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STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. LEHIGH CEMENT
COMPANY LCC, Respondent. |
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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 Lehigh Cement Company LLC (�Respondent�),
which operates the stationary portland
cement manufacturing plant with Plant ID No. 017-00005, located at 3084 West
County Road 225 South, in Logansport, Cass County, Indiana (�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:
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Jonathan
Morrish, President |
Corporation Service Co., Registered
Agent |
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Lehigh
Cement Company, LLC |
135
N. Pennsylvania Street |
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300
E. John Carpenter Freeway |
Suite
1610 |
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Irving,
TX 75062 |
Indianapolis, IN 46204 |
5.
During an investigation conducted by a
representative of IDEM, the following violation was found:
a.������ Pursuant to Part 70 Permit No. 017-37759-00005
(�permit�), issued to Respondent on December 30, 2016, condition D.3.2,
continuous opacity monitoring systems (COMS) for clinker cooler #1 (EU412) and
clinker cooler #2 (EU421) shall be calibrated, maintained and operated for
measuring opacity, which meet all applicable performance specifications of 326
IAC 3-5-2.
Respondent failed to conduct daily calibrations resulting in 62.6% COMS downtime
in the first quarter 2017, in violation of Part 70 Permit No. 017-37759-00005,
condition D.3.2.
b.������ Pursuant to Part 70 Permit No.
017-37759-00005 (�permit�), issued to Respondent on December 30, 2016,
condition D.3.3, whenever a COMS is malfunctioning or down for maintenance, or
repairs for a period of twenty-four (24) hours or more and a backup COMS is not
online not later than twenty-four (24) hours of shutdown or malfunction of the
primary COMS, and the process is operating, the Permittee shall provide a
certified opacity reader, who may be an employee of the Permittee or an
independent contractor, to self-monitor the emissions from the emission unit
stack.
Respondent failed to conduct self-monitoring and/or reporting as required by
the condition, in violation of Part 70 Permit No. 017-37759-00005, condition D.3.3(a), D.3.3(b), and D.3.3(d).
6.
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 Part 70 Permit
number 017-38491-00005, unless superseded by a permit modification or renewal.
3.
Within 30 days of the Effective Date,
Respondent shall submit documentation and/or procedures implemented to ensure
calibrations are reviewed daily.
4.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Matthew
Chaifetz, Senior Enforcement Manager |
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Compliance
and Enforcement Branch � Mail Code 61-53 |
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Indiana
Department of Environmental Management |
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100 North
Senate Avenue |
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Indianapolis,
IN 46204-2251 |
5.
Respondent is assessed and agrees to pay a
civil penalty of Twenty-Two Thousand Five Hundred Dollars ($22,500.00).� Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the 30th day being the �Due Date�.
6.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondent shall
pay a stipulated penalty in the following amount:
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Paragraph |
Violation |
Stipulated Penalty |
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3 |
Failure to
submit documentation and/or procedures |
$100 per
week or part thereof |
7.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the �Due Date�.� Complainant
may notify Respondent at any time that a stipulated penalty is due.� Failure to notify Respondent in writing in a
timely manner of a stipulated penalty assessment shall not waive Complainant�s
right to collect such stipulated penalty or preclude Complainant from seeking
additional relief against Respondent for violation of this Agreed Order.� Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief
includes any remedies or sanctions available pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
8.
Civil and stipulated 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:
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IDEM
Office of Legal Counsel |
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IGCN,
Rm� N1307 |
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100
N Senate Ave |
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Indianapolis,
IN� 46204 |
9.
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 they represent.� No change
in ownership, corporate, or partnership status of Respondent shall in any way
alter its status or responsibilities under this Agreed Order.
10.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1.� The interest shall be
computed as having accrued from the Due Date until the date that Respondent
pays any unpaid balance.� Such interest
shall be payable to the Environmental Management Special Fund, and shall be
payable to IDEM in the manner specified in Paragraph 8, above.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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Lehigh
Cement Company LLC |
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By: |
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By: |
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David
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Printed: |
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Enforcement
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Title: |
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Office
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COUNSEL
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Date: |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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,
2018. |
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For
the Commissioner |
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Signed
on March 12, 2018 |
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Keith
Baugues, Assistant Commissioner |
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Office
of Air Quality |
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Indiana
Department of Environmental Management |
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