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.

MILES FARM SERVICE, INC.,

Respondent.

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Case No. 2008-18128-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 Miles Farm Service, Inc., (“Respondent”), who owns and operates an agricultural fertilizer and chemical supply business, located at 7187 West State Road 66, Hatfield, Spencer 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 via certified mail to:

 

Jack Robinson, Registered Agent

Mike Roos, Manager

Miles Farm Service, Inc.

Miles Farm Service, Inc.

122 South Third Street

P.O. Box H Hwy 66 East

Rockport, Indiana 47635

Hatfield, Indiana 47617

 

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

 

6.                  Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid National Pollutant Discharge Elimination System (“NPDES”) permit obtained prior to the discharge.

 

Pursuant to IC 13-30-2-1, 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 emissions requirements adopted by the appropriate board under the environmental management laws.

 

Pursuant to 327 IAC 2-6.1 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.

 

Respondent caused and/or allowed the discharge of  25,000 gallons of water with blue dye and unknown amount of 28% liquid nitrogen from the Site on or about August 22, 2008 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 IC 13-30-2-1, 327 IAC 2-6.1, 327 IAC 2-6.1-7, and 327 IAC 5-2-2.

 

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 Respondents.  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/or above at issue

 

3.                  Within thirty (30) days of the Effective Date, Respondent shall ensure that all Site employees receive training regarding prohibited discharges into waters of the state. New hire employees are required to complete training within ten (10) days of hire. Training records are to be kept on site and made available upon request.

 

4.                  Respondent shall notify IDEM, in writing, within 10 days of completion of each item identified in Paragraphs 3.  The notification shall include a description of the action completed and the date it was completed.

 

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

 

Sue Bock, Enforcement Case Manager

Water Enforcement Section – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

6.                  Respondent is assessed a civil penalty of Seven Thousand Eight Hundred Seventy-Five Dollars ($7,875). 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.

 

7.                  Civil 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

 

6.                  Respondent shall reimburse the Indiana Department of Natural Resources (IDNR) for the value of the damage to natural resources, under authority of IC 14-22-10-6.  IDNR has determined this figure to be Seventy Five Dollars and Thirteen Cents ($75.13).  Payment shall be made to the Contaminants Account within thirty (30) days of the Effective Date of this Order, and sent to Attn: Restoration Biologist, 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.

 

7.                  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

 

3

Failure to provide employee training within timeframe

$400 per employee not completing training

4

Failure to notify IDEM within timeframe

$500 per week late

 

8.                  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.

 

9.                  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

 

10.             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 Respondent shall in any way alter his status or responsibilities under this Agreed Order.

 

11.             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.

 

12.             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.

 

13.             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.

 

11.          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.

 

12.          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.

 

13.          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.

 

14.          This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 through 8 and IDEM issues a Resolution of Case letter.

 

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Miles Farm Service, Inc.

 

 

By: ________________________

By:  ________________________

 

Mark W. Stanifer, Chief

 

 

Water Enforcement Section

Printed: ______________________

Office of Enforcement

 

 

Title: ________________________

 

 

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________________________, 2009.

 

 

For the Commissioner:

 

 

 

Signed on February 13, 2009

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality