STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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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. 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 |
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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. |
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By:____________________________ |
By:__________________________ |
Samantha
K. Groce, Chief |
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Enforcement
Section |
Printed:______________________ |
Surface
Water, Operations and |
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Enforcement
Branch |
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Office
of Water Quality |
Title:________________________ |
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Date:__________________________ |
Date:________________________ |
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APPROVED AND ADOPTED BY THE INDIANA
DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS ______ DAY OF
________________________, 20___. |
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For the Commissioner: |
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Signed on December 2, 2019 |
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Martha
Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |