall be excused from and not be liable for paying the stipulated penalties specified in paragraph three (3) for any exceedance associated with inspection and/or maintenance activities intended to maintain and control furnace hot blast temperature. Respondent shall make best efforts to notify IDEM in advance of such inspection and/or maintenance activities. IDEM shall make the final determination as to whether an inspection or maintenance activity is responsible for an exceedance and whether Respondent is excused from the liability of paying the stipulated penalty for the exceedance.
(d) The three (3) minute averaging periods may begin with any fifteen (15) second reading. Three (3) minute average exceedances may not overlap.
(e) The following formula shall be used for the purpose of calculating the monthly compliance percentage for the standard set forth in paragraph 2(c):
Percentage Compliance =
(Number of three-minute averages observed during a calendar month) -
(Number of three-minute averages exceeding the standard for the month) X 100
Number of three-minute averages observed during the calendar month
(f) Respondent shall submit to IDEM a work plan detailing steps to be taken by Respondent in the event the percentage compliance calculated pursuant to paragraph 2(c) above is less than 95% in any calendar month. The work plan shall be submitted to Complainant within thirty (30) days after the end of the calendar month for which the percentage compliance was less than 95%.
(g) Respondent shall pay a daily stipulated penalty of One Thousand Dollars ($1,000) for each day that Respondent fails to submit the work plan after the required submittal date.
3. So long as this Agreed Order is in effect, Complainant may assess stipulated penalties for the violations of the visible emission standard of paragraph 2(a) above in the manner provided below in this paragraph. The first self-monitored, three minute average above the visible emissions limit in paragraph 2(a) on any calendar day will be considered a violation but will not trigger stipulated penalty nor an enforcement action. However, in the event of a second self-monitored three minute average on a calendar day, Complainant may assess a stipulated penalty in the amount of Five Thousand Dollars ($5,000).
In the event of a third such self-monitored three minute average on a calendar day, Complainant may assess an additional stipulated penalty in the amount of Five Thousand Dollars ($5,000). Each subsequent excursion during the calendar day shall be an additional Five Thousand Dollars ($5,000) with the maximum amount of stipulated penalties for excursions not to exceed Twenty-Five Thousand Dollars ($25,000) per calendar day. Stipulated penalties shall not apply for excursions which qualify as a malfunction under 326 IAC 1-2-39.
4. Complainant reserves its right to take enforcement action for violations of 326 IAC 6-1-11.1(d)(9) observed by IDEM even if Respondent meets or exceeds 95% compliance with the opacity standard. The sole purpose of the 95% compliance level is to determine Respondent's observation duration as set forth in paragraph 2(c) above, and if a work plan is required, as set forth in paragraph 2(f) above.
5. Unless IDEM otherwise notifies Respondent in writing, all submittals required by this Agreed Order shall be sent to:
Air Enforcement Section Chief
Office of Enforcement
Indiana Department of
Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015
6. Respondent is assessed a Civil Penalty of One Million and Thirty- Seven Thousand Dollars ($1,037,000). Said Penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Order, unless its payment is modified by a following paragraph.
7. Civil penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number and shall be mailed to:
Cashier
IDEM
100 North Senate
P.O. Box 7060
Indianapolis, Indiana 46206-7060
8. Within one year of the Effective Date of this Order, Respondent shall complete a Supplemental Environmental Project (SEP) which involves the installation and operation of an emission control device at Gary Work's two (2) new desulfurization stations located at the No. 1 BOP Shop. In addition, the reladling process will be connected to and controlled by the new emission control device. The emission control device will consist of collection hoods, ducts, dampers, a baghouse and electrical power equipment. The estimated cost of the emission control device is at the minimum $1,950,000. The new emission control device is projected to enhance the control efficiency of particulate matter at the reladling facility to 98%, compared to the existing 80% for the natural gas iron oxide fume suppression.
9. Within thirty (30) days after the Effective Date of this Order, Respondent shall pay a portion of the civil penalty stated in paragraph six (6) above in the amount of Two Hundred Seven Thousand and Four Hundred Dollars ($207,400). Upon completion of the SEP, Respondent shall submit to IDEM documentation verifying date of completion and costs. Timely and satisfactory completion of the SEP will cancel the remaining $829,600 civil penalty. If the SEP is not completed in accordance with this agreement and within the specified time period, the Respondent agrees to pay the remaining amount of the civil penalty plus interest at the rate established by IC 24-4.6-1-101 calculated from thirty (30) days after the Effective Date of this Order.
10. Within thirty days of the Effective Date of this Order, Respondent shall submit to IDEM's Office of Air Management a source test protocol. Within sixty (60) days of IDEM's approval of a testing protocol or start up of the baghouse (whichever is later), Respondent shall conduct a source test at the desulfurization/reladling's new emission control device to demonstrate 98% control efficiency of particulate matter. The control efficiency shall be calculated using the inlet and outlet concentrations of particulate matter at the baghouse. The source test shall be conducted in accordance with 326 IAC 3-6 and procedures approved by IDEM's Office of Air Management. The test protocol submitted by Respondent shall provide for at least three (3) test runs, with each run consisting of no less than sixty (60) minutes when either a reladling or desulfurization event or both is occurring.
Respondent shall pay a daily stipulated penalty of One Thousand Dollars ($1,000) for each day that Respondent fails to conduct the source test past the above deadline.
11. If the source test does not demonstrate 98% control efficiency for the reladling and desulfurization processes, Respondent shall pay a stipulated penalty of Fifteen Thousand Dollars ($15,000). In addition, Respondent shall submit to IDEM a work plan detailing steps such as work practices or further control to be taken by Respondent to ensure 98% control efficiency. The work plan shall be due to IDEM within thirty (30) days of receipt of results. Within sixty (60) days of IDEM's written approval of the work plan, Respondent shall implement the work plan and conduct a second source test for particulate matter emissions on the new emissions control device.
12. If the second source test referred in paragraph eleven (11) does not demonstrate 98% control efficiency of particulate matter for the reladling and desulfurization processes, Respondent shall petition IDEM for an alternate control efficiency or testing procedure (as specified in paragraph ten) within ten (10) days of receipt of the second source test results. If IDEM denies Respondent's petition for an alternate control efficiency or testing procedure, Respondent shall pay the remaining $829,000 portion of the civil penalty. The balance of the civil penalty shall be due within thirty (30) days upon written notification from IDEM.
13. Respondent shall pay a daily stipulated penalty of One Thousand Dollars ($1,000) for each day that Respondent fails to submit and/or implement the work plan or conduct the source test past the deadlines noted in paragraphs eleven (11) and twelve (12) above.
14. Stipulated penalties shall be due and payable with thirty (30) days after Respondent receives written notice that the Commissioner has determined a stipulated penalty is due. Assessment and payment of a stipulated penalty shall preclude the Complainant from seeking any additional monetary relief against the Respondent for that violation of the Agreed Order which gave rise to the stipulated penalty. In lieu of assessment of any of the stipulated penalties above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent's violation of this Agreed Order, including, but not limited to: civil penalties pursuant to IC 13-30-4, and permit revocation pursuant to IC 13-15-7 and 326 IAC 2. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking or obtaining any injunctive relief against Respondent for violation of this Agreed Order.
15. "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from causes beyond the control 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 the best efforts to anticipate any potential force majeure 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 financial inability to complete the work required by this Agreed Order or increases in cost to perform the work.
"Force Majeure", for purposes of this Agreed Order, is deemed to specifically include work stoppages associated with any actions taken by or imposed on the union work force at the Respondent's facilities.
The Respondent shall notify IDEM by calling within three (3) calendar days and by writing no later than seven (7) calendar days after any event which 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 their 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. Said decision shall be communicated to the Respondent.
16. In the event that the civil penalty required by paragraph six (6) or the stipulated penalties assessed pursuant to paragraphs two (2) and three (3) are 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 begin to accrue on the date the civil penalty or stipulated penalty is due until the full penalty is paid.
17. This Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, legal representatives and assigns. The Respondent's signatories to this 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 Order.
18. The Respondent shall provide a copy of this Order, if in force, to any subsequent owners or successors before ownership rights are transferred.
19. Respondent shall comply with all applicable laws and all rules of any board created by Title 13 of the Indiana Code.
20. This Order shall be valid and enforceable the date this Order is adopted by the Complainant. However, all time periods shall run from the date Respondent receives this Order (the "Effective Date"). This Agreed Order shall remain in effect until all terms and conditions of paragraphs one (1), two (2), six (6), seven (7), eight (8) and ten (10) are met and satisfied.
TECHNICAL RECOMMENDATION: RESPONDENT
Department of Environmental USX Corporation
Management
By: By:
David P. McIver Printed:
Chief, Air Section
Office of Enforcement Title:
Date:
Date:
By:
Printed:
Title:
Date:
COUNSEL FOR COMPLAINANT COUNSEL FOR RESPONDENT
Department of Environmental
Management
By: By:
Office of Legal Counsel
Date:
Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
THIS DAY OF , 199 .
For the Commissioner
Signed on March 8, 1999
Felicia Robinson George
Assistant Commissioner
Office of Enforcement