7-2-12 fertilizer advisory board minutes page 1 of 10 · 2020-02-11 · minutes from the july 2,...

Minutes from the July 2, 2012 Fertilizer Advisory Board meeting Daniels Turf Center ● Cherry Lane, Purdue University West Lafayette, Indiana 47907

Member in attendance:

Doug Anderson - Retail John Freeland - Retail Sam Fry - Producer Joe Russell - Producer Bob Avenius – Lawn care James Camberato - Purdue School of Agriculture Amy Gregg - Public Conservation Joseph Miller – Livestock industry Lesa Dietrick - Indiana Plant Food and Agricultural Chemicals Association Steve Howell - IDEM Matt Pearson - Fert Admin & Engineering Specialist, OISC Sarah Simpson - Indiana State Dept of Agriculture

Unable to attend Brian Spencer - Manufacturing

Others in attendance: Leo Reed - OISC George Saxton - OISC Mike Hancock – OISC retired Barbra Sha Cox - Citizen Falon French – Hoosier Environmental Council Justin Schneider – Indiana Farm Bureau John Baugh – Purdue Dr. Robert Waltz - OISC Dr. Fred Whitford – Purdue Pesticide Programs

Meeting called to order by Chairman Joe Russell at 9:05am Introductions were made around the room Approval of the minutes from the June 8, 2011 meeting was made by John Freeland and

seconded by Doug Anderson. Motion approved unanimously. Pearson gave synopsis of the fertilizer law changes that took place during the 2012 legislative

secession and that became effective July 1, 2012. o Civil penalty authority for the anhydrous ammonia law o Ability to request subpoena in the anhydrous ammonia and commercial fertilizer law.

Fred Whitford gave an overview of the training and exam opportunities that OISC had for the certification for distributors and users of fertilizer material (355 IAC 8).

o In the summer of 2011 Fred & Jim Camberato offered training at 13 regional sites followed by OISC personnel offering the exam.

o Extension educators also offered many training followed by exam and exam only opportunities.

o Over the course of 15 months there were 30 regional exam opportunities.

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o Leo Reed said that he continues to get Category 14 test takers at the monthly exam only dates at Purdue and have had approximately 500 people take the Category 14 exam at H&R Block Testing Centers.

Fred then gave the group a preview of his train the trainer presentation on “the new fertilizer use rules” for the county extension educators.

o Comments, clarification and discussion followed. o Pearson added that the largest challenge with this rule will be making people aware of

the requirements. Outreach is planned by direct mail, presentations, news articles in several

papers and magazines and assistance from many associations as well as making this a regulatory topic for Private Applicator Recertification Programs (PARPs).

Motion to recommend proposed draft civil penalty amendments o Motion made by Doug Anderson and seconded by Joe Miller for OISC to proceed

with rule promulgation o Discussion of how OISC will view per incident and per day

George Saxton explained that “pre incident” is defined in 355 IAC 9-2-5 and is seen as a separate distinguishable act.

o John Freeland asked if there was a specific format required for records No – as long as the information is there.

o Bob Avenius commented that if a violation was per incident that it could add up quickly The fertilizer law provides latitude in enforcement and most of the penalties

are mitigatable. o Fred Whitford asked how to appeal.

A person may request a hearing. Details are spelled out in 355 IAC 9-3-4. o Motion passed unanimously o OISC will begin to promulgate the amendments to fertilizer civil penalty rule to

include violations of the fertilizer use rule. Pearson gave a summary of the recent civil penalty cases for violations of the containment

rules. o See attached

Other items: o The annual meeting of the Association of American Plant Food Control Officials is

being held in downtown Indianapolis August 6th – August 8th. o Indiana State Department of Agriculture, livestock groups and Indiana Farm Bureau

are working together to develop a plan to met EPA’s nutrient reduction strategies deadline.

o Indiana Department of Environmental Management phased out the general NPDES permit for animal feeding operations. All operations will be transitioned into a different permit.

Joe Russell thanked Mike Hancock for his time in the fertilizer administrator position and time with the advisory board and wished him well in his retirement.

Meeting adjourned 11:49am

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TITLE 355 STATE CHEMIST OF THE STATE OF INDIANA

Draft Rule LSA Document 12-203

DIGEST

Amends 355 IAC 9-3-1 to add violations under 355 IAC 8 to the civil penalty schedule. Effective 30 days after filing with the Publisher. IC 4-22-2.1-5 Statement Concerning Rules Affecting Small Businesses 355 IAC 9-3-1 SECTION 1. 355 IAC 9-3-1 IS AMENDED TO READ AS FOLLOWS: 355 IAC 9-3-1 Schedule Authority: IC 15-16-2-49.5 Affected: IC 15-16-2-46 Sec. 1. The schedule of civil penalties for violations of IC 15-16-2, the Indiana commercial fertilizers law, and the rules adopted under this law are as follows:

(1) Each penalty for each violation, if the violation is of a continuing nature, shall not be imposed for more than one hundred eighty (180) days when assessed on a per day basis. (2) Each penalty for each violation, if the violation is of an identical repetitive nature, shall not be imposed for more than one hundred eighty (180) incidents when assessed on a per incident basis.

Legal Citation General Description of Violation Violation Number Violation Assessment 1 2 3 and subsequent

355 IAC 2-3-1 and 355 IAC 2-3-4

Store a fertilizer in a bulk container made of improper design or materials. $100 $200 $300 Per incident

355 IAC 2-3-1(e) Operate storage containers or appurtenances with an improper design. $100 $200 $300 Per incident

355 IAC 2-3-2 Store a fertilizer in an underground bulk container. $250 $500 $1,000 Per day

355 IAC 2-3-3 Abandon a bulk storage container improperly. $250 $500 $1,000 Per incident 355 IAC 2-3-5(a) Fail to anchor bulk storage containers properly. $100 $250 $500 Per incident 355 IAC 2-3-6 Fail to provide bulk container security. $100 $250 $500 Per incident 355 IAC 2-3-7 Fill bulk container beyond intended capacity. $100 $200 $300 Per incident 355 IAC 2-3-8 Fail to support or contain appurtenances. $50 $50 $50 Per day

355 IAC 2-3-9 Fail to provide a liquid level device or secure liquid level gauge. $50 $100 $150 Per incident

355 IAC 2-3-10 Fail to properly label bulk container. $25 $50 $100 Per incident 355 IAC 2-3-11 Fail to maintain bulk container or appurtenance. $100 $200 $300 Per day

355 IAC 2-4-1(a) Fail to carry out operational area activities within contained area. $250 $500 $1,000 Per incident

355 IAC 2-4-1(b) Operate operational area containment with improper design, construction, or capacity. $100 $200 $300 Per day

355 IAC 2-4-1(d) Operate operational area with a relief outlet, valve, or improper pump. $100 $200 $300 Per day

355 IAC 2-4-1(e) Fail to remove liquids promptly from operational area containment. $100 $200 $300 Per incident

355 IAC 2-4-1(f) Fail to protect storage containers and appurtenances from damage by vehicles. $100 $200 $300 Per incident

355 IAC 2-4-1(i) Fail to maintain operational area containment. $100 $200 $300 Per day

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355 IAC 2-5-1(a) Store a bulk container outside of secondary containment. $250 $500 $1,000 Per day

355 IAC 2-5-1(b) Fail to separate fertilizer secondary containment from other materials. $100 $200 $300 Per day

355 IAC 2-5-1(c) and 355 IAC 2-5-12.5(b)

Fail to maintain required capacity for secondary containment. $100 $200 $300 Per day

355 IAC 2-5-1(f) Operate secondary containment with tile drainage within or under the containment. $100 $200 $300 Per day

355 IAC 2-5-2(a) Operate secondary containment with improperly constructed or sealed walls. $100 $200 $300 Per day

355 IAC 2-5-3, 355 IAC 2-5-4, 355 IAC 2-5-5, 355 IAC 2-5-6, or 355 IAC 2-5-7

Operate secondary containment with improperly constructed or sealed base. $100 $200 $300 Per day

355 IAC 2-5-12 Operate an improperly designed, constructed, or maintained elephant ring. $100 $200 $300 Per day

355 IAC 2-5-12.5(a) Operate secondary containment with a relief outlet, valve, or improper pump. $100 $200 $300 Per day

355 IAC 2-5-13(a) Fail to maintain secondary containment. $100 $200 $300 Per day

355 IAC 2-5-13(b) Fail to maintain secondary containment free of debris and foreign matter. $25 $50 $100 Per day

355 IAC 2-6-1.5(a) Store dry bulk fertilizer in an unsound manner. $250 $500 $1,000 Per day 355 IAC 2-6-1.5(b) Fail to provide a dry fertilizer operations pad. $250 $500 $1,000 Per incident

355 IAC 2-9-1 Fail to notify the state chemist annually of the bulk storage facility location and status. $50 $100 $150 Per year

IC 15-16-2-46

Sell, use, or remove without permission a product placed under a stop sale, use, or removal order.

$250* $500* $1,000* Per incident

355 IAC 7-3-1 and 355 IAC 7-3-2

Use fertilizer material without certification $100 $200 $300 Per day

355 IAC 7-3-1 Engage in business for hire without a business license $250 $500 $1,000 Per day

355 IAC 7-3-3 Distribute fertilizer material without a business license $250 $500 $1,000 Per day

355 IAC 7-3-3 Distribute fertilizer material to an unlicensed user $100 $200 $300 Per incident

355 IAC 7-3-4 Fail to train employees $100 $200 $300 Per incident

355 IAC 7-3-4 Supervise more than 10 employees $100 $100 $100 Per day and Per person

355 IAC 7-3-4 Fail to properly supervise employee $125 $250 $500 Per day IC 15-16-2-43 and 355 IAC 7-4-4

Use fraud in applying for license, permit or registration $250 $500 $1,000 Per incident

355 IAC 8-3-1(1) & (2)

Fail to develop or follow a fertilizer application plan. $100 $250 $500 Per incident

355 IAC 8-3-1(3) Apply fertilizer material directly to surface water. $100 $250 $500 Per incident

355 IAC 8-3-1(4) Apply fertilizer material to saturated ground. $100 $250 $500 Per incident355 IAC 8-3-1(5) Apply fertilizer material from a public road. $100* $250* $500* Per incident

355 IAC 8-3-2 Fail to follow proper unmanipulated organic fertilizer application setback or incorporation requirements

$250 $500 $1000 Per incident

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355 IAC 8-3-3 Improper application of unmanipulated organic fertilizer to highly erodible land. $250 $500 $1000 Per incident

355 IAC 8-3-4 Improper application of unmanipulated organic fertilizer to frozen or snow covered ground.

$250 $500 $1000 Per incident

355 IAC 8-3-5 Fail to properly monitor organic fertilizer application. $100 $250 $500 Per day

355 IAC 8-4-1 Fail to properly stage inorganic fertilizer. $250 $500 $1000 Per incident and per day

355 IAC 8-4-2 Fail to properly stage organic fertilizer. $250 $500 $1000 Per incident and per day

355 IAC 8-5-1 Fail to keep proper distribution records. $25 $50 $75 Per day 355 IAC 8-5-2 Fail to keep proper application records. $25 $50 $75 Per day 355 IAC 8-5-3 Fail to make records available. $100* $250* $500* Per incident355 IAC 8-5-1 & 355 IAC 8-5-2

Make false records $250* $500* $1000* Per incident

*This penalty shall not be subject to the potential for mitigation listed in section 3 of this rule. (State Chemist of the State of Indiana; 355 IAC 9-3-1)

CASE SUMMARY Case #2012/0285

Complainant: Office of Indiana State Chemist 175 S Univeristy Street West Lafayette IN 47907-2063 Owner: Ron Wittmer 375 W 1000 S Kouts IN 46347

1. On November 11, 2011, I, Agent Matt Pearson of the Office of Indiana State Chemist (OISC), performed a routine containment inspection at Mr. Wittmer’s property. A Notice of Inspection was issued to Janet Wittmer.

2. During my inspection, I found two – 6,900 gallon horizontal tanks and one – 20,000 gallon tank used for storing fertilizer. I observed that:

a) There was no operational area containment (mix/load pad); and b) No containment for the bulk fertilizer tanks.

3. I took the following photos depicting the facility:

4. According to the delivery tickets I collected, four separate loads were purchased through Crop Production Services (CPS) and delivered by S&B Trucking LLC; three loads on June 30, 2011 and the fourth load on October 13, 2011. Part of the first load was used to nurse the field side dress application.

5. Mr. Wittmer was issued a letter from OISC dated November 11th, 2011 and another letter dated November 23rd

, 2011, indicating he had to empty the tanks or place them into secondary containment.

Figure #1

Figure #2

7-2-12 Fertilizer Advisory Board minutes Page 3 of 10

6. On January 4th

, 2012, I made a return visit and found that Mr. Wittmer had completed construction of a containment system and transferred the product into tanks located within secondary containment.

Matthew E. Pearson Date: January 23, 2012 Engineering Specialist Disposition: Mr. Wittmer was cited for violation of section 44 of the Indiana Commercial

Fertilizer Law, specifically 355 IAC 2-4-1, for failure to maintain the required load-out/operational area pad for bulk fertilizers.

Mr. Wittmer was cited for one hundred and thirty-three (133) counts (from June 30th, 2011, through November 10th

, 2011) of violation of section 44 of the Indiana Commercial Fertilizer Law, specifically 355 IAC 2-5-1(a), for storing bulk fertilizer outside of secondary containment. A civil penalty in the amount of $33,250.00 (133 counts x $250.00 per count) was assessed.

However, the civil penalty was reduced to $11,637.50. Consideration was given to the fact that Mr. Wittmer cooperated during the investigation; corrective action was taken and there was no previous history of similar nature.

The civil penalty was reduced further to $5,818.75 in consideration of the cost undertaken to build secondary containment. The final civil penalty assessed was $3,500.00 with $2,318.75 held in abeyance provided Mr. Wittmer commits no further violations of the Indiana Commercial Fertilizer Law for one year. George N. Saxton Draft Date: February 17, 2012 Compliance Officer Final Date: March 12, 2012



Complainant: Office of Indiana State Chemist 175 S Univeristy Street West Lafayette IN 47907-2063 Owner: John Overman 2795 State Route 49

Fort Recovery, OH 45846-9504

1. On March 25, 2009, I, Agent Matt Pearson of the Office of Indiana State Chemist (OISC), performed a routine containment inspection at the Overman property located at 5600 E 100 S, Portland, Indiana. During my inspection I observed three - 5,500 gallon fertilizer tanks in a containment area. I also observed that:

a) There was no operational area containment (mix/load pad); and b) There was a relief outlet in the secondary containment area.


3. A letter was sent to Mr. Overman on March 30, 2009, alerting him of the violation and

directing him to promptly seal the drain.

4. A letter was sent to Mr. Overman on April 10, 2009, alerting him of the violation and directing him to promptly seal the drain.

5. Another letter was sent to Mr. Overman on December 2,

2009, again advising him of the violations.

6. A follow up visit was made on August 8, 2010. No corrections were made.

Figure #1

Figure #2



8. On September 8, 2010, I sent Mr. Overman another letter alerting him of the continued violation and directing him to promptly seal the drain, install lockable valves on the storage tanks and construct an operational area:

9. On January 20, 2012, Bob Wakeman, an Agent with the Office of Indiana State Chemist, issued Mr. Overman a Notice of Violation for the following violation of the Indiana Commercial Fertilizer Rules:

• 355IAC 2-3-6(b); failure to have locks on primary storage tanks • 355 IAC 2-5-12.5(a); Secondary containment areas shall not have a relief outlet or

valve.

10. On Monday January 23, 2012, Mr. Overman called and spoke with Mr. Mike Hancock, OISC fertilizer administrator, to discuss the violations and indicated that he would get the drain sealed off that day.

11. On January 25th

, 2012, another letter was sent to Mr. Overman outlining the violations of the Indiana Commercial Fertilizer Law.

12. On Monday January 30, 2012, I spoke with Mr. Overman. At that point he told me that he had not sealed the drain as he had told Mr. Hancock he would. When I told him that his facility has been in violation for quite a while and urged him to quickly take care of the situation, his words to me were that he can be hard headed at times and doesn’t like to be told what to do.

13. On February 7, 2012, I received a fax informing me that Mr. Overman had sealed the drain and that a lockable building would be constructed over the secondary containment area eliminating the needs for locks on the individual tanks.

Matthew E. Pearson Date: January 31, 2012 Engineering Specialist Disposition: Mr. Overman was cited for one hundred-eighty (180) counts of violation of section 44 of the Indiana Commercial Fertilizer Law, specifically 355 IAC 2-3-6(b), for failure to provide bulk container security.

Figure #3

Figure #4


Mr. Overman was cited for one hundred-eighty (180) counts of violation of section 44 of the Indiana Commercial Fertilizer Law, specifically 355 IAC 2-5-12.5(a), for having a relief outlet within the secondary containment. A civil penalty in the amount of $18,000.00 (180 counts x $100.00 per count) was assessed for these violations. However, the civil penalty was reduced to $6,300.00. Only $300.00 of the civil penalty was imposed. The remaining $6,000.00 was held in abeyance provided Mr. Overman commits no further violations of the Indiana Commercial Fertilizer Law. George N. Saxton Draft Date: March 8, 2012 Compliance Officer Final Date: April 4, 2012



Complainant: Office of Indiana State Chemist 175 S Univeristy Street West Lafayette IN 47907-2063

Violator: S & B Kessler, Inc. 56346 Tulip Road New Carlisle, IN 46552

1. On November 10, 2011, I, Agent Matt Pearson of the Office of Indiana State Chemist (OISC)

performed a containment inspection at the property of Ron Wittmer, 375 W 1000 S, Kouts, Indiana. A Notice of Inspection was issued to Janet Wittmer. I observed the following during my on-site inspection:

a) Failure to have any operational area containment b) Failure to have any containment for bulk fertilizer


Photo #1 Photo #2

3. I collected three fertilizer product delivery tickets showing S & B Kessler, Inc. made delivery of three loads of bulk fertilizer on June 30, 2011, to this facility that did not have an operational area (mix/load pad).

Matthew E. Pearson Date: January 23, 2012 Fertilizer Administrator

Disposition: S & B Kessler, Inc. was cited for three counts of violation of section 44 of the Indiana Commercial Fertilizer Law, specifically 355 IAC 2-4-1(a), for transferring bulk fertilizer to storage tanks without doing so over a mix/load pad. A civil penalty in the amount of $750.00 (3 counts x $250.00 per count) was assessed.

However, the civil penalty was reduced to $600.00. Consideration was given to the fact that this was their first offense of similar nature.

George N. Saxton Draft Date: February 21, 2012 Compliance Officer 2nd Draft Date: March 14, 2012

Final Date: April 10, 2012


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