STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

) CAUSE NO. 2001-10479-S

v. )

)

DRIGGS FARMS OF INDIANA, INC., )

)

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. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondent’s entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding.

1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is Driggs Farms of Indiana, Inc. (hereinafter referred to as "Respondent"), who is a company doing business located at 400 South Chamber Drive, Decatur, Adams County, Indiana (hereinafter referred to as "the 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, IDEM issued a Notice of Violation via Certified Mail on June 13, 2001, to:

Howard Driggs, Jr., President, Registered Agent

Driggs Farms of Indiana, Inc.

P.O. Box 533

400 South Chamber Drive

Decatur, IN 46733

5. A designated representative from IDEM investigated a spill on May 2, 2001.
6. Based upon the above noted investigation, the following violations were observed:

A. Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste into the environment or any publicly owned treatment works in any form that causes or would cause pollution. Ice cream rinse water was discharged into the Kohne Ditch leading to the St. Mary’s River.

B. 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 this state, or to cause, permit, or suffer to be thrown, run, drained, allow 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. Ice cream rinse water was discharged into the Kohne Ditch leading to the St. Mary’s River.

C. Pursuant to 327 IAC 2-1-6(a)(1), all 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. Ice cream rinse water was discharged into the Kohne Ditch leading to the St. Mary’s River.

D. Pursuant to 327 IAC 5-2-2, 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. Ice cream rinse water was discharged into the Kohne Ditch leading to the St. Mary’s River, and the Respondent did not have a valid NPDES permit.

7. 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 her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. Respondent shall maintain a Spill Response Plan and keep it at a readily accessible location in plain sight.

5. Respondent is assessed a civil penalty of Eight Thousand Seven Hundred Thirty-Seven and 50/100 Dollars ($8,737.50). 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.
6. The civil penalty is payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:

10. 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.
11. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management Driggs Farms of Indiana

By: By:

Paul Higginbotham, Chief

Solid Waste – UST Section Printed:

Office of Enforcement

Title:

Date: Dated:

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: By:

Michael S. Byron Daniel J. Deeb

Office of Legal Counsel Beckman Lawson, LLP

Department of Environmental Management

Date: Date:

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ________ DAY OF __________________, 2001.

For the Commissioner:

Signed on December 12, 2001

Felicia A. Robinson

Deputy Commissioner

For Legal Affairs