STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

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Complainant,

 

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v.

 

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Case #2009-18734-S

 

 

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MOSS FERTILIZER SERVICE, INC.,

 

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Respondent.

 

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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 Moss Fertilizer Service, Inc. (“Respondent”) which owns and/or operates a company located in Twelve Mile, Cass County, Indiana.  The spill took place at the farm of Charles Brody who is leasing his property to Mr. Robert Dillman.  Mr. Dillman hired Moss Fertilizer Service, Inc. to apply fertilizer to the leased farm land located at CR 800 North, Denver, Miami County, Indiana (“the Site”).  A three wheeled sprayer owned by Moss Fertilizer Services, Inc., loaded with a 28% solution of nitrogen hit a hole in the ground and overturned.  This caused the chemical tank on the sprayer to lose about 50 gallons of nitrogen fertilizer mixture and impacted Weesau Creek.

 

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 (NOV) via Certified Mail to:

 

Steve L. Moss, Registered Agent

Steve L. Moss, President

Moss Fertilizer Service, Inc.

Moss Fertilizer Service, Inc.

7083 N. Moss Street

8414 N. State Road 25

Twelve Mile, IN  46988

Twelve Mile, IN  46988

 

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

 

a.         Pursuant to 327 IAC 2-6.1-6, the following spills from a mode of transportation must be reported:

 

(1)       Spills that damage the waters of the state so as to cause death or acute injury or illness to humans or animals.

(2)       Spills that damage surface waters.

(3)       Spills to soil: (c) spills of objectionable substances as defined in section 4(11) of this rule.

 

Respondent operated a fertilizer truck in which the vehicle became off balance and the tank ruptured, causing a release of fertilizer which impacted Weesau Creek and resulted in a fish kill.

 

b.         Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state, do the following:

 

(1)         Contain the spill, if possible, to prevent additional spill 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, Office of Environmental Response: Area Code 1-888-233-7745 for in-state calls (toll free), (317) 233-7745 for out-of-state calls.  If new or updated spill information becomes known that indicates a significant increase in the likelihood of damage to the waters of the state, the responsible party shall notify the department as soon as possible but within two (2) hours of the time the new or updated information becomes known.

 

Respondent failed to notify IDEM of the spill and did not contain the spill.

 

c.         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:

 

(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 a degree as to create a nuisance;

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

(E)       which are 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.

 

Respondent violated water quality standards when a spill of fertilizer occurred in an amount sufficient to cause a fish kill, which impacted Weesau Creek.

 

6.                  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 327 IAC 2-6.1-6, 327 IAC 2-6.1-7 and 327 IAC 2-1-6(a)(1) in the event of a reportable spill to the soil or surface waters of the state.

 

3.                  Respondent is assessed a civil penalty of Seven Thousand Dollars ($7,000).  The civil penalty shall be paid in the following manner: Eleven monthly payments of Five Hundred Eighty Three Dollars and Thirty Three Cents ($583.33) and one payment of Five Hundred Eighty Three Dollars and Thirty Seven Cents ($583.37).  The first installment of the civil penalty payment shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order. The eleven subsequent payments shall be due within sixty (60) days, ninety (90) days, one hundred and twenty (120) days, one hundred and fifty (150) days, one hundred and eighty (180) days, two hundred and ten (210) days, two hundred and forty (240) days, two hundred and seventy (270) days, three hundred (300) days, three hundred and thirty (330) days and three hundred and sixty (360) days of the Effective Date of this Agreed Order.  In the event that the civil penalty is not paid according to the payment schedule, 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.

 

4.                  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

 

5.                  Respondent is liable for reimbursement to the Indiana Department of Natural Resources (“IDNR”) for the value of damages under authority of IC 14-22-10-6.  IDNR has determined this figure to be Two Hundred Ten Dollars and forty two cents ($210.42).  Payment shall be made to the Contaminants Account within thirty (30) days of the Effective Date of this Order.  Respondent shall provide the Enforcement Case Manager with documentation of the reimbursement immediately upon payment, which shall be sent to:

 

Attention to:  Restoration Biologist

IDNR Division of Fish and Wildlife

Room W-273, IGCS

402 West Washington Street

Indianapolis, Indiana  46204

 

6.         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.

 

7.                  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.

 

8.                  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.

 

9.                  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.

 

10.             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.

 

11.             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.

 

12.             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.

 

13.             This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

 

By: _________________________

By:  _________________________

 

Nancy Johnston, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

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

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DAY OF

_____________________

, 200

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For the Commissioner:

 

 

 

Signed September 20, 2010_

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality