STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

LEHIGH CEMENT COMPANY LLC,

Respondent.

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Case No. 2018-25227-A

 

 

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 owns and operates a portland cement manufacturing plant with Plant I.D. No. 093-00002 located at 180 North Meridian Road in Mitchell, Lawrence County, Indiana (the “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:

Jonathan Morrish, President

Corporation Service Company,

Lehigh Cement Company LLC

Registered Agent

300 E. John Carpenter Freeway

135 N. Pennsylvania St, Suite 1610

Irving, Texas  75062

Indianapolis, IN  46204

 

5.             During an investigation conducted by a representative of IDEM, the following violations were found:

 

a.       Pursuant to 40 CFR 63.1350(l)(4)(iii), if you monitor continuous performance through the use of an HCl CPMS according to paragraphs (b)(6)(v)(A) through (H) of §63.1349, for any exceedance of the 30 kiln operating day HCl CPMS average value from the established operating limit, you must within 30 days of the exceedance or at the time of the annual compliance test, whichever comes first, conduct an HCl emissions compliance test to determine compliance with the HCl emissions limit and to verify or reestablish the HCl CPMS operating limit within 45 days.

Respondent exceeded the 30 kiln operating day average value on July 11, 2017 and failed to reestablish the HCl CPMS operating limit within 45 days, in violation of 40 CFR 63.1350(l)(4)(iii).

b.       Pursuant to Part 70 Permit 093-32611-00002, issued to Respondent on February 4, 2013, condition C.18, any deviation from permit requirements, the date(s) of each deviation, the cause of the deviation, and the response steps taken must be reported except that a deviation required to be reported pursuant to an applicable requirement that exists independent of this permit, shall be reported according to the schedule stated in the applicable requirement and does not need to be included in this report. This report shall be submitted not later than thirty (30) days after the end of the reporting period.

Respondent failed to submit complete reports containing all deviations from permit requirements from the 3rd quarter 2016 through the 4th quarter 2017, in violation of Part 70 Permit 093-32611-00002, issued to Respondent on February 4, 2013, condition C.18.

 

6.             Respondent conducted the required testing and reestablished the HCl CPMS operating limit on October 17, 2017.

 

7.             Respondent began submitting quarterly reports with the necessary information starting the first quarter 2018.

8.             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 093-37267-00002, unless superseded by a permit modification or renewal.

 

3.             All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Matthew Chaifetz, Compliance and Enforcement Manager

Compliance and Enforcement Branch – Mail Code 61-53

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

4.             Respondent is assessed and agrees to pay a civil penalty of Nine Thousand Five Hundred Sixty-Two Dollars and Fifty Cents ($9,562.50).  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”.

 

5.             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:

 

IDEM Office of Legal Counsel

IGCN, Rm  N1307

100 N Senate Ave

Indianapolis, IN  46204

 

6.             This Agreed Order shall apply to and be binding upon Respondent and 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.

 

7.             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 5, above.

 

8.             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.

 

9.             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.

 

10.          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.

 

11.          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.

 

12.          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.

 

13.          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.

 

14.          This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Lehigh Cement Company LLC

 

 

 

By:

 

 

By:

 

 

David P. McIver, Chief

 

Printed:

 

 

Enforcement Section

 

Title:

 

 

Office of Air Quality

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2019.

 

 

For the Commissioner

 

 

 

Signed on June 3, 2019

 

Matthew Stuckey, Deputy Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management