|
STATE
OF INDIANA |
) |
|
BEFORE
THE INDIANA DEPARTMENT |
||
|
|
|||||
|
COMMISSIONER
OF THE DEPARTMENT Complainant, v. Central Indiana Ethanol, LLC, Respondent. |
) |
|
|||
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 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.
5.
During
an inspection on September 12, 2019, IDEM discovered that Air Products dumped
an unknown amount of ammonia-laden wastewater on the ground next to the roof
drainpipe. The wastewater flowed into Respondent’s effluent line,
and discharged out of Outfall 001 contributing to a fish kill.
6.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
7.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified
Mail/personal service to:
|
Ryan Drook, President & CEO |
Steve Berry,
Registered Agent |
|
Central
Indiana Ethanol, LLC |
Central
Indiana Ethanol, LLC |
|
2955 W Delphi
Pike |
2955 Delphi
Pike |
|
Marion, IN
46952 |
Marion, IN
46952 |
8.
During
an investigation including an inspection on September 12, 2019, conducted by a
representative of IDEM, violations were found, as described below.
9.
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 Indiana Code (IC) 13 and is
grounds for enforcement action by IDEM.
10.
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 1.B.2 of the Permit, all surface waters at all
times and at all places, including 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 do any of the following:
a. will settle to form putrescent or
otherwise objectionable deposits;
b. are in amounts
sufficient to be unsightly or deleterious;
c. produce
color, visible oil sheen, odor, or other conditions in such degree as to create
a nuisance;
d. are in concentrations or combinations that will cause or
contribute to the growth of aquatic plants or algae to such degree as to create
a nuisance, be unsightly, or otherwise impair the designated uses; and
e. are in amounts sufficient to be acutely toxic to, or to
otherwise severely injure or kill aquatic life, other animals, plants, or
humans.
During
the inspection on September 12, 2019, IDEM staff observed and documented dead
fish still present following the fish kill event on September 11, 2019. Field
tests of the receiving stream showed Chlorine was undetectable upstream of
Outfall 001 and field tests of the receiving stream downstream of Outfall 001
showed 3+ mg/L for Chlorine. Field tests of water in the Respondent sampling
manhole showed 4+ mg/L for Chlorine. On September 11, 2019, Respondent
determined that a chlorine pump was dosing more chlorine than it should have
been and immediately turned it off. The Respondent allowed Chlorine to
discharge from Outfall 001 into the receiving stream and contribute to a fish
kill, in violation of IC 13-18-4-5, IC 13-30-2-1(1), 327 IAC 2-1-6(a)(1), and
Part 1.B.2 of the Permit.
11.
Pursuant
to 327 IAC 5-2-8(9) and Part II.B.1 of the Permit, permittee shall at all times
maintain in good working order and efficiently operate all facilities and
systems for the collection and treatment which are installed or used by the
permittee and which are necessary for achieving compliance with the terms and
conditions of the Permit.
During
the inspection on September 12, 2019, IDEM learned that Respondent had been in
a planned seasonal maintenance shutdown since September 8, 2019, which ceased
water flow to the ethanol process but continued water flow through the
non-contact cooling system to dissipate residual heat from fermenters. A
chlorine pump that normally uses data from a flow meter to flow-proportion the
correct amount of chlorine had been set to manual during the recent seasonal
maintenance shutdown therefore dosing more chlorine than necessary. The
Respondent failed to properly operate the chlorine pump, in violation of 327
IAC 5-2-8(9) and Part II.B.1 of the Permit.
12.
Pursuant
to Part I.A.1 of the Permit, the permittee is required to comply with the
monitoring requirements contained in the Permit, including effluent
limitations.
Discharge
Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by
Respondent for the period of September 2019 revealed violations of effluent
limitations contained in Part I.A.1 of the Permit as follows:
A.
The
daily maximum average concentration limitation for chlorine was exceeded during
September 2019.
B.
The
monthly average concentration limitation for Chlorine was exceeded during
September 2019.
Respondent
failed to comply with the effluent limitations from Outfall 001 contained in
the Permit, in violation of Part I.A.1 of the Permit.
13.
A
Settlement Conference was held on May 28, 2020, to settle on Order Actions.
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 9 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 the Permit, rules and statutes listed in the findings above
at issue.
3.
Within 30 days of the
Effective Date, Respondent shall implement actions to achieve and maintain
compliance with effluent limitations contained in the Permit, specifically
Chlorine.
4.
Within 30 days of the
Effective Date, Respondent shall improve and implement Standard Operating
Procedures (SOPs), particularly for during shutdowns.
5.
Within 10 days of each required action in Order
Paragraphs 3 and 4, Respondent shall submit to IDEM a notification of
completion for each item.
6.
Beginning on the Effective Date and continuing
until the successful completion of the actions in Order Paragraphs 3 and 4,
Respondent shall, at all times, operate its existing WWTP
as efficiently and effectively as possible.
7.
Within 45 days of the
Effective Date, Respondent shall submit detailed narrative descriptions,
including flow diagrams, of all sources of process wastewater, non-process
wastewater, and storm water exposed to industrial activity originating from the
Air Products facility and connected to Respondent’s effluent lines. IDEM’s
Permits Branch will evaluate the information and may require Respondent to
submit applicable NPDES Permit Applications.
8.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
|
David
Koehler, Enforcement Case Manager |
|
Office
of Water Quality – IGCN 1255 |
|
Indiana
Department of Environmental Management |
|
100
North Senate Avenue |
|
Indianapolis,
IN 46204-2251 |
9.
Respondent
is assessed and agrees to pay a civil penalty of Twenty Eight
Thousand Two Hundred Dollars ($28,200). 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.”
10.
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 implement actions to maintain compliance with effluent limitations
contained in the Permit within the required time period. |
$250
per week late, or part thereof. |
|
4 |
Failure
to improve and implement SOPs within the required time
period. |
$250
per week late, or part thereof. |
|
5 |
Failure to submit to IDEM a notification
of completing actions in Order Paragraphs 3 and 4. |
$150
per week late, or part thereof. |
|
6 |
Failure
to operate the WWTP as efficiently and effectively as possible prior to completing
actions in Order Paragraphs 3 and 4. |
$200
per violation. |
|
7 |
Failure
to submit narrative descriptions of all flows originating from Air Products
within the required time period. |
$250
per week late, or part thereof. |
11.
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.
12.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2019-26876-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 |
13.
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.
14.
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.
15.
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.
16.
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.
17.
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 their obligation to comply with the
requirements of its applicable permits or any applicable Federal or State law
or regulation.
18.
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.
19.
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.
20.
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.
21.
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.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.
|
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
|
Department
of Environmental Management |
Central Indiana Ethanol, 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 July 15, 2020 |
|
|
Martha
Clark Mettler |
|
|
Assistant
Commissioner |
|
|
Office
of Water Quality |