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. 2011-20439-S |
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young
family farms, llp, |
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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 Young Family Farms, LLP
(“Respondent”) which owns and/or operates a swine farm, located at 2370 South
500 East located in Wolcottville, Lagrange County, Indiana (the “Site”).
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via Certified Mail
to:
Mr. Danny Young, Registered Agent |
Young Family Farms, LLP |
6140 East 400 South |
Wolcottville, Indiana 46795 |
5.
During
an investigation, including an inspection, on July 15, 2011 and July 20, 2011,
conducted by a representative of IDEM, the following violations were found:
a. 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.
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 putrescent or otherwise 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 to 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.
As noted during the
inspection on July 15, 2011, a hole developed in Respondent’s barn perimeter
drain (below the manure pump-up port) which allowed manure to flow into a tile
and then into Fly Creek, which caused or contributed to a polluted condition of
waters of the state.
b. Pursuant to 327 IAC 16-2-5, “Confined
feeding operation” means any
(1) confined feeding
of at least:
(A) three hundred
(300) cattle
(B) six hundred (600)
swine or sheep; or
(C) thirty thousand
(30,000) fowl;
(2) animal feeding
operation electing to be subject to IC 13-18-10; or
(3) animal feeding
operation that causes a violation of:
(A) water pollution control laws;
(B) any rules of the water pollution control board; or
(C) IC 13-18-10.
Respondent violated
327 IAC 16-4-1 by populating the farm with 600 swine resulting in Respondent’s
facility being defined as a CFO pursuant to 327 IAC 16-2-5.
c. Pursuant to 327 IAC 16-4-1, confined
feeding operations must have a valid
approval to operate. Respondent did not have a valid approval to
operate a confined feeding operation.
6. Respondent repaired the perimeter
drain, rerouted tiles and adequately responded to the spill on or before July
20, 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 the statute and rules in the findings here and/or above at
issue.
3.
Within sixty (60) days of the
Effective Date, Respondent shall maintain animal numbers below Confined Feeding
Operation (“CFO”) levels as defined in 327 IAC 16-2-5 or submit a complete
Confined Feeding Operation Approval Application as required per 327 IAC
16-17-2. A CFO Approval Application
Packet is included in Attachment A.
4. To avoid
stipulated penalties, as described in Order Paragraph 7, Respondent is advised
to follow the CFO Approval Application checklist in Attachment A to ensure a
complete CFO Approval Application is submitted.
5. 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 7.
6. Respondent is assessed and agrees to
pay a civil penalty of Sixteen Thousand Two Hundred and Fifty Dollars ($16,250). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”.
7. 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 |
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Penalty |
3 |
Failure to maintain animals below
CFO |
$200 per day/week or part thereof |
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levels and/or failure to submit a
CFO |
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approval application |
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5 |
Failure to respond to NODs as
required |
$200 per day/week or part thereof |
8.
Stipulated
penalties shall be due and payable no later than the 30th day after
Respondent receives written notice that Complainant has determined a stipulated
penalty is due; the 30th day being the “Due Date”. Complainant may notify Respondent at any time
that a stipulated penalty is due.
Failure to notify Respondent in writing in a timely manner of stipulated
penalty assessment shall not waive Complainant’s right to collect such
stipulated penalty or preclude Complainant from seeking additional relief
against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief
includes any remedies or sanctions available pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
9.
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 |
10.
In
the event that the monies due to IDEM pursuant to this Agreed Order are not
paid on or before their Due Date, Respondent shall pay interest on the unpaid
balance at the rate established by IC 24-4.6-1.
The interest shall be computed as having accrued from the Due Date until
the date that Respondent pays any unpaid balance. Such interest shall be payable to the
Environmental Management Special Fund, and shall be payable to IDEM in the
manner specified in Paragraph 6, above.
11.
This
Agreed Order shall apply to and be binding upon Respondent and its successors
and assigns. Respondent’s signatories to
this Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership, corporate, or partnership
status of Respondent shall in any way alter its status or responsibilities
under this Agreed Order.
12.
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.
13.
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.
14.
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 the applicable permits or any applicable Federal or State law or regulation.
15.
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.
16.
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.
17.
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.
18.
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
2/3/12 |
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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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