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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2018-25660-C |
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MICHAEL
GETTELFINGER, |
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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 Michael Gettelfinger
(“Respondent”), who owns and/or operates a Confined Feeding Operation (“CFO”) with
ID number 6672, located at Bridgewater Road & US Hwy 56 in Campbellsburg,
Washington 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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Michael Gettelfinger, CFO, Owner/Operator |
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6342 W.
Rosebud Road |
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Salem,
Indiana 47167 |
5.
During an investigation including an inspection
on June 25, 2018 conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 327 Indiana Administrative
Code (“IAC”) 19-12-4(s), the applicant shall execute and send to the
commissioner an affidavit, under penalty of perjury, that a waste management
system was constructed, and shall be operated, in accordance with the
requirements of the approval and this article.
The owner/operator shall submit to IDEM, on a form provided by the
department, the affidavit within thirty (30) days after the date construction
of an approved waste management structure is completed, and prior to the
introduction of any animals or manure.
The affidavit must be completed, notarized, and returned to IDEM
assuring that the waste management system was constructed and shall be operated
in accordance with the requirements of the approval. The affidavit must include identification of the
parts of the waste management system that were completed at the time of the
submittal. If an owner/operator performs
partial construction of an approved facility and wishes to utilize that portion
prior to completing construction of the entire facility, multiple affidavits must
be submitted. No portion of a waste
management system, including animal feed and similar feedstock storage areas,
shall be utilized unless that portion, or a combination of the waste management
system for that portion, is completely constructed prior to the introduction of
animals and provides a minimum of one hundred eighty (180) days storage for
manure, wastewater, and/or leachate.
As
noted during the investigation, Respondent failed to submit to IDEM the
required construction completion affidavit within thirty (30) days after
completing the construction of a solid manure storage/litterstack
building (P1). A construction completion
affidavit submitted to IDEM on June 25, 2018 indicated that construction of
building (P1) started on November 13, 2017 and completed on February 1, 2018.
b. Pursuant to
Indiana Code (“IC”) 13-18-10-2.2(a), if an applicant receives an approval under
this chapter and completes construction or expansion, not more than thirty (30)
days after the date the applicant completes the construction or expansion the
applicant shall execute and send to the department an affidavit that affirms
under penalties of perjury that the confined feeding operation: (1) was
constructed or expanded; and (2) will be operated; in accordance with the
requirements of the department’s approval.
As noted
during the investigation, Respondent did not send to IDEM the required
construction completion affidavit within thirty (30) days after the date of
completing the construction of a production barn (P1).
6.
On June 25, 2018, IDEM received a Construction
Completion Affidavit.
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, rules
and/or permit conditions listed in the findings above.
3.
Respondent is assessed and agrees to pay a
civil penalty of Two Thousand Two Hundred Dollars ($2,200). 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”.
4.
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 |
5.
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 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 4, above.
6.
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.
7.
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.
8.
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.
9.
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 their applicable
permits or any applicable Federal or State law or regulation.
10.
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.
11.
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.
12.
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.
13.
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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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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COUNSEL FOR RESPONDENTS: |
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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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________________________,
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For the
Commissioner: |
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Signed on
3/13/2019 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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