STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

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COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

)

 

)

Complainant,

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)

v.

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Case No. 2019-25990-W

 

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azteca milling, l.p.,

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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 Azteca Milling, L.P. (Respondent), which owns and operates a facility, located at 15700 Highway 41 North, in Evansville, Vanderburgh County, Indiana (the Site).

 

3.             A City of Evansville Industrial Discharge Permit, IWP023 (the EWSU Permit), authorizes Respondent to discharge wastewater into the City of Evansville’s municipal sewage treatment system. The EWSU Permit will expire on December 31, 2019.

 

4.             An IDEM Land Application Permit, IN LA000562 (the Permit), authorizes Respondent to dispose of pollutant-bearing water (corn cooking wastewater) by land application. This Permit will expire on May 31, 2025.

 

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

 

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

 

Mr. Alberto Jacques

Corporation Service Company

Manufacturing Director

Registered Agent for Azteca Milling, L.P

Azteca Milling, LP

135 North Pennsylvania Street, Suite 1610

15700 Highway 41 North

Indianapolis, Indiana 46204

Evansville, Indiana 47724

 

 

7.        Respondent operates a wet corn milling facility.

 

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

 

9.        Pursuant to 327 Indiana Administrative Code (IAC) 5-2-2, any discharge of pollutants into waters of the State, as a point source discharge, is prohibited unless in conformity with a valid National Pollutant Discharge Elimination System (NPDES) permit obtained from IDEM prior to the discharge.

 

As noted during the inspection on December 5, 2018, a release of wet corn milling occurred from the northwest sump on lagoon 1. The released material entered an unnamed tributary of Flat Pond Ditch without a NPDES permit, via an outfall (point source), in violation of 327 IAC 5-2-2.

 

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), 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.

 

As noted during the inspection on December 5, 2018, a release of wet corn milling occurred from the northwest sump on lagoon 1. The released material entered an unnamed tributary of Flat Pond Ditch without a NPDES permit, via an outfall (point source), in violation of IC 13-18-4-5, IC 13-30-2-1(1), and 327 2-1-6(a)(1).

 

As noted during the inspection on January 23, 2019, a  release of wet corn milling was occurring from lagoons 1, 3, and 4 and flowing into an unnamed tributary of Flat Pond Ditch, in violation of IC 13-18-4-5, IC 13-30-2-1(1), and 327 2-1-6(a)(1).

 

11.      Pursuant to 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall, upon discovery of a spill that damages the waters of the state so as to cause death or acute injury or illness to humans or animals:

a.        Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

b.        Undertake or cause others to undertake activities needed to accomplish a spill response.

c.        As soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management.

d.        Submit to the Department of Environmental Management, a written copy of the spill report if requested in writing by the department.

e.        Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

(a)       For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and

(b)       For spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

 

Respondent failed to adequately report the spills that occurred on December 5, 2018 and January 23, 2019, in violation of 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7.

 

12.      Pursuant to 327 IAC 6.1-8-7(b)(1), the lagoon must be maintained and operated in accordance with the following:

(1)       Earthen dikes must be maintained free of weeds, burrowing animals, and other conditions that may undermine the integrity of the dikes.

(2)       Earthen dikes and banks must be seeded with grass to provide cover to prevent erosion.

(3)       The lagoon location must be posted, fenced, or otherwise secured to prevent access by unauthorized persons and livestock.

(4)       The minimum freeboard must be eighteen (18) inches at all times.

 

Pursuant to Condition C.1. and C.2. of the Permit, Respondent must maintain 90 days of effective storage capacity for pollutant-bearing water or maintain the ability to discharge pollutant-bearing water to the Evansville Water and Sewer Utility. Respondent must maintain at least 18 inches of freeboard in earthen lagoons that are subject to volume fluctuations due to precipitation events.

 

As noted during the inspection on December 17, 2018, Respondent failed to maintain 90 days of effective storage capacity and 18 inches of freeboard for the 4 lagoons, in violation of Condition C.1., and C.2. of the Permit, and 327 IAC 6.1-8-7(b)(1) and that Respondent failed to keep the dam clear of trees and rank vegetation, in violation of 327 IAC 6.1-8-7(b)(1).

 

13.      Pursuant to Condition E.3. of the Permit, if the conditions of this permit cannot be met, Respondent must take corrective action to return to compliance with the terms and conditions of this permit. Within 30 days of the reported non-compliance, Respondent must submit a preliminary corrective action plan (CAP).

 

As noted during a record review on February 12, 2019, Respondent failed to submit a CAP for the December 5, 2018 and January 23, 2019 releases, in violation of Condition E.3. of the Permit.

 

14.      Respondent’s positions regarding the alleged violations were set forth in its August 15, 2019 letter to IDEM.

 

15.      In recognition of the settlement reached, Respondent 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 13 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 statutes, rules, and permit conditions as listed in the findings here and/or above at issue.

 

3.             In December 2018, Respondent submitted a Compliance Plan to the Evansville Water and Sewer Utility (EWSU). The plan, as developed for submission to the EWSU, was a technical evaluation of the entire pretreatment system and included recommendations for improvements that would bring the facility into year round compliance. The Compliance Plan submitted to EWSU shall satisfy the compliance obligations for the Compliance Plan (CP) for this Agreed Order, and IDEM approves it and agrees to be bound the CP in the form it was submitted to EWSU. This CP will also count as the required CAP.

 

Respondent shall notify IDEM in writing of variations to the CP entered into with EWSU.

 

4.        Starting at the Effective Date of this Agreed Order, Respondent shall demonstrate 12-consecutive months of compliance (Compliance Demonstration) including no unpermitted discharges and compliance with the terms and conditions of the Permit.

 

5.        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 eliminate all unpermitted discharges and 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.

 

6.        The plans required by Order Paragraphs 3 and 5 are subject to IDEM approval. In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice.

 

7.        Starting at the Effective Date of this Agreed Order, Respondent shall continue implementation of the CP and adhere to the milestone dates therein. The CP and any approved AAP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

 

Following completion of the actions included in any AAP, the 12-month Compliance Demonstration, as specified in Paragraph 4 above, will re-start. Failure to achieve compliance at the conclusion of work under an AAP may subject Respondent to additional enforcement action.

 

8.        Respondent is providing monthly updates of action to EWSU, and Respondent will provide meeting minutes from those monthly meetings to IDEM.

 

9.        Beginning on the Effective Date and continuing until the successful completion of implementation of the approved CP as required by Paragraph 3 above, Respondent shall, at all times, operate its on-site lagoon system as efficiently and effectively as possible.

 

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

 

Linda McClure, Enforcement Case Manager

Office of Water Quality – IGCN Room 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.         Respondent is assessed and agrees to pay a civil penalty of Fifty Thousand, Four Hundred Dollars ($50,400). 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.”

 

12.         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

4

For any unpermitted discharges or violations of terms and conditions of the Permit during the Compliance Demonstration.

$400 per violation.

5, 6

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

$500 per week late, or part thereof.

7

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

$500 per week late, or part thereof.

 

13.         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.

 

14.         Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2019-25990-W of this action and shall be mailed to:

 

IDEM Accounts Receivable

IGCN, Rm 1340

100 N. Senate Ave.

Indianapolis, IN  46204

 

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

 

16.         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.

 

17.         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.

 

18.         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.

 

19.         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 permit or any applicable Federal or State law or regulation.

 

20.         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.

 

21.         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 NOV.

 

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

 

23.         This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondent.

 

REMAINDER OF PAGE LEFT INTENTIONALL BLANK

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Azteca Milling, L.P.

 

By:____________________________

By:__________________________

Samantha K. Groce, Chief

 

Enforcement Section

Printed:______________________

Surface Water, Operations and

 

Enforcement Branch

 

Office of Water Quality

Title:________________________

 

 

Date:__________________________

Date:________________________

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ______ DAY OF ________________________, 20___.

 

 

For the Commissioner:

 

 

 

Signed on December 2, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality