) SS: OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2002-12354-S
)
ZECK'S FARM & VEAL, INC., )
)
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. Complainant is the Commissioner (AComplainant@) of the Indiana Department
of Environmental Management, a department of the State of
2. Respondent is Zeck's Farm & Veal,
Inc. (ARespondent@), which owns/operates the
confined feeding operation located at 12814 S. C.R. 150 E., in
3. The
4. Pursuant to IC 13-30-3-3, on
Bessie M. Zeck
President and Registered Agent
Zeck's Farm & Veal, Inc.
13233 S. C. R. 100 E.
5. An inspection, on
A. Pursuant to 327 IAC 2-6.1-7, 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, contain the spill, if possible, to prevent additional spilled material from entering the waters of the state; undertake or cause others to undertake activities needed to accomplish a spill response; and 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.
A
reportable spill of animal manure from the Site into Hyman ditch, waters of the
state, occurred on or about
B. Pursuant to 327 IAC 2-1-6(a)(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 that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans, and 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.
The Respondent caused and/or allowed the discharge of animal manure from the Site on or about August 5, 2002, into Hyman ditch, waters of the state, which was in amounts sufficient to be acutely toxic to, or otherwise severely injure or kill aquatic life, other animals, plants or humans, in violation of 327 IAC 2-1-6(a)(1).
C.
Pursuant to 327 IAC
The
Respondent caused and/or allowed the discharge of animal manure, a pollutant,
from the Site on or about
D.
Pursuant to 327 IAC
The Respondent did not manage the confined feeding operation
to avoid an unpermitted discharge into Hyman ditch, waters of the state, as
discharges of animal manure from the Site occurred on or about
E. Pursuant to 327 IAC 16-3-1(c), a confined feeding operation shall immediately take all reasonable steps to prevent spills or the discharge of manure in violation of the approval or 327 IAC 16 et seq., including seepage and leakage.
The
Respondent failed to take all reasonable steps to prevent the spill or
discharge of manure on or about
F. Pursuant to 327 IAC 16-3-1(e), manure to be staged or applied to land in Indiana must be staged or applied in such a manner as to not enter or threaten to enter waters of the state, to prevent run-off, ponding for more than twenty-four (24) hours, and spills, and to minimize nutrient leaching beyond the root zone.
The Respondent applied manure to land in a manner that entered Hyman ditch, waters of the state, and failed to prevent run-off from the Site on or about August 5, 2002, in violation of 327 IAC 16-3-1(e).
G.
Pursuant to 327 IAC
The
agronomic rates for potentially available nitrogen at the Site on or about
H. 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, 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 Indiana Code 13-18-4-1 and Indiana Code 13-18-4-3.
The Respondent, caused and/or allowed the discharge of animal manure, an organic matter, from the Site on or about August 5, 2002, into Hyman ditch, waters of the state, in violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, and thus violated IC 13-18-4-5.
I. Pursuant to IC 13-30-2-1(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 or which would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.
The Respondent caused and/or allowed the discharge of animal manure, a contaminant or waste, into the environment from the Site on or about August 5, 2002, in violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, and thus violated IC 13-30-2-1(1).
6. In recognition of the settlement reached, 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. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Craig Henry,
Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
3. Respondent is assessed a civil penalty of Fourteen Thousand Three hundred Seventy Five ($14,375.00) Dollars. This penalty reflects a significant reduction based upon evidence submitted by the Respondent which adequately demonstrated an inability to pay. Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Twelve Thousand Seven Hundred Sixty Five ($12,765.00) Dollars. The civil penalty shall be paid in the following manner: Four quarterly payments of Three Thousand One Hundred Ninety One Dollars and Twenty Five Cents ($3,191.25) each. The first installment of the civil penalty shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order. Each subsequent installment shall be due in ninety (90) day intervals.
In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (“SEP”) Respondent estimates that this SEP will cost Three Thousand Two Hundred Twenty One ($3,221.00) Dollars. Within thirty (30) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM that substantiates all actions taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less than Three Thousand Two Hundred Twenty One ($3,221.00) Dollars, Respondent shall pay fifty percent (50%) of the difference between the proposed cost of the SEP ($3,221.00) and the actual cost of the SEP.
As a Supplemental Environmental Project, Respondent shall install berms and buffer strips along Hyman ditch (see Attachment A). Respondent shall complete the SEP no later than ninety (90) days from the Effective Date of this Agreed Order. Implementation of this SEP will reduce the amount of contaminants that reach Hyman ditch.
In the event that the Respondent does not complete the SEP within ninety (90) days of the Effective Date of this Agreed Order, the full amount of the civil penalty as stated above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM’s notice to pay. Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.
4. Respondent shall reimburse the Indiana
Department of Natural Resources (IDNR) for the value of the damage to natural
resources, under authority of IC 14-22-10-6.
IDNR has determined this figure to be Two Thousand Eight Hundred Eighty
Two Dollars and Thirteen Cents ($2,882.13).
Payment shall be made to the Natural Resources Damage Fund within thirty
(30) days of the Effective Date of this Order, and sent to the IDNR Division of
Fish and Wildlife, Room W-273, IGCS,
5. Civil penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to:
Cashier
Indiana Department of Environmental Management
6. In the event that the civil penalty required by Order paragraph No. 3 is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.
7. 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.
8. 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.
9. 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.
10. 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 Zeck's Farm & Veal, Inc.
By: _________________________ By: _________________________
Paul Higginbotham, Section Chief
Solid
Waste/UST 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 ____________________, 2004.
For the Commissioner:
Adopted
June 29, 2004
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs
Attachment A
Zeck's Farm & Veal, Inc.
SEP Project
1. SEP PROJECT DESCRIPTION:
Zeck's Farm & Veal, Inc. (Zeck) will build berms up the bank along Hyman ditch in areas that are washed away due to erosion and fill in these areas with rock, concrete and non-erosive materials. This work will be completed prior to the installation of grass buffer strips.
Buffer strips will be placed on both sides of the ditch for approximately one half mile.
All construction shall be accordance with Natural Resource Conservation Service (NRCS) guidelines.
2. DESIGNATE WHICH OF THE FOLLOWING SEP CATEGORIES APPLY TO THE PROPOSED SEP:
Pollution Prevention
3. ENVIRONMENTAL BENEFIT OF SEP:
Completion of the SEP will aid in the reducing the amount of contaminants that reach Hyman ditch.
4. PROJECTED COSTS/SAVINGS OF SEP:
Construction of berms: $2,887.50
Installation of buffer strips: $ 334.07
No cost savings will result from this project.
5. TIME LINE FOR SEP:
This project will be completed within ninety (90) days of the Effective date of this Agreed Order.