STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

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Complainant,

 

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v.

 

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Case No. 2011-19946-S

 

 

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Jeff Verhaeghe,

 

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Respondent.

 

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AGREED ORDER

 

Complainant and 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 (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.            Respondent is Jeff Verhaeghe (“Respondent”), who owns/operates a Confined Feeding Operation (“CFO”), with Farm ID # 4375, located at 8428 East 17th Road, in Argos, Marshall County, Indiana (“Site”).

 

3.            IDEM has jurisdiction over the parties and the subject matter of this action.

 

4.            Pursuant to IC 13-30-3-3, on May 20, 2011, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

 

Mr. Jeff Verhaeghe, Owner

CFO, Farm ID# 4375

8428 East 17th Road

Argos, Indiana 46501

 

5.            During an investigation including an inspection on February 8, 2011, conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to 327 Indiana Administrative Code (“IAC”) 16-4-2(1), the owner/operator must comply with all terms and conditions of the approval and this article (Confined Feeding Operations).  Respondent constructed a building and a waste management system that was not approved in the CFO Approval issued on February 23, 1995 or the CFO Approval renewal issued on August 4, 2005.

 

b.         Pursuant to 327 IAC 16-7-1(b), a person shall not begin construction of a confinement building or waste management system at a new or an existing confined feeding operation without obtaining the prior written approval of the commissioner.  Respondent constructed a building and a waste management system that was not approved in the CFO Approval issued on February 23, 1995 or the CFO Approval renewal issued on August 4, 2005.

 

c.         Pursuant to 327 IAC 16-9-1(f), uncovered liquid manure storage structures must have clearly identified markers to indicate manure levels relative to the approved freeboard elevation.  Respondent did not install a manure marker in the approved waste management system.

 

6.         Respondent submitted a Confined Feeding Operation Approval Application on July 15, 2011.

 

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 Complainant or Complainant’s delegate, and has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.            Respondent shall comply with rules in the findings here and/or above at issue.

 

3.         Respondent shall respond to Notice of Deficiencies (“NOD”) issued by Solid Waste Permitting within the stated timeframes in the NOD.  If such timeframes are not met, IDEM may assess stipulated penalties as described in Order Paragraph 10.

 

4.         Within thirty (30) days of the Effective Date, Respondent shall install a manure marker as required by 327 IAC 16-9-1(f).

 

5.         All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Linda L. McClure, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

6.         Respondent is assessed a civil penalty of Seven Thousand Dollars ($7,000).  Respondent shall pay a portion of this penalty in the amount of One Thousand Four Hundred Dollars ($1,400) due and payable to the Environmental Management Special Fund in monthly installments as follows: one (1) payment of One Hundred and Twenty-Four Dollars ($124) due within thirty (30) days of the Effective Date and eleven (11) payments of One Hundred Sixteen Dollars ($116) due by the 30th of each consecutive month.  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 Five Thousand Six Hundred Dollars ($5,600).

 

7.         Within fifteen (15) 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.

 

8.         As a Supplemental Environmental Project, A grass waterway in the south portion of the crop field north of the livestock facilities will be constructed to reduce sediment, nutrients, pesticides and other potential contaminants in storm water runoff from leaving the field and to improve surface water quality.  This field receives applications of livestock manure at agronomic rates almost yearly.  This field may also be used in the future for manure application via a traveling gun irrigation system from the manure pond.  The location of the proposed waterway serves as a surface drainage area for the crop field north of the dairy facilities and several fields east and southeast of the facilities.  A conservative estimate of area to be served by the proposed waterway is 150-175 acres.  The proposed grass waterway is estimated to total approximately 1 acre.  The width of the proposed waterway will be a minimum of 25 feet.  The grass waterway will slow the velocity of surface storm water drainage, allowing the settling out of suspended soil particles, infiltration of runoff and uptake of nutrients by vegetation.

 

9.         In the event that Respondent do not complete the SEP by December 30, 2013, the full amount of the civil penalty as stated in paragraph 6 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.

 

10.       In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

 

Paragraph

Action

Penalty

3

Failure to respond to NODs as required

$200 per week

4

Failure to install the manure marker

$250 per week

 

11.       Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for violation of this Agreed Order.  In lieu of any of the stipulated penalties set out above, Complainant may seek any other remedies or sanctions available by virtue of Respondent’s violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

 

12.         Civil and stipulated 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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

13.         This Agreed Order shall apply to and be binding upon Respondent and his successors and assigns.  Respondent’s signatories to this Agreed Order certify that he is fully authorized to execute this Agreed Order and legally bind the party he represents.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter his status or responsibilities under this Agreed Order.

 

14.         In the event that any terms of this 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 this Agreed Order did not contain the invalid terms.

 

15.         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.

 

16.         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 his obligation to comply with the requirements of the applicable permits or any applicable Federal or State law or regulation.

 

17.         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.

 

18.         Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

 

19.         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.

 

20.         This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

 

By: _________________________

By:  _________________________

 

Nancy L. Johnston, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date: __________________

Date: _______________________

 

 

 

 

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

By: ________________________

By: ________________________

 

Deputy Attorney General

 

 

 

Date: _______________________

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

_________

DAY OF

_______________, 20____.

 

 

For the Commissioner:

 

 

 

Signed 3/2/12

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality