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.

E-BIOFUELS, LLC,

Respondent.

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Case No. 2008-17868-W

 

 

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.

 

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 E-Biofuels, LLC (“Respondent”), which owns and operates a soy biodiesel plant  located at 710 Norfleet Drive West, in Middletown, 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 via Certified Mail to:

 

Craig Ducey, Registered Agent

Chad Ducey

E Biofuels, LLC

E Biofuels, LLC

710 Norfleet Drive West

710 Norfleet Drive West

Middletown, IN 47356

Middletown, IN 47356

 

5.                  During an investigation on May 13, 2008, conducted by a representative of IDEM, the following violations were found:

 

Pursuant to 327 IAC 5-18-2(a)(1), pollutants introduced into POTW by any source of nondomestic wastewaters shall not pass through or interfere with the operation or performance of the POTW.

 

Pursuant to 327 IAC 5-2-20(a)(1), any person causing or contributing to violation of this article may be subject to administrative or judicial enforcement proceedings and penalties. Part (c)(1) of this article includes the discharge of pollutants without an NPDES permit.

 

An IDEM inspection of Middletown POTW and the Site showed that a discharge to the sanitary sewer of biodiesel byproduct had occurred between 5:00 pm May 9, 2008 and 7:00 am May 12, 2008.  This discharge interfered with the operation of the Middletown POTW, and was in violation of 327 IAC 5-18-2(a)(1) and 327 IAC 5-2-20(a)(1)

 

During an IDEM inspection of Middletown POTW on July 9, 2007, it was noted that Respondent had discharged waste product into the sanitary sewers. This discharge interfered with the operation of the Middletown POTW, and was in violation of 327 IAC 5-18-2(a)(1) and 327 IAC 5-2-20(a)(1)

 

6.         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 Respondents.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  Respondent shall comply with statutes and rules listed in the findings here and/or above at issue

 

3.                  Within five (5) days of the Effective Date, Respondent shall comply with all rules.  Specifically, Respondent shall seal sanitary sewers in the fuel production area.

 

4.                  Within thirty (30) days of the Effective Date, Respondent shall ensure that all Site employees receive training regarding prohibited discharges into sanitary sewers. New hire employees are required to complete training within ten (10) days of hire. Training records are to be kept on site and made available upon request.

 

5.                  Respondent shall notify IDEM, in writing, within 10 days of completion of each item identified in Paragraphs 3 and 4 above.  The notification shall include a description of the action completed and the date it was completed.

 

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

 

Sue Bock, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Enforcement – Mail Code 60-02

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.                  Respondent is assessed a civil penalty of Eighteen Thousand Dollars ($18,000).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.  In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, 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.

 

8.                  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 seal sanitary sewers in fuel production area.

$500 per day late

4

Failure to provide employee training within timeframe

$400 per employee not completing training

5

Failure to notify IDEM within timeframe

$500 per week late

 

9.                  Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for violation of this Agreed Order.  In lieu of any of the stipulated penalties set out above, 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.

 

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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.             This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. This agreed Order shall jointly and severally apply to and be binding upon Respondent and its successors and assigns.  Respondent’s signatories to this Agreed Order certify that he is fully authorized to execute this Agreed Order and legally bind the party he represents.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter his status or responsibilities under this Agreed Order.

 

12.             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.

 

13.             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.

 

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

 

15.             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.

 

16.             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.

 

17.             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.

 

18.             This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 through 9 and IDEM issues a Resolution of Case letter.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

E-Biofuels, LLC

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Enforcement

 

 

 

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

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on October 6, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement