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.

Vivolac Cultures Corporation,

Respondent.

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Case No. 2006-17025-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.

 

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 Vivolac Cultures Corporation (“VCC”) (“Respondent”), which owns and operates the company located at 6100 West Stoner Drive Greenfield, Hancock County, Indiana (“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 on August 22, 2007 via Certified Mail to Wesley Sing, President and Registered Agent of VCC.

 

5.                  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:

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.

d.         Exercise due diligence, and document attempts to notify the nearest affected downstream water user.

 

6.                  Pursuant to 327 IAC 2-6.1-4(15), a spill is defined as any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage seepage, discharge or other loss of petroleum, hazardous and/or otherwise objectionable substance which enters or threatens to enter the waters of the state.

 

7.                  Respondent does not hold any discharge permit issued by IDEM, but is authorized to discharge to the sanitary sewer owned by Western Hancock Utilities, LLC (WHU) by contract with WHU.

 

8.                  During an investigatory process that from August 9th until August 22nd Representatives of IDEM found that Respondent’s spent industrial waste media caused and contributed to the spill of raw sewage into Buck Creek killing fish and crawfish for six miles which constituted the following violations:

 

a.         On or about the week of August 9, 2006, Respondent discharged at least one or more loads of high strength processed wastewater to the sanitary sewer of WHU without the approval or knowledge of WHU or IDEM, and without reporting the events to either party.  This wastewater interfered with the operation of the WHU wastewater treatment plant and caused and or contributed to the improper operation of that facility, which in turn caused a loss of pollutants in the form of raw sewage into Buck Creek, resulting in a fish kill, in violation of 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7.

 

b.         The Respondent failed to contain the spill; failed to undertake or cause others to undertake activities needed to accomplish a spill response; failed to communicate a spill report to the Department of Environmental Management within two hours of discovery upon discovery of the spill; and failed to notify the nearest affected downstream water users (WHU) of the spill following the spill that caused and or contributed to the fish kill in Buck Creek, in violation of 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7.

 

c.         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:

(A)       that will settle to form putrescent or otherwise objectionable deposits;

(B)       that are in amounts sufficient to be unsightly or deleterious;

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

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

(E)       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’s August 2006 discharges of processed wastewater to the WHU sanitary sewers caused or contributed to the contamination of waters of the state at the WHU wastewater treatment plant by causing, contributing to, or allowing the discharge of substances which were in amounts sufficient to be unsightly and deleterious, that creates a nuisance, and which were acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans, in violation of 327 IAC 2-1-7.

 

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 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 1 and 3 of this chapter.

 

In August 2006, Respondent caused or contributed to a polluted condition of waters of the state by discharging loads of processed wastewater into the Western Hancock Utilities sanitary sewer, in violation of 327 IAC 2-6.1-5, 327 IAC 2-6.1-7, and 327 IAC 2-1-7 rules of the water pollution control board thus in violation of IC 13-18-4-5.

 

e.         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.

 

Respondent released a pollutant into the environment by discharging processed wastewater to the WHU sanitary sewer, which then passed through into Buck Creek, in violation of 327 IAC 2-6.1-5, 327 IAC 2-6.1-7, and 327 IAC 2-1-7, rules of the water pollution control board thus in violation of IC 13-30-2-1.

 

9.         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 statutes and rules, listed in the findings here and above at issue.

 

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

 

Scott McGlinchey, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Enforcement – Mail Code 60-02

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

4.         Respondent is assessed a civil penalty of Thirty One Thousand and Five Hundred Dollars ($31,500).  A portion of said penalty amount, totaling Three Thousand One Hundred Fifty Dollars ($3,150) shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.  In lieu of payment of the remaining portion of the civil penalty, totaling Twenty Eight Thousand Three Hundred Fifty Dollars ($28,350), Respondent shall perform Supplemental Environmental Projects (“SEP”) as described below.

 

Respondent has elected to perform a Pollution Prevention SEP consisting of modifying its media formulations to reduce the BOD and Suspended Solids in the effluent by at least 10% and to modify its process to recycle effluent to physically reduce the amount of waste generated by 30 – 40%, which will conserve water use.  The Pollution Control SEP consists of treating effluent using centrifugation/clarification to extract precipitated solids and ultrafiltration to concentrate solids and further reduce BOD and recover water used in the process via reverse osmosis.  This will reduce water need and reduces volume of wastewater by approximately 50%.

The offset ratio of 4:1 will be applied to these SEPs, i.e. Respondent must expend 4 dollars in order to offset one dollar of the civil penalty.  Therefore, Respondent must expend a minimum of One Hundred Thirteen Thousand Four Hundred Dollars ($113,400), in order to offset the remainder of the civil penalty totaling Twenty Eight Thousand Three Hundred Fifty Dollars ($28,350).  Respondent estimates the total cost of the SEP to be greater than $113,400 during the next fifteen months.

 

Respondent shall complete the SEPs within 15 months of the Effective Date of this Agreed Order.  Respondent shall provide IDEM with SEP implementation progress reports 6 months from the Effective Date of this Agreed Order, and 12 months from the Effective Date of this Agreed Order.  The SEP implementation progress reports shall summarize the total SEP expenditures made and project work completed.  In performing the SEP, Respondent shall comply with all applicable federal, state, and local laws and regulations, and shall obtain and comply with any necessary licenses or permits.  Within 30 days of completion of the SEP, Respondent shall submit to IDEM an itemized list, along with supporting documentation, of costs incurred in performing the SEP.  In the event that the SEP cost is greater than One Hundred Thirteen Thousand Four Hundred Dollars ($113,400), Respondent assumes responsibility for all additional costs without further offset of the civil penalty.  In the event that the SEP cost is less than One Hundred Thirteen Thousand Four Hundred Dollars ($113,400), Respondent shall pay the balance of the civil penalty that is not offset by the SEP, calculated by utilizing the 4:1 offset ratio described above, plus interest at the rate established by IC 24-4.6-1-101.  Interest on the balance of the civil penalty shall be paid from the Effective Date of this Agreed Order.  Payment shall be made to the Environmental Management Special Fund, within 15 days of receipt of notice from IDEM that payment is due.

 

In the event that Respondent fails to complete the SEP within 15 months of the Effective Date of this Agreed Order, Respondent shall pay the entire balance of the civil penalty, totaling Twenty Eight Thousand Three Hundred Fifty Dollars ($28,350), plus interest at the rate established by IC 24-4.6-1-101.  Interest on the balance of the civil penalty shall be paid from the Effective Date of this Agreed Order.  Payment shall be made to the Environmental Management Special Fund, within 15 days of receipt of notice from IDEM that payment is due.

 

5.         This Agreed Order shall apply to and be binding upon Respondent and his successors and assigns.  Respondent’s signatories to this Agreed Order certify that he is fully authorized to execute this Agreed Order and legally bind the party he represents.  No change in ownership, corporate, or partnership status of Respondents shall in any way alter his status or responsibilities under this Agreed Order.

 

6.         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.

 

7.         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.

 

8.         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 his obligation to comply with the requirements of his applicable permit or any applicable Federal or State law or regulation.

 

9.                  Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondents’ 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 or Respondents’ efforts to comply with this Agreed Order.

 

10.             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.

 

11.             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 Respondents may incur as a result of such communications with the EPA or any other agency or entity.

 

12.             This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order for a period of two years after the Effective Date and IDEM issues a Resolution of Case letter.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement 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

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on July 3, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement