STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. A-4189
)
KOBELCO METAL POWDER )
OF AMERICA, INC., )
)
Respondent. )
AGREED ORDER
I. FINDINGS OF FACT
2. Respondent is Kobelco Metal Powder of America, Inc. (hereinafter referred to as
"Respondent"), which owns and operates a powdered metal fabrication facility at
1625 Bateman Ave., located in Seymour, Indiana (Source).
3. The Indiana Department of Environmental Management ("IDEM") has
jurisdiction over the parties and subject matter of this action.
4. The Respondent waives its right to issuance of a Notice of Violation and to the
settlement period of sixty (60) days as provided for by IC 13-30-3-3.
5. During an inspection of Respondent's facility on February 9, 1998, Complainant's representative observed that Respondent did not conduct visible emissions (VE) readings on at least a daily basis; and did not have its personnel certified to read
the VE as per Method 9, a violation of 40 CFR 60.273a(c) incorporated in 326
IAC 12-1, which requires such VE readings when a continuous opacity monitor is
not used.
6. During the inspection, Complainant's representative observed that a daily records
log of the dust collection system fan motor amperes and damper position was
absent, nor (as an allowed alternative) was a continuous volumetric flow rate
monitoring and recording device installed. These activities constitute a violation
of 40 CFR 60.274a(b) incorporated in 326 IAC 12-1.
7. During the inspection, Complainant's representative observed that Respondent had
failed to submit semi-annual reports of the control device emissions opacity
exceedances to the Office of Air Management's (OAM) Compliance Data
Section, a violation of 40 CFR 60.276a(b) incorporated in 326 IAC 12-1.
8. Operation condition number 19, "Stack Test requirements," of construction permit
number CP 071-2546, issued on December 10, 1993, requires that "within 180
days of the start of operation, emissions testing shall be performed in accordance
with 326 IAC 3-2 to determine compliance with: particulate matter (PM/PM10)
emissions limit of Conditions 4a and 4e using EPA Method 5, and carbon
monoxide (CO) limits of conditions 4f, 10b, & 11b using EPA Method 10."
9. During the inspection Complainant's representative observed that Respondent did
not conduct startup performance stack tests for PM/PM10 and CO within 180 days
of the start of operation, a violation of construction permit CP 071-2546 operation
condition number 19.
10. Pursuant to 326 IAC 2-2-3, operation condition number 4f, "CO," of construction
permit number CP 071-2546, issued on December 10, 1993, requires that "total
meltshop CO emissions shall be limited to 10.5 pounds of CO emitted per ton of
metal product based on a twenty-four hour averaging period, 23 tons per month,
and 8.5 pounds of CO emitted per ton of metal product based on a one month
averaging period from the baghouse."
11. According to Respondent's records, in December 1996, CO emissions were 8.61
pounds per ton of metal (lb/ton). This constitutes a violation of construction
permit CP 071-2546 operation condition number 4f and of 326 IAC 2-2-3, which
limits CO emissions to 8.5 lb/ton.
12. According to Respondent's records, in January 1997, CO emissions were 9.41
lb/ton, and 24.43 tons per month (tons/mo). These activities constitute violations
of construction permit CP 071-2546 operation condition number 4f and of 326
IAC 2-2-3, which limit CO emissions to 8.5 lb/ton and to 23 tons/mo.
13. Respondent failed to submit quarterly reports of gas usage (in the format required
on page 11 of the permit) to the OAM's Compliance Data Section. These
activities constitute a violation of construction permit CP 071-2546 operation
condition number 24 and of 326 IAC 2-2-3.
14. On May 27-28, 1998, Respondent conducted a performance stack test for
particulate matter (PM/PM10) in accordance with the requirements of 326 IAC 3-
6 on the electric arc furnace (EAF) baghouse stack. The report on Particulate
Compliance Testing indicated compliance with PM/PM10 emissions limits. On
June 29, 1998, Respondent conducted a performance stack test for carbon
monoxide (CO) in accordance with the requirements of 326 IAC 3-6 on the EAF.
The report on Carbon Monoxide Compliance testing indicated compliance with
Respondent's CO limit for the EAF.
15. On March 26, 1998, and September 24, 1998, Respondent certified personnel to
conduct visible emissions readings on a daily basis. Records documenting such
readings for the period March 26, 1998, to present are available at Respondent's
facility for Complainant's inspection.
16. On April 16, 1998, Respondent submitted quarterly reports of gas usage to
Complainant covering 1996, 1997 and the first quarter of 1998.
17. In March 1998, Respondent commenced a daily record log of data collected with
respect to the dust collection system fan motor amperes and damper position.
Such log is available at Respondent's facility for Complainant's inspection.
18. Respondent waived its right to a Notice of Violation issuance, pursuant to IC 13-
30-3-3, in a letter dated May 18, 1998 written by Respondent's legal
representative.
19. 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.
20. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the
Complainant or his delegate, and has been received by the Respondent. This
Agreed Order shall have no force or effect until the Effective Date.
2. Respondent shall submit quarterly reports of gas usage to the OAM's Compliance
Data Section in accordance with perm it CP 071-2546.
3. Respondent shall install and operate new continuous emission monitoring (CEM)
systems to monitor CO emissions from the electric arc furnace baghouse exhaust
stack no later than one hundred and twenty (120) days from the Effective Date of
this Agreed Order. The CEM shall comply with the requirements stated in 326
IAC 3-5-1 through 326 IAC 3-5-5. Record keeping and reporting shall comply
with the requirements set forth in 326 IAC 3-5-6 and 326 IAC 3-5-7.
4. In the event the following terms and conditions are violated, the Complainant may
assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
Agreed Order day of violation
Paragraph 3 of this $ 500.00 per each
Agreed Order day of violation
5. Stipulated penalties shall be due and payable within thirty (30) days after
Respondent receives written notice that the Complainant has determined a
stipulated penalty is due. Assessment and payment of stipulated penalties shall
not preclude the Complainant from seeking any additional relief against the
Respondent for violation of the Agreed Order. In lieu of any of the stipulated
penalties given above, the 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.
6. All submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Mr. Michael Stonik, Enforcement Case Manager
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
7. Respondent is assessed a civil penalty of Eighty Four Thousand Two Hundred and
Fifty Dollars ($ 84,250.00). Within thirty (30) days of the Effective Date of the
Agreed Order, the Respondent shall pay a cash penalty of Twenty Eight Thousand
Three Hundred and Fifty Three Dollars and Eighty Three Cents ($ 28,353.83).
The payment shall be submitted to the Environmental Management Special Fund,
as directed by paragraph 17.
8. In lieu of payment of the remaining civil penalty, the Respondent shall perform
and complete the following three Supplemental Environmental Projects (SEP):
(1) Environmental Awareness and Compliance Training; (2) Waste Oil, Lubricant
Storage Area; (3) Magnetic Separators for Sludge Pond and Settling Tank, as
described in Exhibit A. Exhibit A with the exception of the cost estimates is
hereby incorporated by reference and made part of this Agreed Order.
9.
For SEP (1),
Respondent shall submit the training schedule within thirty (30)
days from the Effective Date of this Agreed Order. Respondent shall complete the
training of all eligible staff within one hundred and eighty (180) days of the
Effective Date of this Agreed Order. Respondent shall submit a report, including
proof of costs incurred, certifying the SEP (1) completion, including the list of
personnel trained, sixty (60) days after completion of the training of all eligible
staff.
10. For SEP (2), Respondent shall approve and submit a copy of the approved facility
design within sixty (60) days from the Effective Date of this Agreed Order.
Respondent shall obtain all necessary approval documents from federal, state, and
local authorities if required prior to commencing the SEP (2) construction.
Respondent shall submit a report, including proof of costs incurred and new waste
oil and lubricants handling standard operating procedure, certifying the SEP (2)
completion no later than twelve (12) months from the Effective Date of this
Agreed Order.
11. Respondent shall approve and submit a copy of the approved SEP (3) design sixty (60) days from the Effective Date of this Agreed Order. Respondent shall obtain all necessary approval documents from federal, state, and local authorities if
required prior to commencing the SEP (3) construction. Respondent shall submit
a report, including proof of costs incurred, certifying the SEP (3) completion no
later than one (1) year from the Effective Date of this Agreed Order.
12. The total funds expended on the SEPs shall be a minimum of One Hundred and
Thirty One Thousand Five Hundred and Eighty Four Dollars and 68 Cents
($131,584.68). If any 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 attributable to such SEP (Offset Amount), plus
interest at the rate established by IC 24-4.6-1-101, to the Environmental
Management Special Fund. The Offset Amount of each SEP is as follows: SEP
(1) - $1,896.17; SEP (2) - $ 8,000.00; SEP (3) - $46,000.00. Payment of the
remaining Civil Penalty shall be submitted within fifteen (15) days from receipt of
a notice to pay from IDEM. Interest on the remaining Civil Penalty shall be paid
from the Effective Date of this Agreed Order.
13. "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 best efforts to anticipate any
potential force majeure event 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 costs to perform the work.
14. 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 the 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. If a delay is attributable to a force majeure, IDEM shall extend, in writing, the
time period for performance under this Agreed Order, by the amount of time that
is attributable to the event constituting the force majeure.
15. Civil and stipulated penalties are payable by check to the Environmental
Management Special Fund. Checks shall include the Cause Number of this action
and shall be mailed to:
Cashier
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
16. In the event that the civil penalty required by paragraph 9 and/or stipulated
penalties required by paragraph 6 of this Agreed Order are not paid within thirty
(30) days of the Effective Date of this Agreed Order and/or within thirty (30) days
upon Complainant's written notice, respectively, 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.
17. 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.
18. 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.
19. 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.
20. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.
TECHNICAL RECOMMENDATION: KOBELCO METAL POWDER
Department of Environmental Management OF AMERICA, INC.:
By: _________________________ By: _________________________
David P. McIver
Air Section Chief
Office of Enforcement Printed: ______________________
Title: ________________________
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Office of Legal Counsel
Department of Environmental Management
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS _____ DAY OF ____________________, 199___.
For the Commissioner:
Signed on July 14, 1999
___________________________
Felicia George
Assistant Commissioner
of Enforcement
Converted by Andrew Scriven