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.

Bunge Milling, llc,

Respondent.

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Case No. 2019-26628-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. Pursuant to Indiana Code (IC) 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any IDEM alleged 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 IC 13-13-1-1.

 

2.             Bunge Milling, LLC (Respondent) owns/operates the Corn Milling Facility, located at 7383 N. 100 W., Worthington, Greene County, Indiana (the Site).

 

3.             Respondent is authorized by its National Pollutant Discharge Elimination System (NPDES) Permit No. IN0109606 (the Permit), to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from its Wastewater Treatment Plant (WWTP) into Eel River from Outfall 001.

 

4.             IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

 

5.             Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail/personal service to:

 

Corporation Service Company,

Todd Bastean, President

Registered Agent

Bunge Milling, LLC

Bunge Milling, LLC

139 Timberlake manor Pkwy

135 North Pennsylvania St

Chesterfield, MO 63017

Suite 1610

 

Indianapolis, IN 46204

 

 

6.             During an investigation conducted by a representative of IDEM, violations were found, as described below.

 

7.             327 Indiana Administrative Code (IAC) 5-2-8(1), states the permittee shall comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act and IC 13 and is grounds for enforcement action by IDEM.

 

8.             Pursuant to IC 13-18-4-5, a person may not: (1) throw, run, drain, or otherwise dispose; or (2) cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed; into any of the streams or waters of Indiana any organic or inorganic matter that causes or contributes to a polluted condition of any of the streams or waters of Indiana.

 

Pursuant to IC 13-30-2-1(1), it is unlawful for any person to discharge, emit, cause or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources in the environment in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

 

Pursuant to 327 IAC 2-1-6(a)(1) and Part I. B. of the Permit, all surface waters at all times and at all places, including waters within the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges that produce: color, odor, or other conditions in such a degree as to create a nuisance.

 

During the inspection on March 15, 2018, IDEM staff observed and documented the discharge sample drawn at the effluent having a noticeable greyish-brown color and slight odor.

 

During the inspection on July 10, 2019, IDEM staff observed and documented the sample of effluent drawn at the time of the inspection was dark and blackish in color and had a noticeable odor.

 

Each of the above is in violation of IC 13-18-4-5, IC 13-30-2-1(1), 327 IAC 2-1-6(a)(1) and Part I. B. of the Permit.

 

9.             Pursuant to 327 IAC 5-2-8(8) and Part II.A.15 of the Permit, the permittee is required to allow access for inspection of the facility, including monitoring equipment, collection, treatment, and discharge facilities, and any records that must be kept under the conditions of the Permit.

 

During inspections on April 4, 2017, March 15, 2018 and July 10, 2019, there was limited or unsafe access to portions of the facility. IDEM staff noted that Outfall 001 was inaccessible due to an oxbow between the discharge location and the river outfall in violation of 327 IAC 5-2-8(8) and Part II.A.15 of the Permit.

 

10.          Pursuant to Part II. B. 4. of the Permit, the permittee shall dispose of solids, sludges, filter backwash, or other pollutants removed from or resulting from treatment or control of wastewaters in a manner such as to prevent any pollutant from such materials from entering waters of the State.

 

During an inspection on July 10, 2019, IDEM staff discovered that Respondent does not have a solids handling plan. Solids had not been removed 12 months prior to the inspection on July 10, 2019, in violation of Part II.B.4 of the Permit.

 

11.          Pursuant to Part I. C. 1 of the Permit, samples and measurements taken as required herein shall be representative of the volume and nature of the monitored discharge flow and shall be taken at time which reflect the full range and concentration of effluent parameters normally expected to be present. Samples shall not be taken at times to avoid showing elevated levels of any parameters.

 

Pursuant to 327 IAC 5-2-13(a)(2), all permittees shall monitor the volume of wastewater flow at monitoring points specified in the permit, including the final effluent flow from each point source.

 

During an inspection on July 10, 2019, IDEM staff observed and documented that Respondent’s method of measuring flow is not representative of actual flows, in violation of 327 IAC 5-2-13(a)(2) and Part I. C. 1 of the Permit.

 

12.          Pursuant to 327 IAC 5-2-8(9) and Part II. B. 1. of the Permit, the permittee shall at all times maintain in good working order and efficiently operate all facilities and systems for collection and treatment.

 

During inspections on March 15, 2018 and July 10, 2019, IDEM staff observed and documented that Respondent’s treatment units lack an alarm system and are not routinely inspected when the certified operator is off-site. Additionally, boiler wastewater was bypassing its discharge pipe and was pouring out of a small hole in the concrete base of the building, running along the parking lot toward the treatment ponds.

 

During an inspection on July 10, 2019, IDEM staff documented that the influent screening unit and an aerator in the “MLSS” lagoon were out of service. Additionally, based on a review of work orders generated for Respondent’s facility, it does not appear that these repairs are addressed timely in the facility's work order maintenance system.

 

Each of the above is in violation of 327 IAC 5-2-8(9) and Part II.B.1. of the Permit.

 

13.          On March 20, 2018 and July 17, 2019, IDEM sent Inspection Summary Letters to Respondent outlining violations at the WWTP. The letters required a response detailing actions taken to correct the violations. IDEM received a response to the March 20, 2018 letter explaining compliance actions Respondent took or would take to address the violations. However, the violations noted above continue at the WWTP.

 

14.          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, Respondent acknowledges notice of this right and 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 adopted by Complainant or Complainant’s delegate (as evidenced by signature), and the adopted Agreed Order has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date. In addition to addressing the violations cited in Paragraphs 8 through 12 of the Findings of Fact above, this Agreed Order also addresses any additional violations of these same rules that may have occurred subsequent to the issuance of the NOV and prior to the Effective Date.

 

2.             Respondent shall comply with rules, Permit, and statutes listed in the findings above at issue.

 

3.             Within 30 days of the Effective Date, Respondent shall develop and submit to IDEM for approval a Compliance Plan (CP) which identifies actions that Respondent will take to achieve and maintain compliance with its Permit, specifically including the actions Respondent will take to:

A.             Achieve and maintain compliance with Narrative Water Quality Standards contained in the Permit;

B.             Provide safe access to Outfall 001, in accordance with 327 IAC 5-2-8(8);

C.            Assure proper removal, storage and disposal of sludge solids;

D.            Provide adequate effluent flow measurement; and

E.             Develop and implement a preventative maintenance program for WWTP equipment, and document all maintenance (preventative and repair) in a permanent record

 

The CP shall include an implementation and completion schedule, including specific milestone dates.

 

Respondent shall notify IDEM in writing of variations to the approved CP.

 

4.             Respondent may request in writing an extension from IDEM of any deadline in this Agreed Order. The request shall state why the extension is necessary and is subject to IDEM approval.

 

5.             Respondent shall, after completion of the work required pursuant to the approved CP from Paragraph 3 above, demonstrate 12 consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit cited in paragraphs 8 through 12 of the Findings of Facts above.

 

6.             In the event that violation(s) occur during the Compliance Demonstration, within 30 days of the violation, Respondent shall develop and submit to IDEM, for approval, an Additional Action Plan (AAP) which identifies the additional actions that Respondent will take to achieve and maintain compliance with the terms and conditions of the Permit. The AAP, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

7.             The plans required by Order Paragraphs 3 and 6 are subject to IDEM approval. In the event IDEM determines that any plan or any modified plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondent, IDEM may seek civil enforcement of this Order.

 

8.             Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan(s) and adhere to the milestone dates therein. The approved CP and AAP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

 

Following completion of the actions included in the AAP, the 12 month Compliance Demonstration, as specified in Paragraph 5 above, will re-start. Failure to achieve compliance at the conclusion of work under an AAP may subject Respondent to additional enforcement action.

 

9.             Beginning with the first calendar quarter following the Effective Date, Respondent shall submit to IDEM a written progress report within 10 days of the end of each calendar quarter, which identifies the compliance actions implemented during each quarter ending on March 31st, June 30th, September 30th, and December 31st until completion of the CP or AAP.

 

10.          Beginning on the Effective Date and continuing until the successful completion of the approved CP, Respondent shall, at all times maintain in good working order and effectively operate all facilities and systems (and related appurtenances) for collection and treatment.

 

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

 

Delaney Isaacs, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

12.          Respondent is assessed and agrees to pay a civil penalty of Eighteen thousand, Nine hundred Seventy-five Dollars ($18,975.00). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within 30 days of the Effective Date, the 30th day being a “Due Date.”

 

13.          In the event the terms and conditions of the following paragraphs are violated, IDEM may assess and Respondent shall pay the corresponding stipulated penalty:

 

Paragraph

Violation

Stipulated Penalty

3

Failure to submit the CP within the required time period.

$250 per week late, or part thereof.

5

For violations of terms and conditions of the Permit cited in paragraphs 8 through 12 of the Findings of Fact during the Compliance Demonstration.

$400 per violation

6

Failure to submit the AAP, if required, within the given time period.

$500 per week late, or part thereof.

7

Failure to modify the CP and/or AAP, if required, within the given time period.

$500 per week late, or part thereof.

8

Failure to meet and/or implement any milestone date set forth in the approved CP or AAP.

$500 per week late, or part thereof.

9

Failure to submit to IDEM a written progress report each calendar quarter.

$150 per week late, or part thereof.

10

Failure to at all times maintain in good working order and effectively operate all facilities and systems (and related appurtenances) for collection and treatment.

$200 per violation.

 

14.          Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due Date.” IDEM may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of a stipulated penalty assessment shall not waive IDEM’s right to collect such stipulated penalty or preclude IDEM from seeking additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude IDEM from seeking additional relief against Respondent 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.

 

15.          Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2019-26628-W of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, Indiana 46204

 

16.          This Agreed Order shall apply to and be binding upon Respondent, 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.

 

17.          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 and any accrued interest 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. The interest shall continue to accrue on the first of each month until the civil penalty and any interest accrued are paid in full. Such interest shall be payable to the “Environmental Management Special Fund,” and shall be payable to IDEM in the manner specified above.

 

18.          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.

 

19.          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.

 

20.          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 permits or any applicable Federal or State law or regulation.

 

21.          Complainant does not, by his 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.

 

22.          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 Notice of Violation.

 

23.          Nothing in this Agreed Order shall prevent IDEM (or anyone acting on its behalf) from communicating with the United States Environmental Protection Agency (US 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 US EPA or any other agency or entity.

 

24.          This Agreed Order shall remain in effect until Respondent has complied with the terms and conditions of this Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondent. After 12 consecutive months of compliance with the Permit terms and conditions cited in paragraphs 8 through 12 of the Findings of Facts above, Respondent may send a letter to IDEM requesting a Resolution of Case letter and IDEM will promptly issue the Resolution of Case letter to terminate the Agreed Order, if after review the agency agrees that Respondent has met the conditions of the Agreed Order.

 

25.          Force majeure, for purposes of this Agreed Order, is defined as any event arising from causes  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. If IDEM does not agree that the delay or anticipated delay has been or will be caused by a force majeure event, IDEM will notify Respondent in writing of its decision.

 

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Bunge Milling, LLC

 

By: __________________________

By: ________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed: _____________________

Enforcement Branch

 

Office of Water 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 on November 2, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality