STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case Nos. 2018-25794-A
& 2020-27284-A |
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SOUTH BEND
ETHANOL, LLC, |
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Respondent. |
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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.
2.
Respondent is 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, on May 3, 2021, IDEM
issued a Notice of Violation (“NOV”) via Certified and Electronic Mail to:
Mercuria Energy America Inc. |
National Registered Agents, Inc, |
Attn:
Manager |
Registered Agent |
20 East Greenway Plaza Suite
650 |
334 North Senate Avenue Indianapolis, IN 46204 |
Houston, TX 77046 |
CTSOPReceipt@wolterskluwer.com |
5.
During
investigations conducted by representatives of IDEM, the following violations were
found:
a.
Pursuant
to Part
70 Permit 141-37438-00033 condition D.4.3(c), total VOC emissions shall not exceed 3.99 pounds/hour for
the two RTOs identified as RTO-1 and RTO-2.
Respondent
exceeded 3.99 pounds of VOC/hour for the two RTOs during a stack test conducted
on August 1, 2018, in violation of Part 70 Permit 141-37438-00033 condition
D.4.3(c).
b.
Pursuant
to Part 70 Permit 141-39515-00033 condition C.14(b) and subsequent permits with
the same condition, a retest to demonstrate compliance shall be conducted
within one hundred eighty (180) days of a noncompliant stack test.
Respondent failed to conduct a retest of the two RTOs within one hundred eighty
(180) days after the stack test failure on August 1, 2019, in violation of Part
70 Permit 141-39515-00033 condition C.14(b) and subsequent permits with the
same condition.
c.
Pursuant
to Part
70 Permit 141-39515-00033 condition D.4.10(c) and subsequent permits with the
same condition, on and after the date the approved stack test results are
available, the Permittee shall operate the thermal oxidizer at or above the
3-hour average temperature as observed during the most recent compliant stack
test.
From May 29, 2019 through August 28, 2020, Respondent operated the RTOs below
the 3-hour average temperature as observed during the stack test conducted on
April 11, 2019, in violation of Part 70 Permit 141-39515-00033 condition
D.4.10(c) and subsequent permits with the same condition.
d.
Pursuant
to Part
70 Permit 141-42120-00033 condition D.5.2(d) and subsequent permit with the
same condition, the load-out natural gas-fired flare, identified as G-602,
shall not exceed 4,034 hours of loadout per twelve (12) consecutive month
period, with compliance determined at the end of each month.
In January, February and March 2020, Respondent exceeded 4,034 hours of loadout
per twelve (12) consecutive month period, with compliance determined at the end
of each month, in violation of Part 70 Permit 141-42120-00033 condition
D.5.2(d) and subsequent permit with the same condition.
6.
Respondent
conducted extensive maintenance on both RTO units. Respondent subsequently retested the RTOs on
April 11, 2019 which demonstrated compliance with
revised limits in Part 70 Permit 141-39515-00033 which was issued on November
26, 2018.
7.
On August
28, 2020, Respondent raised the operating temperature of the RTOs to the
temperature determined during testing on April 11, 2019.
9.
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 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 141-42172-00033
unless superseded by a permit modification or renewal.
3.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise in writing, shall be sent to:
Matthew
Chaifetz, Senior Enforcement Case Manager
Office of Air Quality
Indiana
Department of Environmental Management
100 North
Senate Avenue
Indianapolis,
IN 46204-2251
mchaifet@idem.IN.gov
4.
Respondent is assessed and agrees to pay a
civil penalty of Seventy-One Thousand Six Hundred Dollars ($71,600.00). Within thirty (30) days of the Effective Date
of the Agreed Order, Respondent shall pay a portion of this penalty in the
amount of Seventeen Thousand Nine Hundred Dollars ($17,900.00). 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 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 development at a brownfield
site (“Brownfield Site”) in South Bend, Indiana. Respondent will make a payment in the amount
of Fifty-Three Thousand Seven Hundred Dollars ($53,700.00) 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 neighborhoods, increasing tax base, mitigating
threats to human health and the environment and/or reducing blight.
The Brownfield
Site at which some or all of the SEP proceeds will be
spent will be determined by the Brownfields Program for a site located in South
Bend, Indiana. The designation of this Brownfield Site to receive the SEP
proceeds is agreed upon by the Complainant, Respondent
and the IFA. The IFA will account for
the SEP payment and the Brownfields Program will oversee the work undertaken at
the Brownfield Site funded by the SEP proceeds.
If SEP proceeds remain following a determination by the Brownfields
Program that no additional SEP proceeds are needed at the Brownfield Site, the
Brownfields Program will select another site or sites in South Bend at which
work will be funded with the balance of the SEP proceeds. The IFA will notify IDEM’s Enforcement Case
Manager when SEP-funded activities at the Brownfield Site (and any other site
at which activities may be funded with SEP proceeds) 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- 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:
Indiana
Department of Environmental Management
Accounts
Receivable
IGCN, Room
1340
100 North
Senate Avenue
Indianapolis,
IN 46204
6.
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.
7.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
8.
This Agreed Order shall apply to and be binding
upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if
in force, to any subsequent owners, successors, or assigns before ownership
rights are transferred.
9.
No change in ownership, corporate, or
partnership status of Respondent shall in any way alter the Respondent’s status
or responsibilities under this Agreed Order.
10.
Respondent shall ensure that all contractors, firms, and
other persons performing work under this Agreed Order comply with the terms of
this Agreed Order.
11.
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.
12.
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 the obligation to comply with the
requirements of any applicable permits or any applicable Federal or State laws
or regulations.
13.
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.
14.
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 violation specified in the NOV.
15.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the U.S. Environmental
Protection Agency (“U.S. 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 U.S.
EPA or any other agency or entity.
16.
This Agreed Order shall remain in effect until
Respondent s
complied with all terms and conditions of this Agreed Order and IDEM has issued
a Resolution of Case letter to Respondent.
TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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South Bend Ethanol, LLC |
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By: |
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David
P. McIver, Chief |
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Printed: |
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Enforcement
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Office
of Air Quality |
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COUNSEL
FOR COMPLAINANT: |
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COUNSEL
FOR RESPONDENT: |
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For
the Department of Environmental Management |
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By: |
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Date: |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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2021. |
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For
the Commissioner: |
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Signed
on October 5, 2021 |
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Matthew
Stuckey |
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Assistant
Commissioner |
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Office
of Air Quality Indiana
Department of Environmental Management |
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