STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

CARGILL, INC.,

Respondent.

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Case No. 2017-24227-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 Cargill, Inc. (“Respondent”), which owns and operates the stationary wet corn milling operation with Plant ID No. 089-00203, located at 1100 Indianapolis, Blvd., in Hammond, Lake 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 April 12, 2017 via Certified Mail to:

David Wood MacLennan, President

CT Corporation System, Registered Agent

Cargill, Inc.

15407 McGinty Rd. W

150 West Market St.

Suite 800

MS26

Indianapolis, IN  46204

Wayzata, MN  55391

 

 

5.             During an investigation conducted by a representative of IDEM, the following violations were found:

 

a.       Pursuant to Part 70 Permit 089-37128-00203, issued June 22, 2016, Condition D.0.1, Permittee shall comply with the following emission limitations:

 

Starch Ring Dryer #2 - 1.19 lb VOC per hour,

3 Gluten Filters - 0.42 lb VOC per hour.

Based on a stack test conducted on August 30, 2016, Respondent exceeded 1.19 lb VOC per hour from the Starch Ring Dryer #2, in violation of Part 70 Permit 089-37128-00203, Condition D.0.1.

Based on a stack test conducted on September 15, 2016, Respondent exceeded 0.42 lb VOC per hour from the 3 Gluten Filters, in violation of Part 70 Permit 089-37128-00203, Condition D.0.1.

 

6.             Respondent conducted retests of the Starch Ring Dryer #2 and 3 Gluten Filters January 17-19, 2017.  The test report submitted indicated that Respondent demonstrated compliance with emission limits.

 

7.             Respondent submitted documents indicating that internal procedures have been put in place to limit the retention time of gluten before processing, improving the cleaning procedures of various tanks to prevent fermentation and updating the preventative maintenance plans for the Starch Ring Dryer #2 burners.

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 Part 70 Permit 089-37128-00203, unless superseded by a permit modification or renewal.

 

3.             Respondent shall conduct additional stack tests on the Starch Ring Dryer #2 and 3 Gluten filters between 24 and 30 months from the retests conducted in January 2017.  For the purposes of compliance demonstrations, these tests do not count toward resetting the 5 year testing cycle allotted for in condition D.0.3(a).

 

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

 

Matthew Chaifetz, Senior Enforcement Manager

Compliance and Enforcement Branch – Mail Code 61-53

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

5.             Respondent is assessed and agrees to pay a civil penalty of Twenty-Four Thousand Five Hundred Dollars ($24,500.00).  Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Nineteen Thousand Five Hundred Dollars ($19,500.00) 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 perform and complete a Supplemental Environmental Project (“SEP”).  Respondent estimates that this SEP will cost Five Thousand Dollars ($5,000.00).  Within 60 days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP.  In the event that the cost of the SEP is less than $5,000, Respondent shall pay the different between the proposed cost of the SEP and the actual cost of the SEP.

As a Supplemental Environmental Project, Respondent shall make a donation to the “Indiana Dunes Environmental Learning Center.”  Respondent shall complete this SEP within 30 days of the Effective Date.  This SEP will assist in tuition for the “Mighty Acorns Nature Camp.”

In the event that Respondent does not complete the SEP within 30 days of the Effective Date, the full amount of the civil penalty as stated in paragraph 5 above, 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 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.

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6.             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

Violation

Stipulated Penalty

3

Failure to retest between 24 and 30 months

$500 per week or part thereof for each unit

 

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:

 

IDEM Office of Legal Counsel

IGCN, Rm  N1307

100 N Senate Ave

Indianapolis, IN  46204

 

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.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Cargill, Inc.

 

 

 

By:

 

 

By:

 

 

David P. McIver, Chief

 

Printed:

 

 

Enforcement Section

 

Title:

 

 

Office of Air Quality

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2017.

 

 

For the Commissioner

 

 

 

Signed on June 29, 2017

 

Keith Baugues, Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management