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. 2012-20781-S |
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Duane Michel
d/b/a M & D Michel Turkeys, |
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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 Duane Michel d/b/a Michel Turkeys who owns and/or operates a Confined Feeding
Operation (“CFO”) with Farm ID No. 4524 located at C. R. 750 South & C. R.
200 East, in Ft. Branch, Gibson 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:
Duane Michel |
d/b/a M & D Michel Turkeys |
1735 East 750 South |
Ft. Branch, Indiana 47648 |
5.
Pursuant
to 327 Indiana Administrative Code (“IAC”) 16-7-1(b), a person shall not begin
construction of a confinement building or waste management system at a new or
existing confined feeding operation without obtaining the prior written
approval of the commissioner.
As noted during the investigation, Respondent
constructed a manure storage building at an existing confined feeding operation
without obtaining a prior written approval.
The unpermitted manure storage building was not part of the number of
buildings approved under AW-4845 on September 14, 1999. On March 16, 2012, it was confirmed by an
IDEM inspector.
6. 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.
Within
sixty (60) days of the Effective Date, Respondent shall comply with 327 IAC
16-7-1(b). Specifically, Respondent
shall submit a complete Confined Feeding Operation Approval Application as
required by 327 IAC 16-17-2. A Confined
Feeding Approval Application package is enclosed in Attachment A.
3.
To
avoid stipulated penalties, as described in Order Paragraph 7, Respondent is
advised to follow the Confined Feeding Operation Approval Application checklist
in Attachment A to ensure that a CFO Approval Application is submitted.
4.
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.
5.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Chike Okeke, 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 and agrees to pay a civil penalty of Seven Thousand Dollars ($7,000). 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 |
Violation |
Penalty |
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2 |
Per 327 IAC 16-17-2, failure to submit a complete |
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CFO Approval Application |
$200 per week |
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4 |
Failure to respond to NODs as required |
$200 per week |
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 |
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 9, above.
11.
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.
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 his obligation to comply with the
requirements of his 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:
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By: _________________________ |
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Nancy
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:
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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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20__. |
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For
the Commissioner: |
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Signed
on June 29, 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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