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.

NOBLE AMERICAS SOUTH BEND

ETHANOL, LLC,

Respondent.

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Case No. 2016-23680-A and

2016-24154-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 Noble Americas South Bend Ethanol, LLC (“Respondent”), which owns and operates the stationary fuel-grade ethanol production plant with Plant ID No. 141-00033, located at 3201 West Calvert Street, in South Bend, St. Joseph 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 March 16, 2017, via Certified Mail to:

William J. Cronin, President

Noble Americas South Bend

Corporation Service Company,

Registered Agent

Ethanol, LLC

135 North Pennsylvania Street

107 Elm Street

Suite 1610

Four Stamford Plaza

Stamford, CT, 06902

Indianapolis, IN 46204

 

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

 

a.       Pursuant to Part 70 Permit No.141-34359-00033 (“permit”), issued to Respondent on November 19, 2014, condition D.4.1(a) and G.1.2, Permittee shall operate the two (2) regenerative thermal oxidizers (RTOs) to control VOC emissions from the five (5) DDGS dryers (EU-10), the evaporation process (EU-09) and the recovery column vent condenser, identified as E- 409.

Respondent did not control emissions from the recovery column vent condenser, identified as E-409 from May 23, 2015 through December 14, 2015, in violation of permit condition D.4.1 and G.1.2.

b.       Pursuant to Part 70 Permit No.141-34359-00033 (“permit”), issued to Respondent on November 19, 2014, condition D.4.12, a continuous monitoring system shall be calibrated, maintained, and operated on the thermal oxidizers for measuring operating temperatures. For the purposes of this condition continuous shall mean no less than once per minute. The outputs of these systems shall be recorded as a 3-hour average. The Permittee shall operate the thermal oxidizers at or above the 3-hour average temperature of 1,600°F.

From May 23, 2015 through August 21, 2015, Respondent failed to operate thermal oxidizer at or above 1600OF, in violation of permit condition D.4.12.

From May 23, 2015 through May 7, 2016, Respondent failed to record and maintain thermal oxidizer records in 3-hour average increments, in violation of permit condition D.4.12

c.              Pursuant to Part 70 Permit No.141-34359-00033 (“permit”), issued to Respondent on November 19, 2014, conditions D.1.5, D.2.8, D.3.10, D.4.19, and D.5.10, to document compliance status to related conditions, records must be maintained.

From June 1, 2015 through July 10, 2015, Respondent failed to maintain various records to document compliance with related conditions, in violation of permit conditions D.1.5, D.2.8, D.3.10, D.4.19, and D.5.10.

 

          c.        Pursuant to Part 70 Permit No.141-35917-00033 (“permit”), issued to Respondent on September 18, 2015, condition D.5.1, The VOC emissions from the alcohol load-out operation, identified as EU-13, shall be collected and controlled by the load-out natural gas-fired flare, identified as G-602.

On two occasions in April 2016, Respondent failed to control VOC emissions from the alcohol load-out operation by operating without the natural gas-fired flare, identified as G-602, in violation of permit condition D.5.1.

 

d.       Pursuant to Part 70 Permit No.141-35917-00033 (“permit”), issued to Respondent on September 18, 2015, condition D.5.8, Maintain a flare pilot flame when the associated emission unit is in operation and continuously monitor the presence of a flare pilot flame using a thermocouple or any other equivalent device to detect the presence of a flame when the associated emission unit is in operation.

On two occasions in April 2016, Respondent failed to maintain a flare pilot flame when the associated emission unit is in operation, in violation of permit condition D.5.8

 

6.             The recovery column vent condenser identified as E-409 was connected and operational to the RTO on December 14, 2015.

 

7.             Respondent began operating the RTO at or above 1600OF on August 21, 2015.  The computer monitoring and recordkeeping system was reprogramed and began recording the 3-hour average on May 7, 2015.

 

8.             Respondent conducted retraining of operations staff in the Part 70 permit requirements including need for accurate recordkeeping.

 

9.             The flare loadout operations have been operating in compliance since April 11, 2016.

10.          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 modification 141-37438-00033, unless superseded by a permit modification or renewal.

 

3.             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

 

4.             Respondent is assessed and agrees to pay a civil penalty of Fifty-Five Thousand Two Hundred Dollars ($55,200.00).  Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Thirteen Thousand Eight Hundred Dollars ($13,800.00).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30th day being the “Due Date”. In lieu of payment to IDEM of the remaining civil penalty, Respondent shall make a cash payment to the Indiana Finance Authority (“IFA”) to fund a Supplemental Environmental Project (“SEP”) of activities related to brownfield redevelopment at a brownfield site (“Brownfield Site”) in the City of South Bend, Indiana.  Respondent will make a payment in the amount of Forty-One Thousand Four Hundred Dollars ($41,400.00) to fund SEP activities at the Brownfield Site.  Respondent shall make such payment to the IFA within thirty (30) days of the Effective Date of his Agreed Order.  Payment to the IFA satisfies respondent’s obligation to undertake a SEP to offset a portion of the civil penalty assessed in this matter.  Implementation of this SEP will benefit the community by rejuvenating South Bend neighborhoods, increasing tax base, mitigating threats to human health and the environment and/or reducing blight.

 

The Brownfield Site at which the SEP proceeds will be spent will be agreed upon among the City of South Bend and the IFA, and will be subject to final approval by the Brownfields Program.  The IFA will account for the SEP payment in a Brownfield Site and/or community-specific account and will require the City of South Bend to execute a financial assistance agreement with the IFA, under which the Brownfields Program will oversee the work undertaken at the Brownfield Site funded by SEP proceeds.  The IFA will notify IDEM’s Enforcement Manager when SEP-funded activities at the Brownfield Site are complete.

 

In the event that Respondent does not make its SEP payment within thirty (30) days of the Effective Date of this Agreed Order, the full amount of the civil penalty as stated in this paragraph, 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 to IDEM 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.

 

Payment for the SEP is payable by check to the “Indiana Finance Authority.”  The text “SEP-City of South Bend” and the Case Number of this action shall be included in the memo line of the check.  The check shall be mailed to:

 

Andrea Robertson

Indiana Brownfields Program – SEP

100 N. Senate Avenue

Room 1275

Indianapolis, IN 46204

 

Respondent shall provide Complainant with documentation of payment to the Indiana Finance Authority within one (1) week of such payment.

 

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:

 

IDEM Office of Legal Counsel

IGCN, Rm  N1307

100 N Senate Ave

Indianapolis, IN  46204

 

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 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 5, above.

 

8.             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.

 

9.             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.

 

10.          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.

 

11.          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.

 

12.          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.

 

13.          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.

 

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

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Noble Americas South Bend Ethanol, LLC

 

 

 

By:

 

 

By:

 

 

David P. McIver, Chief

 

Printed:

 

 

Enforcement Section

 

Title:

 

 

Office of Air Quality

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

 

COUNSEL FOR INDIANA FINANCE AUTHORITY:

For the Indiana Brownfields Program

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

 

 

 

 

COUNSEL AND/OR AUTHORIZED REPRESENTITIVE:

For the City of South Bend

 

By:

 

The City of South Bend has executed this Agreed Order for the sole purpose of acknowledging that the City will cooperate in the designation of a site for a Supplemental Environmental Project in accordance with the terms of Section 4 of Part II of this Agreed Order.  The City of South Bend expressly states that it has no knowledge of the parties’ negotiations leading to the settlement represented by this Agreed Order or the underlying facts concerning the actions of or controversies between the parties. The City of South Bend’s execution of this Agreed Order will not be construed as an approval of the parties’ settlement in any respect.

 

 

 

 

Date:

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2017.

 

 

For the Commissioner

 

 

 

Signed on June 21, 2017

 

Keith Baugues, Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management