STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT OF
COMMISSIONER OF THE DEPARTMENT )
) SS: ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. B-2408
)
)
WILDER CORPORATION OF DELAWARE, )
)
Respondent. )
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.
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of
the Indiana Department of Environmental Management ("IDEM"), a department
of the State of Indiana created by IC 13-13-1-1.
2. Respondent is Wilder Corporation of Delaware, (hereinafter referred to as
"Respondent"), who owns a farm and swine confined feeding operation (the
"Site") located south of Linton on County Road 400 South in Section 9, T6N,
R7W, Greene County, Indiana. The Site is leased to Kokomo Grain/GIS. Wilder
Corporation of Delaware is responsible for proper removal and disposal of the
manure from the confined feeding operation which consists of 3,150 nursery pigs
and 7,480 finishing hogs. The operation received terms and conditions of
approval No. 2714, issued by IDEM on June 2, 1993.
3. The IDEM has jurisdiction over the parties and subject matter of this action.
On October 10, 1995, Respondent entered into an Agreed Order with the IDEM in
Cause No. B-1719 in which Respondent was to manage its system of emptying its
swine waste storage pit to prevent the discharge of swine waste to waters of the
State.
5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail
on December 22, 1998, to:
Mr. Maurice F. Wilder, President and Resident Agent
Wilder Corporation of Delaware
R.R. 2, Box 610
Linton, Indiana 47441
6. Designated representatives of the IDEM and the Indiana Department of Natural
Resources (IDNR) conducted investigations of Respondent's swine confined
feeding operation on November 5, 1998, and November 16, 1998. Based on the
investigations and a record review, Respondent has been found in violation of the
following provisions of the Indiana Code (IC) and the Indiana Administrative
Code (IAC).
IC 13-18-4-5 states, in part, that it is unlawful for a 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 causes or
contributes to a polluted condition of any waters, as determined by a rule of the
board adopted under section 1 and 3 of this chapter.
8. 327 IAC 2-6.1-4 contains definitions as follows:
(15) "Spill" means any unexpected, unintended, abnormal, or unapproved
dumping, leakage, drainage, seepage, discharge or other loss of petroleum,
hazardous substances, extremely hazardous substances, or objectionable
substances.
(16) "Spill response"for purposes of this rule means the following:
(A) the spill is contained; and
(B) free material is removed
(17) "Spill report" means an oral report that includes .... the location and time
of the spill; the identification of the substance spilled, the quantity of
substance that has been or may further be spilled, the identification of the
person making the spill report, and what measures have been or will be
undertaken to perform a spill response and any other information that may
be significant to the response action.
327 IAC 2-6.1-7, requires, in part, 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 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).
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.
11. IC 13-30-2-1 states, in part, that a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant ...., either alone or in combination with contaminants from other sources, into the environment .... 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.
12. 327 IAC 5-2-2 states, in part, 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.
13. On November 4, 1998, a complaint was received through the State Emergency
Management Agency by the IDEM, Office of Environmental Response. On
November 5, 1998, field staff of the IDEM, Office of Solid and Hazardous Waste
Management and the Indiana Department of Natural Resources conducted an
investigation of the discharge of animal waste from Respondent's confined
feeding operation. During the investigation, brown colored swine manure from
Respondent's hog facility was observed discharging into Brewer Ditch. Field
tests indicated a concentration of at least 8 ppm Ammonia Nitrogen in Brewer
Ditch at the discharge point. Manure was pooled outside of the hog facility on the
south side in a swale and straw had been put over some of the manure. The
liquid manure was draining through a culvert under Respondent's access road and
into the County Road 400 S. roadside ditch and thence into Brewer Ditch
approximately 300 feet to the east. It was not until the mid-afternoon of
November 5, 1998, that Respondent ceased the manure discharge into Brewer
Ditch by constructing temporary earthen dams ahead of the access road culvert
and ahead of Brewer Ditch. IDEM contends that Respondent's failure to report
the release, failure to immediately contain it, and failure to immediately clean it
up constitutes violations of 327 IAC 2-6.1-7. IDEM contends that Respondent's
discharge of manure into Brewer Ditch constitutes violation of 327 IAC 2-1-
6(a)(1), IC 13-18-4-5, IC-13-30-2-1 and 327 IAC 5-2-2.
The investigation also noted manure and dead fish in the drainage basin located
between Brewer Ditch and Respondent's hog barns on the north side of County
Road 400 S. IDEM requested that the basin be cleaned as part of Respondent's
comprehensive spill response to prevent manure discharge to Brewer Ditch.
When the drainage basin fills with field drainage rainwater it potentially will
discharge to Brewer Ditch.
A follow up inspection at the site by IDEM was conducted on November 16,
1998, at 1:00 p.m. The manure clean-up was not completed. Manure-
contaminated water remained in the drainage basin east of Respondent's hog
barns. The C.R. 400 S. roadside ditch, which had earlier been pumped by
Respondent, now contained manure-contaminated water and Respondent's
earthen dams, which had been constructed to stop the manure discharge on
November 5, 1998, were leaking manure-contaminated water into the County
Road 400 S. roadside ditch and into Brewer Ditch. Field testing for Ammonia
Nitrogen at the discharge point into Brewer Ditch revealed more than 8 ppm
Ammonia Nitrogen. IDEM contends that Respondent's discharge of manure into
Brewer Ditch constitutes violation of 327 IAC 2-6.1, 327 IAC 2-1-6(a)(1), IC 13-
18-4-5, IC 13-30-2-1, and 327 IAC 5-2-2.
Subsequent to the issuance of the December 22, 1998, Notice of Violation, IDEM
made a follow-up inspection on December 30, 1998, and observed a dark, brown-
to- black colored discharge into Brewer Ditch from the manure- contaminated
drainage basin described in Paragraph 14 above. The IDEM field test for
Ammonia Nitrogen in the discharge at Brewer Ditch measured greater than 8
ppm. Respondent had its excavating contractor temporarily seal the discharge
from the drainage basin later that day. Respondent must timely arrange for
removal of manure contaminants in the drainage basin to prevent potential
discharge of pollutants to Brewer Ditch.
On January 21, 1999, February 2, 1999, and February 15, 1999, IDEM inquired
and learned from Respondent that clean-up of manure contamination of the
drainage basin was yet to be completed. IDEM met with Respondent on-site on
February 18, 1999. Respondent now plans to clean the pond as soon as possible.
18. Pursuant to IC 13-30-3-3(c), entry into the terms of this Agreed Order does not
constitute an admission of any violation contained herein.
19. In recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the
Complainant or his delegate, and has been received by the Respondent. This
Agreed Order shall have no force or effect until the Effective Date.
2. Respondent shall comply with all applicable sections of the Indiana Code and the
Indiana Administrative Code referenced in the above Findings.
3. Respondent shall not discharge swine waste into the waters of the state, including
the County Road 400 S. roadside ditch and Brewer Ditch.
Respondent shall maintain adequate freeboard in its hog building waste pits to
prevent overflow, maintain records for inspection review of the weekly recording
of the manure level of its concrete waste pits, not store manure and manure-
contaminated water in the drainage basin east of its hog barn and implement land
application procedures to assure no swine waste release to waters of the state.
5. Within ten (10) days of the Effective Date of this Agreed Order, Respondent shall
complete the implementation of training of its personnel in spill response, inform
the IDEM Office of Enforcement of completion of the spill response training,
submit to the IDEM its manure management plan as required by IC 13-18-10-2.3,
and provide the Office of Enforcement a copy. Respondent shall make a timely
response to IDEM written comments on the manure management plan within the
time frame requested.
Respondent is assessed a Civil Penalty of Fifteen Thousand Dollars ($15,000).
Said penalty amount shall be due and payable to the Environmental Management
Special Fund within thirty (30) days of the Effective Date of this Agreed Order.
7. In the event the following terms and conditions are violated, the Complainant may
assess and the Respondent shall pay a stipulated penalty in the following amounts:
VIOLATION PENALTY
Paragraph #5 $500 per day delay in submitting the manure
management plan, or responding to comments
within the time frame requested, or reporting to
IDEM the completion of spill response training.
8. Stipulated penalties shall be due and payable within thirty (30) days after
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 assessment of the
stipulated penalty given above, the Complainant may seek any other remedies or
sanctions available by virtue of Respondent's violation of this Agreed Order, or
Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
9. Civil and stipulated penalties are payable by check to the Environmental
Management Special Fund. Checks shall include the Cause Number (B-2408) of
this action and shall be mailed to:
IDEM Cashier
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060.
10. In the event that the civil penalty amount required by paragraph 6 is not paid when
due, Respondent shall pay interest on the unpaid, overdue 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.
This Agreed Order shall apply to and be binding upon the Respondent, its officers,
directors, principals, agents, successors, subsidiaries, and assigns. 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.
12. In the event that any terms of this 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.
13. 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.
14. This Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of this Agreed Order and Complainant has issued a close-out
letter to Respondent.
TECHNICAL RECOMMENDATION RESPONDENT
Wilder Corporation of Delaware
By: _________________________ By: _________________________
Mark W. Stanifer, Chief Maurice Wilder, President
Water Enforcement Section
Office of Enforcement Date: _______________
Department of Environmental
Management
Date: _______________
COUNSEL FOR COMPLAINANT COUNSEL FOR RESPONDENT
By: _________________________ By: _________________________
Nancy Holloran
Office of Legal Counsel
Department of Environmental
Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS _______ DAY OF _______________________, 1999.
For the Commissioner:
__signed 3/24/99_____________
Felicia Robinson George
Assistant Commissioner of Enforcement
Converted by Andrew Scriven