STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
COMMISSIONER OF THE DEPARTMENT )
AGREED ORDER
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. B-2375
)
JASPER COUNTY CO-OP, )
FORESMAN SWITCH STATION )
Respondent. )
I. FINDINGS OF FACT
2. Jasper County CO-OP, Foresman Switch Station (hereinafter referred to as the
"Respondent" or "Site"), is a fertilizer company doing business at 7350 South 900 E
Otterbein, Benton County, Indiana 47970.
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over
the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation on October 28, 1998, via
Certified Mail to:
Mr. Jack Compton
Jasper County CO-OP
Foresman Switch Branch
7350 South 900 E
Otterbein, Indiana 47970
5. On October 14, 1998, designated representatives of the Indiana Department of
Environmental Management (IDEM), Emergency Response Section, began a spill
response investigation at the Site.
6. 327 IAC 5-2-2 states that any discharge of pollutants into the 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.
7. 327 IAC 2-1-6(a)(1) states, in substance, that 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, odor or other conditions in such degree as to create a nuisance;
d. which are in amounts sufficient to be acutely toxic to, or to otherwise severely
injure or kill aquatic life, other animals, plants, or humans.
e. which 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.
8. IC 13-18-4-5 states, in part, that it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or to cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters,
any organic or inorganic matter that shall cause or contribute to a polluted condition of
any waters, according to any rule of the board under sections 1 and 3 of this chapter.
9. IC 13-30-2-1 requires, in substance, that 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 or into any publicly owned treatment works in any form which causes or
would cause pollution which violates rules, standards, or discharge of emission
requirements adopted by the appropriate board pursuant to this article.
10. On October 5, 1998, the Site drained the bottom 3 inches of a 12 foot diameter 30,000
gallon storage tank containing an unknown type agricultural fertilizer into the lined
secondary containment area. On October 6, 1998, it rained approximately 2 inches.
11. On October 7, 1998, the Site pumped the rainwater and Nitrogen fertilizer solution out of
the secondary containment area into a small ditch directly to the west of the facility. On
October 9, 1998, the Site pumped an additional 20,000 gallons of water into the same
ditch causing the fertilizer solution to make its way into a storm tile, which emptied into
the Harrington Ditch. There was a 3.5 mile area of the Harrington Ditch affected by the
unpermitted discharge. As a result of the discharge, over 42,395 fish were killed in the
Harrington Ditch, in violation of 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), IC 13-30-2-1, and
IC 13-18-4-5.
12. In recognition of the settlement reached, Respondent waives any right to administrative
and judicial review of this Agreed 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
II. ORDER
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the
Complainant or his delegate, and has been received by the Respondent. This Agreed
Order shall have no force or effect until the Effective Date.
2. Within thirty (30) days from the Effective Date of this Order, the Respondent shall submit to IDEM for its approval a Compliance Plan (CP) which addresses the violations noted at Respondent's facility. The CP is subject to the approval of IDEM. If the plan is deemed inadequate by IDEM, a revised plan shall be submitted within thirty (30) days of receipt of notice from IDEM of the inadequacies thereof. If after submission of the revised
document(s) IDEM still finds that the document(s) are inadequate, then IDEM may
require further modification of the CP as necessary to meet IDEM's requirements. If
further modification does not meet IDEM's approval, IDEM will suggest appropriate
modification to be undertaken by Respondent within specified time frames. If such
modification is not timely undertaken or an alternative plan timely submitted by the
Respondent is not approved by IDEM, the Respondent will be subject to stipulated
penalties. Respondent shall immediately implement the CP, upon written notification by
IDEM that the CP has been approved.
The CP shall include but not be limited to:
a. delineating the area of contamination and remediation of contaminated soils;
b. submittal of a ground water contamination assessment;
c. collection of all run-off prior to it leaving the property;
d. a plan that addresses improved housekeeping that will the minimize the
possibility of future contamination and releases.
3. Within thirty (30) days from the Effective Date of this Order, the Respondent shall submit
to IDEM for its approval a Standard Operating Procedure (SOP) which addresses spill
prevention and response at Respondent's facility. The SOP is subject to the approval of
IDEM. If the plan is deemed inadequate by IDEM, a revised plan shall be submitted
within thirty (30) days of receipt of notice from IDEM of the inadequacies thereof. If
after submission of the revised document(s) IDEM still finds that the document(s) are
inadequate, then IDEM may require further modification of the SOP as necessary to meet
IDEM's requirements. If further modification does not meet IDEM's approval, IDEM will
suggest appropriate modification to be undertaken by Respondent within specified time
frames. If such modification is not timely undertaken or an alternative plan timely
submitted by the Respondent is not approved by IDEM, the Respondent will be subject to
stipulated penalties. Respondent shall immediately adopt the SOP, upon written
notification by IDEM that the SOP has been approved.
4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall
be sent to:
Steven M. Judith
Senior Environmental Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
5. The Respondent is hereby assessed a Civil Penalty of Twenty Thousand Dollars
($20,000). Within thirty (30) days of the Effective Date of the Agreed Order, the
Respondent shall pay an up front civil penalty of Four Thousand Dollars ($4,000). The
payment shall be submitted to the Environmental Management Special Fund, as directed
by paragraph 11. The remaining Sixteen Thousand Dollars ($16,000) of the Civil Penalty
will be offset by the Respondent's completion of a Supplemental Environmental Project
(SEP).
8. The proposed SEP, which has been approved and is hereby incorporated by reference into
this Agreed Order, shall be an enforceable part thereof. Respondent shall have until
September 1, 1999, to complete the SEP. Copies of all checks and correspondence
relating to payment to the "WASTE TIRE MANAGEMENT FUND" shall also be sent
to the address in paragraph 4. In the event the SEP is not completed by September 1,
1999, Respondent shall receive no offset, and agrees to pay the entire balance of the Civil
Penalty, Sixteen Thousand Dollars ($16,000), which shall become immediately due and
payable, plus interest at the rate established by IC § 24-4.6-1-101, to the Environmental
Management Special Fund. Payment of any remaining Civil Penalty shall be submitted
within fifteen (15) days from receipt of a notice to pay from the IDEM. Interest on the
remaining Civil Penalty shall be paid from the Effective Date of this Agreed Order.
9. In the event the following terms and conditions are violated, the Complainant may assess
and the Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
11. Civil and stipulated penalties are payable by check to the Environmental Management
Special Fund. Checks shall include the Cause Number of this action and shall be mailed
to:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
12. In the event that the civil penalty required by paragraph 5 is not paid within thirty (30)
days of the Effective Date of this Agreed Order, 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.
13. This Agreed Order shall apply to and be binding upon the Respondent. The Respondent's signatories to this Agreed Order certify that they are fully authorized to sign for and legally bind the parties they represent. No change in ownership, corporate, or partnership
status of the Respondent shall in any way alter its status or responsibilities under this
Agreed Order.
14. In the event that any terms of the 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 the
Agreed Order did not contain the invalid terms.
15. The 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.
16. This Agreed Order shall remain in effect until Respondent has complied with all terms
and conditions of this Agreed Order.
17. The Respondent's signatories to this Agreed Order certify that they are fully authorized to
execute this document and legally bind the parties they represent.
TECHNICAL RECOMMENDATION: JASPER COUNTY CO-OP:
Department of Environmental Management
By: _________________________ By: _________________________
Mark Stanifer, Section Chief DONALD L. MISCH
Office of Enforcement General Manager
Date: _______________ Date: _______________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS 5th DAY OF JANUARY, 1999.
For the Commissioner:
___________________________
Felicia Robinson George
Assistant Commissioner of Enforcement
Converted by Andrew Scriven