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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No. 2018-25301-C |
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JODY lee ROYER and elizabeth ANN |
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royer, |
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Respondents. |
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AGREED ORDER
Complainant
and Respondents 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 Indiana Code (“IC”)
13-30-3-3, entry into the terms of this Agreed Order does not constitute an
admission of any violation contained herein. Respondents’ entry into this
Agreed Order shall not constitute a waiver of any defense, legal or equitable,
which Respondents 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.
Respondents are Jody Lee Royer and Elizabeth Ann
Royer, who own/operate a cattle confined feeding operation (“CFO”), located at 62159
Beech Road, in Mishawaka, St. Joseph 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”) on September 25, 2018 via Certified Mail to:
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Jody Lee Royer
and Elizabeth Ann Royer, Owner/Operator |
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62159 Beech
Road |
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Mishawaka, IN
46544 |
5.
Pursuant to 327 Indiana Administrative Code
(“IAC”) 19-2-6(a)(1) and (2), “Confined Feeding”, as defined in IC 13-11-2-39,
means the confined feeding of animals for food, fur, or pleasure purposes in
lots, pens, ponds, sheds, or buildings where:
(1)
Animals are confined, fed, and maintained for
at least forty-five (45) days during any twelve (12) month period; and
(2)
Ground cover or vegetation is not sustained
over at least fifty percent (50%) of the animal containment area.
6.
Pursuant to 327 IAC 19-2-7(1)(A), “Confined
Feeding Operation” (“CFO”), as defined in IC 13-11-2-40, means any confined
feeding of at least three hundred (300) cattle.
7.
Respondent operates a cattle operation with
over 300 head of cattle.
8.
During an investigation conducted on March 29,
2018 by a representative of the Indiana Department of Natural Resources
(“IDNR”) and inspections conducted on April 6, 12, and 20, 2018 conducted by
representatives of IDEM, the following violations were found:
a.
Pursuant to 327 Indiana Administrative Code
(“IAC”) 2-1-6(a)(1), all surface 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
that do any of the following:
(A)
will settle to form putrescent or otherwise
objectionable deposits;
(B)
are in amounts sufficient to be unsightly or
deleterious;
(C)
produce color, visible oil sheen, odor, or
other conditions in such degree as to create a nuisance;
(D)
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;
and
(E)
are in amounts sufficient to be acutely
toxic to, or to otherwise severely injure or kill aquatic life, other animals,
plants, or humans.
As noted during the investigation on
March 29, 2018, Respondents allowed silage leachate to enter into an
intermittent stream that flows into Barkey Ditch
located near Beech Road, south of Roosevelt Road and north of Madison Road, a
water of the state. The discharge of silage leachate was in an amount
sufficient to be unsightly or deleterious, that produced color, odor, or other
conditions in such a degree to create a nuisance and/or was in an amount to be
acutely toxic to, or otherwise severely injure or kill aquatic life, or other
animals, plants, or humans. As noted during the inspections on April 6, 12, and
20, 2018, the origin of the spill was the drainage from Respondents’ silage pad
to a nearby eight-inch blue/green standpipe connected to a field tile that
flows into Barkey Ditch. The investigation found no
evidence the silage leachate caused a fish kill. Additionally, as noted during the inspections
on April 6, 12, and 20, 2018, there was no evidence of water quality violations
on those dates.
b.
Pursuant to 327 IAC 2-6.1-7, any person who
operates, controls, or maintains any facility from which a spill occurs shall,
upon discovery of a spill that damages the waters of the state:
(a)
Contain the spill, if possible, to prevent
additional spilled material from entering the waters of the state.
(b)
Undertake or cause others to undertake
activities needed to accomplish a spill response.
(c)
As soon as possible, but within two (2) hours
of discovery, communicate a spill report to the Department of Environmental
Management, Office of Land Quality, Emergency Response
Section: (317) 233-7745 for in-state calls, Area Code 1-888-233-7745 for
out-of- state (toll free) calls. If new
or updated spill report information becomes known that indicates a significant
increase in the likelihood of damage to the waters of the state, the
responsible party shall notify the department as soon as possible but within
two (2) hours of the time the new or updated information becomes known.
As noted during the investigation, Respondents
did not report the spill to IDEM within two (2) hours of discovery. IDEM was notified of the spill by a representative
of IDNR.
c.
Pursuant to Indiana Code (“IC”) 13-18-4-5(a), a
person may not throw, run, drain, or otherwise dispose into any of the streams
or waters of this state, or 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 327 IAC 2-1-6(a)(1), a rule adopted by the board of IC
13-18-4-1 and IC 13-8-4-3.
As
noted during the investigation on March 29, 2018, Respondents released silage
leachate into an intermittent stream that flows into Barkey
Ditch, a water of the state. As noted during the inspections on April 6, 12,
and 20, 2018, there was no evidence of water quality violations on those dates.
d.
Pursuant to IC 13-30-2-1(1), a person may not
discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow
any contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources, into the environment in any
form that causes or would cause pollution that violates or would violate 327
IAC 2-1-6(a)(1), a rule adopted by the board under the environmental management
laws.
As noted
during the investigation on March 29, 2018, Respondents released silage
leachate into an intermittent stream that flows into Barkey
Ditch, a water of the state.
e.
Pursuant to 327 IAC 19-4-1(a), Confined Feeding
Operations must have a valid approval to operate.
As noted
during the inspection on April 20, 2018, Respondents housed over three hundred
(300) cattle which were confined, fed, and maintained for at least forty-five
(45) days during a twelve (12) month period without a valid Approval to
operate.
9. Subsequent to the inspection,
Respondents informed IDEM that they will not house over three hundred (300)
cattle which are confined, fed, and maintained for at least forty-five (45)
days during a twelve (12) month period without a valid Approval to operate.
10.
In recognition of the settlement reached,
Respondents waive 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 Respondents. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondents shall comply with the statutes and rules
listed in the findings above.
3.
Effective immediately, Respondents shall cease
the release of silage leachate from the silage pad to a nearby standpipe
connected to a field tile that flows into Barkey
Ditch.
4.
Within sixty (60) days of the Effective Date,
Respondents shall remove the standpipe and associated underground piping
attached to the riser.
5.
Within sixty (60) days of the Effective Date,
Respondents shall operate below CFO animal population levels.
6.
All submittals required by this Agreed Order,
unless Respondents are notified otherwise in writing by IDEM, shall be sent to:
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Jennifer Reno, Enforcement Case
Manager |
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Office of Land Quality |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
7.
Respondents are assessed and agree to pay a
civil penalty of Fourteen Thousand Dollars ($14,000.00). 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”.
8.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondents shall
pay a stipulated penalty in the following amount:
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Order
Paragraph 4 |
$250 per
week late |
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Order
Paragraph 5 |
$500 per
week late |
9.
Stipulated penalties shall be due and payable no
later than the 30th day after Respondents receive written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant may notify Respondents at any time that a
stipulated penalty is due. Failure to notify Respondents 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 Respondents for violation of this Agreed Order. Neither
assessment nor payment of stipulated penalties shall preclude Complainant from
seeking additional relief against Respondents 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:
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Indiana Department of Environmental
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Accounts Receivable |
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IGCN, Room N1340 |
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100 North Senate Avenue |
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Indianapolis, IN 46204 |
11.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondents 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 Respondents pay 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 10, above.
12.
This Agreed Order shall apply to and be binding
upon Respondents and their successors and assigns. Respondents’ 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 Respondents shall in any way alter their 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.
Respondents shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondents 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 Respondents pursuant to this Agreed Order, shall not in any way relieve
Respondents of their obligation to comply with the requirements of its
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
Respondents’ 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 Respondents may incur as a
result of Respondents’ 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 violations specified in the NOV.
18.
Nothing in this Agreed
Order shall prevent or limit 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 Respondents may incur as a result
of such communication 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 Respondents.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
Jody Lee Royer |
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By:
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By: _________________________ |
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Nancy
Johnston, Section Chief |
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Enforcement
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Printed: ______________________ |
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Office
of Land Quality |
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Title:
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Date: __________________ |
Date:
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RESPONDENT: |
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Elizabeth Ann Royer |
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By: _________________________ |
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Printed: ______________________ |
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Title:
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Date:
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COUNSEL FOR RESPONDENT: |
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Jody Lee Royer and
Elizabeth Ann Royer |
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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
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For the
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Signed on
9/11/19 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
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