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. 2011-20496-S |
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egj Inc., |
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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 EGJ Inc. (“Respondent”), who owns/operates a Confined Feeding Operation (“CFO”),
with Farm Identification Number 1950, located at CR 700 N and CR 1000 E in Idaville, White 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, IDEM issued a Notice of Violation (“NOV”) via Certified Mail
to:
Gery Miller, President |
Bruce Kercheval,
Registered Agent |
EGJ Inc. |
EGJ Inc. |
6654 N 1000 E |
110 N Illinois Street |
Idaville, Indiana 47950 |
Monticello, Indiana 47960 |
5. Respondent was issued a CFO Approval on
September 22, 2005.
6. During an investigation, including an inspection
on October 11, 2011 and a record review on October 26, 2011, conducted by a
representative of IDEM, the following violation was found:
a. Pursuant to 327 Indiana Administrative
Code (“IAC”) 16-4-1, confined feeding operations must:
(1) have a valid
approval to operate; or
(2) close in
accordance with 327 IAC 16-11.
Respondent operated a
CFO without a valid approval and failed to close in accordance with 327 IAC
16-11. Specifically, Respondent has operated
a CFO without a valid CFO Approval since September 22, 2010.
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 rule 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 8.
4. 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 |
5. Respondent is assessed a civil penalty of Seven Thousand
Dollars ($7,000). Within thirty (30)
days of the Effective Date of the Agreed Order, Respondent shall pay a portion
of this penalty in the amount of One Thousand Four Hundred Dollars ($1,400). 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”). Respondent estimates that this SEP will cost
Nine Thousand Three Hundred Fifty-Five Dollars ($9,355). 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. In the event that the cost of the
SEP is less than Five Thousand Six Hundred Dollars ($5,600), Respondent shall
pay the difference between the proposed cost of the SEP ($9,355) and the actual
cost of the SEP.
6. As
a Supplemental Environmental Project (Attachment A), Respondent shall construct a grass setback in the fields to
the southwest and northwest of the Miller Site #3 to reduce nutrients,
pesticides and other potential contaminates in run-off from the field and to
improve surface water quality. The proposed area to be included as part of the grass setback area
is approximately 1.15 acres.
7. In the event that Respondent does not
complete the SEP by November 30, 2013 the full amount of the civil penalty as
stated in paragraph 5 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.
8. 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 |
4 |
Failure
to respond as required by the NOD. |
$200 per week |
9. 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.
10. 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 |
11.
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 5, above.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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 violation
specified in the NOV.
18.
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.
19.
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 RESPONDENT: |
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By: ________________________ |
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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
on July 31, 2012 |
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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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