STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Bunge Milling, llc, 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 IDEM alleged 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.
Bunge
Milling, LLC (Respondent) owns/operates the Corn Milling Facility, located at 7383
N. 100 W., Worthington, Greene County, Indiana (the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0109606 (the Permit), to discharge wastewater treated in
accordance with the terms and conditions of the NPDES Permit from its Wastewater
Treatment Plant (WWTP) into Eel River from Outfall 001.
4.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
5.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified
Mail/personal service to:
Corporation
Service Company, |
Todd Bastean, President |
Registered
Agent |
Bunge
Milling, LLC |
Bunge
Milling, LLC |
139
Timberlake manor Pkwy |
135 North
Pennsylvania St |
Chesterfield,
MO 63017 |
Suite 1610 |
|
Indianapolis,
IN 46204 |
|
6.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
7.
327
Indiana Administrative Code (IAC) 5-2-8(1), states the permittee shall comply
with all terms and conditions of the Permit. Any permit noncompliance
constitutes a violation of the Clean Water Act and IC 13 and is grounds for
enforcement action by IDEM.
8.
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) and Part I. B. of the Permit, all surface waters at all
times and at all places, including waters within 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 produce: color, odor, or
other conditions in such a degree as to create a nuisance.
During
the inspection on March 15, 2018, IDEM staff observed and documented the
discharge sample drawn at the effluent having a noticeable greyish-brown color
and slight odor.
During
the inspection on July 10, 2019, IDEM staff observed and documented the sample
of effluent drawn at the time of the inspection was dark and blackish in color
and had a noticeable odor.
Each
of the above is in violation of IC 13-18-4-5, IC 13-30-2-1(1), 327 IAC
2-1-6(a)(1) and Part I. B. of the Permit.
9.
Pursuant
to 327 IAC 5-2-8(8) and Part II.A.15 of the Permit, the permittee is required
to allow access for inspection of the facility, including monitoring equipment,
collection, treatment, and discharge facilities, and any records that must be
kept under the conditions of the Permit.
During
inspections on April 4, 2017, March 15, 2018 and July 10, 2019, there was
limited or unsafe access to portions of the facility. IDEM staff noted that
Outfall 001 was inaccessible due to an oxbow between the discharge location and
the river outfall in violation of 327 IAC 5-2-8(8) and Part II.A.15 of the
Permit.
10.
Pursuant
to Part II. B. 4. of the Permit, the permittee shall dispose of solids,
sludges, filter backwash, or other pollutants removed from or resulting from
treatment or control of wastewaters in a manner such as to prevent any
pollutant from such materials from entering waters of the State.
During
an inspection on July 10, 2019, IDEM staff discovered that Respondent does not
have a solids handling plan. Solids had not been removed
12 months prior to the inspection on July 10, 2019, in violation of Part II.B.4
of the Permit.
11.
Pursuant
to Part I. C. 1 of the Permit, samples and measurements taken as required
herein shall be representative of the volume and nature of the monitored
discharge flow and shall be taken at time which reflect the full range and
concentration of effluent parameters normally expected to be present. Samples
shall not be taken at times to avoid showing elevated levels of any parameters.
Pursuant
to 327 IAC 5-2-13(a)(2), all permittees shall monitor the volume of wastewater flow at
monitoring points specified in the permit, including the final effluent flow
from each point source.
During
an inspection on July 10, 2019, IDEM staff observed and documented that
Respondent’s method of measuring flow is not representative of actual flows, in
violation of 327 IAC 5-2-13(a)(2) and Part I. C. 1 of the Permit.
12.
Pursuant
to 327 IAC 5-2-8(9) and Part II. B. 1. of the Permit, the permittee shall at all times maintain in good working order and efficiently
operate all facilities and systems for collection and treatment.
During
inspections on March 15, 2018 and July 10, 2019, IDEM staff observed and
documented that Respondent’s treatment units lack an alarm system and are not
routinely inspected when the certified operator is off-site. Additionally,
boiler wastewater was bypassing its discharge pipe and was pouring out of a
small hole in the concrete base of the building, running along the parking lot
toward the treatment ponds.
During
an inspection on July 10, 2019, IDEM staff documented that the influent
screening unit and an aerator in the “MLSS” lagoon were out of service.
Additionally, based on a review of work orders generated for Respondent’s
facility, it does not appear that these repairs are addressed timely in the
facility's work order maintenance system.
Each
of the above is in violation of 327 IAC 5-2-8(9) and Part II.B.1. of the
Permit.
13.
On March
20, 2018 and July 17, 2019, IDEM sent Inspection Summary Letters to Respondent
outlining violations at the WWTP. The letters required a response detailing
actions taken to correct the violations. IDEM received a response to the March
20, 2018 letter explaining compliance actions Respondent took or would take to
address the violations. However, the violations noted above continue at the
WWTP.
14.
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 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 8 through 12 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 rules, Permit, and statutes listed in the findings above at
issue.
3.
Within 30 days of the
Effective Date, Respondent shall develop and submit to IDEM for approval a
Compliance Plan (CP) which identifies actions that Respondent will take to
achieve and maintain compliance with its Permit, specifically including the
actions Respondent will take to:
A.
Achieve and maintain
compliance with Narrative Water Quality Standards contained in the Permit;
B.
Provide safe access to Outfall
001, in accordance with 327 IAC 5-2-8(8);
C.
Assure proper removal,
storage and disposal of sludge solids;
D.
Provide adequate effluent
flow measurement; and
E.
Develop and implement a
preventative maintenance program for WWTP equipment, and document all
maintenance (preventative and repair) in a permanent record
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
Respondent
shall notify IDEM in writing of variations to the approved CP.
4.
Respondent may request in writing an extension from IDEM
of any deadline in this Agreed Order. The request shall state why the extension
is necessary and is subject to IDEM approval.
5.
Respondent shall, after completion of the work
required pursuant to the approved CP from Paragraph 3 above, demonstrate 12
consecutive months of compliance (Compliance Demonstration) with the terms and
conditions of the Permit cited
in paragraphs 8 through 12 of the Findings of Facts above.
6.
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 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.
7.
The plans required by Order Paragraphs 3 and 6
are subject to IDEM approval. In the event IDEM determines that any plan or any
modified plan submitted by Respondent is deficient or otherwise unacceptable,
Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s
notice. After three submissions of such plan by Respondent, IDEM may seek civil
enforcement of this Order.
8.
Respondent, upon receipt of written
notification from IDEM, shall immediately implement the approved plan(s) and
adhere to the milestone dates therein. The approved CP and AAP shall be
incorporated into the Agreed Order and shall be deemed an enforceable part
thereof.
Following
completion of the actions included in the AAP, the 12 month
Compliance Demonstration, as specified in Paragraph 5 above, will re-start. Failure
to achieve compliance at the conclusion of work under an AAP may subject
Respondent to additional enforcement action.
9.
Beginning with the first calendar quarter
following the Effective Date, Respondent shall submit to IDEM a written
progress report within 10 days of the end of each calendar quarter, which
identifies the compliance actions implemented during each quarter ending on March
31st, June 30th, September 30th, and December
31st until completion of the CP or AAP.
10.
Beginning on the Effective Date and continuing
until the successful completion of the approved CP, Respondent shall, at all times maintain in good working order and effectively
operate all facilities and systems (and related appurtenances) for collection
and treatment.
11.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Delaney
Isaacs, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
12.
Respondent
is assessed and agrees to pay a civil penalty of Eighteen
thousand, Nine hundred Seventy-five Dollars ($18,975.00). 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.”
13.
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 |
3 |
Failure
to submit the CP within the required time period. |
$250
per week late, or part thereof. |
5 |
For
violations of terms and conditions of the Permit cited in paragraphs 8 through
12 of the Findings of Fact during the Compliance Demonstration. |
$400
per violation |
6 |
Failure
to submit the AAP, if required, within the given time
period. |
$500
per week late, or part thereof. |
7 |
Failure
to modify the CP and/or AAP, if required, within the given time
period. |
$500
per week late, or part thereof. |
8 |
Failure
to meet and/or implement any milestone date set forth in the approved CP or
AAP. |
$500
per week late, or part thereof. |
9 |
Failure to submit to IDEM a written progress
report each calendar quarter. |
$150
per week late, or part thereof. |
10 |
Failure
to at all times maintain in good working order and
effectively operate all facilities and systems (and related appurtenances)
for collection and treatment. |
$200
per violation. |
14.
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.
15.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2019-26628-W of this action
and shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN, Room
1340 |
100 North
Senate Avenue |
Indianapolis,
Indiana 46204 |
16.
This
Agreed Order shall apply to and be binding upon Respondent, 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.
17.
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.
18.
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.
19.
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.
20.
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 permits or any applicable Federal or State law or regulation.
21.
Complainant
does not, by his 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.
22.
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 Notice of Violation.
23.
Nothing
in this Agreed Order shall prevent IDEM (or anyone acting on its behalf) from
communicating with the United States Environmental Protection Agency (US 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 US EPA or any other agency or entity.
24.
This
Agreed Order shall remain in effect until Respondent has complied with the
terms and conditions of this Agreed Order and IDEM issues a Resolution of Case
(close out) letter to Respondent. After 12 consecutive months of compliance
with the Permit terms and conditions cited in paragraphs 8 through 12 of the
Findings of Facts above, Respondent may send a letter to IDEM requesting a
Resolution of Case letter and IDEM will promptly issue the Resolution of Case
letter to terminate the Agreed Order, if after review the agency agrees that
Respondent has met the conditions of the Agreed Order.
25.
Force majeure,
for purposes of this Agreed Order, is defined as any event arising from causes 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. If IDEM does not agree
that the delay or anticipated delay has been or will be caused by a force majeure event, IDEM will notify
Respondent in writing of its decision.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
Department
of Environmental Management |
Bunge Milling, LLC |
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By:
__________________________ |
By:
________________________ |
Samantha K.
Groce, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:
_____________________ |
Enforcement Branch |
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Office of Water Quality |
Title:
_______________________ |
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Date:
________________________ |
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 ___________ DAY OF ________________, 20___. |
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For
the Commissioner: |
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Signed on November 2, 2020 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |