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. 2011-20439-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

 

Penalty

3

Failure to maintain animals below CFO

$200 per day/week or part thereof

 

levels and/or failure to submit a CFO

 

 

approval application

 

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:

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 2/3/12

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality