STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT

COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2018-25619-S
					)
THEOBALD LAND COMPANY, LLC,					)
					)
Respondent.					)

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 Indiana Code (“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 Theobald Land Company, LLC (“Respondent”), which owns the property with parcel ID no. 35-04-35-300-039.800-002, located at 331 N 800 W, in Andrews, Huntington 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 (“NOV”) via Certified Mail on October 25, 2018 to Theobald Land Company, LLC and Jay M. Theobald, Registered Agent for Theobald Land Company, LLC.

5. During an investigation including inspections on May 5, 2018, May 6, 2018, May 7, 2018, and May 9, 2018, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 327 Indiana Administrative Code (“IAC”) 2-1-6(a)(1), all surface 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 that do any of the following:

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

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

(D) 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; and

(E) are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

As noted during the inspections conducted on May 5, 2018, May 6, 2018, May 7, 2018, and May 9, 2018, Respondent allowed approximately 300 gallons of 28D fertilizer into an unnamed tributary of the Wabash River, a water of the state, that was in an amount sufficient to be unsightly or deleterious, that produced color, odor, or other conditions in such a degree to create a nuisance, and/or which was in amounts to be acutely toxic to, or otherwise severely injure or kill aquatic life, or other animals, plants, or humans. The origin of the spill was Respondent’s 2,500 gallon poly tank that contained 28D fertilizer located at the Site. The fertilizer leaked through a one (1) inch long crack in the poly tank and then traveled through a tile that reached the unnamed tributary and according to the Indiana Department of Natural Resources (“DNR”), killed more than 2,000 fish.

b. Pursuant to IC 13-18-4-5(a), a person may not throw, run, drain, or otherwise dispose into any of the streams or waters of this state, 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 327 IAC 2, a rule adopted under IC 13-18-4-1 and IC 13-18-4-3.

As noted during the inspections on May 5, 2018, May 6, 2018, May 7, 2018, and May 9, 2018, Respondent’s 2,500 gallon poly tank contained a one (1) inch long crack releasing approximately 300 gallons of 28D fertilizer to the surface and into an unnamed tributary of the Wabash River, resulting in a fish kill.

c. Pursuant to IC 13-30-2-1(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 327 IAC 2, a rule adopted by the board under the environmental management laws.

6. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 the statutes and rules listed in the findings above.

3. Respondent is assessed a civil penalty of Five Thousand Dollars ($5,000). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Two Thousand Three Hundred Thirty Dollars ($2,330.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondent performed and completed a Supplemental Environmental Project (“SEP”). On September 30, 2019, IDEM received written notice and documentation which substantiates all actions taken and costs incurred with respect to the SEP. The cost of SEP was Two Thousand Six Hundred Seventy Dollars ($2,670).

As a Supplement Environmental Project, Respondent replaced two (2) 2,500 gallon fertilizer tanks that had not previously leaked to be certain that leaks from the tanks do not occur again in the future. These two (2) tanks had not reached their fifteen (15) year life expectancy. Additionally, no entity reimbursed Respondent for the cost of these two new tanks as there was no warranty and insurance applicable to the tanks.

4. The civil penalty is 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

Accounts Receivable

IGCN, Room N1340

100 North Senate Avenue

Indianapolis, IN 46204

5. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 4, above.

6. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

7. This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

8. No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

9. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

10. 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.

11. 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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

12. 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.

13. 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 violations specified in the NOV.

14. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 U.S. EPA or any other agency or entity.

15. 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: _________________________
	Linda L. McClure, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________

Date: __________________				Date: _______________________


				COUNSEL FOR RESPONDENT:


				By: ________________________


				Date: ______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	________________________, 20_____.

				For the Commissioner:

				_Signed on 11/1/19________
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality