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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
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2018-25608-C |
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MARK KOLISH
D/B/A KOLISH FARMS, |
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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 Mark Kolish d/b/a Kolish Farms (“Respondent”),
who owns/operates a Confined Feeding Operation (“CFO”) with ID number 6637,
located at 280 North 700 West in Winamac, Pulaski 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:
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Mark
Kolish, Owner/Operator |
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d/b/a
Kolish Farms |
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280
North 700 West |
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Winamac,
Indiana 46996 |
5.
During an investigation including an inspection
on August 13, 2018 conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 327 Indiana Administrative
Code (“IAC”) 19-1-2(b), under
this article a person may not start: (1) construction of a CFO; or (2)
expansion of a CFO that increases animal capacity or manure capacity, or both;
without obtaining the prior approval of the department.
As noted during the inspection,
Respondent extended the silage bunker (E4) from the approved 125 feet to 200
feet without obtaining prior approval from IDEM.
b.
Pursuant to 327 IAC 19-7-5(d), a manure test
must be obtained that provides sufficient information about the manure content
to allow for nutrient recommendations for existing or planned crops and to
minimize nutrient leaching. The frequency of this testing must be: (1)
specified in the manure management plan; and (2) conducted a minimum of once
every year.
As noted
during the inspection, Respondent failed to obtain and maintain a record of
manure content testing results.
c.
Pursuant to 327 IAC 19-4-1(b)(1),
the following conditions apply to all confined feeding approvals: (1) The
owner/operator must comply with all terms and conditions of the approval and
this article.
As noted
during the inspection, Respondent failed to construct an approved leachate
collection tank (E7) and a containment berm at the south side of the silage
bunker.
d.
Pursuant to 327 IAC 19-9-1(b), the operating
record must also contain all records from the following, if applicable: (8) 327
IAC 19-13-1(f), regarding completed self-monitoring records for five (5) years.
As noted
during the inspection, Respondent failed to maintain a record of weekly
self-monitoring events in the operating record.
e.
Pursuant to 327 IAC 19-11-1(b), all CFOs not defined as a CAFO in subsection
(a) must comply with section 2 of this rule.
As noted
during the inspection, Respondent failed to implement storm water management
practices. Respondent did not adequately
maintain silage within the permitted area allowing the potential for
runoff. The berm that was to be
constructed and maintained at the south end of silage bunker E4 to control
runoff was not present.
f.
Pursuant to 327 IAC 19-3-1(d), all
waste management systems must be designed, constructed, and maintained to
minimize leaks and seepage and prevent manure releases or spills, as well as
ensure compliance with the water quality standards in 327 IAC 2.
Respondent
failed to construct a leachate collection tank (E7) and a containment berm
aimed at preventing manure releases and spills.
g.
Pursuant to 327 IAC 19-14-7(b), the information
sheet must contain, at a minimum, the following information: (1) The name and
address of the CFO providing the manure.
(2) A statement indicating that it is unlawful to allow the manure to
enter any waters of the state. (3)
Information on the nutrient content of the manure. (4) The manure application requirements of
this rule. Pursuant to 327 IAC
19-14-7(e), all records in this section must be available to a representative
of the department during an inspection.
As noted
during the inspection, Respondent did not keep manure information sheets.
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.
Respondent shall comply with the rules and permit
conditions listed in the findings above.
3.
Respondent shall clean up all silage outside
the permitted area and return it to the permitted pad.
4.
Within sixty (60) days of the Effective Date, Respondent
shall comply with 327 IAC 19-1-2(b).
Specifically, Respondent shall submit a complete CFO Approval
Application as required per 327 IAC 19. The
CFO Approval Application shall seek approval for the construction of a berm at
the south side of the silage bunker, the extension of the silage bunker (E4)
from the approved 125 feet to 200 feet, and the construction of leachate
collection tank (E7), which was not constructed per November 22, 2010 Approval. A CFO Approval Application Packet is included
in Attachment A.
5.
To avoid stipulated penalties, as described in
Order Paragraph 11, Respondent is advised to follow the CFO Approval
Application checklist in Attachment A to ensure a complete CFO Approval
Application is submitted.
6.
Respondent shall respond to any Notice of
Deficiency (“NOD”) issued by the Confined Feeding Permitting Section within the
stated timeframes in the NOD. If such timeframes are not met, IDEM may assess
stipulated penalties as described in Order Paragraph 11.
7.
Respondent shall conduct manure testing and
maintain manure information sheet, including, a record of manure content testing
results.
8.
Respondent shall implement storm water
management practices and ensure runoff is controlled in the silage storage
area.
9.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Chike Okeke, 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 |
10.
Respondent is assessed and agrees to pay a
civil penalty of Two Thousand Seven Hundred Fifty Dollars ($2,750). This penalty reflects a significant reduction
from the original proposed civil penalty based upon evidence submitted to IDEM
by Respondent which adequately demonstrated Respondent’s inability to pay the
original proposed civil penalty. 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”.
11.
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:
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Paragraph |
Penalty |
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Order
paragraph #4 |
$250 per
week late |
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Order
paragraph #6 |
$200 per
week late |
12.
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.
13.
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 Management |
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Office
of Legal Counsel |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis, IN 46204 |
14.
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 13, above.
15.
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 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 his status or responsibilities under this Agreed Order.
16.
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.
17.
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.
18.
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 its applicable
permits or any applicable Federal or State law or regulation.
19.
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.
20.
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.
21.
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 EPA or any other
agency or entity.
22.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Linda L.
McClure, Chief |
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Land
Enforcement Section |
Printed: ______________________ |
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Compliance
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Office of
Land Quality |
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
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For the Commissioner: |
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Signed on
10/16/2019 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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