STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

ADM ALLIANCE NUTRITION, INC.,

Respondent.

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Case No. 2007-16695-W

 

 

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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondent is ADM Alliance Nutition, Inc. (“Respondent”), which owns/operates Farm ID # 2435, a Concentrated Animal Feeding Operation (CAFO) also known as ADM Animal Nutrition and Research Center, with National Pollutant Discharge Elimination System (“NPDES”) CAFO Identification Number IGN802435, located at Section 27, T 28N, R 14E, near Decatur, Adams County, Indiana (the “Site”).

 

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 via Certified Mail to:

 

Michael Foster, President

CT Corporation System

ADM Alliance Nutrition, Inc.

251 E. Ohio St.; Ste. 1100

1000 N. 30th St., P.O. Box C1

Indianapolis, In 46204

Quincy, IL 62305

 

 

5.                  During an investigation conducted by representatives of IDEM, the following violations were found:

 

a.         Pursuant to 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall, upon discovery of a spill that damages the waters of the state so as to cause death or acute injury or illness to humans or animals:

1.         Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

2.         Undertake or cause others to undertake activities needed to accomplish a spill response.

3.         As soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management.

4.         Submit to the Department of Environmental Management, a written copy of the spill report if requested in writing by the department.

5.         Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

(a)       For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and

(b)       For spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

 

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

Pursuant to 327 IAC 2-1-6(a), 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:

1.                  that will settle to form objectionable deposits;

2.                  that are in amounts sufficient to be unsightly or deleterious;

3.                  that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

4.                  which are in amounts sufficient to be acutely toxic to, or otherwise severely injure or kill aquatic life, other animals, plants, or humans; and

5.                  which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.

 

Respondent caused and/or allowed the discharge of animal manure from the Site on or about January 5, 2007 into 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 2-6.1-5, 327 IAC 2-6.1-7, 327 IAC 5-2-2, and 327 IAC 2-1-6(a)(1).

 

b.         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 IC 13-18-4-1 and IC 13-18-4-3.

 

Respondent caused and/or allowed the discharge of animal manure, an organic matter, to run, drain or seep from the Site on or about January 5, 2007 into a waters of the state, which discharges to waters of the state, in violation of 327 IAC 2-6.1-5, 327 IAC 2-6.1-7, 327 IAC 5-2-2, and 327 IAC 2-1-6(a)(1), and thus violated IC 13-18-4-5.

 

c.         Pursuant to IC 13-30-2-1(1), no person may 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 or into any publicly owned treatment works in any form which causes or would cause pollution which violates or which would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

 

Respondent caused and/or allowed the discharge of animal manure, a contaminant or waste, into the environment from the Site on or about January 5, 2007, in violation of 327 IAC 2-6.1-5, 327 IAC 2-6.1-7, 327 IAC 5-2-2, and 327 IAC 2-1-6(a)(1), and thus violated IC 13-30-2-1(1).

 

d.                  Pursuant to 327 IAC 15-15-4(i)(1), for new source veal, swine, and poultry CAFOs, there must be no discharge of manure, litter, or process wastewater pollutants into waters of the state, subject to the requirements of this section.

 

Pursuant to 327 IAC 15-15-4(i)(2), production area waste management and storage facilities must be designed, constructed, operated, and maintained to contain all manure, litter, and process wastewater and, if applicable, run-off and the direct precipitation from a one hundred (100)year, twenty-four (24) hour rainfall event.

 

Respondent caused and/or allowed the discharge of animal manure, a contaminant or waste, into the environment from the Site on or about January 5, 2007, in violation of 327 IAC 15-15-4(i)(1), and 327 IAC 15-15-4(i)(2).

 

e.         Pursuant to 327 IAC 15-15-10(e), liquid manure storage structures that are open and process wastewater storage structures that are open must be maintained with a minimum freeboard of two (2) feet.

 

Pursuant to 327 IAC 15-15-4(b)(2)(B), manure, litter, or process wastewater to be staged or applied to land in Indiana must be staged or applied in such a manner as to prevent application on saturated ground.

 

Pursuant to 327 IAC 15-15-12(h), manure, litter, and process wastewater shall not be applied to saturated ground.

 

Pursuant to 327 IAC 15-15-12(i), when planning land application, the owner or operator must take into account the weather forecast and likelihood of precipitation events for the twenty-four (24) hour period before and after the application.

 

Respondent conducted the land application of liquid animal manure on the Site during a heavy rainfall event on or about January 5, 2007, in violation of 327 IAC 15-15-10(e), 327 IAC 15-15-4(b)(2)(B), 327 IAC 15-15-12(h), and 327 IAC 15-15-12(i).

 

6.         A telephonic settlement conference was held on August 27, 2007, during which the Respondent described proactive steps taken toward compliance following the violation in order to prevent recurrence.  A written Compliance Plan was subsequently submitted to document the history, current status, and future scheduled plans to consistently ensure compliance.

 

7.         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 immediately comply with 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, 327 IAC 5-2-2, 327 IAC 2-1-6(a), IC 13-18-4-5, IC 13-30-2-1(1), 327 IAC 15-15-4(i)(1), 327 IAC 15-15-4(i)(2), 327 IAC 15-15-10(e), 327 IAC 15-15-4(b)(2)(B), 327 IAC 15-15-12(h), and 327 IAC 15-15-12(i).and conditions of CAFO Identification Number IGN802435, as listed in the findings above at issue.

 

3.         Respondent shall maintain implementation of the compliance plan (CP), attached hereto as Exhibit A, for the Site in accordance with the schedule contained therein.  The CP is incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

 

4.         Respondent shall, within 12 months of the Effective Date (Performance Period), demonstrate six consecutive months of compliance (Compliance Demonstration) with all requirements for the Site.  During the Performance Period, Respondent shall be subject to stipulated penalties, as specified below, for failure to timely implement the CP at the Site.  In the event that Respondent fails to make the Compliance Demonstration, Respondent shall, within sixty days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, an “Additional Action Plan” which identifies the additional actions that Respondent will take to achieve and maintain compliance with the effluent limitations contained in its NPDES Permit.  The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

5.         The plan required by Paragraph 4 above is subject to IDEM approval. In the event IDEM determines that any 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 modify and approve any such plan and Respondent must implement the plan as modified by IDEM.

 

Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein for the Site.  The approved Additional Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.  Failure by Respondent to submit any plan by the specified date, or to meet any of the milestones in the approved plan will subject Respondent to stipulated penalties as described below.  Failure to achieve compliance at the conclusion of work under an Additional Action Plan will subject Respondent to additional enforcement action.

 

6.                  Respondent shall notify IDEM, in writing, within ten (10) days of completion of each action contained in any approved plan.  The notification shall include a description of the action completed and the date it was completed.

 

7.                  All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Dave Knox, Enforcement Case Manager

Office of Enforcement – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

8.                  Respondent is assessed a civil penalty of Nine Thousand Eight Hundred Dollars ($9,800).  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:

 

Paragraph

Violation

Stipulated Penalty

2

Violation of any rule, statute, or Approval

$500 per event per day

3

Failure to implement the CP

$500 per event per day

4 and 5

Failure to timely submit any plan

$500 per each week or part thereof late

5

Failure to meet any milestone date or other requirement of any approved plan

$750 per each week or part thereof late

6

Failure to notify IDEM within 10 days of completion of each action contained in any approved plan

$250 per each week or part thereof late

 

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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

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.             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.

 

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 permit 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 has complied with all terms and conditions of Paragraph Nos. 3 through 11 of this Agreed Order and IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

ADM Alliance Nutrition, Inc.

 

 

 

By:

 

 

By:

 

 

Mark Stanifer, Chief

 

Printed:

 

 

Water Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2007.

 

 

For the Commissioner:

 

 

 

Signed on October 24, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement