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STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT OF |
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COUNTY
OF MARION |
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case
No. 2020-27323-S and |
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2021-27792-S |
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INNOFUEL
ENERGY SOLUTIONS, 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 Innofuel Energy Solutions, LLC (“IES”)
(“Respondent”), which owns and operates a Solid Waste Processing Facility with
Solid Waste (SW) Program ID 45-49, subject to an IDEM permit dated May 3, 2021,
located at parcel number 45-03-26-476-003.000-004, 6480 Industrial Highway in
Gary, Lake County, Indiana (“Site”). The SW Processing Permit that was in
effect at the time of the investigations described in this order was dated
September 30, 2015.
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 December 18,
2020, for Case No. 2020-27323-S to:
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Brad Wren,
Manager |
C T
Corporation System, Registered Agent |
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Innofuel Energy
Solutions, LLC |
Innofuel Energy
Solutions, LLC |
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6480
Industrial Highway |
334 North
Senate Avenue |
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Gray, IN
46406 |
Indianapolis,
IN 46204 |
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Bradford.Wren@innofuelenergy.com |
5.
Respondent
waives the issuance of a Notice of Violation and the settlement period of sixty
(60) days as provided for by IC 13-30-3-3, for Case No. 2021-27792-S.
Case No. 2020-27323-S
6.
During
an investigation including an inspection on August 12, 2020, conducted by a
representative of IDEM, the following violations were found:
a.
Pursuant to 329 Indiana Administrative Code
(“IAC”) 11-11-6(c), to request a change in the facility permit, the permittee
shall request that the commissioner modify the permit. The permittee shall
submit the requested modification and rationale for the modification.
b.
Pursuant to permit requirement A2 of SW Program
ID 45-49, the permittee must construct, operate, and maintain the facility as
described in the approved plans and specifications. The permittee must request
approval before modifying the facility or facility operating procedures.
During
the inspection noted above, IDEM observed that Respondent had removed the
facility’s external conveyor system used to move material from the processing
building to the fuel barn. In its place, the facility used a hose system to
transport material. The system was not in the facility’s original application
or plans, nor was IDEM notified of the intent to modify or seek formal
modification approval.
Case No. 2021-27792-S
7.
During
an investigation including an inspection on March 9, 2021, conducted by a
representative of IDEM, the following violations were found:
a.
Pursuant to 329 IAC 10-4-2, no person shall
cause or allow the storage, containment, processing, or disposal of solid waste
in a manner which creates a threat to human health or the environment,
including the creating of a fire hazard, vector attraction, air or water pollution,
or other contamination.
During
the inspection noted above, IDEM observed that Respondent caused and/or allowed
the open dumping of solid waste on the facility grounds, especially between the
fuel barn and the processing building.
b.
Pursuant to 329 IAC 10-4-3, open dumping and
open dumps, as those terms are defined in IC 13-11-2-146 and IC 13-11-2-147,
are prohibited.
During
the inspection noted above, IDEM observed that Respondent caused and/or allowed
the open dumping of solid waste on the facility grounds, especially between the
fuel barn and the processing building.
c.
Pursuant to 329 IAC 10-4-4(a)(1) and (2), the
owner of real estate upon which an open dump is located is responsible for
the correcting and controlling any nuisance conditions that occur as a result of the open dump and
eliminating any threat to human health of the environment. The owner must
remove all solid waste and dispose of such waste in a solid waste land disposal
facility permitted to accept the waste or by other methods approved by the
commissioner.
As
noted during the inspection above, Respondent owns the real estate upon which
the open dump is located, and
has not complied with 329 IAC 10-4-4(a)(1) and (a)(2).
d.
Pursuant to 329 IAC 11-11-6(c), to request a
change in the facility permit, the permittee shall request that the
commissioner modify the permit. The permittee shall submit the requested
modification and rationale for the modification.
During the
inspection noted above, IDEM observed that the majority of the building was unusable
because a large portion of the building was no longer enclosed and open to the
environment. Respondent made changes to the permitted facility permit by moving
a holding area for waste waiting to be processed outside of the facility,
exposed to the weather elements. Operating in this manner was not in the
facility’s original application or plans, nor was IDEM notified of the intent
to modify or seek formal modification approval of the facility permit to
address these changes to the permitted operations.
e.
Pursuant to permit requirement A2 of SW Program
ID 45-49, the permittee must construct, operate, and maintain the facility as
described in the approved plans and specifications. The permittee must request
approval before modifying the facility or facility operating procedures.
During the
inspection noted above, IDEM observed that Respondent modified their facility
operating procedures by moving a holding area for waste waiting to be processed
outside of the facility, exposed to the weather elements.
f.
Pursuant
to permit requirement B2 of SW Program ID 45-49, the permittee must construct
the facility according to the plans submitted to IDEM. The plans include the
application dated October 27, 2014 (VFC #80110829) and additional information
dated February 3, 2015 (VFC # 80015436), April 8, 2015 (VFC #80026085), and
June 19, 2015 (VFC #80110661). The permittee must submit any changes in the
plans to IDEM specified in Requirement A2 before beginning construction.
During
the inspection noted above, IDEM observed that Respondent modified their
facility operating procedures by moving a holding area for waste waiting to be
processed outside of the facility, exposed to the weather elements.
g.
Pursuant
to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of
any contaminants or solid waste upon the land, except through the use of sanitary
landfills, incineration, composting, garbage grinding, or another method
acceptable to the board.
During
the inspection noted above, IDEM observed that Respondent deposited or caused
and/or allowed the deposit of solid waste, including, but not limited to paper,
carboard, and plastics, in a method which has not been determined by the board
to be acceptable.
h.
Pursuant
to IC 13-30-2-1(5), no person shall dump or cause or allow the open dumping of
garbage or any other solid waste in violation of 329 IAC 10-4-2 and 329 IAC
10-4-3.
During the
inspection noted above, IDEM observed that Respondent dumped or caused and/or
allowed the open dumping of paper, cardboard
and plastics at the Site.
8.
Respondent
submitted and was approved for an Insignificant Modification Approval dated
February 17, 2021, (VFC# 83114613) to use an Untha XR3000XC portable shredder.
9.
Respondent
is currently not operating, unloading or
processing waste due to a fire at the facility on June 17, 2021.
10.
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 acknowledge notice of this right and waive 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 329 IAC 11 and the approved permit, SW Program ID 45-49,
dated May 3, 2021. Specifically, Respondent shall not conduct any unpermitted
activities at the Site.
3.
Respondent
shall not recommence unloading or processing waste until the building is
reconstructed in accordance with the approved permit, SW Program ID 45-49,
dated May 3, 2021 or as otherwise permitted in accordance with 329 IAC 11 and
IDEM has verified that this condition has been satisfied.
4.
All
submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise
in writing, shall be sent to:
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Janet
Arnold, Technical Environmental Specialist |
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Office of
Land Quality |
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Indiana
Department of Environmental Management |
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100 North
Senate Avenue |
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Indianapolis,
IN 46204-2251 |
5.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agree to pay a civil penalty of Two
Thousand Two Hundred Dollars ($2,200) for Case No. 2020-27323-S, and a civil
penalty of Eleven Thousand Two Hundred and Fifty Dollars ($11,250) for Case No.
2021-27792-S. Said penalty amounts shall be due and payable to the
“Environmental Management Special Fund” within thirty (30) days of the
Effective Date; the thirtieth day being the “Due Date.”
6.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondent shall pay stipulated
penalties in the following amounts:
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Paragraph |
Stipulated Penalty |
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Failure to comply with paragraph #3 |
$500
per week |
7.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondent receives written notice that
Complainant has determined a stipulated penalty is due; the thirtieth day being
the “Due Date.” Complainant 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 Complainant’s right to collect
such stipulated penalty or preclude Complainant from seeking additional relief
against Respondent for a violation of this Agreed Order. Neither assessment nor
payment of stipulated penalties shall preclude Complainant 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.
8.
Civil
and stipulated 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:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN, Room
1340 |
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100 North
Senate Avenue |
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Indianapolis,
IN 46204 |
9.
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 pay 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 8, above.
10.
Signatories
to this Agreed Order certify that they are fully authorized to execute this
Agreed Order and legally bind the party they represent.
11.
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.
12.
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.
13.
Respondent
shall ensure that all contractors, firms, and other persons performing work
under this Agreed Order comply with the terms of this Agreed Order.
14.
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.
15.
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.
16.
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.
17.
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 violations specified in this Agreed Order.
18.
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.
19.
This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
Letter to Respondent.
20.
"Force
majeure, for purposes
of this Agreed Order, is defined as any event arising from causes totally
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.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
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By:
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By: _________________________ |
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Jennifer Reno, Section Chief |
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Enforcement Section |
Printed:
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Office of Land Quality |
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Title:
________________________ |
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Date:
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Date:
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COUNSEL
FOR RESPONDENT: |
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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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DAY OF |
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20_____. |
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For
the Commissioner: |
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Signed August 3, 2021 |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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