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-4408
)
DEPARTMENT OF CORRECTION )
PENDLETON CORRECTIONAL FACILITY, )
)
Respondent. )
AGREED ORDER
I. FINDINGS OF FACT
2. Respondent is Department of Correction (hereinafter referred to as "Respondent"),
a department of the State of Indiana who operates its Pendleton Correctional
Facility at 4490 West Reformatory Road, located in Pendleton, Indiana.
3. The Indiana Department of Environmental Management ("IDEM") has
jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail
to:
Mr. Edward L. Cohn, Commissioner Mr. Jack Duckworth, Superintendent
Department of Correction Pendleton Correctional Facility
402 West Washington Street, Rm. E-334 P. O. Box 28
Indianapolis, IN 46204 Pendleton, IN 46064
Respondent constructed a boiler designated as B-5, and converted boilers
designated as B-1 through B-3 for coal burning to operate on both natural gas and
fuel oil in 1995 without first applying for and obtaining appropriate construction
and operating permits, violations of 326 IAC 2-1-3 and 326 IAC 2-1-4.
6. Rule 326 IAC 12, which incorporates by reference 40 CFR 60.45c Subpart Dc
requires that an operator of any affected facility shall conduct an initial
performance test on the facility to determine compliance with the standards.
Respondent failed to conduct an initial performance stack test on the B-5 boiler as
required pursuant to Subpart Dc, a violation of 40 CFR 60.45c Subpart Dc.
7. Rule 326 IAC 20-7, which incorporates by reference 40 CFR 63.322(a) requires
that a dry cleaning facility operator shall equip the dry cleaning facility with a
refrigerated condenser or a carbon adsorber.
Respondent failed to equip its dry cleaning facility with a refrigerated condenser
or a carbon adsorber between October 1996 and July 1997, a violation of 40 CFR
63.322(a).
8. 40 CFR 63.323(a) requires that a dry cleaning facility operator shall conduct
monitoring of a refrigerated condenser or a carbon adsorber.
Respondent failed to conduct monitoring of a refrigerated condenser or a carbon
adsorber between October 1996 and July 1997, a violation of 40 CFR 63.323(a).
In July 1997, Respondent replaced its existing dry cleaning facility with the
compliant equipment.
9. 40 CFR 63.324 requires that a dry cleaning facility operator shall keep records and
submit reports of the monitoring results to Complainant upon Complainant's
request.
Respondent failed to keep records of the monitoring results between October 1996
and July 1997, a violation of 40 CFR 63.324. Since July 1997, Respondent
started required monitoring and record keeping procedures.
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 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 an amendment to its Title V permit application to
account for the fuel conversion of boilers B-1 through B-3 to the Office of Air
Management with a carbon copy to the Office of Enforcement within ninety (90)
days from the Effective Date of this Agreed Order.
3. Respondent shall submit a particulate matter emissions testing protocol and a
proposed test date for boiler B-5 to the Compliance Data Section of the Office of
Air Management with a carbon copy to the Office of Enforcement within ninety
(90) days from the Effective Date of this Agreed Order and complete the test
within one hundred and twenty (120) days from the Effective Date of this Agreed
Order. Test shall be conducted pursuant to 326 IAC 3-6.
4. Respondent shall develop a standard operating procedure (SOP), post it close to
the dry cleaning unit, and train designated personnel to conduct monitoring
pursuant to 40 CFR 63.323, and to take records of the results, and submit a copy
of the SOP along with the list of trained individuals to the Complainant not later
than ninety (90) days from the Effective Date of this Agreed Order.
5. Once Respondent has complied with the requirements of Order paragraphs 2, 3,
and 4 of this Agreed Order, it shall submit documentation that shows how and
when the violations were corrected.
6. All submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Mr. Michael Stonik, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
7. "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 obligations under Order paragraphs 2 and 3 of 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.
The Respondent shall notify Complainant 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 Complainant. Said decision shall be communicated to the
Respondent.
If a delay is attributable to a force majeure, Complainant 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.
This Agreed Order shall apply to and be binding upon the Respondent, its
directors and successors. 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.
9. 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.
10. 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.
11. This Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of this Agreed Order.
TECHNICAL RECOMMENDATION: DEPARTMENT OF CORRECTION:
Department of Environmental Management
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 December 2, 1999
___________________________
Felicia A. Robinson
Assistant Commissioner
of Enforcement
Converted by Andrew Scriven