STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
vs. ) Case No. 2000-9915-A
)
PHOENIX FABRICATORS AND )
ERECTORS, INC., )
)
Respondent. )
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 (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is Phoenix Fabricators and Erectors, Inc. (ARespondent@), which owns and operates a structural steel water tank fabricating plant located at 182 South County Line Road 900 East in Avon, Hendricks County, Indiana, (ASite@).
3. The Indiana Department of Environmental Management (AIDEM@) 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 via Certified Mail to:
Mr. Jeffrey A. Short
President and Registered Agent
Phoenix Fabricators and Erectors, Inc.
182 South County Road 900 East
Avon, Indiana 46123
a. Pursuant to 326 IAC 2-1-4, 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. This source, a structural steel water tank fabricating source, began operating without first applying for and obtaining an operating permit.
b. Pursuant to 326 IAC 2-7-3, any Part 70 source which has failed to submit a timely and complete Part 70 permit application may not operate after the time that it is required to submit the Part 70 permit application. This source continued to operate following the December 13, 1996 Part 70 permit submission deadline and prior to applying for and receiving a Part 70 permit.
Pursuant to 326 IAC 2-7-4, the owner of each Part 70 source shall submit a timely and complete permit application. This source=s Part 70 permit application was received after the December 13, 1996 submission deadline.
6. The Respondent submitted a Part 70 permit application on July 26, 1999.
7. 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 her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. Respondent is assessed a civil penalty of Thirty Eight Thousand and Five Hundred Dollars ($38,500). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Twenty One Thousand and One Hundred and Sixty Seven Dollars ($21,167). 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 three (3) Supplemental Environmental Projects (SEPs). Respondent estimates the total cost of the three (3) SEPs to be Twenty Seven Thousand Dollars ($27,000). Within fifteen (15) days of completing the three (3) SEPs, the Respondent shall submit written notice and documentation to IDEM, which substantiates all actions taken and costs, incurred with respect to the SEPs.
In the event that the cost of SEP a.) is less than Twenty Thousand Dollars ($20,000), the Respondent shall pay fifty (50) percent of the difference between Twenty Thousand Dollars ($20,000) and the actual cost of the SEP to the Environmental Management Special Fund as payment of the remaining civil penalty. In the event that the total combined cost of SEPs b.) and c.) is less than Seven Thousand Dollars ($7,000), the Respondent shall pay thirty-three (33) percent of the difference between Seven Thousand Dollars ($7,000) and the actual cost of those SEPs to the Environmental Management Special Fund as payment of the remaining civil penalty.
As a Supplemental Environmental Project, Respondent shall perform the following three projects:
a. Replace existing baghouse filter system with a cartridge filter system, which will increase the removal efficiency for PM from ninety percent efficiency to ninety-nine percent efficiency.
b. Install concrete pads with sides for two (2) above ground storage tanks which store gasoline and diesel fuel. The capacity of the secondary containment pad will be large enough to contain the contents of both tanks. Tank sizes are three hundred (300) gallons and Five Hundred and Fifty (550) gallons.
c. Environmental training for employees to include Resource Conservation a and Recovery Act (RCRA), Department of Transportation (DOT) and
Emergency Planning and Community-Right-to-Know Act.
3. In the event that the Respondent does not complete the three (3) SEPs by one (1) year from the Effective Date, the full amount of the civil penalty as stated in paragraph 2 above, plus interest established by IC 24-4.6-101 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.
4. The Respondent shall notify the Complainant in the event that SEP 2a, as listed in the preceding paragraph, will not be pursued. This notification must be received by the following address within fifteen (15) days of the decision to not pursue SEP 2a:
Ms. Linda L. McClure
Indiana Department of Environmental Management
Office of Enforcement
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
5. In the event the Respondent does not pursue SEP 2a; the Respondent shall pay Ten Thousand Dollars ($10,000), which is fifty percent of the estimated cost of SEP 2a. Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of notifying the Complainant.
6. Civil 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:
Cashier
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
7. In the event that the civil penalty required by Order paragraph 2 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.
8. In the event that the civil penalty required by Order paragraph 5 is applicable and it is not paid within thirty (30) days of notifying the Complainant that SEP 2a will not be pursued, 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.
9. 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.
10. 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.
11. 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.
12. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Phoenix Fabricators and Erectors, Inc.
By: _________________________ By: _________________________
David P. McIver
Chief, Air Section Printed: ______________________
Office of Enforcement
Title: ________________________
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Jay Rodia, Attorney
Office of Legal Counsel
Department of Environmental Management
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2001.
For the Commissioner:
Signed 10/24/01
___________________________
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs