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STATE
OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. Ultimate
Ethanol, LLC d.b.a. POET Biorefining - Alexandria, Respondent. |
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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 Ultimate
Ethanol, LLC d.b.a. POET
Biorefining - Alexandria (“Respondent”), which owns and operates the stationary
ethanol production plant with Plant ID No. 095-00127, located at 13179 North
100 East, in Alexandria, Madison 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”) via Certified Mail to:
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Dave
Hudak, General Manager and Registered Agent |
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Ultimate
Ethanol, LLC |
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13179
North 100 East |
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Alexandria,
IN 46001 |
5.
During
a records review conducted by a representative of IDEM, the following
violations were found:
a.
Pursuant
to 326 IAC 8-5-6 and condition D.2.9 of Federally Enforceable State Operating
Permit (“FESOP”) Significant Permit Revision (“SPR”) 28069, fermentation and
distillation processes shall be controlled by the scrubber CE008.
Respondent operated the fermentation and distillation processes without
scrubber CE008 on three separate occasions, during the 4th quarter
2010, 2nd and 3rd quarter 2011, in violation of 326 IAC
8-5-6 and condition
D.2.9 of FESOP SPR 28069.
b.
Pursuant
to 326 IAC 2-8-4 and condition C.19 of FESOP SPR 28069, the Permittee shall
submit the attached Quarterly Deviation and Compliance Monitoring Report or its
equivalent.
Respondent failed to submit the complete Quarterly Deviation and Compliance
Monitoring Report or its equivalent for the 3rd quarter 2010 and 1st
quarter 2011, in violation of 326 IAC 2-8-4 and condition C.19 of FESOP SPR 28069.
6.
Source
submitted missing elements of the Quarterly Deviation and Compliance Monitoring
Reports in 5.b. above on October 28, 2011.
7.
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 Operating Permit 30443, issued on January 6, 2012.
3.
Within
sixty (60) days of the Effective Date, Respondent shall submit documentation to
prove operational plans to instruct operators when operation of the scrubber
by-pass is/is not appropriate and instructions on how to perform the by-pass
operation.
4.
Within
sixty (60) days of the Effective Date, Respondent shall submit documentation of
training of operators of Permit requirements, including the restriction against
venting to the atmosphere.
5.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Matthew
Chaifetz, Compliance and Enforcement Manager |
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Compliance
and Enforcement Branch – Mail Code 61-53 |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
6.
Respondent
is assessed a civil penalty of Twenty Eight Thousand Two Hundred Dollars
($28,200). Within thirty (30) days of
the Effective Date of the Agreed Order, Respondent shall pay a portion of this
penalty in the amount of Five Thousand Six Hundred Forty Dollars ($5,640). Said penalty amount shall be due and payable
to the Environmental Management Special Fund. In lieu of payment of the remaining civil
penalty, Respondent shall make a cash payment to the Indiana Finance Authority
(“IFA”) to fund a Supplemental Environmental Project (“SEP”) of activities
related to Brownfield redevelopment at a Brownfield site (“Brownfield Site”) in
Alexandria, Indiana. Respondent will
make a payment in the amount of Twenty-Two Thousand Five Hundred Sixty Dollars ($22,560)
to fund SEP activities at the Brownfield Site.
Respondent shall make such payment to the IFA within thirty (30) days of
the Effective Date of this Agreed Order.
Payment to the IFA satisfies Respondent’s obligation to undertake a SEP
to offset a portion of the civil penalty assessed in this matter. Implementation of this SEP will benefit the
community by rejuvenating neighborhoods, increasing the tax base, mitigating
threats to human health and the environment, and/or reducing blight.
The Brownfield Site at which the SEP
proceeds will be spent will be agreed upon among Complainant, Respondent, the City
of Alexandria, and the IFA, and will be subject to final approval by the
Brownfields Program. The IFA will
account for the SEP payment in a Brownfield Site and/or community-specific
account and will require the City of Alexandria to execute a financial
assistance agreement with the IFA, under which the Brownfields Program will
oversee the work undertaken at the Brownfield Site funded by SEP proceeds. The IFA will notify IDEM’s Enforcement Case
Manager when SEP-funded activities at the Brownfield Site are complete.
In the event that Respondent does not
make its SEP payment within thirty (30) days of the Effective Date of this
Agreed Order, the full amount of the civil penalty as stated in this paragraph,
plus interest established by IC 24-4.6-1-101 on the remaining amount, less the
portion of the civil penalty Respondent has already paid, will be due to IDEM
within fifteen (15) days from Respondent's receipt of IDEM’s notice to
pay. Interest, at the rate established
by IC 24-4.6-1-101, shall be calculated on the amount due from the date which
is thirty (30) days after the Effective Date of this Agreed Order until the
full civil penalty is paid.
Payment for the SEP is payable by
check to the “Indiana Finance Authority.”
The text “SEP-City of Alexandria” and the Case Number of this action
shall be included in the memo line of the check. The check shall be mailed to:
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Andrea
Robertson |
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Indiana
Brownfields Program - SEP |
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100
N. Senate Avenue |
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Room
1275 |
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Indianapolis,
Indiana 46204 |
Respondent
shall provide Complainant with documentation of payment to the Indiana Finance
Authority within one (1) week of such payment.
7.
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:
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Paragraph |
Violation |
Stipulated
Penalty |
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3 |
Failure to develop
and implement an environmental compliance training program |
$500 per week
or part thereof |
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4 |
Failure to
submit copy of environmental compliance training program and training logs |
$500 per week
or part thereof |
7.
Stipulated
penalties shall be due and payable no later than the 30th day after
Respondent receives written notice that Complainant has determined a stipulated
penalty is due; the 30th day being the “Due Date”. Complainant may notify Respondent at any time
that a stipulated penalty is due.
Failure to notify Respondent in writing in a timely manner of a stipulated
penalty assessment shall not waive Complainant’s right to collect such
stipulated penalty or preclude Complainant from seeking additional relief
against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief
includes any remedies or sanctions available pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
8.
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:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
9.
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.
10.
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 8, above.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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Ultimate
Ethanol, LLC d.b.a. |
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POET Biorefining - Alexandria |
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By: |
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By: |
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Janusz
Johnson, Chief |
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Printed: |
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Compliance
and Enforcement Section 1 |
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Title: |
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Office
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Date: |
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Date: |
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COUNSEL
FOR COMPLAINANT: |
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COUNSEL
FOR RESPONDENT: |
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For
the Department of Environmental Management |
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By: |
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By: |
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Deputy
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COUNSEL FOR INDIANA
FINANCE AUTHORITY: |
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For the Indiana Brownfields Program |
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By: _________________________ |
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Director |
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Date:
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COUNSEL AND/OR
AUTHORIZED REPRESENTITIVE: |
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For the City of
Alexandria |
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By:
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Date:
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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2012. |
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For
the Commissioner |
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Signed
on February 22, 2012 |
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Keith
Baugues, Assistant Commissioner |
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Office
of Air Quality |
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Indiana
Department of Environmental Management |
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