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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. SCHURINGA POULTRY FARMS,
INC., 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
FACT
1.
Complainant is the Commissioner (Complainant) of the Indiana
Department of Environmental Management, a department of the State of
2.
Respondent is Schuringa Poultry Farms, Inc. (Respondent), which
owns and/or operates the unregistered confined feeding operation, located at
3.
The Indiana Department of Environmental Management (IDEM)
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to IC 13-30-3-3, on or about October 28, 2004 IDEM
issued a Notice of Violation via Certified Mail to:
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Mark Schuringa, President and Registered Agent |
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Schuringa Poultry Farms, Inc. |
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5.
An inspection, on February 16, 2004, was 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 this inspection:
A.
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 (1)
not to enter or threaten to enter waters of the state; (2) to prevent runoff,
ponding for more than twenty-four (24) hours and spills and (3) to minimize
nutrient leaching beyond the root zone.
The Respondent did not stage or apply the manure in a manner
to prevent runoff or prevent spills, a violation of 327 IAC 16-3-1 (e).
B.
Pursuant to 327 IAC 16-4-1, confined feeding operations must
have a valid approval to operate or close in accordance with 327 IAC 16-11.
The Respondent does not have a valid approval to operate a
confined feeding operation, a violation of 327 IAC 16-4-1.
6.
On or about April 4, 2005, the Respondent submitted to IDEM
a Concentrated Animal Feeding Operation (CAFO) National Pollutant Discharge
Elimination System (NPDES) permit application for the Site. The application is currently under review by
IDEM.
7.
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.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
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Craig
Henry, Enforcement Case Manager |
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Office
of Enforcement - Mail Code: 60-02 |
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Indiana
Department of Environmental Management |
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3.
Respondent is assessed a Civil Penalty of Ten Thousand Two
Hundred ($10,200.00) Dollars. A portion
of said penalty amount, totaling Two Thousand Forty ($2,040.00) Dollars shall
be due and payable to the Environmental Management Special Fund within 30 days
of the Effective Date of this Agreed Order.
In lieu of payment of the remaining portion of the Civil Penalty,
totaling Eight Thousand One Hundred Sixty ($8,160.00) Dollars, the Respondent
shall perform a Supplemental Environmental Project (SEP), as described below.
The Respondent has elected
to perform a pollution control SEP consisting of constructing and utilizing a
litter stack building that goes beyond regulatory requirements for managing
solid manure, the SEP plan is attached hereto and incorporated by reference as
“Attachment A”. An offset ratio of 4:1
will be applied to this SEP, i.e. the Respondent must expend four dollars in
order to offset one dollar of the civil penalty. Therefore, the Respondent must expend a
minimum of Thirty Two Thousand Six Hundred Forty ($32,640.00) Dollars, not to
include reimbursement by the United States Department of Agriculture (USDA) or
other subsidy program, in order to offset the remainder of the civil penalty totaling Eight Thousand One
Hundred Sixty ($8,160.00) Dollars. The
Respondent estimates the total cost of the SEP to be at least Thirty Two Thousand
Seven Hundred ($32,700.00) Dollars.
The Respondent shall begin
the SEP within forty five (45) days of receiving permit approval from IDEM and
complete the project no later than September 1, 2006. In performing the SEP, the Respondent shall
comply with all applicable federal, state, and local laws and regulations, and
shall obtain and comply with any necessary licenses or permits. Within 30 days of completion of the SEP, Respondent
shall submit to IDEM an itemized list, along with supporting documentation, of
costs incurred in performing the SEP. In
the event that the SEP cost is greater than Thirty Two Thousand Six Hundred Forty
($32,640.00) Dollars, the Respondent assumes responsibility for all additional
costs without further offset of the civil penalty. In the event that the SEP cost is less than Thirty
Two Thousand Six Hundred Forty ($32,640.00) Dollars, the Respondent shall pay the
balance of the civil penalty that is not offset by the SEP, calculated
utilizing the 4:1 offset ratio described above, plus interest at the rate
established by IC 24-4.6-1-101. Interest
on the balance of the civil penalty shall be paid from the Effective Date of
this Agreed Order. Payment shall be made
to the Environmental Management Special Fund, within 15 days of receipt of
notice from IDEM that payment is due. In
the event that the Respondent fails to complete the SEP by September 1, 2006,
the Respondent shall pay the entire balance of the civil penalty, totaling Ten
Thousand Two Hundred($10,200.00) Dollars, plus interest at the rate established
by IC 24-4.6-1-101. Interest on the balance
of the civil penalty shall be paid from the Effective Date of this Agreed
Order. Payment shall be made to the Environmental
Management Special Fund, within 15 days of receipt of notice from IDEM that
payment is due.
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 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.
6.
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.
7.
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.
8.
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.
9.
This Agreed Order is not and shall not be interpreted to be
a permit, nor shall it in any way relieve the Respondent of its obligation to
comply with any applicable federal or state law or rule.
10.
The Complainant does not, by its approval of this Agreed
order warrant or aver in any manner that the Respondent’s compliance with any
aspect of this Agreed Order will result in compliance with the provisions of
the Clean Water Act or state law.
11.
This Agreed Order shall remain in effect until Respondent
has complied with all terms and conditions of this Agreed Order.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Schuringa Poultry Farms, Inc. |
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By: |
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Paul E. Higginbotham, Chief |
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Solid Waste/UST Section |
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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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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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, 200 |
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For The Commissioner: |
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Signed on May 8, 2006 |
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Matthew T. Klein |
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Assistant Commissioner of |
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Compliance and Enforcement |
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