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.

NEW ENERGY CORPORATION,

Respondent.

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Case No. 2010-19756-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 New Energy Corporation (“Respondent”), which owns/operates a miscellaneous organic chemical manufacturing process as an ethanol production facility.  The Respondent operates the facility pursuant to Title V Permit No. 141-6956-00033 (“Title V Permit”), as modified by subsequent significant permit modifications.  The facility is located at 3201 West Calvert St., in South Bend, Indiana.

 

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 for this matter on August 1, 2011 via certified mail to:

 

Russell Abarr, President

CT Corporation System

New Energy Corporation

251 E. Ohio Street Suite 1100

3201 W. Calvert

Indianapolis Indiana 46204

South Bend, Indiana 46613

 

 

5.            Pursuant to condition D.7.4 of Title V Permit No. 141-6956-00033, as modified by subsequent significant permit modifications, in order to avoid applicability of 326 IAC 2-2 and 326 IAC 8-1-6 , the Respondent was required to limit VOC emissions from the Distillers Dried Grains and Solubles (DDGS) Cooler System (EU-18) to less than 5.70 lbs/hr.

 

6.            During a stack test review by representatives of IDEM, the following violations were found:

 

On August 27, 2008 and March 30, 2010, Respondent conducted stack testing of the Distillers Dried Grains and Solubles (DDGS) Cooler System (EU-18) which demonstrated VOC emissions of 6.46 lbs/hr and 21.9 lbs/hr respectively, in violation of Respondent’s permit conditions, and 326 IAC 2-2 and 326 IAC 8-1-6.

 

7.            IDEM received Respondent’s BACT analysis for the DDGS cooler system on February 15, 2011.  IDEM conducted an evaluation of this application and based on this evaluation, Respondent is required to control VOC emissions from the DDGS cooler system designated as EU-18. This analysis is contained in Significant Source Modification No. 141-30226-00033, and incorporated into Significant Permit Modification No. 141-30242-00033.

 

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 all statutes, rules, and/or permit conditions or listed in the findings here and/or above at issue.

 

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

 

Richard Reynolds, 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 shall install, commence operation and complete compliance testing of a VOC emissions control device on the DDGS cooler system designated as EU-18 as follows:

 

a.            Within ninety (90) days of the effective date of the Agreed Order, Respondent shall issue a purchase order for VOC emissions controls required by the permit in order to comply with 326 IAC 2-2 and 326 IAC 8-1-6.  Respondent shall notify IDEM in writing within fifteen (15) days of the event.

 

b.            The VOC emissions control for the DDGS cooler system shall be installed and operated as soon as possible, but in no event more than four hundred fifty (450) days after a purchase order is issued.  Respondent shall notify IDEM in writing within fifteen (15) days of the event.

 

c.            Within sixty (60) days after achieving maximum production levels, but no later than one hundred eighty (180) days after start-up of the control device, in order to demonstrate compliance with Significant Permit Modification No. 141-30242-00033 Condition D.7.4 (a), Respondent shall perform VOC testing of the DDGS cooler system utilizing methods as approved by the Commissioner pursuant to 326 IAC 3-6 (Source Sampling Procedures).

 

5.            Respondent shall provide a status report to IDEM on the 15th of each month to include an update of the project required in Order paragraph 4 including and until the month in which the project is completed.

 

6.            Respondent is assessed and agrees to pay a civil penalty of Three Hundred Thirteen Thousand Six Hundred and Sixty-Six Dollars ($313,666).  The civil penalty shall be paid in the following manner:  Eleven (11) monthly payments of Twenty-Six Thousand One Hundred Thirty-Eight Dollars ($26,138) and one (1) payment of Twenty-Six Thousand One Hundred Forty-Eight Dollars ($26,148).  Said penalty amount shall be due and payable to the Environmental Management Special Fund with the first payment due within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.  Notwithstanding the payment schedule set out immediately above, respondent agrees that if during the period of scheduled payments, the facility is sold, that respondent will pay the unpaid balance of the civil penalty within thirty (30) days of closing date of the sale.  If respondent fails to meet the payment obligations set forth in this paragraph, interest shall accrue on unpaid amounts at the rate established by IC 24-4.6-1-101.

 

7.            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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

8.            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 their status or responsibilities under this Agreed Order.

 

9.            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 7, above.

 

10.         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.

 

11.         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.

 

12.         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 their obligation to comply with the requirements of their applicable permit or any applicable Federal or State law or regulation.

 

13.         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.

 

14.         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.

 

15.         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.

 

16.         This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

New Energy Corporation

 

 

 

By:

 

 

By:

 

 

David Lawrence, Deputy Director

 

Printed:

 

 

Northern Regional Office

 

Title:

 

 

 

 

 

 

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

 

, 2012.

 

 

For the Commissioner

 

 

 

Signed on September 18, 2012

 

Keith Baugues, Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management