. - - . v? Inniw?w? sham. um . gal. .- 1w: - . nausea-?cithtcav .- arm-+4 ?fm?im+m - threw-'4 a. FILED . OCT 1 '0 2017 COMMONWEALTH OF KENTUCKY ?0?01me ENERGY AND ENVIRONNIENT CABINET DIVISION OF ENFORCEMENT CASE NO. DAQ 150173 1N RE: Gavilon Grain, LLC d/b/a Peavey Company DE 1331 Capitol Avenue Omaha, Nebraska 68102-1106 OCT 1 1 20? Agency Interest No. 38471 r. m. ?numb! ID. ERF20150001 AGREEQ ORDER WHEREAS, the parties to this Agreed Order, the Energy and Environment Cabinet (hereina?er ?Cabinet? and Gavilon Grain, LLC, dfb/a Peavey Company, (hereinafter ?Gavilon?), state: 1 . The Cabinet is charged with the statutory duty of enforcing KRS Chapter 224, and the regulations promulgated pursuant thereto. 2. Gavilon Grain, LLC, d/b/a Peavey Company, a Delaware Foreign Limited Liability Company, owns and operates a grain elevator located at 105 Towles Avenue, Henderson, Kentucky, in Henderson County. 3. Gavilon (Source ID: 21-101-00033) holds Air Quality Permit No. S-08-135, Revision 1, issued by the Cabinet?s Division for Air Quality, originally issued on December 9, 2008, for the facility described in paragraph 2 above. 4. On October 25, 2011, authorized representatives of the Cabinet identi?ed I - - awn-man. atNIH-3 eat-?- t't .- 19:?nt 4 ant-.244! tun-ll- -. (CW20110002) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 5. On October 31, 2011, the Cabinet issued Gavilon a Notice of Violation (ENV20110001) for the alleged violation described in paragraph 4 above. 6. On October 23, 2013, authorized representatives of the Cabinet identi?ed (CW20130002) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 above: a. 401 Section or permitting the discharge ofvisible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 7. On October 25, 2013, the Cabinet issued Gavilon a Notice of Violation (ENV20130001) for the alleged violation described in paragraph 6 above. I 8. On November 18, 2013, authorized representatives of the Cabinet identi?ed (CIV20130003) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). .. ?4.3531November 25, 2013, the Cabinet issued Gavilon a Notice of Violation (ENV 20130002) for the alleged violation described in paragraph 8 above. 10. On February 10, 2015, authorized representatives of the Cabinet identi?ed (CIV20150001) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 11. On February 17, 2015, the Cabinet issued Gavilon a Notice of Violation (ENV20150001) for the alleged violation described in paragraph 10 above. 12. On September 22, 2015, authorized representatives of the Cabinet identi?ed (CIV20150002) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 above: a. 401 KAR 63:010 Section 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 13. On October 27, 2015, the Cabinet issued Gavilon a Notice of Violation (ENV20150002) for the alleged violation described in paragraph 12 above. 14. On October 12, 2015, authorized representatives of the Cabinet identi?ed (CIV20150003) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 above: am;- .- - - - r- Hut-ear -: w- - .4 rry-"W.- ei'?Section 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 15. ?On October 27, 2015, the Cabinet issued Gavilon a Notice of Violation (ENV 201 50003) for the alleged violation described in paragraph 14 above. 16. On April 7, 2016, authorized representatives of the Cabinet identi?ed (CIV20160001) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) - causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate- (Violation 1). 17. On April 25, 2016, the Cabinet issued Gavilon aNotice ofViolation (ENV 20160001) for the alleged violation described in paragraph 16'above. 18. On June 24, 2016, authorized representatives of the Cabinet identi?ed (CIV20160003) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 above: a. 401 KAR 63:010 Section 3(2) - causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 19. On June 29, 2016, the Cabinet issued Gavilon aNotice of Violation (ENV20160002) for the alleged violation described in paragraph 18 above. . . . - and?. a . mac-row Wu: tar-.Wmaemhm-nwm mmahrxxatarna Mar-1M i? 20. On September 14, 2016, authorized representatives of the Cabinet identi?ed (CIV20160004) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 21. On September 29, 2016, the Cabinet issued Gavilon a Notice of Violation (ENV 20160003) for the alleged violation described in paragraph 20 above. 22. On September 20, 2016, authorized representatives of the Cabinet identi?ed (CIV20160005) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 23. On September 29, 2016, the Cabinet issued Gavilon a Notice of Violation (ENV 20160004) for the alleged violation described in paragraph 22 above. 24. On September 23, 2016, authorized representatives of the Cabinet identi?ed (CIV20160006) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the pr0perty on which the emissions originate neg- . {hall-5.: (Violation 1). 25. On September 29, 2016, the Cabinet issued Gavilon a Notice of Violation (ENV20160005) for the alleged violation described 'in paragraph 24 above. 26. On September 28, 2016, authorized representatives of the Cabinet identi?ed (CW20160007) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 27. On September 29, 2016, the Cabinet issued Gavilon a Notice of Violation (ENV20160006) for the alleged violation described in paragraph 26 above. 28. On October 7, 2016, authorized representatives of the Cabinet identi?ed (CIV20160008) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 above: a. 401 KAR 63 :010 Section 3(2) causing or permitting the discharge of visible ?rgitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 29. On October 11, 2016, the Cabinet issued Gavilon a Notice of Violation (ENV20160007) for the alleged violation described in paragraph 28 above. 30. On October 10, 2016, authorized representatives of the Cabinet identi?ed (CIV20160009) the following alleged violation of KRS Chapter 224, and the regulations {n'f??ki?wr- it"s-mm" I . . I. . .. . ?H?Fi'--.-.-.-. - .. -c -..-. ?i'I?i .. - .- promulgated pursuant thereto at the facility described in paragraph 2 above: a. 401 KAR 63 :010 Section 3(2) causing or permitting the discharge of visible ?igitive emissions beyond the lot line of the property on which the emissions originate (Violation 31. On October 11, 2016, the Cabinet issued Gavilon a Notice of Violation (ENV20160008) for the alleged violation described in paragraph 30 above. 32. On October 27, 2016, authorized representatives of the Cabinet identi?ed (CIV20160011) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 33. On November 14, 2016, the Cabinet issued Gavilon a Notice of Violation (ENV 20160009) for the alleged violation described in paragraph 32 above. 34. On November 4, 2016, authorized representatives of the Cabinet identi?ed (CW20160013) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) causing or permitting the discharge of visible ?igitive emissions beyond the lot line of the property on which the emissions originate (Violation 35. On November 15, 2016, the Cabinet issued Gavilon a Notice of Violation h. Ritual-Id-.- .1- new-o'- - - -. (ENV20160010) for the alleged violation described in paragraph 34 above. 36. On November 11, 2016, authorized rcpresentatives of the Cabinet identi?ed (CIV20160014) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) - causing or permitting the discharge of visible ?igitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 37. On November 15, 2016, the Cabinet issued Gavilon a Notice of Violation (ENV2016001 1) for the alleged violation described in paragraph 36 above. 38. On November 22, 2016, authorized representatives of the Cabinet identi?ed (011920160001) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 above: a. 401 KAR 59:010 Section 3(2) failure to comply with the regulation by failing to supply information affecting particulate emissions from a process operation that commenced after July 2, 1975 (Violation and b. 401 KAR 59:010 Section 30 causing, suffering, allowing or permitting continuous or intermittent fugitive emissions into the open air ?om any affected facility or source which is equal to or greater than twenty (20) percent opacity, or which remains visible beyond the lot line of the property on which the emission originates (Violation 2). 39. On December 19, 2016, the Cabinet issued Gavilon a Notice of Violation (ENV20160012) for the alleged violation described in paragraph 38 above. ?Wm-h ?x Email- maul-Bunn- ?Mt-m ?i?ix?ra?u im- - 40. On December 8, 2016, authorized representatives of the Cabinet identi?ed (CW20160015) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 aboveSection 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 41. On December 19, 2016, the Cabinet issued Gavilon a Notice of Violation (ENV 20160013) for the alleged violation described in paragraph 40 above. 42. On January 3, 2017, authorized representatives of the Cabinet identi?ed (CIV20170001) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 above: a. 401 KAR 63:010 Section 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 1). 43. On January 5, 2017, the Cabinet issued Gavilon a Notice of Violation (ENV20170001) for the alleged violation described in paragraph 42 above. 44. On January 4, 2017, authorized representatives of the Cabinet identi?ed (CIV20170002) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 above: a. 401 Section orpermitting thedischargeofvisible fugitive emissions beyond the lot line of the preperty on which the emissions originate MC $34.11: 3' Hail-:3 arr-m .. . . . .. .. . sweat-?M (Violation 1). 45. On January 5, 2017, the Cabinet issued Gavilon a Notice of Violation (ENV20170002) for the alleged violation described in paragraph 44 above. 46. On February 9, 2017, authorized representatives of the Cabinet identi?ed (CIN20170001) the following alleged violation of KRS Chapter 224, and the regulations promulgated pursuant thereto at the facility described in paragraph 2 above: a. 401 KAR 63:010 Section No person shall cause, suffer, or allow any material to be handled, processed, transported, or stored; a building or its appurtenances to be constructed, altered, repaired, or demolished, or a road to be used without taking reasonable precaution to prevent particulate matter ?om becoming airborne (Violation 1Section 3(2) causing or permitting the discharge of visible fugitive emissions beyond the lot line of the property on which the emissions originate (Violation 2). 47. On March 6, 2017, the Cabinet issued Gavilon aNotice of Violation (ENV20170003) for the alleged violation described in paragraph 46 above. 48. Gavilon neither admits nor denies all the alleged violations described above but accepts civil liability for those violations as alleged above. 49. Gavilon has voluntarily taken actions to prevent, and/or mitigate against, the discharge of visible ?fugitive? emissions beyond the lot line of the facility. Those actions described below were taken prior to the date of entry of this Agreed Order: a. Installed pit battles into the truck unloading (dump) pits to minimize dust escaping the unloading pits. 10 . ?Jamming. a? a -ul. .er-ucmresin-"- - a .-. aura-a:- cue-Je- - - 14.51Installed a truck loadout dust suppression hOpper. c. Instructed truck drivers who make deliveries of grain to the facility about using tarps or similar devices to cover the loads, and installed signage at the facility regarding the regulatory requirement to cover truck loads. d. Ceased use of the gallery vent fans when potential dust generation activities cleaning and grain handling) are conducted in the gallery. e. Installed an enclosed tail pulley on the barge loadout conveyor. f. Rebalanced the baghouse collection systems to optimize dust removal ef?ciency, and had third party inspection of the baghouses to verify proper operation. g. Installation and operation of a mineral oil applicator, which applies mineral oil to the grain to minimize emissions. h. Erected fabric mesh/silt barriers and a tree wind break. i. Hired a dedicated grounds crew, to perform housekeeping, during harvest. NOW THEREFORE, in the interest of settling all civil claims and controversies involving the alleged violations described above, the parties hereby consent to the entry of this Agreed Order and agree as follows: 50. Gavilon shall perform the following control measures by the dates speci?ed herein: a. Gavilon shall submit to the Division for Air Quality an application for renewal of its Air Quality Permit within thirty (30) days of execution of this Agreed Order by the Cabinet?s Secretary. The application shall include any and all upgrades or enhancements of equipment or devices which are designed to control emissions ?'om Gavilon which might ll wan-nun . ., Weakest?{2?33 ve' contribute to offsite impacts; b. Gavilon submitted an Implementation Schedule Ifor Cabinet review and approval prior to the execution of this Agreed Order by the Cabinet?s Secretary. The Implementation Schedule includes practices, procedures, and, upgrades or enhancements to equipment, which are designed to control or minimize o?'site impacts due to emissions of particulates from the Gavilon facility. The Implementation Schedule includes time?'ames for application of all practices and completion of upgrades and enhancements of equipment, and includes a completion date for all upgrades or enhancements of no later than June 1, 2018, except as provided in paragraph 50(c) below. c. The time for completion of the elements of the approved Implementation Schedule will extend for a period equal to the delay in: the issuance of the new Air Quality Permit, if the issuance of this new permit is delayed beyond November 1, 2017; or, the approval of the entire Implementation Schedule, if such approval is delayed beyond November 1, 2017. d. The Cabinet may, in whole or in part, (I) approve, or, (2) provide comments to Gavilon identilying the de?ciencies upon review of the Implementation Schedule. Upon receipt of Cabinet comments identifying de?ciencies, Gavilon shall have thirty (30) days to address the comments, and, as appropriate, revise and resubmit the Implementation Schedule for review and approval. e. Upon re-submittal, the Cabinet may, in whole or in part, (I) approve or (2) disapprove and provide comments to Gavilon identifying the de?ciencies. 12 I I - .: . . .- . . - . -- - - yr+h - - *swr?pap?arn?a . .1 . 3' L?Im?f'i?lfi Wren- .. .. f. Upon Cabinet approval of all, or any part, of the Implementation Schedule, the Implementation Schedule, or any approved part thereof (provided that the approved part is not dependent upon implementation of any part not yet approved), shall be deemed incorporated as an enforceable requirement of this Agreed Order, subject to the provisions set forth in paragraph 50(c) above. g. Prior to ?nalizing the draft Air Quality Permit, the Cabinet agrees to provide a draft to Gavilon for review and comment. Gavilon shall submit any related comments to the -. 1 Cabinet within thirty (30) days of receipt of that draft permit. h. Gavilon shall execute the Implementation Schedule as approved by the Cabinet within thirty (30) days of the issuance of the new Air Quality Permit. i i. Ifthe Implementation Schedule has not been approved by the Cabinet when the renewed Air Quality Permit is ?nalized, then Gavilon shall execute the Implementation Schedule within thirty (30) days of Cabinet approval, or such time provided in paragraph 50(c) above. PENALTY AND SUPPLEMENTAL ENVIRONMENTAL PROJECT 51. Gavilon shall pay the Cabinet a civil penalty in the amount of twenty??ve thousand dollars for the alleged violations described above. The amount of the civil penalty shall be tendered by Gavilon to the Cabinet with the return of this signed Agreed Order. i 52. Gavilon has, as a Supplement Environmental Project (SEP), paved the unpaved portions of the facility routinely traveled by vehicles to limit dust generation and carryout (tracking) of materials onto public roads. The SEP was completed in September 2016. Gavilon expended no in?, 13 .. .. . . . a. .- . -.- - less than seventy-?ve thousand dollars to complete this SEP. Gavilonhas submittedto the Cabinet an accurate accounting of the monies spent to complete the SEP. STIPULATED PENALTIES 53. Stipulated penalties shall take effect once the control measures required by Paragraph 48 above are completed. The Cabinet shall hold in abeyance any enforcement action which might result from cited violations of 401 KAR 63 :0 10 Section 3(2) during the period of application of the Implementation Schedule, provided Gavilon demonstrates compliance with the requirements of its Air Quality Permit and this Agreed Order. If the Cabinet determines that operations of the facility described on paragraph 2 above result in violations of 401 KAR 63:010 Section 3(2) during the period beginning at the completion of the Implementation Schedule and ending on December 31, 2018, the Cabinet may assess Gavilon a stipulated penalty in the amount of one thousand ?ve hundred dollars for each cited violation. Ifthe Cabinet determines that operations of the facility described on paragraph 2 above result in violations of 401 KAR 63 :0 10 Section 3(2) during the period beginning from January 1, 2019 through June 20, 2019, the Cabinet may assess Gavilon a stipulated penalty in the amount of three thousand dollars for each cited violation. Ifthe Cabinet determines Gavilon?s operations result to violations of401 KAR 63:01 0 Section then the Cabinet?s authorized representative shall attemptto provide contemporaneous verbal noti?cation to Gavilon by calling 270-827-3 533, or such other number as Gavilon may provide to the Cabinet in writing. Attempted noti?cation shall occur at the start of the Cabinet?s authorized representative's inspection of the facility?s premises or the start of an observation at a point off the facility?s premises, shall be documented, and the attempted noti?cation shall be considered as a condition 14 aha-I xmmama..ax..uu .. a. - n. .- nun ?vat-at.? .. precedent to assessment of this stipulated penalty. Such noti?cation is intended to give Gavilon the ability to investigate and to immediately address the origin of such violations. Following the identi?cation of a violation originating from Gavilon?s facility, the Cabinet shall provide Gavilon timer written noti?cation of the observed violation, including documentation of the attempted noti?cation. These penalties, which are being held in abeyance pursuant to above terms, shall become the sole penalties for violations of 401 KAR 63:010 Section 3(2) after the Implementation Schedule is deemed incorporated as an enforceable requirement of the Agreed Order pursuant to paragraph 50(1) above. These penalties are in addition to, and not in lieu of, any other penalty that could be assessed for other applicable environmental requirements violations other than 401 KAR 63 :01 0 Section This stipulated penalty shall be due and payable in full within ?fteen (15) days of receipt of written notice from the Cabinet. 54. If Gavilon believes the request for payment of a stipulated penalty is erroneous or contrary to law, Gavilon may request a hearing in accordance with KRS 22410-4200). The request for hearing does not excuse timely payment of the penalty. If an order is entered pursuant to KRS 224.10-440 that excuses payment, the Cabinet will refund the payment. Failure to make timely payment shall constitute an additional violation. I 55. Payment of civil penalties shall be by check, cashier?s check, certi?ed check, or money order, made payable to ?Kentucky State Treasurer? and sent to the attention of the Director, Division of Enforcement, Department for Environmental Protection, 300 Sower Boulevard, 3":1 Floor, Frankfort, Kentucky 40601. Note ?Case No. DAQ 150173? on the instrument of payment. MISCELLANEOUS PROVISIONS 15 -. . - . -.-.- . . . .. - . -- .- - .. - - ?r truth-s -.- .-- a. - Max todaauh . . . - -. - . .. -- -. .- . -, new" ?ns midis" I n; wan-u?Illmu?t?tml- 56. This Agreed Order addresses only those alleged violations speci?cally described above. Other than those matters resolved by entry of this Agreed Order nothing contained herein shall be construed to waive or to limit any remedy or cause of action by the Cabinet based on statutes or regulations under its jurisdiction and Gavilon reserves its defenses thereto. The Cabinet expressly reserves its right at any time to issue administrative orders and to take any other action it deems necessary that is not inconsistent with this Agreed Order, including the ?ght to order all necessary control measures, assess penalties for violations, or recover all response costs incurred, and Gavilon reserves its defenses thereto. 57. This Agreed Order shall not prevent the Cabinet ?'om issuing, reissuing, renewing, modifying, revoking, suspending, denying, terminating, or reopening any permit to Gavilon. Gavilon reserves its defenses thereto, except that Gavilon shall not use this Agreed Order as a defense. 58. Gavilon waives its right to any hearing on the alleged violations contained herein. However, failure by Gavilon to comply strictly with any or all of the terms of this Agreed Order shall be grounds for the Cabinet to seek enforcement of this Agreed Order in Franklin Circuit Court and to pursue any other appropriate administrative or judicial action under KRS Chapter 224, and the regulations promulgated pursuant thereto. 59. The Agreed Order may not be amended except by a written order of the Cabinet?s Secretary or his designee. Gavilon may request an amendment by writing the Director of the Division of Enforcement at 300 Sower Boulevard, Floor, Frankfort, Kentucky 40601 and stating the reasons for the request. if granted, the amended Agreed Order shall not affect any provision of this Agreed Order unless expressly provided in the amended Agreed Order. 16 . mun-um.- ur- . -. n. .- an. 'vazr . . {H-l-Nddu' 60. The Cabinet does not, by its consent to the entry of this Agreed Order, warrant or aver in any manner that Gavilon?s complete compliance with this Agreed Order will result in compliance with the provisions of KRS Chapter 224, and the regulations promulgated pursuant thereto. Notwithstanding the Cabinet?s review and approval of any plans formulated pursuant to this Agreed Order, Gavilon shall remain solely responsible for compliance with the terms of KRS Chapters 224, and the regulations promulgated pursuant thereto, this Agreed Order and any permit and compliance schedule requirements. 61 . Gavilon shall give notice of this Agreed Order to any purchaser, lessee or successor in interest prior to the transfer of ownership and/or operation of any part of its now-existing facility occun-ing prior to termination of this Agreed Order, shall notify the Cabinet that such notice has been given, and shall follow all statutory and regulatory requirements for a transfer. Whether or not a transfer takes place, Gavilon shall remain ?Jlly responsible for payment of all civil penalties and for performance of all control measures identi?ed in this Agreed Order. 62. The Cabinet agrees to allow the performance of the above-listed control measures, payment of civil penalties, and performance of SEP by Gavilon to satisfy Gavilon?s obligations to the Cabinet generated by the alleged violations described above. 63 . The Cabinet and Gavilon agree that the control measures agreed to herein are facility- speci?c and designed to comply with the statutes and regulations cited herein. This Agreed Order applies speci?cally and exclusively to the unique facility referenced herein and is inapplicable to any other site or facility. .eo .. . - - - .-..- .. my; candies ??fr??nrmmauuiw? - "intern-3r - 64. This Agreed Order shall be of no force and effect unless and until it is entered by the Secretary or his designee as evidenced by his signature thereon. Ifthis Agreed Order contains any date by which Gavilon is to take any action or cease any activity, and the Secretary enters the Agreed Order after that date, then Gavilon is nonetheless obligated to have taken the action or ceased the activity by the date contained in this Agreed Order. 65. Gavilon shall perform the requirements of this Agreed Order within the time limits set forth or approved herein, unless the performance is prevented or delayed solely by events which constitute a force majeure, in which event the delay in performance shall be excused and no performance or stipulated penalty shall be assessed. A force maj eure is de?ned as any event arising ?'om causes not reasonably foreseeable and beyond the control of Gavilon, or Gavilon?s consultants and contractors, which could not be overcome by due diligence and which delays or prevents performance by a date required by this Agreed Order. Force majeure events do not include unanticipated or increased costs of performance, changed economic or ?nancial conditions, norr'nal precipitation events, the failure by a connector to perform, or the failure by a supplier to deliver unless such failure is itself caused by a Force majeure event. 66. Gavilou shall notify the Director of the Division of Enforcement by telephone at 502- 782-6848 by the end of the next business day and in writing within ?ve (5) business days after it becomes aware of events which it lcnows or should know constitute a force majeure. The notice shall, to the extent reasonably known, estimate the anticipated length of delay, including necessary demobilization and remobilization, its cause, measures taken or to be taken to minimize the delay IS .-.- ?y?WE?g; milky - hunk": if" .-.- :avn. .eaH?h $.35 . . . r-ij?fJi-3'1 tm?L?a {?it-v - mun.- locum-cu- Han-5*. hi 4 - . ven- and an estimated timetable for implementation of these measures. The Cabinet will respond in writing to any written notice received. Failure to comply with the notice provision of this section shall be grounds for the Cabinet to deny an extension of time for performance. 67. IfGavilon demonstrates to the Cabinet that the delay has been or will be caused by a force maj eure event, the Cabinet will extend the time for performance for that element of the Agreed Order for a period at least equal to the delay resulting from such circumstances. This shall be accomplished through an Agreed Order amending this Agreed Order. The amended Agreed Order may alter the schedule for performance or completion of other tasks required by this Agreed Order. 68. If a dispute over the occurrence or impact of a force majeure event cannot be resolved, the Cabinet reserves its right to seek a stipulated penalty under paragraph 51 of this Agreed Order and Gavilon reserves its right to seek a hearing under KRS If Gavilon contests its liability for stipulated penalties, it shall have the burden of proof that a violation of this Agreed Order was caused by a force majeure event. TERMINATION 69. This Agreed Order shall terminate upon Gavilon?s completion of all requirements described in this Agreed Order. Gavilon may submit written notice to the Cabinet when it believes all requirements have been performed. The Cabinet will notify Gavilon in writing of whether it intends to agree with or object to termination. The Cabinet reserves its right to enforce this Agreed Order, and Gavilon reserves its right to ?le a petition for hearing pursuant to KRS contesting the Cabinet?s determination. 19' . mum-away? AGREED TO BY: Member/Manager - Was PR esteem? Gavilon Grain, LLC 0 0?28? 0105 Director Division of Enforcement G. Home}, 11, Efeen?ve Director Of?ce of General Counsel Energy and Environment Cabinet 2G . . - ?53.31339. . . - h. -. ii?? 1 I.?Hll . CASE NO. DAQ 150173 Date Bic/24L 9/2?57/ 7 Dat'e 7 I Date' .- . - u: . . I. fj?k'x?xwu?x- .. 1-. 9.13:, ,nyAL. givina?r?g. af?uwwh. A . 3 53? CASE NO. DAQ 150173 ORDER Wherefore, the foregoing Agreed Order is entered as the ?nal Order of the Energy and Environment Cabinetthis [inay of 2017. ENERGY AND ENVIRONMENT CABINET (771561?? R. BRUCE SCOTT, DEPUTY SECRETARY 21 .. . - - -.--.. -- af?mx linoqu??owm . . CERTIFICATE OF SERVICE .-. .-- .--.- ma. 9? CASE NO. DAQ 150173 I hereby certify that a true and accurate copy of the foregoing A ED ORDER was mailed, postage prepaid, to the following this :11: of 2017. 0 +0 10 Brian Wanzenried, Director of Environmental Gavilon Grain, LLC 1331 Capitol Avenue Omaha, Nebraska 68102-1 106 and mailed, messenger to: Jet??'ey A. Cummins, Director Division of Enforcement 300 Sewer Boulevard, 3?1d Floor Frankfort, Kentucky 40601 John G. Home, 11, Executive Director Of?ce of General Counsel Energy and Environmental Cabinet 300 Sower Boulevard, 3"1 Floor Frankfort, Kentucky 40601 DOCKET 3 GD F6 6 22 hand.