STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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COUNTY OF MARION |
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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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: |
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Department of Environmental
Management |
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By: _________________________ |
By:
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Nancy L.
Johnston, Section Chief |
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Enforcement
Section |
Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental
Management |
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By: ________________________ |
By: ________________________ |
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Deputy Attorney General |
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Date: _______________________ |
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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For
the Commissioner: |
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Signed
3/2/12 |
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Bruce H Palin |
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Assistant
Commissioner |
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Office
of Land Quality |
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