STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) Case No. 1998-3364-A
v. ) (formerly Cause No. A-4384)
)
NEW ENERGY CORP., ) Case No. 2000-9526-A
)
Respondent. )
AGREED ORDER
The Complainant and the Respondent, pursuant to Indiana Statute 13-30-3-6, 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, a department of the State of Indiana created by IC
13-13-1-1.
2. Respondent is New Energy Corp. ("Respondent"), which owns and operates the
fuel-grade ethanol production facility located at 3201 West Calvert Street in South
Bend, Indiana ("Site").
3. The Indiana Department of Environmental Management ("IDEM") has
jurisdiction over the parties and the subject matter of this action.
4. Pursuant to IC 13-30-3-3, on June 30, 1999, IDEM issued a Notice of Violation,
for Case No. 1998-3364-A (formerly Cause No. A-4384), via Certified Mail to:
Larry W. Singleton, President Richard L. Mintz, Registered Agent
New Energy Corp. New Energy Corp.
3201 West Calvert Street 202 South Michigan Street
South Bend, IN 46680 South Bend, IN 46601
New Energy Company of Indiana, LP
c/o New Energy Corp., General Partner
3201 West Calvert Street
South Bend, IN 46680
5. Pursuant to IC 13-30-3-3, on August 11, 2000, IDEM issued a Notice of
Violation, for Case No. 2000-9526-A, via Certified Mail to:
Larry W. Singleton, President Richard L. Mintz, Registered Agent
New Energy Corp. New Energy Corp.
3201 West Calvert Street 202 South Michigan Street
South Bend, IN 46680 South Bend, IN 46601
New Energy Company of Indiana, LP
c/o New Energy Corp., General Partner
3201 West Calvert Street
South Bend, IN 46680
6. A records review was conducted by representatives of IDEM's Office of
Enforcement ("OE") and Office of Air Quality ("OAQ"). The following
violations were in existence or observed at the time of this review:
- Pursuant to 325 IAC 2-1-8 (currently 326 IAC 2-3), any new or modified
major stationary source, located in an area designated as nonattainment for
ozone, which has potential emissions of one hundred (100) or more tons
per year of Volatile Organic Compounds (VOCs) is subject to the
requirements of this rule. The requirements of this rule include but are not
limited to the installation of additional emission controls to limit VOC
emissions and a requirement to obtain emission offsets. According to
documentation submitted by Respondent to IDEM in September 1997,
Respondent constructed and subsequently commenced operation of the
aforementioned fuel-grade ethanol production facility, which has potential
and actual VOC emissions greater than 100 tons per year, without
complying with the requirements of 325 IAC 2-1-8 (currently 326 IAC 2-3), a violation of said rule.
- Pursuant to 326 IAC 8-1-6, new facilities (as of January 1, 1980), which
have potential emissions of 22.7 megagrams (25 tons) or more per year,
located anywhere in the state, which are not otherwise regulated by other
provisions of this article (326 IAC 8), shall reduce VOC emissions using
best available control technology (BACT). According to documentation
submitted by Respondent to IDEM in October 1996 and September 1997,
Respondent constructed and subsequently commenced operation of the
aforementioned fuel-grade ethanol production facility without conducting
a BACT analysis, pursuant to 326 IAC 8-1-6, and consequently failed to
install the required controls necessary to reduce emissions of VOCs at the
affected facilities, a violation of said rule.
- On June 19, 2000, IDEM issued a Notice and Order of the Commissioner of the
Department of Environmental Management to Respondent. This Order was
subsequently appealed by Respondent to the Office of Environmental
Adjudication ("OEA"), and assigned Cause No. 00-A-E-2544.
- This Agreed Order resolves all violations cited in the Notices of Violation issued
to Respondent on June 30, 1999 and August 11, 2000, and the Notice and Order
of the Commissioner issued on June 19, 2000.
- 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 the
Complainant or her delegate, and has been received by the Respondent. This
Agreed Order shall have no force or effect until the Effective Date.
- Respondent shall install, commence operation, and complete compliance testing,
of two Regenerative Thermal Oxidizers ("RTOs") to control VOC emissions from
the five (5) DDGS dryers, the evaporator, and the recovery vent scrubber.
Respondent shall ensure that each of the two RTOs is designed to achieve an
overall VOC control efficiency of 98%, and that the actual control efficiency
achieved is no less than 95%. This modification shall be implemented in
accordance with the requirements of 326 IAC 2-1.1, 326 IAC 2-2, 326 IAC 2-3,
and 326 IAC 2-7. In accordance with 326 IAC 2-3, operation of this RTO within
the prescribed range of control efficiency shall constitute compliance with the
lowest achievable emission rate ("LAER") requirements for VOC emissions from
these emission units.
- On or before March 15, 2004, Respondent shall complete installation and
commence operation of the RTOs required pursuant to Order paragraph 2.
- Respondent shall conduct compliance stack testing of each of the two RTOs,
required pursuant to Order paragraph 2, no later than ninety (90) days after the
earlier of the start-up of the RTOs or March 15, 2004.
- Respondent shall vent the exhaust streams from the yeast propagator tanks, and
the beerwell to the existing CO2 scrubber. These modifications shall result in an
overall VOC control efficiency for the CO2 scrubber equal to or greater than 95%,
including the existing exhaust stream from fermentation as well as the additional
exhaust from propagation and the beerwell. This modification shall be
implemented in accordance with the requirements of 326 IAC 2-1.1, 326 IAC 2-2,
326 IAC 2-3, and 326 IAC 2-7. In accordance with 326 IAC 2-3, operation of the
CO2 scrubber consistent with the requirements of this Order condition shall
constitute compliance with LAER requirements for VOC emissions from these
emission units.
6. On or before December 31, 2004, Respondent shall complete the CO2 scrubber
modifications required pursuant to Order paragraph 5.
- Respondent shall conduct compliance stack testing of the CO2 scrubber no later
than ninety (90) days after the earlier of the completion of the scrubber
modification or December 31, 2004.
- The LAER requirements specified in Order paragraphs 2 and 5 above shall be
incorporated into Respondent's Part 70 operating permit. As a condition of this
Agreed Order, Respondent agrees to the terms and conditions of Order paragraphs
2 and 5 and waives its right to appeal the operating conditions which establish the
LAER requirements for the DDGS dryers, evaporator, fermentation, yeast
propagator tanks, and the beer well. This waiver applies only to the control
efficiencies in Order paragraphs 2 and 5, and does not limit Respondent's right to
appeal any monitoring, record keeping or reporting requirement relating to the
operations of the RTO or the CO2 scrubber, including but not limited to
compliance testing and the frequency thereof.
- Within thirty (30) days of the Effective date of this Agreed Order, Respondent and
Complainant shall file a Joint Motion to Dismiss OEA Cause No. 00-A-E-2544.
- "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.
- Respondent is assessed a civil penalty of Two Hundred Twenty Thousand Dollars
($220,000). Said penalty amount shall be due and payable to the Environmental
Management Special Fund within 30 days of the Effective Date of this Agreed
Order.
- In the event the terms and conditions of the following paragraphs are violated, the
Complainant may assess and the Respondent shall pay a stipulated penalty in the
following amount:
Violation Penalty
Failure to comply with Order paragraph 3 $15,000 per week
Failure to comply with Order paragraph 4 $7,500 per week
Failure to comply with Order paragraph 6 $10,000 per week
Failure to comply with Order paragraph 7 $5,000 per week
15. Stipulated penalties shall be due and payable within thirty (30) days after
Respondent receives written notice that the Complainant has determined a
stipulated penalty is due. Assessment and payment of stipulated penalties shall
not preclude the Complainant from seeking any additional relief against the
Respondent for violation of the Agreed Order. In lieu of any of the stipulated
penalties given above, the 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.
16. 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:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
17. In the event that the civil penalty required by Order paragraph 13 is not paid
within thirty (30) days of the Effective Date of this Agreed Order, 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.
- This Agreed Order shall apply to and be binding upon the Respondent, its
successors and assigns. The Respondent's signatories to this Agreed Order certify
that they are fully authorized to execute this document and legally bind the parties
they represent. No change in ownership, corporate, or partnership status of the
Respondent shall in any way alter its status or responsibilities under this Agreed
Order.
- In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.
- The 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.
- This Agreed Order shall remain in effect until Respondent complies with the
terms and conditions specified in Order paragraphs 2, 3, 4, 5, 6, 7, 8, 9, and 13.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management New Energy Corp
By: _________________________ By: _________________________
David P. McIver
Chief, Air Section Printed: ______________________
Office of Enforcement
Title: ________________________
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Office of Legal Counsel
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS _____ DAY OF ____________________, 20__.
For the Commissioner:
_(signed on January 16, 2004)__________
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs