STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT

COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2019-26303-S
					)
INNOFUEL ENERGY SOLUTIONS, LLC					)
(F/K/A VEXOR ENGINEERED FUEL OF					)
INDIANA, LLC)					)
					)
Respondent.					)

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 Indiana Code (“IC”) 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondents’ entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents 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 IC 13-13-1-1.

2. Respondent is Innofuel Energy Solutions, LLC (“IES”) f/k/a Vexor Engineered Fuel of Indiana, LLC) (“Respondent”), which owns and operates a Solid Waste Processing Facility with Facility Permit (“FP”) 45-49, parcel number 45-03-26-476-003.000-004, located at 6480 Industrial Highway in Gary, Lake County, Indiana (“Site”). The activities described below primarily occurred while Vexor Energy of Indiana, LLC (“VEI”) was the named permittee on FP 45-49. During most of this time, VEI had the majority membership interest of Vexor Engineered Fuel of Indiana, LLC (“VEFI”),but in January 2020, VEI transferred its membership interest. Respondent submitted transfer documents for Permit 45-49 to IDEM in January 2020 to reflect the then-current ownership structure. On March 13, 2020, IDEM received an application to transfer FP 45-49 from VEI to VEFI. On April 29, 2020, Respondent submitted documents to IDEM showing that VEFI changed its name to Innofuel Energy Solutions, LLC. The transfer of the permit and name change to IES was made effective May 18, 2020.

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Respondent waives the issuance of a Notice of Violation and the settlement period of sixty (60) days as provided for by IC 13-30-3-3.

5. During an investigation including inspections on June 13, 2018; October 30, 2018; March 5, 2019, June 18, 2019 and March 3, 2020, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of any contaminants or solid waste upon the land, except through the use of sanitary landfills, incineration, composting, garbage grinding, or another method acceptable to the board.

During some or all of the inspections noted above, Respondents deposited or caused and/or allowed the deposit of solid wastes, including, but not limited to various types of plastics and trash, in a method which has not been determined by the board to be acceptable. Solid waste was observed over most of the 5.8 acre Site and at times outside of the facility boundaries and in a wetland.

b. Pursuant to IC 13-30-2-1(5), no person shall dump or cause or allow the open dumping of garbage or any other solid waste in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.

During some or all of the inspections noted above, Respondents dumped or caused and/or allowed the open dumping of various types of plastics and trash. Solid waste was observed over most of the 5.8 acre Site and at times outside of the facility boundaries and in a wetland.

c. Pursuant to 329 Indiana Administrative Code (“IAC”) [10-4-2, no person shall cause or allow the storage, containment, processing, or disposal of solid waste in a manner which creates a threat to human health or the environment, including the creating of a fire hazard, vector attraction, air or water pollution, or other contamination.

During some or all of the inspections noted above, Respondents caused and/or allowed solid waste, including, but not limited to various types of plastics and trash, to be stored, or disposed at the Site in a manner which creates a threat to human health or the environment.

d. Pursuant to 329 IAC 10-4-3, open dumping and open dumps, as those terms are defined in IC 13-11-2-146 and IC 13-11-2-147, are prohibited.

During some or all of the inspections noted above, Respondents caused and/or allowed various types of plastics and trash to be open dumped at the Site.

e. Pursuant to 329 IAC 11-13.5-6(b), solid waste must be confined to the designated storage, processing, loading, and unloading areas of the processing facility. Solid waste processing that includes MSW must occur only in the enclosed building required in subsection (a)(1). The processing facility and adjacent areas must be maintained clean and litter free when not in use.

During some or all of the inspections noted above, Respondents failed to confine solid waste to the designated storage, processing, loading and unloading areas of the processing facility. Solid waste was observed over most of the 5.8 acre Site and at times outside of the facility boundaries and in a wetland.

f. Pursuant to permit requirement D1a of the September 30, 2015 Solid Waste Processing FP 45-49, the permittee must comply with the operational requirements in 329 IAC 11-13.5 (Operational Requirements) and perform daily housekeeping and maintenance of the processing areas, keeping the processing facility and adjacent areas clean and litter free when not in use, and use the routine cleanup procedure in Section 7.0 of the Operation Plan Narrative titled “Cleanup Procedures,” in the response to IDEM’s request for additional information (RAI) dated April 8, 2015 (VFC) #80026085, p. 114-115 of 177).

g. Pursuant to permit requirement D1c of the September 30, 2015 Solid Waste Processing FP 45-49, the permittee must comply with the operational requirements in 329 IAC 11-13.5 (Operational Requirements) and promptly correct any nuisance, pollution conditions, or litter in the building or on the grounds.

6. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondents acknowledge notice of this right and waive 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondents shall comply with the 329 IAC 11 and Solid Waste Processing FP 45-49. Specifically, Respondents shall cease open dumping of regulated solid waste.

3. Respondents shall collect all solid waste present outside of the designated storage, processing, loading, and unloading areas, both on- and off-Site, as of the Effective Date, and dispose of it at a permitted solid waste landfill, or incorporate it back into the solid waste process if feasible, within thirty (30) days of the Effective Date. Respondent shall document disposition of solid waste on its daily log.

4. Within forty-five (45) days of the Effective Date of this Agreed Order, Respondents shall submit written documentation that the solid waste removed has been taken to a permitted solid waste landfill or incorporated back into the solid waste process.

5. Respondents shall submit a plan to prevent off-site migration of solid waste from the permitted solid waste landfill within thirty (30) days of the Effective Date.

6. All submittals required by this Agreed Order, unless IDEM notifies the Respondents otherwise in writing, shall be sent to:

Janet Arnold, Technical Environmental Specialist

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, Indiana 46204-2251

7. Pursuant to IC 13-30-4-1, Respondents are assessed and agree to pay a civil penalty of Nine Thousand Dollars ($9,000). Respondents are jointly and severally liable for all civil penalty assessments, including stipulated penalties. Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within thirty (30) days of the Effective Date; the thirtieth day being the “Due Date.”

8. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondents shall pay stipulated penalties in the following amounts:

Paragraph	Stipulated Penalty
Failure to comply with paragraph #3	$500 per week
Failure to comply with paragraph #4	$100 per week
Failure to comply with paragraph #5	$100 per week

9. Stipulated penalties shall be due and payable no later than the thirtieth day after Respondents receives written notice that Complainant has determined a stipulated penalty is due; the thirtieth day being the “Due Date.” Complainant may notify Respondents at any time that a stipulated penalty is due. Failure to notify Respondents 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 Respondents for a violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondents 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. Respondents are jointly and severally liable for all stipulated penalty assessments.

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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

11. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondents 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 Respondents pay 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 10, above.

12. Force majeure, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of 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 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 (1) changed business or economic conditions; (2) financial inability to complete the work required by this Agreed Order; or (3) increases in costs to perform the work.

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 Respondent contends is a force majeure. Such notification shall describe (1) the anticipated length of the delay; (2) the cause or causes of the delay; (3) the measures taken or to be taken by Respondent to minimize the delay; and (4) the timetable by which these measures will be implemented. 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. 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.

13. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

14. This Agreed Order shall jointly and severally apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

15. No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

16. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

17. 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.

18. 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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

19. 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.

20. 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 violations specified in this Agreed Order.

21. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 U.S. EPA or any other agency or entity.

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

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management

By: ____________________				By: _________________________
	Jennifer Reno, Chief
	Land Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________

Date:				Date: _______________________


				COUNSEL FOR RESPONDENT:


				By: ________________________


				Date: ______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_______	DAY OF	________________________,	20__.

				For the Commissioner:

				Signed August 14, 2020
				Peggy Dorsey
				Assistant Commissioner
				Office of Land Quality