STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
vs. ) Cause No. B-2349
)
TERRA INDUSTRIES, INC., )
)
Respondent. )
AGREED ORDER
The Complainant and the 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 alleged herein. Respondent’s entry into this Agreed Order shall not constitute a waiver of any defenses, legal or equitable, which Respondent may have in any future administrative or judicial proceeding.
I. FINDINGS OF FACT
1. Complainant is the Commissioner ("Complainant") of the Indiana Department of
Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Terra Industries, Inc. is a fertilizer company that previously conducted business at 8061 W. 300 N., located in Warren County, Stewart, Indiana ("Site"). The Site was sold by Terra Industries, Inc. to Land O' Lakes, Inc. Land O" Lakes, Inc. ceased operations at the site and sold it to Dennis Stephen, an individual. The term "Respondent" refers to Terra Industries, Inc. ("Terra") during the time Terra owned the site and refers to Land O’ Lakes thereafter.
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.
4. Pursuant to IC 13-30-3-3, on August 26, 1998, IDEM issued a Notice of Violation via
Certified Mail and on October 2, 1998 IDEM issued an Amended Notice of Violation via Certified Mail to:
Mr. William Kness, P.E. Mr. Mark Calafut (sic)
Regulatory Affairs Supervisor Legal Counsel
Terra Industries, Inc. Terra Industries, Inc.
1981 Inchcliff Road 600 4th Street
Columbus, Ohio 43221 Sioux City, Iowa 51101
5. Pursuant to IC 13-30-3-3, on January 26, 2000, IDEM issued a Second Amended Notice of
Violation via Certified Mail to:
Mr. William Kness, P.E. Carolyn S. Hesse
Regulatory Affairs Supervisor Attorney at Law
Terra Industries, Inc. 150 N. Wacker Drive
1981 Inchcliff Road Suite 1500
Columbus, Ohio 43221 Chicago, Illinois 60606
6. On or about August 14, 1998, designated representatives of the IDEM, Emergency Response Section, began an investigation of the report of a fish kill in Little Jordan Creek resulting from a spill that occurred on or about August 11, 1998. The spill investigation focused on Respondent’s Site. The Site does not have an NPDES Permit to discharge. The spill investigation concluded that on August 11, 1998, there was a discharge from the site of approximately 14,000 gallons of a liquid solution comprised of 28% liquid nitrogen fertilizer and water into a roadside drainage ditch, and subsequently Little Jordan Creek. On September 21, 1998, a follow-up inspection was made by IDEM representatives and it was concluded that another discharge had occurred. The follow-up inspection concluded that there was a second spill at the Site resulting from storm water washing over the contaminated parking lot and storage area. Samples taken during the September 21, 1998, inspection by IDEM showed very high levels of ammonia nitrogen in the ditch next to the Site and at the discharge point into the Little Jordan Creek. Personnel at the Site did not notify IDEM of these events. The discharge or spilling of contaminated water, and the failure to report such is in violation of the following:
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 1 and 3 of this chapter.
B. 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.
Pursuant to IC 13-30-2-1, no person may 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 or emission requirements adopted by the appropriate board pursuant under this title.
C. 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:
a. Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.
b. Undertake or cause others to undertake activities needed to accomplish a spill response.
c. As soon as possible but within two 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, 1-317-233-7745 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 hours of the time the new or updated information becomes known.
d. Submit to the Department of Environmental Management, Office of Environmental Response (now known as the Office of Land Quality), 2525 North Shadeland Avenue, P.O. Box 6016, Indianapolis, IN, 46206-6015, a written copy of the spill report if requested in writing by the department.
e. Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:
(1) for spills to surface waters that cause damage, the nearest affected downstream water user located within ten miles of the spill and in the State of Indiana; and
(2) for spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.
II. ORDER
Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
Said penalty amount shall be due and payable to the Environmental Management Special Fund within sixty days of the Effective Date of this Agreed Order.
3. Civil 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
4. In the event that the civil penalty required by Paragraph 2 is not paid within thirty 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.
5. Within ten working days of the effective date of this Agreed Order, Respondent agrees to withdraw its petition for review filed with the Office of Environmental Adjudication.
6. This Agreed Order shall apply to and be binding upon Terra and Land O’ Lakes, their officers, directors, principals, agents, successors, parents, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute 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.
7. 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.
8. 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.
9. This Agreed Order shall remain in effect until the Respondent complies with the requirements of paragraphs 2 through 5, and IDEM issues a close out letter to the Respondent in this case.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Land O’ Lakes
By: By: ___________________________
Mark W. Stanifer, Chief Name and title
Water Enforcement Section
Office of Enforcement Printed:________________________
Date: Date: __________________________
LEGAL RECOMMENDATION: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: By: __________________________
Nancy A. Holloran, Attorney Carolyn S. Hesse
Office of Legal Counsel Barnes & Thornburg
Date: Date: __________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
THIS DAY OF , 2002.
FOR THE COMMISSIONER:
Original signed 5-3-2002
Supercedes prior CO
__________________________________
Felicia A. Robinson, Deputy Commissioner
for Legal Affairs