4. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 5 

77 WEST JACKSON BOULEVARD 

CHICAGO, IL 60604-3590 

SEP 3 0 2011 

REPLY TO THE ATTENTION OF: 

CERTIFIED MAIL 

RETURN RECEIPT REQUESTED 

Chester R. Babst III 

Babst Calland Clements Zomnir 

Two Gateway Center 

Pittsburgh, Pennsylvania 15222 

Re: In the Matter of: Potters Industries, Inc. 

Docket No. 

Dear Mr. Babst: 

Enclosed is a file-stamped Consent Agreement and Final Order (CAFO) which resolves Potters 

Industries, Inc. CAA Docket No. CAA-05_2011..0061 - As indicated by the ding stamp on 

its first page, we filed the CAF'O with the Regional Hearing Clerk on rZcp-ai 

Pursuant to paragraph 35 of the CAFO, Potters must pay the $20,000.00 c1vil penalty within 30 

days of the datethe CAFO was filed, kk'rr3' 201( and Potters must complete the 

agreed upon supplemental environmental project as set forth in the CAFO. To complete your 

wire transfer, please see the payment information for making a wire transfer through EPA's 

Cincirmati Finance Center at Iitu://www.epa.gov/cfo/iinservices/pavnient instructionshtm. 

Your wire transfer must display the case name, case docket numberCAAO52O1 I-OOóland the 

billing document number 2751103A060 - Please direct any questions regarding this case to Mary McAuliffe, Associate Regional Counsel, 

312-886-6237. 

Sincerely, 

soJt& amt/Yunfr) 

Brent Marable 

Air Enforcement and Compliance Assurance Branch, IL/fM 

Enclosure 

cc: Regional Hearing ClerkIE-19J 

Marcy Toney, Regional Judicial Officer/C-I 4J 

Mary McAuliffe/C- I 4J 

Robert Hodanbosi/Ohio Environmental Protection Agency 

RecycledlRecyclable Printed with Vegetable Oil Based Inks on 100% Recycled Paper (50% Postoonsumer) 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 5 

In the Matter of: ) Docket No. CAA-O5-2011-0061 

) 

Potters Industries, Inc. ) Proceeding to Assess a Civil Penalty 

Cleveland, Ohio Under Section 1l3(çI-uf 

) 42 U.S.C. § 7413(d)D) Respondent. ) 

) SEP 302011 

Consent Agreement and Final Order REGIONAL. HEARING CLERK 

U.S. ENVIRONMENTAL 

Preliminary Statement PROTECTION AGENCY 

This is an administrative action commenced and concluded under Section 113(d) 

of the Clean Air Act (the Act), 42 U.S.C. § 7413(d), and Sections 22.1(a)(2), 22.13(b), and 

22.18(b)(2) and (3) of the consolidated Rules of Practice Governing the Administrative 

Assessment of civil Penalties and the RevocationlTermination or Suspension of Permits 

(consolidated Rules), as codified at 40 C.F.R. Part 22. 

Complainant is the Director of the Air and Radiation Division, U.S. 

Environmental Protection Agency (EPA), Region 5. 

Respondent is Potters Industries, Inc., a corporation doing business in Ohio. 

Where the parties agree to settle one or more causes of action before the filing of 

a complaint, the administrative action may be commenced and concluded simultaneously by the 

issuance of a consent agreement and final order (CAFO). 40 C.F.R. § 22.13(b). 

The parties agree that settling this action without the filing of a complaint or the 

adjudication of any issue of fact or law is in their interest and in the public interest. 

Respondent consents to the assessment of the civil penalty specified in this CAFO 

and to theterms of this CAFO. 
Jurisdiction and Waiver of Right to Hearing 

Respondent admits the jurisdictional allegations in this CAFO and neither admits 

nor denies the factual allegations in this CAFO. 

Respondent waives its right to request a hearing as provided at 40 C.F.R. 

§ 22.15(c), any right to contest the allegations in this CAFO, and its right to appeal this CAFO. 

Statutory and Regulatory Background 

On March 10, 2003, EPA approved the OAC Rule 3745-3 1, Permits to Install 

New Sources of Pollution, as part of the federally enforceable SIP for Ohio (68 Fed. Reg. 2909). 

Under OAC Rule 3745-31 -05, the director of Ohio EPA shall issue a PTI on the 

basis of the information appearing in the application, or information gathered by or furnished to the 

Ohio EPA, or both, if he determines that the installation or modification and operation of the air 

contaminant source will not prevent or interfere with the attainment or maintenance of applicable 

ambient air quality standards and not result in a violation of any applicable laws. 

On May 27, 1994, EPA approved the Ohio Administrative Code (OAC) 

Particulate Matter Standards Rule for Preventing Fugitive Dust, Applicability, 3745-17-08 as 

part of the federally enforceable SIP for Ohio (59 Fed. Reg. 27464). 

The Particulate Mailer Standard OAC Rule 3745-17-08(A) for Preventing 

Fugitive Dust states that the requirements of paragraph (B) of this rule apply to any fugitive dust 

source which is located within the areas identified in "Appendix A" of this rule and any such 

source shall comply with the requirements of paragraph (B) of this rule upon the effective date of 

June 27, 1994. 

2 
OAC Particulate Matter Standards Rule for Preventing Fugitive Dust, Appendix 

A: Applicability areas, 3745-17-08(AppA) states that the entirety of Cuyahoga County, Ohio is 

an area of the State of Ohio where paragraph (B) of OAC rule 3745-17-08 is applicable. 

The Particulate Matter Standard OAC Rule 3745-17-08(B) for Preventing 

Fugitive Dust states that no person shall cause or permit any fugitive dust source to be operated; 

or any materials to be handled, transported, or stored; or a building or its appurtenances or a road 

to be used, constructed, altered, repaired, or demolished without taking or installing reasonably 

available control measures to prevent fugitive dust from becoming airborne, as appropriate to 

minimize or eliminate visible particulate emissions or fugitive dust. 

On August 13, 1984, EPA approved the OAC Rule 3745-15-07, Nuisance 

Provision, as part of the federally enforceable SIP for Ohio (49 Fed. Reg. 32182). 

The Nuisance Provision OAC Rule 3745-1 5-07(A) states that no person shall 

cause, permit or maintain any such public nuisance as the emission or escape into the open air 

from any source or source of smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, odors, 

or any other substances or combinations of substances, in such a manner or in such amounts as to 

endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to 

property, is hereby found and declared to be a public nuisance. 

The Administrator of EPA (the Administrator) may assess a civil penalty of up to 

$37,500 per day of violation up to a total of $295,000 for SIP violations that occurred after 

January 12, 2009 under Section 1 13(d)(l) ofthe Act, 42 U.S.C. § 7413(d)(l), and 40 C.F.R. 

Part 19. 

3 
Factual Allegations and Alleged Violations 

Potters owns and operates a glass recycling facility located at 2380 West Third 

Street, Cleveland, Ohio (the facility) in Cuyahoga County. 

Potters is a "person," as that term is definedin the OAC Rule 3745-15-01, 

General Provisions Definitions as part of the federally enforceable SIP for Ohio (49 Fed. Reg. 

32182). 

Potters obtained a Permit to Install (PTI), Permit number 13-3171, for Unit POlO, 

Furnace IR, on November 20, 1996 from the Ohio EPA. 

Prior to August 4, 2011, Potters' PTI required that total particulate from Unit 

POlO must not exceed 1.08 pounds/hour (lbs/hr) and 4.73 tons per year (tpy). 

On November 29-30, 2010, in response to EPA's October 13, 2010 Information 

Request, Potters conducted particulate matter (PM) emissions testing at the Cleveland facility for 

Unit POlO at the inlet and the outlet of both the furnace baghouse and the air transport baghouse 

associated with the unit, and in accordance with Potters' Permit to Install (PT! 13-3171). 

Potters' PT! 13-3 171 Additional Terms and Conditions (3) requires that baghouse 

BFI-1R (furnace baghouse) must maintain overall control efficiency of 99.5% at all times. 

On December 27, 2010, Potters performed dye testing on the furnace baghouse 

and the air transport baghouse that identified 39 of the 304 bags in need of being replaced. 

All 39 bags were replaced with new bags on December 27, 2010. 

On December 28, 2010, Potters received stack test results for the November 29- 

30, 2010 stack test indicatiflg measured PM emissions at the outlet of the furnace baghouse in 

excess of the 1.08 lb/hr and 4.73 tons per year emission limits specified in Potters' Permit to 

Install (PTI 13-3 171). 

4 
27. Between February 22 and February 24, 2011, Potters replaced all 304 bags in the 

furnace baghouse as part of its annual maintenance program. 

After completing the baghouse changeout, on May 19-20, 2011, Potters 

conducted a stack test demonstrating compliance with the permitted emission limits. 

EPA alleges that, prior to May 19-20, 2011, Potters failed to demonstrate that it 

maintained required furnace baghouse control efficiency of 99.5% at as required by Potters' PTI 

13-3171. 

Tn addition, EPA alleges that Potters caused and permitted visible fugitive dust 

from its baghouse and facility to become airborne and escape the facility property in violation of 

the Particulate Matter Standards for Preventing Fugitive Dust in the Ohio SIP at 3745-17-08(B). 

EPA alleges that Potters allowed the escape of visible particulate matter and dust 

into the open air from the facility in such amounts as to be deemed a public nuisance in iohution 

of the Nuisance Provision in the Ohio SIP at 3745-15-07(A). 

EPA further alleges that Potters failed to operate its baghouse associated with 

Emission Unit P007 within the PTI 13-04607 permitted range of l"-6" of water. 

On August 12, 2011, Potters completed the installation of a cover on the outdoor 

cullet pile. On February 18, 2011, Potters installed a leak detection system on the furnace 

baghouse for Unit POlO. By not later than November 15, 2011, Potters shall apply for a 

modification to its current permit, to reduce its PM emissions (combined total for both baghouse 

stacks) to not exceed 2.0 lbs/hr and 8.76 tons per year from Unit P0 10. 

Civil Penalty 

Based on analysis of the factors specified in Section 113(e) of the Act, 42 U.S.C. 

§ 7413(e), the facts of this case, cooperation, prompt return to compliance, and agreement to 

5 
perform a supplemental environmental project, Complainant has determined that an appropriate 

civil penalty to settle this action is $20,000. 

Within 30 days after the effective date of this CAFO, Respondent must pay a 

$20,000 civil penalty by wire transfer. 

Respondent must send a notice of payment that states "In the matter of Potters 

Industries, Inc.," the docket number of this CAFO, and the billing document number to the 

Compliance Tracker, Air Enforcement and Compliance Assurance Branch and to Mary 

McAuliffe at the following addresses when it pays the penalty: 

Attn: Compliance Tracker, (AE-1 7J) 

Air Enforcement and Compliance Assurance Branch 

Air and Radiation Division 

U.S. Environmental Protection Agency, Region 5 

77 West Jackson Boulevard 

Chicago, Illinois 60604 

Mary McAuliffe (C-14J) 

Office of Regional Counsel 

U.S. Environmental Protection Agency, Region 5 

77 West Jackson Boulevard 

Chicago, Illinois 60604 

This civil penalty is not deductible for federal tax purposes. 

If Respondent does not pay timely the civil penalty or any stipulated penalties due 

under paragraph 54, below, EPA may bring an action to collect any unpaid portion of the penalty 

with interest, handling charges, nonpayment penalties, and the United States enforcement 

expenses for the collection action under Section 1 13(d)(5) of the Act, 42 U.S.C. § 7413(d)(5). 

The validity, amount, and appropriateness of the civil penalty are not reviewable in a collection 

action. 

Pursuant to 31 C.F.R. § 901.9, Respondent must pay the following on any amount 

overdue under this CAFO. Interest will accrue on any overdue amount from the date payment 

6 
was due at a rate established by the Secretary of the Treasury. Respondent must pay a $15 

handling charge each month that any portion of the penalty is more than 30 days past due. In 

addition, Respondent must pay a quarterly nonpayment penalty each quarter during which the 

assessed penalty is overdue according to Section 1 13(d)(5) of the Act, 42 U.S.C. § 7413(d)(5). 

This nonpayment penalty will be 10 percent of the aggregate amount of the outstanding penalties 

and nonpayment penalties accrued from the beginning of the quarter. 

Supplemental Environment Project 

Diesel Emissions Reduction Project 

Project Summary. Respondent will retrofit a fleet, fleets, or portion thereof, of 

diesel buses, either school, intra-city, or inter-city buses, or diesel vehicles contracted for public 

use, located within 50 miles of Cleveland, Ohio, as a Supplemental Environmental Project 

(SEP). 

Project Detail. Respondent will spend a minimum of $50,000 to retrofit a fleet, 

fleets, or portion thereof of diesel buses, either school, intra-city, or inter-city buses, or diesel 

vehicles contracted for public use. Respondent may utilize a third party to assist in the 

implementation of the SEP. Such third party may assess administrative costs not to exceed 10% 

of the total project value (i.e., not to exceed $5,000). Such third party costs shall be considered 

as Project Costs for purposes of the $50,000 comniitment. The projects will occur within fifty 

miles of Cleveland, Ohio, and will be suggested by Respondent based on project applications 

previously submitted to EPA pursuant to one of several grant or funding programs under which 

interested parties can seek assistance in performing diesel bus retrofits. Historically, Region 5 

has received deserving applications for a greater amount of funds than it is able to disburse. As a 

result, Region 5 regularly has information about one or more deserving projects that do not 

7 
receive funding. The retrofit projects identified by Respondent may come from applications 

such as these, or from other sources. 

42. The project costs will be calculated using a methodology similar to that used by 

EPA in calculating the cost of other diesel retrofit applications and will include Respondent's 

oversight costs. Following identification and cost estimation, Respondent will subniit to EPA a 

list of projects, for EPA approval. 

43. Any projects approved by EPA pursuant to this SEP will: 

be geographically located within 50 miles of Cleveland, Ohio; 

utilize one of the technologies previously verified by EPA for diesel retrofits. as 

shown at http://epa.gov/cleandiesel/verificationlverif.list.htm, or the CARB 

verification list at http://www.arb.ca.gov/diesel/verdev/vticvt.htm, or EPA's 

SmartWay idle reduction verification list at 

http://www.epa.gov/smartway/technology/index.htm; and 

result in the reduction of diesel particulate emissions. 

44. Once approved, Respondent will ensure completion of the retrofits. Confirmation 

will be obtained from the fund recipients or the entities undertaking the retrofits, confirming that 

one or more of the verified technologies was installed on the selected fleet or fleets, or portions 

thereof. 

45. Proiect Tirneline. Respondent will endeavor to identify the selected projects 

within 90 days of the effective date of this CAFO and will attempt to secure the completion of 

the projects within 120 days thereafter. Thus, the completion of the installation of retrofits 

totaling $50,000 will be complete within 210 days of the effective date of this CAFO. If the 

8 
project requires more time to implement (for example, due to the need for equipment testing), 

EPA will provide additional time to extend the timeframe. 

46. Respondent must submit a SEP completion report to EPA within 30 days after 

completion of installation of diesel retrofits, by no later than 240 days of the effective date of this 

CAFO, unless an extension of time is provided by EPA. This report shall contain the following 

information: 

Detailed description of the SEP as completed; 

Description of any operating problems and the actions taken to correct the 

problems; 

Itemized cost of goods and services used to complete the SEP documented 

by copies of invoices, purchase orders or cancelled checks that specifically 

identify and itemize the individual cost of the goods and services; 

Certification that Respondent has completed the SEP in compliance with 

this CAFO; and 

Description of the environmental and public health benefits resulting from 

the SEP (quantify the benefits and pollution reductions, if feasible). 

47. At the time it certifies completion of the SEP, Respondent will also provide the 

following certification: 

Respondent certifies under penalty of law that it would have agreed to perform a 

comparably valued, alternative project other than a diesel emissions reduction 

Supplemental Environmental Project, if the Agency were precluded by law from 

accepting a diesel emissions reduction Supplemental Environmental Project. 

48. Project Costs. Respondent will spend $50,000 for this project. 

49. Project Completion Criteria. This project will be deemed to be complete for the 

purposes of this CAFO if EPA-verified diesel reduction equipment is installed on the buses or 

other vehicles in the projects selected pursuant to Paragraphs 40-48, above. 

9 
50. Respondent must submit all notices and reports required by this CAFO by first 

class mail to the Compliance Tracker of the Air Enforcement and Compliance Assurance Branch 

at the address provided in paragraph 36, above. 

51. In each report that Respondent submits as provided by this CAFO, it must certify 

that the report is true and complete by including the following statement signed by one of its 

officers: 

I certify that I am familiar with the information in this document and that, 

based on my inquiry of those individuals responsible for obtaining the 

information, it is true and complete to the best of my knowledge. I know 

that there are significant penalties for submitting false information, 

including the possibility of fines and imprisonment for knowing violations. 

52. Following receipt of the SEP completion report described in paragraph 46, above, 

EPA must notify Respondent in writing that: 

It has satisfactorily completed the SEP and the SEP report; 

There are deficiencies in the SEP as completed or in the SEP report and 

EPA will give Respondent 30 days to correct the deficiencies; or 

It has not satisfactorily completed the SEP or the SEP report and EPA will 

seek stipulated penalties under paragraph 54. 

53. If EPA exercises option b above, Respondent may object in writing to the 

deficiency notice within 10 days of receiving the notice. The parties will have 30 days from 

EPA's receipt of Respondent's objection to reach an agreement. If the parties cannot reach an 

agreement, EPA will give Respondent a written decision on its objection. Respondent will 

comply with any requirement that EPA imposes in its decision. If Respondent does not complete 

the SEP as required by EPA's decision, Respondent will pay stipulated penalties to the United 

States under paragraph 54, below. 

54. If Respondent violates any requirement of this CAFO relating to the SEP, 

Respondent must pay stipulated penalties to the United States as follows: 

10 
Except as provided in subparagraph b, below, if Respondent did not 

complete the SEP satisfactorily according to the requirements of this 

CAFO, including the schedule in paragraph 45, Respondent must pay a 

penalty of $50,000. 

If Respondent did not complete the SEP satisfactorily, but EPA 

determines that Respondent made good faith and timely efforts to 

complete the SEP and certified, with supporting documents, that it spent at 

least 90 percent of the amount set forth in paragraph 48, Respondent will 

not be liable for any stipulated penalty under subparagraph a, above. 

If Respondent completed the SEP satisfactorily, but spent less than 90 

percent of the amount set forth in paragraph 48, Respondent must pay a 

penalty of $10,000. 

If Respondent did not submit timely the SEP completion report as required 

by paragraphs 46 and 47, Respondent must pay penalties in the following 

amounts for each day after the report was due until it submits the report: 

Penalty per violation per day Period of violation 

$250 Ist through l4t day 

$400 15th through 30th day 

$500 31St day and beyond 

EPA's determinations of whether Respondent completed the SEP satisfactorily 

and whether Respondent made good faith and timely efforts to complete the SEP will bind 

Respondent. 

Respondent must pay any stipulated penalties within 15 days of receiving EPA's 

written demand for the penalties. Respondent will use the method of payment specified in 

paragraph 35, above, and will pay interest, handling charges, and nonpayment penalties on any 

overdue amounts. 

Any public statement that Respondent makes referring to the SEP must include 

the following language: "Potters Industries, Inc. undertook this project under the settlement of 

the United States Environmental Protection Agency's enforcement action against Potters 

Industries, Inc. for violations of the Clean Air Act." 

11 
For federal income tax purposes, Respondent will neither capitalize into inventory 

or basis, nor deduct any costs or expenditures incurred in performing the SEP. 

General Provisions 

This CAFO resolves only Respondent's liability for federal civil penalties for the 

violations alleged in Notices of Violation issued by EPA on August 12, 2010 and March 11. 

2011, and in this CAFO. 

The CAFO does not affect the rights of EPA or the United States to pursue 

appropriate injunctive or other equitable relief or criminal sanctions for any violation of law. 

This CAFO does not affect Respondent's responsibility to comply with the Act 

and other applicable federal, state, and local laws. Except as provided in paragraph 59, above, 

compliance with this CAFO will not be a defense to any actions subsequently commenced 

pursuant to federal laws administered by EPA. 

Respondent certifies that it is complying fully for its Emission Units P007 and/or 

POlO with the following: the PM emissions limit in its August 4, 2011 Permit No: P0107074; 

the furnace baghouses (BET- I Rand BH-AT I) control efficiency of 99.5% as required by Potters' 

August 4,2011 Permit No: P0107074; the Nuisance Provision in the OAC Rule 3745-15-07 

(Nuisance Provision); OAC Rule 3745-17-08 (PM Standards for Preventing Fugitive Dust); and 

the permitted pressure drop range of 0.4 to 6 inches of water for the baghouses associated with 

Emission Unit P007, in its December 22, 2010 P11 Permit No: P0107072. 

This CAFO constitutes an "enforcement response" as that term is used in EPA's 

Clean Air Act Stationary Civil Penalty Policy to determine Respondent's "full compliance 

history" under Section 113(e) of the Act, 42 U.S.C. § 7413(e). 

The terms of this CAFO bind Respondent, its successors, and assigns. 

12 
Each person signing this consent agreement certifies that he or she has the 

authority to sign for the party whom he or she represents and to bind that party to its terms. 

Each party agrees to bear its own costs and attorney's fees in this action. 

This CAFO constitutes the entire agreement between the parties. 

Fetters Industries, Inc., Respondent 

Date /ojii 

13 

J. es Hayward 

ice President of P1. Operations 

Potters Industries, Inc. 
Consent Agreement and Final Order 

In the Matter of: Potters industries, Inc. 

United States Environmental Protection Agency, Complainant 

Date 

14 

heryl L. Newton 

Director 

Air and Radiation Division 

U.S. Environmental Protection Agency 

Region 5 
Consent Agreement and Final Order 

In the Matter of: Potters Industries, Inc. 

Docket No. 

CAA-05-201 1-0061 

Final Order 

This Consent Agreement and Final Order, as agreed to by the parties, shall become effective 

immediately upon filing with the Regional Hearing Clerk. This Final Order concludes this 

proceeding pursuant to 40 C.F.R. § 22.18 and 22.31. IT IS SO ORDERED. 

-3o-ff 

Date Susan Hedman 

Regional Administrator 

U.S. Environmental Protection Agency 

Region 5 

15 

EDc7LE 

SEP 30 2011 

REGIONAL HEARING CLERK (is. ENVIRONNTAL 

PROTECTION AGENCY 

in 
Consent Agreement and Final Order 

In the Matter of: Potters Industries, Inc. 

Docket No. CAA-05-2rn10061 

Certificate of Service 

I certify that I filed the original and one copy of the Consent Agreement and Final Order 

(CAFO), docket number CAA-05-2011-0061 with the Regional Hearing Clerk (E-19J), United 

States Environmental Protection Agency, Region 5, 77 W. Jackson Boulevard, Chicago, Illinois 

60604, and that I mailed a second original copy by first-class, postage prepaid, certified mail, 

return receipt requested, by placing it in the custody of the United States Postal Service 

addressed as follows: 

Chester R. Babst III 

Babst Calland Clements Zomnir 

Two Gateway Center 

Pittsburgh, Pennsylvania 15222 

I certify that I mailed a copy of the CAFO by first-class mail, addressed as follows: 

Robert Hodanbosi, Chief 

Division of Air Pollution Control 

Ohio Environmental Protection Agency 

Lazarus Government Center 

P.O. Box 1049 

Columbus, Ohio 432 16-1049 

U) 

Betty \V)4idffis 

Administrative Program Assistant 

AECAB, PAS 

CERTIFIED MAIL RECEIPT NUMBER: leQ /k512 OoMJlIfl/ £czz. 

çri 

SEP 30 2011 

REGIONAL HEARING CLERK 

U.S. ENViRONMENTAL 

PROTECTION AGENCY 

I also certify that I delivered a copy of the CAFO by intra-office mail, addressed as 

follows: 

Marcy Toney 

Regional Judicial Officer 

U.S. Environmental Protection Agency, Region S 

77 W. Jackson Boulevard/Mail Code C-14J 

Chicago, Illinois 60604 

Onthe8C day ofc j47/" 2011.