Iowa AG asked to pursue penalties against co-op that caused massive fertilizer spill

This story was originally published by the Cedar Rapids Gazette.

Piles of rotting shiners, a dying snake draped over a log and a belly-up frog floating in the East Nishnabotna River.

These were the photos the Iowa Environmental Protection Commission saw before voting unanimously Wednesday to ask the Iowa Attorney General’s Office to enforce penalties against the NEW Cooperative, which in March caused a catastrophic fertilizer spill on the Western Iowa river.

“A 50-mile stretch of the river became uninhabitable for aquatic life,” said Bradley Adams, an attorney for the Iowa Department of Natural Resources. “The fish literally choked to death in the water.”

An accidental release of 265,000 gallons of nitrogen-based fertilizer from the facility in Red Oak killed 750,000 fish in the East Nishnabotna. The case is an “extreme outlier” among fertilizer spills and one that calls for a larger penalty than the maximum $10,000 that can be enforced by the Iowa DNR, Adams said.

“The state must ensure full financial recovery to mitigate the harm to the East Nish,” he said.

The Attorney Genera’s Office can pursue penalties of up to $5,000 per day, per violation.

NEW Co., a member-owned cooperative based in Fort Dodge with 80 locations in Iowa and Missouri, did not contest the referral, but told the commission Wednesday what led to the spill and what the company has done to clean it up.

Brittany Barrientos, a Kansas City attorney representing NEW Co., said the 32 percent nitrogen mix fertilizer had become crystallized in a tank over the winter. Staff were working to unclog lines from the tank in March. When they left on a Friday — March 8 — they inadvertently left open a valve to the tank.

“When they left the site, it wasn’t flowing,” Barrientos said of the fertilizer. “Over the weekend, temperatures increased to 80 degrees and the line unclogged.”

NEW Co. employees discovered the release March 11 and alerted the Iowa DNR. The company has installed three dams and excavated soil to contain the fertilizer-polluted water, General Manager Dan Dix said at the meeting. He said remediation is mostly complete.

“Our company has always operated under the philosophy we try to do the right thing,” he said, adding that this is the first time in NEW Co.’s 50-year history it has “been involved in this type of issue.”

NEW Co. had owned the Red Oak site for just six months before the spill, Dix said.

The Iowa DNR has pursued two other enforcement actions against NEW Co. in recent years. Last June, it fined NEW Co.’s Duncombe facility $6,000 to resolve air quality violations. On Nov. 10, 2020, the company was ordered to pay $10,000 for illegal disposal and burning of solid waste at its site in Bode.

It’s unusual for the Iowa DNR to refer a case to the attorney general. The department has enforced violations in several hundred cases since 2020, but has referred only eight cases to the Attorney General’s Office since Jan. 1, 2020.

Last month, 63 Iowans from 18 counties signed a letter to the Iowa DNR asking for a formal investigation of the “unprecedented” fertilizer spill and for regulators to refer the case to the Attorney General’s Office.

“The devastation of life in over 50 miles of the river, including the death of 750,000 fish as reported by your dedicated staff, is difficult to even comprehend,” wrote Neil Hamilton, a Drake University emeritus professor of agricultural law, in the April 29 letter.

In addition to seeking higher penalties for offenders, the letter asks the Iowa DNR to work with the Iowa Department of Agriculture and Land Stewardship to review rules about agricultural chemical storage to see if they are adequate to protect waterways.