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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
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Complainant, |
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v. |
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Case No. 2022-28513-S |
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Nature’s Methane – Huntington I, 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 Nature’s Methane – Huntington I,
LLC, which owns/operates the biomass feedstock processing facility, with Solid
Waste (“SW”) Program ID No. 34-05, located at 5906 South 100 East, in Huntington,
Huntington County, Indiana (“Site”).
3.
Respondent,
the permittee/registrant, was issued a Biomass Anaerobic Digester Registration
SW 35-04, under the name Huntington AD 1, on August 8, 2018. The Registration
was modified on September 8, 2020. The Registration expiration date is
September 1, 2023. To date, construction has not been completed.
4.
IDEM
issued a Violation letter on September 3, 2021, requesting proof of a financial
assurance mechanism as required by SW 35-04 Registration Condition 15A. To
date, no response has been received.
5.
IDEM
conducted an inspection of New Dawn Dairy, LLC on February 15, 2022, and
documented that approximately six (6) million gallons of manure was pumped from
the farm directly into the lagoon located at the Site. The manure was sent at the request of
Respondent and per a Marketing and Distribution Agreement between Respondent
and the farm.
6.
IDEM has jurisdiction over the parties and the subject
matter of this action.
7.
Pursuant to IC 13-30-3-3, on September 27,
2022, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:
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Steven
Estes, Owner |
Robert
L. Nicholson, Registered Agent |
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Nature’s
Methane – Huntington I, LLC |
Nature’s
Methane – Huntington I, LLC |
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0928
South 500 West 90 |
301
W. Jefferson Blvd., Suite 200 |
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Markle,
Indiana 46770 |
Fort
Wayne, Indiana 46802 |
8.
During
an investigation, including a record review on February 24, 2022
and an inspection on February 14, 2022, March 8, 2022, August 24, 2022 and
September 6, 2022, conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 329 Indiana Administrative Code (“IAC”) 11.5-8-1(a), an owner or operator
that is required to register under this article shall establish financial
assurance for closure of the registered facility. The financial assurance must
be:
(1) provided as a surety bond in accordance
with subsection (d); and
(2) in the amount that provides for closure
of the registered facility in the event the owner or operator has failed to
close the registered facility.
As noted during
the record review, Respondent failed to establish financial assurance for
closure of the registered facility.
b. Pursuant to 329 IAC 11.5-8-1(g), in
addition to any other penalties provided for in this article or in IC 13-14 and
IC 13-30, any failure to obtain, maintain, or fund financial assurance as
required by this rule within the prescribed time limits is grounds for a
proceeding to revoke the facility's registration or to order final closure of
the registered facility.
As noted during
the record review, Respondent has failed to provide a surety bond
for $507,315.00 and a standby trust within
the prescribed time limits.
c. Pursuant
to 329 IAC 11.5-8-1(d)(5), the surety bond must be established as follows: If the
financial assurance amount determined under this rule is twenty thousand
dollars ($20,000) or more, the owner or operator shall establish a standby
trust fund to be utilized in the event the owner or operator fails to fulfill
closure obligations and the bond guarantee is exercised. The trust fund must be
established in accordance with the following:
(A) On forms approved by the commissioner.
(B) The establishment of a standby trust fund
in the amount determined by subsection (b) or (c) for commissioner-approved
work done to close the facility.
(C) The requirement for successor trustees to
notify the commissioner, in writing, of their appointment at least ten (10)
days prior to the appointment becoming effective.
(D) The requirement that the funded trust is
irrevocable unless terminated in writing by the commissioner.
(E) Include a notarization of all signatures
by a notary public commissioned to be a notary public in the state where
notarization occurs at the time of notarization.
(F) The requirement that the trustee is:
(i) authorized to act as a trustee; and
(ii) an entity whose operations are regulated
and examined by a federal agency or state agency.
Pursuant to SW 35-04 Registration Condition 15A, the registrant must
establish a surety bond as specified in 329 IAC 11.5-8-1 to cover costs of
closure of this facility.
a. The amount of financial
assurance mechanism must not be less than $507,315.00.
b. The registrant must
submit signed originals of the financial assurance mechanism and updates used
to meet this requirement to IDEM for approval before beginning construction.
As noted during
the record review, Respondent failed to establish a surety bond
for $507,315.00 and a standby trust.
d. Pursuant
to 329 IAC 11.5-4-1(g)(16), the registration must
include financial assurance documentation required under 329 IAC 11.5-8-1, if applicable.
As noted during
the record review, Respondent failed to provide financial assurance
documentation as required.
e. Pursuant to SW 35-04 Registration Condition 1, the permittee
must comply with 329 IAC 11.5 and approved plans and specifications.
As noted during
the inspections, Respondent failed to complete construction as specified in
approved plans and specifications.
f. Pursuant to SW 35-04
Registration Condition 6A, the permittee must submit professional engineer
certification as required by 327 IAC 19-12-4(d) and (s) for the lagoon and the
digester. The submittal must certify that the newly constructed lagoon and
digester complies with the approved plans and specifications as shown in the
documents dated March 30, 2020 and February 15, 2018
(VFC #s 82942311 and 82587249). The certifications must also include the
following:
a. Results of
all tests conducted during construction.
b. Documentation
verifying that each soil boring and test pit is backfilled with 50% bentonite
and recompacted by hand.
Pursuant to 327
IAC 19-12-4(d), all liquid manure storage facilities must be constructed
according to the Indiana NRCS Conservation Practice Standard Code 313: Waste
Storage Facility, October 2016**. Construction of all liquid manure storage
facilities approved after the effective date of this article must be certified
upon completion by a registered professional engineer on a form provided by the
department. The engineer's certification must be kept in the operating record
and submitted with the affidavit required by subsection (s).
Pursuant to 327
IAC 19-12-4(s), the applicant shall execute and send to the commissioner an
affidavit, under penalty of perjury, that a waste management system was
constructed and shall be operated in accordance with the requirements of the
approval and this article as follows:
(1) The owner/operator shall
submit to IDEM, on a form provided by the department, the affidavit within
thirty (30) days after the date construction of an approved waste management
structure is completed, and prior to the introduction of any animals or manure.
As noted during
the February 14, 2022 inspection, Respondent was
receiving manure into the lagoon at the time of the inspection. Respondent was
not approved to accept manure due to failing to complete construction as
specified in approved plans and specifications and failure to submit a professional
engineer certification.
g. Pursuant to SW 35-04
Registration Condition 4A, the post construction testing of the two-foot thick constructed clay liner must be performed at a
rate of one test per lift per acre. A total of 28 undisturbed (from Shelby
Tube) hydraulic conductivity test are required on the floor and side slopes of
the 6.95-acre lagoon.
Pursuant to SW
35-04 Registration Condition 5A, the constructed clay liner must have a
specific discharge of no greater than 1/16 in3/in2/day.
As noted during
the record review and the March 8, 2022 inspection,
Respondent failed to submit the required hydraulic conductivity tests, which are
required to determine if the approved discharge rate is being met.
h. Pursuant to SW 35-04
Registration Condition 8A, the registrant must not store more than 13,080
tons (3.17 MG) of dairy manure at the facility at any one time. The registrant
must not store more than 169,328 tons (40.86 MG) of digestate at the facility
at any one time. The registrant must not store more than 500 tons (16,100 cubic
feet) of solids at the facility at any one time.
As noted during the February 14, 2022 inspection and confirmed by the February 15,
2022 inspection of New Dawn Dairy, LLC, Respondent stored approximately six (6)
million gallons of manure in the lagoon.
i. Pursuant
to SW 35-04 Registration Condition 11, the registrant must follow the
screening, storage, material handling, processing, and treatment procedures
described in the response dated June 27, 2018 (VFC #82578870) and comply with
the storage and operational requirements for biomass and any residue as
specified in the application, and rules 329 IAC 11.5-5 and 329 IAC 11.5-6.
Facility
Registration Application, Question #8 (B) – Storage Requirement, Page 6 of VFC
#82578870, states “The Digester...uses an even feedstock input. Therefore, the
incoming feedstock goes into a reception pit”
Facility
Registration Application, Question #16 – Closure Plan, Page 12 of VFC
#82578870, states “All incoming feedstock goes directly to the Reception Pit to
be processed the same day. No feedstock is stored on site other than in the
Reception Pit.”
As noted during
the February 14, 2022 inspection, Respondent was receiving
manure directly into the lagoon and not into the Reception Pit as approved.
9.
On September
22, 2022, IDEM revoked the Biomass Anaerobic Digester Registration SW 35-04,
issued on August 8, 2018 and modified on September 8,
2020.
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 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.
Immediately upon
the Effective Date, Respondent shall cease all activity previously permitted
under the registration.
3.
Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Thirty-Two Thousand Dollars ($32,000).
Respondent shall pay by the due date printed on the Invoice, as attached.
Civil penalties are payable to the “Environmental
Management Special Fund” by:
Mail:
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:
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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 |
Online:
Accounts Receivable is accepting
payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM.
Under Online Services, click Online Payment options and follow the prompts. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
Phone:
You may also call us at 317-234-3099 and
follow the instructions for Master Card, Visa or Discover payments. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
4.
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 an
additional penalty of 10 percent, payable to the “Environmental Management
Special Fund,” and shall be payable to IDEM in the manner specified in Paragraph
3, above.
5.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
6.
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.
7.
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.
8.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
9.
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.
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 the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
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 violation specified
in the NOV.
13.
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.
14.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Jennifer
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For
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Signed
2/2/2023 |
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Peggy
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Assistant
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