STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
COMMISSIONER OF THE DEPARTMENT )
NOTICE AND ORDER OF THE
VIA CERTIFIED MAIL VIA CERTIFIED MAIL
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. B-2349
)
TERRA INDUSTRIES, INC. )
)
Respondent. )
COMMISSIONER OF THE
DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
_____________________ _____________________
To: Ms. Sheila B. Lang To: Ms. Carolyn S. Hesse
Director, Environmental Affairs Attorney at Law
Terra Industries, Inc. McDermott, Will & Emery
6 Mistflower Place 227 West Monroe Street
The Woodlands, Texas 77381 Chicago, Illinois 60606-5096
This Notice and Order of the Commissioner of the Department of Environmental Management is issued against Terra Industries, Inc., a company doing business at 8061 W. 300 N., located in Warren County, Stewart, Indiana (the "Respondent") for violation of provisions of the Indiana Administrative Code and Indiana Code. This Order is issued pursuant to IC 13-30-3- 4, IC 13-30-3-11 and IC 4-21.5-3-6 and is based on violations found during an investigation
conducted by the Indiana Department of Environmental Management (IDEM), Emergency
Response Section . On August 12, 1998, designated representatives of the IDEM, Emergency
Response Section, began a spill response investigation at the Site. During the investigation, it
was determined that the Respondent was in violation of the following:
FINDING OF VIOLATION
1. 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.
2. 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.
3. 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:
(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 (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), 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 (2) hours of the time the new or updated information becomes known.
(4) Submit to the Department of Environmental Management, Office of Emergency
Response, 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.
(5) Except from modes of transportation other than pipelines, exercise due diligence
and document attempts to notify the following:
(A) for spills to surface waters 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.
4. 327 IAC 2-1-7 states:
(a) All ground waters of the state which are a present or probable future source for
public or industrial water supply shall meet the water quality standards set forth in
subsection (b) and either subsection (c) or (d), or both, depending upon the use
being or expected to be made, at the point at which such waters are withdrawn for
use, except due to natural causes.
(b) This subsection establishes the following conditions for minimum ground water
quality conditions:
(1) All ground waters at all times and at all places 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 produces color, odor, or other conditions in such degree as to
create a nuisance;
(D) which are in amounts sufficient to injure, be acutely toxic to, or
otherwise produce serious adverse physiological responses in
humans, animals, aquatic life, or plants; and
(E) which are in concentrations or combinations that will cause or
contribute to the growth of aquatic plants or algae to such a degree
as to create a nuisance, be unsightly, or otherwise impair the
designated uses.
(2) At all times, all ground waters shall be free of substances in concentrations
which on the basis of available scientific data are believed to be sufficient
to injure, be chronically toxic to, or be carcinogenic, mutagenic, or
teratogenic to humans, animals, aquatic life, or plants.
(c) This subsection establishes ground water quality for public supply. In addition to
subsection (b), the following standards are established to protect the water quality
at the point at which water is withdrawn for treatment for a public supply:
(1) The coliform bacteria group shall not exceed four (4) per one hundred
(100) milliliters (MF count).
(2) Taste and odor producing substances, other than naturally occurring, shall
not interfere with the production of a finished water by conventional
treatment consisting of coagulation, sedimentation, filtration, and
disinfection.
(3) The concentration of either chlorides or sulfates shall not exceed two
hundred fifty (250) milligrams per liter other than due to naturally
occurring sources.
(4) Ground water shall be considered acceptable for public supplies if Radium-226 and Strontium-90 are present in amounts not exceeding three
(3) and ten (10) picocuries per liter, respectively. In the known absence of
Strontium-90 and alpha emitters, the water supply is acceptable when the
gross beta concentrations do not exceed one thousand (1,000) picocuries
per liter.
(5) Chemical constituents in ground waters shall not be present in such levels
as to prevent, after conventional treatment, meeting and drinking water
standards contained in 327 IAC 8-2, due to other than natural causes.
(d) This subsection establishes water quality for industrial water supply. In addition
to subsection (b), the standard to ensure protection of water quality at the point at
which water is withdrawn for use (either with or without treatment) for industrial
cooling and processing is that, other from naturally occurring sources, the
dissolved solids shall not exceed seven hundred fifty (750) milligrams per liter at
any time. A specific conductance of one thousand two hundred (1,200)
micromhos per centimeter (at twenty-five degrees Celsius (25*C)) may be
considered equivalent to a dissolved solids concentration of seven hundred fifty
(750) milligrams per liter.
5 . 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.
6. 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.
7. On or about August 11, 1998, the Respondent began intentionally discharging approximately 14,000 gallons of 28% liquid Nitrogen fertilizer and water solution into their parking and storage area. This area acts as a tertiary containment which consists of a gravel and dirt base surrounded by a compacted dirt berm. There is no liner under the tertiary containment area. As a result of this discharge, the Nitrogen solution migrated to the southeast corner of the facility and emptied into a roadside drainage ditch through a control gate. The gate had been left open providing no protection in the event of an
accidental release of pollutants. The Nitrogen solution entered a drainage tile in the ditch
and subsequently emptied into the Little Jordan Creek, a water of the state.
8. The Site does not have an NPDES Permit to discharge. Information received from the
Assistant Manager of the facility indicated that the secondary containment area had filled
up with approximately 14,000 gallons of rainwater which had accumulated over the
previous week. Liquid fertilizer had leaked into the secondary containment basin located
on Respondent's site. Personnel pumped the Nitrogen solution from the secondary
containment over the containment wall and into the adjacent parking and storage lot.
From there it traveled to the un-named ditch adjacent to the Site which empties into the
Little Jordan Creek, in violation of 327 IAC 5-2-2, IC 13-30-2-1, and IC 13-18-4-5.
9. The liquid Nitrogen solution entered the Little Jordan Creek and caused the death of at
least 4,438 fish. The contaminated discharge from Respondent's site caused the fish kill,
in violation of 327 IAC 2-1-6(a)(1), IC 13-30-2-1, and IC 13-18-4-5.
10. On September 21, 1998, a follow-up inspection was made by IDEM representatives and it
was discovered that the Respondent had another discharge as a result of pumping
approximately 6,000 gallons of water from their groundwater well into the parking and
storage area. Site personnel stated that this was done in an attempt to simulate the
conditions of the August 11, 1998, discharge. The sand bags, rip rap and thick plastic
liner had been removed from the drainage gate allowing the contaminated water to enter
the ditch once again. Samples taken during this inspection by IDEM showed very high
levels of Nitrates in the ditch next to Respondent's site and at the discharge point into the
Little Jordan Creek, in violation of 327 IAC 5-2-2, IC 13-30-2-1, and IC 13-18-4-5.
11. Respondent also failed to make proper timely notification of the above reference spills to
IDEM, in violation of 327 IAC 2-6.1-7.
12. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation on August 26, 1998, and an
Amended Notice of Violation on October 2, 1998, via Certified Mail to:
Mr. William Kness, P.E. Mr. Mark Calafut
Regulatory Affairs Supervisor Legal Counsel
Terra Industries, Inc. Terra Industries, Inc.
1981 Inchcliff Road 600 4th Street
Columbus, Ohio 43221 Sioux City, Iowa 51101
14. The Notice of Violation and Amended Notice of Violation contained an offer to enter into
an Agreed Order containing actions required to correct the violation. The Respondent has
not acted in good faith and has made no attempts to settle this matter. The Respondent
continues to deny all allegations of any responsibility.
15. More than sixty (60) days have elapsed since Respondent was offered the opportunity to
enter into an Agreed Order.
16. The Respondent has not entered into an Agreed Order resolving these violations.
ORDER
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 additional
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 remeditation plan to address any ground water contamination;
c. collection of all run-off prior to it leaving the property;
d. excavation of the ditch and taking confirmatory clean samples;
e. a plan that addresses improved housekeeping that will the minimize the
possibility of future contamination and releases; and
f. a plan for routine and ongoing management, and proper disposal of accumulated
water in the secondary containment basins.
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
additional penalties. Respondent shall immediately adopt the SOP, upon written
notification by IDEM that the SOP has been approved.
4. The Respondent shall pay a civil penalty of One Hundred Twenty-Nine Thousand Six
Hundred Eighty-Six Dollars ($129,686) for its violation of the aforementioned provisions
of the IAC and IC. This penalty shall be remitted to the Department of Environmental
Management within thirty (30) days of the effective date of this Order. Checks shall be
made payable to the Environmental Management Special Fund, with the Cause Number
indicated on the check(s) and mailed to:
Cashier
Indiana Department of Environmental Management
100 North Senate Avenue
P. O. Box 7060
Indianapolis, Indiana 46207-7060.
5. The Respondent shall pay an additional civil penalty of One Thousand Dollars ($1,000)
per day for each day of noncompliance with the provisions of paragraphs 3 and 4, and any
other time limits set forth in this Order.
6. Under the authority of IC 13-25-4-10, Respondent shall reimburse the Hazardous
Substance Response Trust Fund (HSRTF) in the amount of Seven Hundred Twenty-Four
Dollars ($724). This amount shall be paid to the Hazardous Substance Response Trust
Fund. Checks shall include the Cause Number of this action and shall be mailed to the
address in paragraph 4.
7. This Order shall apply to and be binding upon the Respondent, its officers, directors,
principals, agents, successors, subsidiaries, and assigns.
8. The Respondent shall provide a copy of this 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 Order comply with the
terms of this Order.
EFFECTIVE DATE OF ORDER
Requests for review must be submitted to the Office of Environmental Adjudication and
the Commissioner of the Indiana Department of Environmental Management at the following
addresses:
Director Commissioner
Office of Environmental Adjudication Department of Environmental Management
ISTA Building, Suite 618 IGCN, 100 North Senate
150 West Market Street P. O. Box 6015
Indianapolis, IN 46204 Indianapolis, IN 46206-6015
Failure to properly submit a request for review, before the twentieth day following receipt
of this Order of the Commissioner, waives your right to administrative review of this Order
pursuant to IC 4-21.5-3-7 and your right to a judicial review of the Order pursuant to IC 4-21.5-
5-4. The request for review must contain the following information:
A statement of facts demonstrating that:
(a) You are the person to whom this Order is specifically directed;
(b) You are aggrieved or adversely affected by this Order; or
(c) You are entitled to review by law.
The following information should be included in order to expedite review by the Office
of Environmental Adjudication:
Identification of the cause number of this Order, the specific findings of fact and/or orders
to be reviewed, and the legal basis for your challenge to this Order. In addition, your request for
review should include the name, address, and phone number of the entity or individual to whom
this Order is specifically directed. If you have procedural or scheduling questions regarding your
request for review, you may contact the Office of Environmental Adjudication at 317/232-8591.
Dated at Indianapolis, Indiana this 9th day of December, 1998.
__________________________
John M. Hamilton
Commissioner
cc: Jim Filippini, Chief, Compliance Unit 2
U.S. EPA, Region 5, Water Section
Benton County Health Department
http://www.ai.org/idem/
Converted by Andrew Scriven