VIA CERTIFIED MAIL: ____________________

IC 13-30-2-1 (1) states that a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contamination or waste, including any noxious odor, either alone or in combination with contaminants from other source into:
    
    (A) the environment; or

    (B) any publicly owned treatment works;
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.

IC 13-18-4-5 states that a person may not:

    (1) throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or

    (2) 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.

327 IAC 5-2-2 states that 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.

327 IAC 2-6.1-5 (1) states that, the following spills from a facility must be reported:
    Spills that damage the waters of the state so as to cause death or acute injury or illness to humans or animals.
    
327 IAC 2-6.1-7 states that 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:

    (l) Contain the spill, if possible, to prevent additional spilled 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 report 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.

    (4) Submit to the Department of Environmental Management, Office of Environmental Response, 2525 North Shadeland Avenue, P.O. Box 6015, Indianapolis, IN, 46206-6015, a written copy of the spill report if requested in writing by the department.

    (5) Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

        (A) For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and

        (B) For spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

327 IAC 2-6.1-4 (11) defines "objectionable substances" as substances that are:

    (A) Of a quantity, and a type; and

    (B) Present for a duration and in a location;
so as to damage waters of the state. This definition excludes hazardous substances, extremely hazardous substances, petroleum, and mixtures thereof.

327 IAC 2-6.1-4 (15) defines "spill" as any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss of petroleum, hazardous substances, extremely hazardous substances, or objectionable substances. The term does not include releases to impermeable surfaces when the substance does not migrate off the surface or penetrate the surface and enter the soil.
    
Top-Ag Co-op's violations of the above code provisions are based on the following information from IDEM's Initial Incident Report (Incident No. 9706216) and the Indiana Department of Natural Resources (IDNR) Report of Water Pollution (Case No. F9780 034036):

    On July 31, 1997, IDNR began investigating a fish kill in Cicero Creek. The investigation determined that the effluent from a drainage tile outfall near the creek tested positive for ammonia (174 ppm).

    On August 6, 1997, IDEM and IDNR representatives met with representatives from Top-Ag Co-op. At this meeting, Top-Ag Co-op informed IDEM and IDNR of a problem that had occurred at the Top-Ag Co-op on July 28, 1997. On that date, Top-Ag Co-op employees discovered a leak in the Top-Ag Co-op manifold mixing system. The leak contaminated a 12,000 gallon tank of rinse water with 28% nitrogen fertilizer. Top-Ag Co-op employees were unaware that the rinse tank water was contaminated and subsequently used the contaminated water to rinse out a secondary containment system. They then pumped the water to a catch basin that drains to Buck Creek. Buck Creek is a tributary to Cicero Creek. The contaminated water introduced into Buck Creek resulted in fish kills in both Buck Creek and Cicero Creek.

    Once aware of the above described problem, Top-Ag Co-op began capturing the effluent from the drainage tile and diverting it to a mobile tank, the contents of which will later be used for field application. Top-Ag Co-op representatives verbally agreed to evaluate the manifold mixing system and operation and make any changes necessary to prevent a similar incident in the future.

Top-Ag Co-op has violated IC 13-30-2-1, IC 13-18-4-5, 327 IAC 5-2-2 in that it has caused the unpermitted discharge of a contaminant (28% nitrogen fertilizer) into a drainage tile and Buck and Cicero Creeks, causing pollution.
    
Top-Ag Co-op has also violated 327 IAC 2-6.1, in that it did not, within two hours, report the spill to IDEM, did not timely contain and clean up the spill, and did not timely notify the nearest downstream water user.

In accordance with IC 13-30-3-3, the Commissioner is required to notify Top-Ag Co-op in writing that the Commissioner believes a violation exists, and offer Top-Ag Co-op an opportunity to enter into an Agreed Order providing for the actions required to correct the violations and for the payment of a civil penalty. The Commissioner is not required to extend this offer for more than sixty (60) days.

The timely entry into an Agreed Order will prevent the necessity of an Order of the Commissioner being issued under IC 13-30-3-4, or the filing of a civil court action under IC 13-14-10 or IC 13- 14-2-6. Advantages of entering into an Agreed Order are:
    (1)    Top-Ag Co-op is not required to admit the violations occurred.
    (2)    The civil penalty may be less than that imposed by a Commissioner's Order issued         under IC 13-30-4-1.

Please contact Martha E. Clark at 317/232-8434 within fifteen (15) days after receipt of this Notice regarding Top-Ag Co-op's intent to settle this matter.
    
                            For the Commissioner

Dated: ____________________             signed 2/3/98
                            David Hensel
                            Director
                            Office of Enforcement

cc:    U.S. EPA, Region 5, Office of Water
    Tipton County Health Department

Converted by Andrew Scriven