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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. NEW SCHOONEBEEK DAIRY, L.L.C., Respondent. |
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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. 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, except a proceeding to enforce this order.
I. FINDINGS OF
1. Complainant is the Commissioner (“Complainant”) of the
Indiana Department of Environmental Management, a department of the State of
2. Respondent is New Schoonebeek Dairy, L.L.C. (“Respondent”),
which owns and operates a dairy farm, which constitutes a Confined Animal
Feeding Operation (“CAFO”), located at 1858 East 800 South in LaFontaine, Wabash
County, Indiana (“Site”). Respondent has
coverage, designated as NPDES Permit No.
3. The
4. Pursuant to IC 13-30-3-3, on June 16, 2004, IDEM issued a
Notice of Violation via Certified Mail to:
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H.
J. H. Bekel |
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Registered
Agent |
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New
Schoonebeek Dairy, L.L.C. |
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1858
E. C. R. 800 S. |
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La
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5. Inspections, on October 7 and December 9, 2003, were
conducted at the Site by a representative of IDEM's Office of Land Quality
(OLQ). The following violations were in
existence or observed at the time of these inspections:
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 hours of discovery, communicate a spill report
to the Department of Environmental Management, Office of Environmental
Response.
Reportable spills of silage
leachate from the Site into an unnamed ditch, waters of the state, occurred on
or about October 7 and December 9, 2003, and were not properly
contained and/or responded to and/or reported by the Respondent, in
violation of 327 IAC 2-6.1-7.
B. Pursuant to 327 IAC
2-1-6(a), 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 objectionable deposits; (B) that
are in amounts sufficient to be unsightly or deleterious;
(B)
that produce color, visible oil sheen, odor, or other
conditions in such degree as to create a nuisance;
(C)
which are in amounts sufficient to be acutely toxic to, or
otherwise severely injure or kill aquatic life, other animals, plants, or
humans; and
(D)
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.
The Respondent caused and/or allowed the discharge of
silage leachate from the Site on or about October 7 and
C.
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.
The Respondent caused and/or allowed the discharge of
silage leachate, a pollutant, from the Site on or about October 7 and
D.
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 IC 13-18-4-1 and
IC 13-18-4-3.
The Respondent caused and/or allowed the
discharge of silage leachate, an organic matter, from the Site on or about
October 7 and
E.
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
silage leachate, a contaminant or waste, into the environment from the Site on
or about October 7 and December 9, in violation of 327 IAC 2-6.1-7, 327 IAC
2-1-6(a) (1), 327 IAC 16-3-1(a), 327 IAC 16-4-2(1)and/or 327 IAC 5-2-2, and
thus violated IC 13-30-2-1(1).
F.
Pursuant to 327 IAC 16-3-1(a), a confined feeding operation
shall be managed to avoid an unpermitted discharge into waters of the state.
The Respondent did not manage the confined feeding
operation to avoid an unpermitted discharge into waters of the state, resulting
in discharges of silage leachate from the Site on or about October 7, and
G.
Pursuant to 327 IAC 16-4-2(1), the owner/operator must
comply with all terms and conditions of the approval and this article.
The Respondent placed
haylage and silage on the storage pad, on or about July 9, 2003, prior to
installation of the leachate management system, in violation of 327 IAC 16-4-2(1) and approval condition # 25
of CFO approval # AW 5259.
6.
On October 15, 2003, IDEM issued the Respondent a general
National Pollutant Discharge Elimination System (NPDES) permit.
7.
An inspection on
8.
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 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 the applicable portions of 327
IAC 2-6.1-7, 327 IAC 2-1-6, 327 IAC 5-2-2, IC 13-30-2-1, IC 13-18-4-5 and 327
IAC 15-15-4(b).
3.
Respondent is assessed a civil penalty of Twenty One
Thousand ($21,000.00) Dollars. The civil
penalty shall be paid in the following manner:
a. Respondent shall make four (4) equal quarterly payments of
Five Thousand Two Hundred Fifty ($5,250.00) Dollars each to the Environmental
Management Special Fund on or before
b. If IDEM determines at any time during the effective period
of this Agreed Order that the Respondent has failed to comply with any
conditions of this Agreed Order, subject to any extension granted by IDEM, the
Respondent agrees to pay the entire unpaid balance of the twenty-one thousand
dollar ($21,000.00) civil penalty to the Environmental Management Special Fund
within thirty (30) days of receipt of the notice to pay by IDEM.
4.
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:
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Indiana Department of Environmental Management |
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Cashier’s Office Mail
Code 50-10C |
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5.
In the event that each installment payment of the civil
penalty required by Order paragraph No. 3 is not paid on or before the due
date, 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
payment is paid in full.
6.
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.
7.
This Agreed Order is not and shall not be interpreted to be
a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or
approval of any submittal made by Respondent pursuant to this Agreed Order,
shall not in any way relieve Respondent of its obligation to comply with the
requirements of its applicable permit or any applicable Federal or State law or
regulation.
8.
Complainant does not, by its approval of this Agreed Order,
warrant or aver in any manner that Respondent’s compliance with any aspect of
this Agreed Order will result in compliance with the provisions of any permit,
order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its
behalf shall not be held liable for any costs or penalties Respondent may incur
as a result of Respondent’s efforts to comply with this Agreed Order.
9.
Nothing in this Agreed Order shall prevent IDEM or anyone
acting on its behalf from communicating with the EPA or any other agency or
entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not
be held liable for any costs or penalties Respondent may incur as a result of
such communications with the EPA or any other agency or entity.
10.
This Agreed Order shall remain in effect until Respondent
complies with Order Paragraph Nos. 3 through 5 of this Agreed Order.
REMAINDER OF PAGE LEFT
BLANK INTENTIONALLY
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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New Schoonebeek Dairy, L.L.C. |
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By: |
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Janet Arnold |
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Chief, Solid Waste/ |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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Office of Legal Counsel |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY
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, 2007. |
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For The Commissioner: |
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Signed on January 12, 2007 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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