STATE OF INDIANA            )           BEFORE THE INDIANA DEPARTMENT

)           SS:       OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION        )

COMMISSIONER OF THE DEPARTMENT            )

OF ENVIRONMENTAL MANAGEMENT,              )

)

Complainant,    )

)

v.         )           CASE NO. 2002-11328-W

)

THE ANDERSONS, INC. OF OHIO,            )

)

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.

I. FINDINGS OF FACT

1.         The Complainant is the Commissioner (Complainant) of the Indiana Department of Environmental Management, a department of the State of Indiana created by Indiana Code (IC) 13-13-1-1.

2.         The Respondent is an entity known as The Andersons, Inc. of Ohio (Respondent), having its main business office located at 480 W. Dussel Dr., in Maumee, Ohio. The Respondent (d/b/a Erny’s) owns and operates the Logansport Facility within its Plant Nutrient Division, which is a commercial agricultural chemical distribution facility, located at 2345 S. 400 East, in Logansport, Cass County, Indiana (Site).

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, on November 5, 2003, IDEM issued a Notice of Violation (NOV) via Certified Mail to:

Michael J. Anderson, President

The Andersons, Inc. of Ohio

480 W. Dussel Dr.

P.O. Box 119

Maumee, OH 43537

 

Joseph Needham, Registered Agent

The Andersons, Inc. of Ohio

St. Rt. 25 at St. Rt. 218

P.O. Box 338

Delphi, IN 46923

5.         On-site investigations were conducted on February 8, 2001 and September 4, 2001, by representatives of IDEM. The following violations were in existence or observed at the time of these investigations:

      1. Pursuant to 327 Indiana Administrative Code (IAC) 5-2-2, 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. The Respondent discharged commercial-grade fertilizer solution and wastewater from a deionization process system at its facility into Minnow Creek on February 8, 2001 and September 4, 2001, respectively. The Respondent does not have an NPDES permit for these wastewater discharges. These discharges are in violation of 327 IAC 5-2-2.
      2. Pursuant to 327 IAC 2-6.1-4(15), a "spill" is defined as any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss of petroleum, hazardous and/or otherwise objectionable substance.

Pursuant to 327 IAC 2-6.1-5, a spill that damages the waters of the state so as to cause death or acute illness to humans or animals, a spill of an objectionable substance to surface waters, or a spill for which a spill response has not been done is a reportable spill.

Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall, upon discovery of a spill, do the following:

1.      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 hours of discovery, communicate a spill report to the Department of Environmental Management.

4.      Submit to the Department of Environmental Management 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 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.

Based on an investigation conducted by IDEM on February 8, 2001, the Respondent discharged commercial-grade fertilizer solution from its facility into Minnow Creek.

Based on an investigation by IDEM on September 4, 2001, the Respondent discharged untreated commercial process wastewater with a pH greater than 9 from its deionization process system into Minnow Creek.

These events constituted spills, as defined by 327 IAC 2-6.1-4(15). Further, pursuant to 327 IAC 2-6.1-5, the spills were reportable and therefore subject to the requirements of 327 IAC 2-6.1-7.

The Respondent failed to contain these spills and to prevent the pollutants contained therein from entering the waters of the state; and/or failed to undertake or cause others to undertake activities needed to accomplish a spill response; and/or failed to communicate a spill report to the Department of Environmental Management within 2 hours of discovery; and/or failed to notify the nearest affected downstream water user located within 10 miles of the spill and in the state of Indiana, in violation of 327 IAC 2-6.1-7.

      1. 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 under the environmental management laws.

Pursuant to 327 IAC 2-1-6(a)(1), the following are minimum water quality conditions:

1.      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, visible oil sheen, 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.

The Respondent discharged commercial-grade fertilizer solution on February 8, 2001, and discharged deionization wastewater with a pH greater than 9 on September 4, 2001, into Minnow Creek, in violation of 327 IAC 2-1-6(a)(1) and IC 13-30-2-1.

6.         Staff observed the site and discussed the events that occurred leading up to the September 4, 2001, stream pollution with the Respondent’s on-site representatives. A new deionization treatment system had been installed at the plant prior to the spill. The system deionized the water using an anion/cation filtration process. The waste from the spill migrated off site and entered a small stream behind the property. It turned the stream water a milky white and raised the pH above normal. The waste also put a concrete-like coating on rocks in the streambed that in some instances could not be removed during the incident response.

    1. On February 5, 2002, an IDEM representative spoke with Mr. Hayden, an on-site representative of the Respondent. IDEM staff told Mr. Hayden that IDEM had not received a sample of the basic type of waste. Mr. Hayden stated that he would run the waste process the following day, stopping the dual processes in the middle of the cation/anion wash to get a sample from both processes. He also stated that he would include a letter explaining the waste process.
    2. During the February 5, 2002 conversation, Mr. Hayden stated that the Respondent had completed the installation of the first retention pond including a liner. The Respondent was in the process of constructing the second nutrient stripping pond. Information supporting this was submitted via letter and facsimile to IDEM.
    3. The Respondent and IDEM representatives conducted a settlement conference on December 11, 2003.
    4. In a correspondence dated January 16, 2004, the Respondent submitted a letter, including a copy of the Emergency Action & Spill Control Plan (Compliance Plan) for eliminating the discharges of wastewater from the overflow and bypass points that are present in the wastewater treatment facility. The compliance plan includes, among other items, a description of the plant and a currently implemented spill pollution plan for the wastewater treatment, and implementation of a comprehensive program to identify and correct deficiencies in the wastewater treatment process.
    5. In recognition of the settlement reached, the 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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2.         The Respondent shall comply with all applicable provisions of the Indiana Code (IC) and the Indiana Administrative Code (IAC), including but not limited to 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), 327 IAC 2-6.1-7, and IC 13-30-2-1(1).

    1. The Compliance Plan (CP) referenced in Section I, Paragraph 10 above is hereby incorporated into this Agreed Order. The Respondent shall continue to implement the Emergency Action & Spill Control Plan.
    2. The Respondent shall, within 30 days of the Effective date, submit a Notice of Intent (NOI) letter for the Logansport Facility that contains all the information required pursuant to 327 IAC 15-6.
    3. In the event that the NOI letter submitted pursuant to Order Paragraph 4 above is found by IDEM to be deficient, the Respondent shall, within 15 days of receipt of notification from IDEM of such deficiency(s), revise and resubmit the NOI letter. Should the revised NOI letter be found by IDEM to be deficient, the Respondent shall be subject to the stipulated penalties provided for in Order Paragraph 8 below.
    4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Ms. Stacie Tucker, Environmental Manager

Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, IN 46206-6015

    1. The Respondent is assessed a civil penalty of seven thousand and seventy-five dollars ($7,075). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.
    2. In the event the terms and conditions of the following Order paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Order Paragraph Number

Violation

Penalty Amount

3

Discharge without authorization or spill of pollutant

$2,500 per day of discharge

4

Failure to submit NOI letters within the required timeframe

$500 per week late

5

Failure to revise and resubmit a sufficient NOI letter

$500 per week late
  1. Stipulated penalties shall be due and payable within 30 days after the Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of the Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
  2. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number (2002-11328-W) 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

  1. In the event that the civil penalty required by Order Paragraph 7, is not paid within 30 days of the Effective Date of this Agreed Order, the 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.
  2. This Agreed Order shall apply to and be binding upon the Respondent, its successors, and assigns. 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. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.
  3. 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.
  4. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
  5. This Agreed Order shall remain in effect until the Respondent complies with the terms of Order Paragraph Nos. 3-11 and until IDEM issues a Close-Out letter to the Respondent.

TECHNICAL RECOMMENDATION:      RESPONDENT:

Department of Environmental Management        The Andersons, Inc. of Ohio (d/b/a Erny’s)

By:       ______________________________            By:       ______________________________

            Mark W. Stanifer

Section Chief, Water Section    Printed: _____________________________

Office of Enforcement

Title:            ______________________________

Date: _______________________________ Date:    ______________________________

 

 

 

COUNSEL FOR COMPLAINANT:                        COUNSEL FOR RESPONDENT:

Department of Environmental Management

By:       ______________________________            By:       ______________________________

            Office of Legal Counsel

           

Date:    ______________________________            Date:    ______________________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________ DAY OF __________________________, 2003.

For The Commissioner:

Signed 4/8/04

Felicia A. Robinson

Deputy Commissioner for Legal Affairs 

 

NOTE: To receive a copy of the compliance plan attachment: Emergency Action & Spill Control Plan at The Andersons Plant Nutrient Division, Logansport, Indiana facility, please call Nancy Coker 317/233-6334 or e-mail ncoker@idem.IN.gov