STATE OF INDIANA

COUNTY OF MARION

)
)
)


SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

CO-ALLIANCE LLP,

Respondent.

)
)
)
)
)
)
)
)
)
)






Case No. 2007-17378-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. 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 Co-Alliance LLP (“Respondent”), which owns and operates the Co-Alliance Tipton Elevator grain and fertilizer services plant located at 1005 Berryman Pike, in Tipton, Tipton County, Indiana (the “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 December 19, 2007 via Certified Mail to:

 

Co-Alliance LLP

and to:

Co-Alliance LLP

Shawn Lambert, Risk Coordinator

 

Kevin Still, Registered Agent

103 East Lincoln Street

 

103 Lincoln Street

P.O. Box 560

 

P.O. Box 560

Danville, IN  46122

 

Danville, IN  46122

 

5.         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 NPDES permit obtained prior to the discharge.

 

Pursuant to 327 IAC 2-1-6, 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 that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, or which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

 

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.

 

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 IC 13-18-4-1 and IC 13-18-4-3.

 

An investigation conducted by Indiana Department of Natural Resources ("IDNR") and IDEM staff, and related documents, including Incident Report for Incident Number 2007-04-173, indicate that a spill of anhydrous ammonia occurred from the Site on April 21, 2007.  The Incident Report indicates that an estimated 900 pounds of anhydrous ammonia was released.  The Tipton Fire Department responded to the release and sprayed the area to suppress ammonia vapors.  The water and ammonia left the Site and entered the storm water system and flowed into Buck Creek.  The discharge was of such quantity as to cause conditions in such degree as to create a nuisance, and was of an amount that was acutely toxic and resulted in a fish kill.

 

Respondent's discharge of contaminant into the environment and to waters of the State which was not in conformity with an NPDES permit, and which was in such degree as to create a nuisance and a fish kill, was in violation of 327 IAC 5-2-2 and 327 IAC 2-1-6, and therefore in violation of IC 13-30-2-1 and IC 13-18-4-5.

 

6.         On April 17, 2008, Respondent submitted the following summary of the above noted incident, along with a copy of its Best Management Practices program.  Respondent indicated that the release of anhydrous ammonia on April 21, 2007 was a result of a nurse tank valve being accidentally struck by an overhead fill line, which in turn, caused the valve to open.  Area firefighters applied a safety fog to allow a firefighter to approach the tank and close the valve.  Some of the water combined with a portion of the anhydrous ammonia entered the subsurface tile.  Respondent closed what was believed to be the only subsurface outlet on the north end of the property and Respondent began recovering water from the subsurface tile.

 

After Respondent was informed on April 23, 2007, that a fish kill had had occurred in Buck Creek, Respondent discovered that there was an additional subsurface outlet outlet on the southwest corner of the property.  Respondent plugged that tile and recovered the water and field applied and placed the water in storage tanks for further land application at or below acceptable agricultural rates.

 

Respondent has now searched for and verified all storm water drain locations and has hired a contractor to install tile shut-off valves for the line that was involved in the release along with any other subsurface lines discovered.  The shut-off valves are expected to be installed by June 15, 2008, after which Respondent's employees and the area fire departments will be trained on the location, operation and need for closing these valves in the event of future emergency situations.  On December 12, 2007, training was conducted with the Tipton area fire departments.  Anhydrous ammonia as the primary training topic and environmental concerns such as run-off were discussed.

 

The Best Management Practices program has been reviewed and determined to adequately address all areas of storm water management contained in the Fact Sheet: Best Management Practices for Bulk Agricultural Plant Food and Agricultural Chemical Storage Facilities that was developed by the Office of Indiana State Chemist and Seed Commissioner and IDEM.

 

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 Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.         Respondent shall comply with 327 IAC 5-2-2, 327 IAC 2-1-6, IC 13-30-2-1, and IC 13-18-4-5.

 

3.         Within 30 days of the Effective Date, Respondent shall:  A) ensure that the shut-off valves all subsurface lines are installed; B) ensure that Respondent's employees and the area fire departments are trained on the location, operation and need for closing these valves in the event of future emergency situations; and C) submit notification to IDEM of completion of the installation and training.

 

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

 

Terry Ressler, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Enforcement – Mail Code 60-02

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

5.         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 three hundred twenty nine dollars and eighty-four cents ($329.84).  Payment shall be made to the Contaminants Account within thirty (30) days of the Effective Date of this Order, and sent to the IDNR Division of Fish and Wildlife, Attention:  Jennifer Campbell-Allison, Room W-273, IGCS, 402 West Washington Street, Indianapolis, Indiana  46204.  Respondent shall provide the Complainant with documentation of the reimbursement immediately upon payment.

 

6.         Respondent is assessed a civil penalty of Five Thousand Two Hundred and Fifty Dollars ($5,250).  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.         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 ensure that the shut-off valves all subsurface lines are installed; failure to ensure that Respondent's employees and the area fire departments are trained on the location, operation and need for closing these valves in the event of future emergency situations; and/or failure to submit notification to IDEM of completion of the installation and training.

$500 per week late, or part thereof.

 

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 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.

 

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 its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

 

14.       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.

 

15.       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.

 

16.       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.

 

17.       This Agreed Order shall remain in effect until Respondent complies with the terms of Order Paragraph Nos. 3 through 9 and IDEM issues a Resolution of Case letter.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Co-Alliance LLP

 

 

 

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 June 20, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement