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BEFORE THE INDIANA
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE
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OF ENVIRONMENTAL
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Complainant, |
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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
2. Respondent is Moss Fertilizer Service, Inc. (“Respondent”)
which owns and/or operates a company located
in Twelve Mile,
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. |
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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 |
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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 |
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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: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental
Management |
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By: ________________________ |
By: ________________________ |
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Deputy Attorney General |
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Date: _______________________ |
Date: ______________________ |
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APPROVED AND ADOPTED BY
THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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DAY OF |
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For the Commissioner: |
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Signed September 20, 2010_ |
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Bruce H Palin |
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Assistant Commissioner |
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Office of Land Quality |
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