STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

ROSE ACRE FARMS, INC.,

Respondent.

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Case No. 2009-18900-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 Rose Acre Farms, Inc., which owns and operates a stationary soybean oil processing plant with Plant ID No. 071-00018, located at 6874 N. Base Road, in Seymour, Jackson 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:

 

Lois M. Rust, President

Mark Whittington, Registered Agent

Rose Acre Farms, Inc.

Rose Acre Farms, Inc.

P. O. Box 1250

6874 N. Base Road

P. O. Box 1250

6874 N. Base Road

Seymour, IN 47274

Seymour, IN 47274

 

5.         Respondent owns and operates a soybean oil processing plant.

 

6.         During a review of the Annual Compliance Certification for the calendar year 2008 conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to Part 70 Operating Permit No. 17439 (“permit”) (amended by No. 26251), issued to Respondent on July 29, 2004, condition D.2.1 Prevention of Significant Deterioration (PSD) Minor Limits, the total extraction solvents purchased shall be limited to less than 245 tons per twelve (12) month period with compliance determined at the end of each month.  Combined with the volatile organic compound (VOC) emissions from the boilers (3.05 tons) and other insignificant activities (1 ton), the VOC emissions from the entire source shall be limited to less than 250 tons per twelve (12) month period in order to make 326 IAC 2-2 PSD Requirements not applicable.

Pursuant to 326 IAC 2-2 PSD Requirements, any stationary source which is located in an attainment or unclassifiable area as designated in 326 IAC 1-4 and which has the potential to emit two hundred and fifty (250) tons per year or more of any pollutant subject to regulation under the Clean Air Act must apply for and obtain a PSD permit and comply with the requirements of this rule.

For the reporting year 2008, Respondent reported total extraction solvent consumption in excess of 245 tons for each of the three, twelve (12) month periods ending in April (254.14 tons), May (262.73 tons) and June (246.61 tons), in violation of Permit No. 17439 condition D.2.1 and 326 IAC 2-2.

 

7.         Respondent returned to compliance in July of 2008 after shutting down the oil extraction process in order to rebuild the oil extraction unit.  Since then, the rolling 12 month period solvent purchase totals have declined below the 245 ton limit.

 

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 Operating Permit No. 27062 condition D.2.1 PSD Minor Limits (issued December 9, 2009) or 326 IAC 2-2 PSD Requirements.

 

3.         Any submittals required by this Agreed Order shall be sent to:

 

Larry Howard, Compliance and Enforcement Manager

Southeast Regional Office

Indiana Department of Environmental Management

820 Sweet Street

Brownstown, IN 47220

 

4.         Respondent is assessed a civil penalty of Fifteen Thousand Dollars ($15,000).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within forty-five (45) days of the Effective Date.  In the event that the civil penalty is not paid within forty-five (45) 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.

 

5.         Civil 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

 

6.         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.

 

7.         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.

 

8.         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.

 

9.         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.

 

10.       Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents’ efforts to comply with this Agreed Order.

 

11.       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.

 

12.       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.

 

13.       This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Rose Acre Farms, Inc.

 

 

 

By:

 

 

By:

 

 

Mark A. Amick, Deputy Director

 

Printed:

 

 

Southeast Regional Office

 

Title:

 

 

Indiana Department of Environmental Management

 

 

 

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

 

, 2010.

 

 

For the Commissioner

 

 

 

Signed on November 22, 2010

 

Keith Baugues

 

Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management