COLORADO Department of Public Health & Environment AIR POLLUTION CONTROL DIVISION COMPLIANCE ORDER ON CONSENT CASE NO. 2016-201 [AIRS NO. 123-9494 INTHE MATTER OF HEARTLAND BIOGAS, LLC ‘The Coforado Deparment of Public Healin and Environment (“CDPHE”) through the Air Pollution Control Division ("Division"), isoues this Compliance Ondet on Consent (“Consent Orde”), pursuant tthe Division's authority under §25-7-115G)0), CRS. of the Colorado Ait Pollution end Prevention and Contol Act, 8 25-7-10] to 1308, CICS. (be Act"), and is implementing regulations, 5 C.C.R. § 1001, etseq (“the Regulations”) with the express conseat of eartind Biogas, LLC (earland”). The Division and Hearfand may be refered to collectively as “the Parties." 1. STATEMENT OF PURPOSE ‘The mutual objectives of the Parties in entering into this Consent Order are: 1. Tocstablish compliance requirements and criteria for the continued operation of Heartlands abaerobic digester feility located st Southeast "4 Section 25, Township 4N, Range 65W, in Weld County, Colorado CFaciiy”) and 2. To resolve the violations ofthe Act cited herein and in # Compliance Advisory issued to Hearland by the Division on June 30,2016, TL. DIVISION’ (OF FACT AND DETERMINATION OF VIOLATIONS Besed upon the Division’s investigation into and teview ofthe compliance issues identified herein, and in avordance with §25-7-115@3), CRS, the Division has made the following determinations regarding violation of regulatory, statutory, andor peemit requirements associated with the Facility 3. _Atall times relevant tothe violations cited herein, Heartland was «foreign Limited Liability Company incorporated in Delaware, in good standing and registered to conduct ANY Sees,‘business in the State of Colorado, 4. Heartand owns and operates the Facility, 5. Heartland commenced operations atthe Facility on or about November 2015 andi has continuously operated since that date, 6 __ OnApril 27, 2016, Mr. Phil Brewer, ofthe Weld County Department of Public ‘Health and Environment, conducted an oder evaluation, pursuant fo the Division's authority under § 25-7-111@)@), CRS, at the Pacility for the purpose of determining compliance with the Colorado Construction Permit Number 12WE3172 Issuance 2 issued to Heartland oa January 20, 2016 (“Permit Numer 12WE3172"), the Act and the Regulations, Based on Mc. Brewer's evaluation, and a review of records related ta the Paoility, the Division issued a Compliance Advisory to Heartland on June 30, 2016, 7. Only 27,2016, the Division and Heartland tet to discuss th issues identified in the Compliance Advisory. 8, Based upon review of inforination including Mr. Brewer's odor evaluation and records related tothe Facility, the Division has determined the following: On April 27, 2016, Mr. Brewer performed odor triangulation upwind and ovmvind of Hearland’s property boundary. The following odor ‘measurements were observed: Detection Threshold Location & Time aera (Downwind 1st 920 AM e_ ‘Downwind 2 935.AM 81 ‘Downwind 3 at 9:45 AM Yet ‘Downwind 4 t 9:50 AM ca Upwind at 1025 AM [03 ai ‘Upwind2 at 10:40 AM. 0.0 Dovmvind Sat 1100 AM 16:1 ‘Downwind 6 at 1:05 AM 6:1 Me, Brewer was cetified by the Divison on February 3, 2016, pusuant to ‘Air Quality Control Commission (“AQCC”) Regulation No. 2, Part A, § 1, and measured the emissions with an istrurent designated by the Division, purmumt to AQCC Regulation No. 2, Part A, §1V. Heartland «mitted odors in excess of the 7: rato, in violation of Perit Number 12WE3172, Condition 12 and AQCC Regulation No. 2, Part A, § LA. 9. The Division and Heattland entered ino sertlemeat discussions forthe violations as determined by the Division. The Parties reached a settlement that is detailed inthis Consent 2A SeeOnder: TL ORDER and AGREEMENT [Based on the foregoing factual and legal determinations, pursuant to its authority under § 25-1-115/CRS., and as a result of the violations cited herein, the Division orders Heartland to comply with al provisions ofthis Consent Order, including all requirements set forth below. 10. Heartland agrees tothe tems and conditions ofthis Consent Order. Heartland ‘agrees that this Consent Order constitutes an order issued pursuant io § 25-7-115, CRS, and is smn enforceable requirement of Part I of the Act. Heartland also agrees nat to challenge dizectly or collaterally in any judicial or administrative proceeding brought by the Division to enforce this Consent Order or by Heartland against the Division: the issuance ofthis Consent Order: ', the factual and legal determinations road by the Division herein; and © the Division's authority to bring, or the coun’s jurisdiction to hear, any action ‘to enforce the tems of this Consent Onder under (he Act. 1, Notwithstanding the above, Heartland does not admit to any ofthe factual or legal determinations made by the Division herein, and any action undertaken by Hearland pursuant to ‘this Consent Order shall not constitute an admission of liability by Heartland with respect to the condition of Faility ‘Compliance Requirements 12, _ Effective immediately, and without limitation, Heartland must comply with all the ‘conditions of Permit Nuaber 12WE3172 and with all applicable provisions of the Act ang the Regulations in the regulation snd control of sir pollutazs, 13, _Bffectve immediately and without limitaion, Heartland must comply with AQCC Regultion No. 2, Part A § LA. 14, By no laterthan November 18, 2016, Heartland must complete an ital engincering analysis to evaluate odor capture and control systems for the Failty's significant ‘odor sources fo ensure continuous compliance at the Facility with Paragraphs. 12 and 13 above, Ata minimum, the éngineering analysis will assess eapture and control systems for the following 4 theDDigester Processing System DPS"); 1b, the ino (2) substrate storage tanks including the two (2) dosing tanks; and + A et© the three (3) Biorem Biotiicking filter waits. 15, By no later than December 31, 2016, Heartland must conmplete expansion ofthe cexising DPS fabric building (“Building 1") so that all ruck unloading and storage of materials associated with Building 1 is undertaken indoors, except materials that are contained in sealed, airtight containers. Material not associated with Building { will be unloaded outside ntl Heartland completes the requirestents in Paragraph 17 below. Until the requirements in Paragraph 17 are completed, Heartland must process and send the material unloaded outside to the underground eonerete or steel tanks deily. No suck tnaterial will remain outside of building, (ron the concrete unloading ped overnight unless the material is contained in sealed, airtight containers, 16, _ By nolater than March 31, 2017, Heartland must complete implementation ofthe Odor capture and vontrol system for the substrate and dosing tanks coasisting of the following ‘elements: anew design which will collect exhaust fram the tanks that currently vent to the ‘atmosphere and treetment of the exhaust with a bio-filtation systern or equivalent ador control system, including capture and re-use inthe plant process, 17. By no later than June 30, 2017, Heartland must complete implementation of the ‘odor capture and control system for te DPS ineluding: 1) construction ofa new building (Building 2°) cavering the covereie unloading ped; 2) installation and operation of ar collection systems foe Building 1 and Building 2; and 3) installation and operation of a bio-filtration systers (oF equivalent odor control system to teat the collected emissions fom Building | and Building 2 18, Within thirty (30) days following implementation ofthe odor capture and control system for the DPS, Heartland will ave a third-party contractar casduet odor monitoring, The ‘odor monitoring wil be conducted aver three consecutive calendar days during normal operation ‘ofthe Facility with three downwind measurements taken each morning between 7:30 AM to 1:30 AM and three downwind measurements taken each afternoon between 1:30 PM t0 5:30 PM fora total of six measurements per day. Heartland must submit the results of the third-party ‘odor monitoring tothe Division by no later than fileen (15) days.after the monitoring is completed fany single messurement taken during the odor monitoring exceeds the 7:1 ratio, Heartland must & evaluate whether there art any odor sources atthe Facility that must be addressed in order to ensure continueus compliance with Paragraphs 12 and iSaboves , _submitto the Division within thiny (30) days of reading a measurement exoeeding the :1 ratio: i. the reslts ofthe evahiation conducted pursuant to Paragraph 18.4: andfi, a proposal forthe necessary capture und control systera(s) or other ‘mitigation messure(s) forthe source(s) identified inthe evaluation; and © implement the capture and control system(s) o other odor mitigation ‘measure(8), 35 proposed pursuant fo Paragraph 18.b., by no later than December 31,2017. The Parties may extend this deadline trough a manual ‘written agreement. 19. The Division recognizes that it may tke several months for Heartland fo ccompietely implement its engineered odor eapture and control systems, Therefore, the Parties agree that if Heartland completes each requirement in Paragraphs 14 to 17 above by the staied ‘deadlines, complies with the submission of updates pursuant to Paragraph 20 below, and ‘minimizes odors duting the implementation period through use of the odor misting system and maintaining a reduced temperature in the substrate tanks when practicable, this Consent Order “will resolve any violations ofthe 7:1 odor standard set forth in AQCC Regulation No. 2, Part 4 LA until June 30, 2017 or when the engineered odor capture and control systems forthe substrate tanks, the dosing tanks, and the DPS are installed and operational, whichever occurs first 20. Heartland must submit an Odor Management Updateon the Inst day of each ‘month until the requirements in Paragraphs 15 through 18 are completed. Ata minimum, the (Odor Management Update must include a status update foreach of the odor capture and control ‘or odor mitigation systems; the most recent milestone foreach requirement and the date that :milestone was completed; the next milestone expected for each requirement and the date that milestone is expected to be completed; any issues feced meeting the requirements; and a Aescription of what is being done to mitigate any issues. The frst Odor Management Update ‘must be submitted tothe Division on November 30, 2016. 21. Heartland must submit a Notice of Completion to the Division within thirty (30) days of completion of al requirements in Paragraphs {4 through 18. The Notice of Completion ‘must identify the date of completion of each requirement. 22. _Alldocuments submited under this Conseot Onder must use the same nomenclature a sated in this Consent Order, and must reference both the ease number and the ‘numberof the paragraph pursuant fo which the document s required. Unless otherwise specifically provided herein, no document submitted for Division approval under this Consent (Order may be implemented unless and until written approval i ceceived from the Division. Any approval by the Division ofa document submited under this Consent Order s effective upon receipt by Heartland. All approved documents including all procedures and schedules contained in the documents are hereby incorporated into this Consent Order, aad shall constitute enforceable requiremenis under the Act. Administrative Penalty Requirements 23, _Inaceordance with § 25-7-122(1Xb), C.RS.,theze shal be mo civil penalties assessed or collected against persons who Violate emission regulations promulgated by the 5 ANY sistas.commission forthe control of odor until a compliance order issued pursuant to §25-7-115, C.RS, and ordering compliance with the odor regulation has been violated, IY. SCOPE AND EFFECT OF CONSENT ORDER 24, The Parties agree and acknowledge that this Consent Order constitutes a full and final setlement ofthe violations cited herein. This Consent Order i final ageney action. Heactland agrees not to challenge the terms and conditions ofthis Consect Order in any proceeding before any administrative body or any judicial foram, whether by way of direct judicial review of collateral challenge. This Consent Orde shall be enforceable by citer party inthe sane menner ax if tte Division had entered this Consent Order without agreement by Heartand, The Parties agree that any violation of he provisions of this Consent Orr by Heatland conceming the Act, othe Regulations, shall be a violtion of final order of the Division forthe purposes of §§ 25-7-115, 121, end 122, CRS, and may esl inthe assessment of civil penis of up to Fiten ‘Thousand Dollars ($35,000.00) pet day foreach dey af such violation 26. ‘The Parties’ obligations under this Consent Cer are limited to the matters ‘expressly stated herein or in approved submissions requiced hereunder. All submissions made pursuant to this Consent Order are inorporated into this Consent Order and become enforceable lunder the terms of this Consent Order as of the date of approval by the Division. 27. The Division's approval ofeny submission, standard, or action under this Consent (Order shall not constitute a defense to, or an excuse for, any prior violation of any requirement ‘under the Act, the Regulations, of any subsequent violation of any requiremeat of this Consent Order the Aci, or the Regulations. 28.. Entering nto this setlement shall nt vonstitute an admission of violation of the sir quality laws by Heartland, nor shall the Division or any third party infer ito be such an ‘admission by Heartland io any administrative o judicial proceeding. Notwithstanding the foregoing or anything inthis Consent Order tothe contrary, the described violation will constitute part of Heartland’s eompliance history for any purpose for which sueh history is relevant, including considering the violation described above in assessing a penalty for any subsequent violations in accordance with the provisions of § 25-7-122, CRS, against Heartland 29, Heartland shall comply with all applicable Federal, State, and/or local Jaws and regulations and shall obtain all cecessary approvals or pemnitsto-conduet the investigation and remedial activities required by this Consent Order and perform its obligations required hhereunder. ‘The Division makes no representation with respect to approval and permits required ‘by Federal, Sate, oF local laws or regulations other than those specifically referred to herein, 30. Nothing herein shall be construed as prohibiting, alttrng, or in any way limiting the ability ofthe Division to seek any other remedies or sanctions available by vitue of Heartand’s violation of this Consent Order or ofthe statues and regulations upon which this en‘Consent Order is based, or or Heartland’ violation of any applicable provision of law. vi yN RELEASES AND RESERVATIO? AND LIABILITY 31. Upon the effective date ofthis Consent Order, and during its term, this Consent (Order shall standin lieu of any other enforcement action by the Division with respect to the ‘violations cited herein. This Consent Order does not grant any release of liability for any violations regardless of wien they occurred, that are not cited in this Consent Order. The Division reserves the right to bring any action it deems necessary to enforce this Consent Order, including ections for penalties and/or injunctive relief, 32. Nothing inthis Consent Order shall preclude the Division ftom imposing ‘additional requirements necessary to protect human health or the envirooment and to effectuate the purposes of this Consent Order. Nor shall anything in this Consent Order preclude the Division from imposing additional requirements in the event that additional information is discovered that indicates such requirements are necessary to protect human health or the environment, 33. Heartland reserves its rights and defenses regarding liebilty in any proceedings ‘regarding the Facility other than proceedings o-enforee this Consent Order. 34. Upon the effective dae of this Consent Order, Heartland releases ard covenants ‘not to sue the State of Colorado as to all common law or statutory claims or counterclaims arising from, orelating to the violations of the Act or the Regulations specifically addressed herein. 35. Heattland shallot seck to hold the State of Colofado or is employees, ages or representatives liable for any injures or damages o'persons at property resulting fom acts or commissions of Heartland, or those acting fr ot on behalf of Heartland, including its officers, “employees. ants, successors, representatives, contractors or consultants in carrying ott sctivties pursuant to this Consent Order. Heartland shall not bold out the State of Colorado or its employees, agents or representatives as ¢ party to any contract entered into by Heartland in ‘carrying out activities pursuant to this Consent Order. Nothing in this Consent Order shall constitute an express oF implied waiver of immunity otherwise applicable othe State of Colorado, its employees, agen, or representatives 36, The Division reserves the sight to bring any action orto seek civil or administrative penalties for any past, present, or future violations ofthe Act andthe Regulations, ot specifically adressed here Further, the Division has the ight to bring any ction enforce this Consent Order and to seek authorized penalies for any violation ofthis Consent Order VI. FORCE MAJEURE 37, Heartland shall perform the requirements ofthis Consent Order within the schedules and time limits set forth herein and in any approved plan unless the performance is‘prevented or delayed by events that constitute a force majeure. A force majeure is defined as any event arising from causes which are not reasonably foreseeable, which are beyond the control of Hartland, aod which eannot be ayercome by due diligence 38. Unless otherwise provided in the Actor the Regulations, within seventy-two (72) hours ofthe time that Heartland knows or hes reason to know of the oeeurrence of any event ‘whieh Heartland bas reason to believe may prevent Heariand from timely compliance with any requirement under this Consent Order, Heartland shall provide verbal noification to the Division. Within seven (7) calendar days of the time that Heartland knows ot has reason to know of the occurence of such event, Heartland shall submit tothe Division 2 written ‘eseription ofthe event causing the delay, tbe reasons for and the expected duration of the delay, and actions which willbe taken to mitigat= the duration ofthe delay 39. "The burden of proving that any delay was caused by a force majeure shall at all times rest with Heartland, Ifthe Division agrees that a force majcure has oceurred, the Division willso notify Heartiand, The Division will also approve or disapprove of Heartlands proposed actions for mitigating the delay. Ifthe Division does not ageee that a force majeure bas occurred, or ifthe Division disepproves of Heartland’s proposed actions for mitigating the delay, it shall provides written explanation ofits determination to Heaitand, 40. Delay in the achievement of one requitement shall not necessarily justify or excuse delay inthe achievement of subsequent requirements. Inthe event any performance under this Consent Order is found to have been delayed' by a force majeure, Heartland shall perform the requirements of this Consent Order that were delayed by the force majeure with all due diligence, ‘VI. DISPUTE RESOLUTION 41, __ Ifthe Division determines tha edditional requitements are necessaty pursuant ta Paragraph 32; that violation ofthis Consent Order has occurred; that a force majeure bas not cccurred: thatthe actions taken by Heartland to mitigate the delay caused by a force majeure are inadequate; the Division shall provide a written explanation of its determination to Heartland. Within fifteen (15) calendar days of receipt of the Division's determination, Heartland shall & Submit a notice of acceptance of the determination; oF 5. Submiita otice of dispute ofthe determination. If Heartland fails to submit ether of the above notioes within the specified time, it wall be deemed to have accepted the Division's determination, 42,___ If Heartland files any notice of dispute pursuant wo Parograph 41.b the notice shall specify the particular matters in the Division's determination that Heartland seeks to éispute, andthe basis for the dispute, Maters not identified in the notice of dispute shall be deemed accepted by Heartland. The Division and Heartland shall have thirty (30) calendardays from the receipt by the Division of the notification of dispute to reach an agreement. If‘agreement cannot be reached on all issues within this thirty (30) day period, che Division shall confiem or modify its decision within an additional fourteen (14) days, and the confirmed or ‘modified decision shall be desmed effeetive and subject to appeal in accordance with the Act and the Colorado Administrative Procedure Act, Article 4, Title 24, Colorado Revised Statutes, vill. NOTICES 43, Unless otherwise specified, any report, notice or other communication required under the Consent Order shall be Sent to: For the Division: _Eaforeement Unit Supervisor Colorado Department of Public Health and Environment APCD-SS-BI-1400 4300 Chery Creek Drive South Denver, Colorado 80246-1530 For Heartland: Jason Thomas Plant Manager Heartland Biogas 19179 Weld County Road 48 La Salle, CO 80946 Garison Kaufinan Holland & Hart, LLP 585 17" Street, Suite 3200 Denver, CO 80202 Robert Miller [Executive Vice President & General Counsel EDE Renewable Energy 1544S Innovation Deive San Diego, CA 94128 IX, OBLIGATIONS UNAFFECTED BY BANKRUPTCY 44,__ The obligations set forth herein are besed on the Division's police and regulatory authority. These obligations require specific performance by Heartland of corrective actions carefully designed to prevent on-going or future harm to public health or the environment, or both. Enforcement of these obligations is not stayed by a petition in bankruptey. Heartland agrees thatthe penalties set forth inthis Consent Order are notin compensation of actual pecuniary loss. Further, the obligations imposed by this Consent Order are necessary for ‘Heartland and the Facility to achieve and maintain compliance with State la. X MODIFICATIONS ee45. This Consent Order may be:moditfied only upon mutual written agreement of the Pasties. XE TION TO SIGN ‘AND EFFECTIVE DATE, 46. This Consent Order is binding upon the Parties to this Conseait Order and their ‘corporate subsidiaries or parents, their officers, directors, agents, attorneys, employees, ‘coniraciors, successors in interest, afilintes und assigns. ‘The updersigned warrant that they aré authorized to bind legally their respective principals to this Consent Order, and thatthe Parties ‘have the authority to enter into this Consent Order. This Consent Order shall be effective upon, ‘the date signed by the last party. In the event that aparty does not sign this Consent Order within thirty (30) calendar days of the ther party’s'signature this Consent Order becomes null sand void. This Conseat Order may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute ome and the same Consent Order. COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT WAL \ By: ly paw: /irfatte Sides Metin Compliance and Enforcement Program Manager Ar Pollution Control Division HEARTLAND BIOGAS, LLC By: Skansen Meillan, AFCO Phi Brower, Wold DPHE Pal Car, APCD ‘Bath isn, APCD. Heather Waolle, APCD Claybourne Fox Care, Office of Attorney Genel Miches over, USEPA ile