STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, ) )

Complainant, )

)

v. ) Case No. 2002-11164-S

)

IMPACT COOPERATIVE, INC., ) )

Respondent. )

AGREED ORDER

The Complainant and the 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.
I. FINDINGS OF FACT
1. Complainant is the Commissioner ("Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Impact Cooperative, Inc. ("Respondent"), which owns/operates the bulk fertilizer facility located at 501 E. 8th St., in Fairmount, Grant County, Indiana ("Site").

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, on March 11, 2002, IDEM issued a Notice of Violation via Certified Mail to:

John Graham
Registered Agent
Impact Cooperative, Inc.
1111 South Jackson St.
P. O. Box 127
Frankfort, IN 46041-0127

 5. Inspections, on December 13 and 14, 2002, were conducted at the Site by a representative of IDEM's Office of Land Quality (OLQ). The following violations were in existence or observed at the time of these inspections: A. Pursuant to 327 IAC 2-1-6(a)(1), 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 will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans, or which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.

The Respondent caused and/or allowed the discharge of liquid nitrogen fertilizer from the Site on or about December 13, 2001, into Winslow Ditch, waters of the state, which was in amounts sufficient to be acutely toxic to, or otherwise severely injure or kill aquatic life, other animals, plants or humans, in violation of 327 IAC 2-1-6(a)(1).

B. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge is prohibited, unless in conformity with a valid NPDES Permit obtained prior to the discharge.

The Respondent caused and/or allowed the discharge of liquid nitrogen fertilizer, a pollutant, from the Site on or about December 13, 2001, into Winslow Ditch, waters of the state, without a valid NPDES permit and without meeting any of the exclusions in 327 IAC 5-2-4, in violation of 327 IAC 5-2-2.

C. Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste into the environment or any publicly owned treatment works in a form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emissions requirements adopted by the appropriate board under the environmental management laws.

The Respondent caused and/or allowed the discharge of liquid nitrogen fertilizer, a contaminant or waste, into the environment from the Site on or about December 13, 2001, in violation of 327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, and thus violated IC 13-30-2-1(1).

D. 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 this state, or to 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 1 and 3 of this chapter.

The Respondent caused and/or allowed the discharge of liquid nitrogen fertilizer, an organic matter, from the Site on or about December 13, 2001, into Winslow Ditch, waters of the state, in violation of 327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, and thus violated IC 13-18-4-5.
    1. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.
7. 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.
II. ORDER
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
    1. Within thirty (30) days of the Effective Date of this Agreed Order, the Respondent shall submit a confirmation sampling plan (CSP) for the portion of the Site where the pile of semi-solid residue from the tank cleaning process was located prior to the spill, pursuant to the requirements in Attachment A.
    2. Respondent shall implement the approved CSP in accordance with the time frame therein.
    3. If confirmation sampling reveals total nitrogen contamination above one hundred (100) parts per million (ppm) at the portion of the Site where the pile of semi-solid residue from the tank cleaning process was located prior to the spill, the Respondent shall excavate and properly dispose of the contaminated soils.
    4. The Respondent shall repeat confirmation sampling and soil excavation until total nitrogen contamination is below one hundred (100) ppm at the portion of the Site where the pile of semi-solid residue from the tank cleaning process was located prior to the spill.
    5. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:


      6. Craig Henry, Enforcement Case Manager
      Office of Enforcement
      Indiana Department of Environmental Management
      100 N. Senate Avenue
      P. O. Box 6015
      Indianapolis, IN 46206-6015
       

    6. Respondent is assessed a civil penalty of Seven Thousand Dollars ($7,000.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.
    7. Respondent shall reimburse the Indiana Department of Natural Resources (IDNR) for the value of the damage to natural resources, under authority of IC 14-2-6-7. IDNR has determined this figure to be Four Hundred Eighty One Dollars and Seventy Nine Cents ($481.79). Payment shall be made to the Natural Resources Damage Fund within thirty (30) days of the Effective Date of this Order, and sent to the IDNR Division of Fish and Wildlife, Room W-273, IGCS, 402 West Washington Street, Indianapolis, Indiana 46204. Respondent shall provide Complainant with documentation of the reimbursement immediately upon payment.
9. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation                                                                 Penalty
Failure to comply with Order paragraph No. 2         $500.00 per week
Failure to comply with Order paragraph No. 3         $1,000.00 per week

10. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of the 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:

Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060

 12. In the event that the civil penalty required by Order paragraph 6 is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.

13. This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

14. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

15. The 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.

 16. This Agreed Order shall remain in effect until the Respondent has complied with

all terms and conditions of this Agreed Order.
 
 

TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management                                     Impact Cooperative, Inc.
By: _________________________                                             By: _________________________
Paul Higginbotham
Chief, Solid Waste/UST Section                                                     Printed: ______________________
Office of Enforcement                                                                    Title: ________________________

Date: ________________________                                             Date: ________________________
 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________                                             By: ________________________

Office of Legal Counsel

Date: _______________________                                                 Date: ______________________
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2003.
 

For the Commissioner:
 

Adopted December 4, 2003

Felicia A. Robinson
Deputy Commissioner
for Legal Affairs
 
 

Attachment A

The Respondent shall, within thirty (30) days of the Effective Date of this Agreed Order, submit a confirmation sampling plan (CSP) and schedule. The CSP and schedule shall be subject to review, modification, approval or denial by IDEM. If IDEM identifies deficiencies in the CSP and/or schedule, the Respondent shall have twenty (20) days to revise and resubmit the CSP and/or schedule to IDEM which addresses the deficiencies. The CSP shall include, but not be limited to:

    1. Introduction;
    2. Proposed contaminant(s) to be sampled for;
    3. Proposed sampling and analytical methods to be utilized;
    4. Site map with proposed sampling locations identified;
    5. Proposed schedule to implement and complete confirmation sampling;
The Respondent shall, within thirty (30) days of completion of the confirmation sampling, submit a report detailing the findings of the confirmation sampling. This report shall include, but not be limited to: A. Introduction; B. List of constituents sampled for;

C. Sampling and analytical methods utilized;

D. Chain of custody documentation;

E. Analytical findings;