|
STATE OF |
) |
|
BEFORE THE INDIANA DEPARTMENT |
|||
|
|
) |
SS: |
OF ENVIRONMENTAL MANAGEMENT |
|||
|
|
) |
|
|
|||
|
|
|
|
|
|||
|
COMMISSIONER OF THE DEPARTMENT |
) |
|||||
|
OF ENVIRONMENTAL MANAGEMENT, |
) |
|||||
|
|
|
) |
||||
|
|
Complainant, |
) |
||||
|
|
|
) |
||||
|
|
v. |
) |
Case No. 2004-14162-S |
|||
|
|
) |
|||||
|
MATTINGLY PORK FARMS, 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 (“Complainant”) of
the Indiana Department of Environmental Management, a department of the State
of
2.
Respondent is Mattingly Pork Farms, Inc.
(“Respondent”), which owns/operates the Confined Feeding Operation (CFO), CFO
Approval No. 4974, located at R. R. 2,
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
Joseph L. Mattingly,
President and
Registered Agent
Mattingly Pork Farms, Inc.
R. R. 2,
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 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 an unnamed tributary of
Boggs Lake, waters of the state, occurred on or about November 19, 2003 and was
not properly contained and responded to by the Respondent, in violation of 327
IAC 2-6.1-7.
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:
(A)
that will settle to form objectionable deposits;
(B)
that are in amounts sufficient to be unsightly or deleterious;
(C)
that produce color, visible oil sheen, odor, or other
conditions in such degree as to create a nuisance;
(D)
which are in amounts sufficient to be acutely toxic
to, or otherwise severely injure or kill aquatic life, other animals, plants,
or humans; and
(E)
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 animal manure from the
Site on or about November 19, 2003, into an unnamed tributary of Boggs Lake,
waters of the state, that settled to form putrescent or otherwise objectionable
deposits, that was in an amount sufficient to be unsightly or deleterious, that
produced color, visible oil sheen, odor, or other conditions in such degree to create
a nuisance, which was in amounts sufficient to be acutely toxic to, or
otherwise severely injure or kill aquatic life, other animals, plants or humans
and which was in concentrations or combinations that caused or contributed to
the growth of aquatic plants or algae to such a degree as to create a nuisance,
in violation of 327 IAC 2-1-6(a)(1).
C.
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 animal manure, an organic
matter, from the Site on or about November 19, 2003, into an unnamed tributary
of Boggs Lake, waters of the state, in violation of 327 IAC 2-6.1-7, 327 IAC
2-1-6(a)(1) and/or 327 IAC 5-2-2, and thus violated IC 13-18-4-5.
D.
Pursuant to 327 IAC
The Respondent caused and/or allowed the discharge of animal manure, a
pollutant, from the Site on or about
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 animal manure, a
contaminant or waste, into the environment from the Site on or about November
19, 2003, in violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and/or 327 IAC
5-2-2, and thus violated IC 13-30-2-1(1).
F.
Pursuant to 327 IAC
The Respondent did not manage the confined feeding operation to avoid an
unpermitted discharge into an unnamed tributary of Boggs Lake, waters of the
state, resulting in discharges of animal manure from the Site on or about
November 19, 2003, into a tributary of Boggs Lake, waters of the state, without
a valid permit, in violation of 327 IAC 16-3-1(a).
G.
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 animal manure, on or about
H.
Pursuant to 327 IAC 16-9-5(a) the following
information must be added to the operating record in accordance with required
time frames established in 327 IAC 16 and IC 13-18-10, and must be maintained
and updated in the operating record: all valid approvals, amendments, and notifications
relevant to the approvals, the current manure management plan, and the current emergency
spill response plan.
The Respondent, on or about November 19, 2003, did not add to the operating
record in accordance with the required time frames established in 327 IAC 16
and IC 13-18-10 and failed to maintain and update in the operating record the
current emergency spill response plan, in violation of 327 IAC 16-9-5(a).
I.
Pursuant to 327 IAC 16-9-5(b) the operating record
must contain all applicable records from the following: 327 IAC 16-9-1(e) regarding
completed self-monitoring records for three (3) years; 327 IAC 16-10-1,
regarding minimum acreage records; 327 IAC 16-10-2(c), regarding land
application records for five years; 327 IAC 16-10-5(c), regarding marketing and
distribution records for three years; and documentation of any spill response
implemented in accordance with 327 IAC 16-9-4(a)(3) by confined feeding operation
personnel within the past five years.
The operating record of the Respondent on or about
J.
Pursuant to 327 IAC
On or about
K.
Pursuant to 327 IAC
On or about
L.
Pursuant to 327 IAC
On or about
M.
Pursuant to 327 IAC
On or about
N.
Pursuant to 327 IAC 16-9-1(g), all earthen berms for manure storage structures must be stabilized with
vegetation or alternative erosion control measures and be maintained to allow
for visual inspections.
On or about November 19, 2003, the Respondent did not maintain the vegetation
on the berm in a manner that would allow for visual inspections,
in violation of 327 IAC 16-9-1(g).
O.
Pursuant to 327 IAC
On or about
6.
The Respondent has depopulated the site and plans to
close the swine operation.
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 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 comply with 327 IAC 2-6.1-7, 327 IAC
2-1-6, 327 IAC 5-2-2, IC 13-30-2-1(1), IC 13-18-4-5, 327 IAC 16-3-1(a), 327 IAC
16-3-1(c), 327 IAC 16-9-5(a), 327 IAC 16-9-1(a), 327 IAC 16-9-1(b), 327 IAC
16-9-1(d), 327 IAC 16-9-1(f), 327 IAC 16-9-1(g), 327 IAC 16-9-5(b)(1) and 327
IAC 16-9-3 which Respondent was found to be in violation; as cited under “Findings
of Facts”.
3.
The manure storage structure closure, described in
Attachment A, shall be performed in accordance with 327 IAC 16-11 and 327 IAC
16-13.
4.
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
P. O. Box 6015
5.
Respondent is assessed a civil penalty of Eleven
Thousand Six Hundred ($11,600.00) Dollars.
Within thirty (30) days of the Effective Date of the Agreed Order,
Respondent shall pay a portion of this penalty in the amount of Two Thousand
Three Hundred Twenty ($2,320.00) Dollars.
Said penalty amount shall be due and payable to the Environmental
Management Special Fund. In lieu of payment of the remaining civil penalty,
Respondent shall perform and complete a Supplemental Environmental Project
(“SEP”)(see Attachment A). Respondent estimates that this SEP will cost
Sixty One Thousand Two Hundred ($61,200.00) Dollars. Within thirty (30) days of completing this
SEP, Respondent shall submit written notice and documentation to IDEM which
substantiates all actions taken and costs incurred with respect to the
SEP. In the event that the cost of the
SEP is less than Eighteen Thousand Five Hundred Sixty ($18,560.00) Dollars,
Respondent shall pay fifty percent
(50%) of the difference between the proposed minimum cost of the SEP ($18,560.00) and
the actual cost of the SEP.
As a Supplemental Environmental Project, Respondent shall close two (2) wastewater
storage structures and convert a third wastewater storage structure to a fresh
water pond. The SEP project shall be
completed no later than
In the event that the Respondent does not complete the SEP by June 30, 2005,
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.
6.
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
P. O. Box 7060
7.
In the event that the civil penalty required by Order
paragraph No. 5 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.
8.
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.
9.
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.
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 |
|
Mattingly Pork Farms,
Inc. |
|||||
|
|
|
|
|||||
|
By: |
|
|
By: |
|
|||
|
|
Paul Higginbotham |
|
Printed: |
|
|||
|
|
Chief, Solid Waste/UST
Section |
|
Title: |
|
|||
|
|
Office of Enforcement |
|
|
|
|||
|
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 |
|
, 2005. |
|||
|
|
|||||||
|
|
For The Commissioner: |
||||||
|
|
|
||||||
|
|
Signed on |
||||||
|
|
Matthew T. Klein |
||||||
|
|
Assistant Commissioner |
||||||
|
|
for Compliance and
Enforcement |
||||||
Attachment A
SEP Project
1.
SEP Project Description: Three wastewater storage structures will be closed
in accordance with Natural Resource Conservation Service (NRCS) standard 360,
327 IAC 16-11 and 327 IAC 16-13. Two of
the structures will be permanently closed and the third structure will be
converted to a fresh water pond.
2.
SEP Category: Pollution Control
3.
Environmental Benefit of SEP: This project will result in the complete
closure of an approved confined feeding operation. The successful completion of the project will
eliminate the possibility that manure or wastewater from the operation will
impact waters of the state.
4.
Projected Cost of SEP:
|
Cost of pumping and land
applying manure: |
$25,200.00 |
|
Cost to remove solids
from the wastewater storage structures: |
$36,000.00 |
|
Total |
$61,200.00 |
5.
Time Line for SEP:
The closure of the waste storage structures is reliant on the proper
field and weather conditions. The
project will start when conditions are conducive for land application of the manure
from the waste facilities. Completion
date is