STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

TATE & LYLE INGREDIENTS AMERICAS, INC.,

Respondent.

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Case No. 2007-16653-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 Tate & Lyle Ingredients Americas, Inc. (“Respondent”), which owns and operates a wet corn milling facility with Plant I.D. No. 157-00033 (formerly known as A.E. Staley Manufacturing Company – South Plant) located at 3300 U.S. 52 South in Lafayette, Tippecanoe 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) on June 18, 2007 via Certified Mail to:

 

David Lynn Grider, President

CT Corporation System, Registered Agent

Tate & Lyle Ingredients Americas, Inc.

for Tate & Lyle Ingredients Americas, Inc.

2200 East Eldorado Street

251 E. Ohio Street, Suite 1100

Decatur, Illinois  62525

Indianapolis, IN 46204

 

5.                  On December 13, 2005, Respondent submitted a voluntary disclosure that the coal fired Riley stoker boiler designated as LA-45 had periodically exceeded 250 MMBtu/hr heat input rate in 2002 through 2005.

 

6.                  On October 19, 2006, Respondent submitted additional information to IDEM that LA-45 had exceeded 250 MMBtu/hr heat input rate in February and in August 2006.

 

7.                  During an investigation conducted by a representative of IDEM after Respondent’s disclosure, the following violations were found:

 

Pursuant to 326 IAC 12 and 40 CFR 60.40 New Source Performance Standards for Fossil Fuel-Fired Steam Generators (“NSPS Subpart D”), an affected facility to which the provisions of NSPS Subpart D apply is a fossil-fuel-fired steam generating unit of more than 250 million British thermal units per hour (“MMBtu/hr”) heat input rate constructed after August 17, 1971.

 

Respondent constructed the coal-fired Riley stoker boiler designated as LA-45 at the Site in 1977.   Respondent exceeded the 250 MMBtu/hr NSPS Subpart D threshold during January 2002; March and September 2003; May, July, September and October 2005; and February and August 2006 based on monthly average heat input rates, in violation of 326 IAC 12 and 40 CFR 60.40 (NSPS Subpart D).

 

8.                  On April 16, 2007, Respondent modified the fuel input system of the Riley stoker boiler to physically prevent the input of fuel to the boiler at a rate greater than 250 MMBtu/hr.  Including some subsequent adjustments to the initial modifications on April 16, 2007, as of January 8, 2008 the restrictions on the fuel input capacity of the Riley stoker boiler included changing the feeder gearbox ratio from 2:1 to 4:1 and changing the feeders’ sprocket sizes from 36-tooth sprockets to 37-tooth sprockets.

 

9.                  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 the Part 70 Operating Permit No. 157-6008-00033 issued on June 28, 2004, which incorporates conditions from prior permits regarding the Riley stoker boiler.

 

3.                  Within thirty (30) days of the Effective Date, Respondent shall submit a test protocol to IDEM in accordance with 326 IAC 3-6 for conducting a 24 hour full load performance test to demonstrate the maximum fuel input rate to the Riley stoker boiler LA-45.

 

4.                  Within ninety (90) days of IDEM’s approval of the test protocol described in Order Paragraph No. 3, Respondent shall conduct a 24 hour full load performance test in accordance with said test protocol and 326 IAC 3-6 to demonstrate the maximum fuel input rate to the Riley stoker boiler LA-45 cannot exceed 250 MMBtu/hr.

 

5.                  Respondent shall submit a copy of the results of the boiler performance test required by Order Paragraph No. 3 to the IDEM Enforcement Case Manager within forty-five (45) days after completion of the testing.

 

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

 

Janusz Johnson, Enforcement Case Manager

Office of Enforcement – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.                  Respondent is assessed a civil penalty of Fifty Seven Thousand Three Hundred Eleven dollars ($57,311).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.  In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, 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.

 

8.                  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:

 

Paragraph

Penalty

Order Paragraph No. 4

$500 per day until required testing is conducted

Order Paragraph No. 5

$500 per day until results are submitted

 

9.                  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 this Agreed Order.  In lieu of any of the stipulated penalties set out 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.

 

10.             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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.             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.

 

12.             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.

 

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 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.

 

15.             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.

 

16.             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.

 

17.             Nothing in this Agreed Order shall prevent IDEM 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.

 

18.             “Force Majeure”, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of the 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 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 changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.

 

The Respondent shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of 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 its 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 IDEM.

 

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 directly attributable to the event constituting the force majeure.

 

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

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Tate & Lyle Ingredients Americas, Inc.

 

 

 

By:

 

 

By:

 

 

Craig Henry, Chief

 

Printed:

 

 

Air Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on July 25, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement