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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. INTEGRITY BIO-FUELS, 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 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
2. Respondent is Integrity
Bio-Fuels, LLC (“Respondent”), which owns and operates a biodiesel production
facility located at
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 on January 3, 2008, via
Certified Mail to:
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Integrity Bio-Fuels, LLC |
Integrity Bio-Fuels, LLC |
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Charles Whittington, Owner |
Norman R. Garvin, Registered Agent |
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5. Pursuant
to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a
point source discharge, except for exclusions made in 327 IAC 5-2-4, is
prohibited unless in conformity with a valid NPDES permit obtained prior to the
discharge.
Pursuant
to 327 IAC 2-1-6, all 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 produce
color, visible oil sheen, odor, or other conditions in such degree as to create
a nuisance, or which are in amounts sufficient to be acutely toxic to, or to
otherwise severely injure or kill aquatic life, other animals, plants, or
humans.
Pursuant
to IC 13-30-2-1, a person may not discharge, emit, cause, allow, or threaten to
discharge, emit, cause, or allow any contaminant or waste, including any
noxious odor either alone or in combination with contaminants from other
sources, into 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 IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or
otherwise dispose into any of the streams or waters of Indiana; or cause,
permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise
disposed into any waters; any organic or inorganic matter that causes or
contributes to a polluted condition of any waters, as determined by a rule of
the board adopted under sections IC 13-18-4-1 and IC 13-18-4-3.
An
investigation conducted by Indiana Department of Natural Resources
("IDNR") and IDEM staff, and related documents, including Incident
Report for Incident Number 2007-10-172, indicate that a spill of bio fuel
wastewater occurred from the Site on October 28, 2007. The Incident Report indicates that an estimated
2,000 gallons of bio fuel wastewater was released, entered a storm water
system, flowed into a ditch, and on into a creek. The discharge was of such quantity as to
cause conditions in such degree as to create a nuisance, and was of an amount
that was acutely toxic and resulted in a fish kill.
Respondent's
discharge of contaminant into the environment and to waters of the State which
was not in conformity with an NPDES permit, and which was in such degree as to
create a nuisance and a fish kill, was in violation of 327 IAC 5-2-2 and 327
IAC 2-1-6, and therefore in violation of IC 13-30-2-1 and IC 13-18-4-5.
6. Pursuant
to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any mode of
transportation or facility from which a spill occurs shall, upon discovery of a
reportable spill to the soil or surface waters of the state, do the following:
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 hours of discovery, communicate a spill report
to the Department of Environmental Management, Office of Environmental Response
at 1-888-233-7745.
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:
i. for
spills to surface water that cause damage, the nearest affected downstream
water user located within ten miles of the spill and in the state of
ii. for
spills to soil outside the facility boundary, the affected property owner or owners,
operator or operators, or occupant or occupants.
The
investigation by IDNR and IDEM staff indicted that the spill of bio fuel
wastewater was initially reported to IDEM by a concerned citizen on October 28,
2007, and was subsequently confirmed by IDEM and IDNR staff. Respondent failed to take timely action to
contain the spill, failed to undertake timely spill response, and failed to
timely communicate a spill report to IDEM, in violation of 327 IAC 2-6.1-7.
7. Respondent
has indicated that it incurred significant remediation costs to clean and flush
the affected creek, and that it has taken extensive preventative measures to
ensure a similar accident does not occur in the future. Respondent noted that the wastewater at issue
was mostly water with a small percentage of glycerin, which in itself did not
pose a danger to the soil, and that Respondent's response limited that area of
the creek affected to about a half-mile.
The spill was contained and Respondent had 7 tanker truck loads of
wastewater removed from the affected area and flushed the creek to ensure that
any residual traces of the wastewater were cleared from the affected area.
Respondent
has also indicated that it has hard-piped the tanks from which the wastewater
is transferred to ensure that no wastewater accidentally spills during
transfer, and it has moved the entire transfer process in-doors, where spills
could be localized and prevented from seeping into the ground. Respondent also has plant personnel stay in
attendance of all transfers into or out of a tank and purchased cam-lock straps
to put on the hoses to prevent them from working themselves loose due to
vibration. Additionally, Respondent
indicated that it has installed an extensive camera monitoring system to assist
in quickly identifying and responding to potential problems.
8. 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 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 327 IAC 5-2-2, 327 IAC 2-1-6, IC 13-30-2-1, IC 13-18-4-5, and
327 IAC 2-6.1-7.
3. Within
30 days of the Effective Date, Respondent shall determine if it has any
industrial activities exposed to storm water run-off at the Site and whether a
general permit under 327 IAC 15-6 (Rule 6) is required, and either submit a
completed Rule 6 Notice of Intent (NOI) letter form to IDEM if a Rule 6 permit
is required, or submit a conditional no exposure certification form to IDEM if
Respondent determines the Site is eligible for the conditional no exposure exclusion.
4. Within
30 days of the Effective Date, Respondent shall develop and submit to IDEM for
review and approval a Best Management Practices Plan (the "Plan"),
which sets forth the actions that Respondent will take to prevent spills of
contaminants at the Site, and the actions Respondent will take to prevent or
minimize discharge of contaminants from the Site if a spill should occur. The Plan will also include the actions that
Respondent will take to ensure that if a spill does occur, Respondent complies
with 327 IAC 2-6.1-7. The Plan will
address the following areas of operations and management at the Site:
A) Preventing
contaminated water runoff from leaving the facility and limiting off site
contamination and groundwater contact;
B) Conducting
visual inspections of ponded water and potential discharge locations;
C) Operating
the facility in such a manner that potential sources of contaminated discharge
are minimized;
D) Implementing
and following a preventative maintenance program to include routine maintenance
and inspection of potential sources of pollutants;
E) Ensuring
that all underground storage tanks at the Site comply with all requirements of
329 IAC 9 and ensure that any required secondary containment is provided;
F) Ensuring that discharges from loading
and unloading areas are prevented;
G) Developing
a risk management plan to minimize risk to human health and the environment and
assuring that the facility's staff is aware of proper spill response and clean
up procedures, including reporting requirements of 327 IAC 2-6.1; and
H) Maintaining
spill response clean up materials and equipment on site, and a list of local
spill response contractors.
If,
upon review, IDEM determines that the Plan is approvable, IDEM will notify
Respondent in writing of its approval of the Plan, and Respondent shall
immediately implement the Plan.
5. If,
upon review, IDEM determines that the Plan is deficient, IDEM will notify
Respondent in writing of the deficiencies, and Respondent will revise the Plan
to address the deficiencies, and submit the revised Plan to IDEM by the
deadline set forth in the deficiency notification.
If,
upon review, IDEM determines that the revised Plan is approvable, IDEM will
notify Respondent in writing of its approval of the Plan, and Respondent shall
immediately implement the revised Plan.
Failure
by Respondent to revise the Plan to address the deficiencies, or failure to
submit the revised Plan to IDEM by the required deadline, will subject the
Respondent to stipulated penalties set forth in Order Paragraph 8 until
Respondent develops and submits to IDEM an approvable Plan.
6. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Terry
Ressler, Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Office
of Enforcement – Mail Code 60-02 |
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7. The
Respondent shall reimburse the Indiana Department of Natural Resources
("IDNR") for the value of the damage to natural resources, under
authority of IC 14-22-10-6. IDNR has determined this figure to be One Hundred
Fourteen Dollars and Fifty-Four Cents ($114.54). Payment shall be made to the
Contaminants Account within thirty (30) days of the Effective Date of this
Order, and sent to: Attn: Restoration Biologist, IDNR Division of Fish and
Wildlife, Room W-273, IGCS, 402 West Washington Street, Indianapolis, Indiana
46204. The Respondent shall provide the Complainant with documentation of the reimbursement
immediately upon payment.
8. Respondent
is assessed a civil penalty of Seven Thousand Dollars ($7,000). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. In the event that the
civil penalty is not paid within thirty (30) days of the Effective Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1-101. The interest shall
continue to accrue until the civil penalty is paid in full.
9. In
the event the terms and conditions of the following paragraphs are violated,
Complainant may assess and Respondent shall pay a stipulated penalty in the
following amount:
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Paragraph |
Violation |
Stipulated Penalty |
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3 |
Failure
to submit a completed Rule 6 NOI letter form to IDEM if a Rule 6 permit is
required, or submit a conditional no exposure certification form to IDEM if
the Site is eligible for the conditional no exposure exclusion by the
required deadline. |
$500
per week late, or part thereof. |
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4 |
Failure to develop and submit to IDEM for review
and approval the Plan by the required deadline. |
$500 per week late, or part thereof. |
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5 |
Failure to revise the Plan to address the
deficiencies and submit the revised Plan to IDEM by the deadline set forth in
the deficiency notification. |
$500 per week late, or part thereof. |
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4 & 5 |
Failure to implement the approved Plan. |
$500 per week late, or part thereof. |
10. Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, Complainant may seek any other remedies or sanctions available
by virtue of Respondent’s violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
11. 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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Cashier
– Mail Code 50-10C |
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12. 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.
13. 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.
14. 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.
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 its obligation to comply with
the requirements of its applicable permits or any applicable Federal or State
law or regulation.
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 same violations specified in the NOV.
18. Nothing in this Agreed
Order shall prevent IDEM [or anyone acting on its behalf] from communicating
with the 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 EPA or any other agency or entity.
19. This Agreed Order shall
remain in effect until Respondent complies with the terms of Order Paragraph
Nos. 3 through 11 and IDEM issues a Resolution of Case letter.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Integrity Bio-Fuels |
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By: |
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By: |
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Mark W. Stanifer, Chief |
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Water Enforcement Section |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: |
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By: |
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Deputy Attorney General |
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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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, 2008. |
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For the Commissioner: |
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Signed on November 3, 2008 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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