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-4617 or 1999-3618-A
)
UNITED STATES GYPSUM COMPANY, )
)
Respondent. )
2. Respondent is United States Gypsum Company (hereinafter referred to as
"Respondent"), who owns and operates a wallboard production facility at SR 650 ,
located in Shoals, 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:
5. Pursuant to Section D.9 of the Title V permit number T101-7691-00001, issued
on May 24, 1999, each operation at the number one wallboard production facility
shall take a particulate matter (PM) emissions limit, including the glip saw
operation PM limit of 0.35 lbs/hr.
6. During the stack test conducted on June 15, 1999, the average PM emissions from
the glip saw operation were 2.81 lbs/hr, a violation of permit condition #
D.9.1(a)(4).
7. Respondent identified the cause of the non-compliance as a bag clamp break that
allowed the bag to slip partially away from its cage. Respondent corrected this
problem. On October 7, 1999, Respondent retested the glip saw operation
baghouse. The test results confirmed compliance with the permit condition.
8. Respondent submitted a standard operating procedure (SOP) for periodic
inspections of the baghouse attached to the glip saw operation. The SOP
designated as Exhibit A, is hereby made an enforceable part of this Agreed Order.
9. In recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
2. Respondent shall conduct the periodic baghouse inspections in accordance with
the SOP, make records of the inspections, and maintain them on site for two (2)
years. Respondent shall make the records available to Complainant's
representative upon request.
3. 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
4. Respondent is assessed a civil penalty of Ten Thousand Dollars ($10,000.00).
Said penalty amount shall be due and payable to the Environmental Management
Special Fund within thirty (30) days of the Effective Date of this Agreed Order.
5. In the event the following terms and conditions are violated, Complainant may
assess and Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
2 of this Agreed Order per each day of violation
6. Stipulated penalties shall be due and payable within thirty (30) days after
Respondent receives written notice that Complainant has determined a stipulated
penalty is due. Assessment and payment of stipulated penalties shall not preclude
Complainant from seeking any additional relief against Respondent for violation
of the Agreed Order. In lieu of any of the stipulated penalties given above,
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.
7. 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
8. In the event that the civil penalty required by Order paragraph 4 of this Agreed Order is not paid within thirty (30) days of the Effective Date of this Agreed Order, or if the stipulated penalty required by Order paragraph 5 of this Agreed Order is not paid within thirty (30) days of Complainant's written notification receipt, 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. Respondent is hereby assessed a Civil Penalty of ten Thousand Dollars
($10,000.00). Within thirty (30) days of the effective date of the Agreed Order,
Respondent shall pay a cash penalty of Two Thousand Dollars ($2,000.00). The
payment shall be submitted to the Environmental Management Special Fund, as
directed by Order paragraph 8 of this Agreed Order. In lieu of payment of the
remaining Civil Penalty, Respondent shall perform and complete the
Supplemental Environmental Project ("SEP"), Paving of an Area of Roadway at
the End of the Number 2 Board Line. The SEP involves excavation of the area of
approximately 5,350 sq. ft, filling it with new material, and rolling on a pavement
to ensure proper compaction and drainage. The location of the area to be paved is
shown on two sketches attached in Exhibit B. The total funds expended on the
SEP shall be a minimum of Twenty Four Thousand Dollars ($24,000.00).
Respondent shall complete the SEP on or before July 1, 2000. Within thirty (30)
days of the SEP completion, Respondent shall submit a completion report
accompanied by a proof of the total expenditures made.
If the SEP is not completed in accordance with this Agreed Order and within the
specified time period, Respondent shall pay the remaining amount of the Civil
Penalty, plus interest at the rate established by IC 24-4.6-1-101, to the
Environmental Management Special Fund. 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.
10. "Force Majeure", for purposes of this Agreed Order, is defined as any event
arising from causes beyond the control of 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 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.
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 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 Respondent to minimize the delay, and the timetable by which these
measures will be implemented. 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. 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 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.
11. This Agreed Order shall apply to and be binding upon Respondent, its officers,
directors, principals, agents, successors, subsidiaries, and assigns. 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 Respondent shall in any way alter its
status or responsibilities under this Agreed Order.
12. 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.
13. 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.
14. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.
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 ____________________, 2000.
For the Commissioner:
Signed on May 4, 2000
___________________________
Felicia
A. Robinson
Assistant Commissioner
of Enforcement
Converted by Andrew Scriven