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STATE OF
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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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v. |
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Case No. 2019-25936-C |
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PRIME CARE
AG LLC, |
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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 Prime Care Ag LLC (“Respondent”),
which owns a Confined Feeding Operation (“CFO”) with ID number 6948, located at
County Road 200 West & County Road 800 North in Wawaka,
Noble County, Indiana (the “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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Mitch
Wysong, Operator |
Violette
W. Wysong, Registered Agent |
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Prime
Care Ag LLC |
2469
West US Highway 6 |
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2379
W. US Highway 6 |
Wawaka, Indiana 46794 |
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Wawaka, Indiana 46794 |
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Charles
R. Wysong, Member |
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Prime
Care Ag LLC |
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1340
W. 800 N |
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Wawaka, Indiana 46794 |
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5.
During an investigation including an inspection
on January 7, 2019 conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 327 Indiana Administrative
Code (“IAC”) 19-4-1(b)(1), the owner/operator must comply with all terms and
conditions of the approval and this article, 327 IAC 19.
As noted during the inspection, Respondent
did not comply with the terms and conditions of the CFO approval and 327 IAC
19. The special approval conditions in the March 30, 2017 CFO Approval required
Respondent to construct an earthen surface water diversion berm on the south
and southwest side of the proposed P1 swine confinement building. In addition,
the special approval condition required the establishment of a perimeter drain
rock outlet and grass infiltration management area to be located along the
south-eastern side of P1 prior to populating the swine confinement building,
P1. Respondent failed to construct the diversion berm and failed to establish
the perimeter drain rock outlet and grass infiltration management area as
required by the Approval. The wetland determination results submitted to IDEM
on March 1, 2019 indicated that the required location of the berm is up-gradient
from the confinement building, the surface water does not flow towards the
building, and that the building is 300 feet away from the wetland. IDEM
accepted the findings of the wetland determination results.
b.
Pursuant to 327 IAC 19-8-3(b), the owner/operator
must submit written notification to the department of any changes to the operation
as approved. The department will review the changes and decide if amendments
are necessary. At any time the department may decide an amendment is necessary,
and the owner/operator must comply with the amended approval.
As noted
during the inspection, Respondent failed to submit written notification to IDEM
prior to making changes to the CFO operation as approved. Rather than establish
a perimeter drain rock outlet and grass infiltration management area as
required by the Approval, Respondent connected the perimeter tile to an
existing field tile without submitting a facility change notification to IDEM prior
to the modification.
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.
Within sixty (60) days of the Effective Date, Respondent
shall comply with 327 IAC 19-4-1(b)(1) and 327 IAC 19-8-3(b). Specifically, Respondent shall submit a facility change
application requesting to void the special approval conditions in the March 30,
2017 CFO Approval, which required the construction of an earthen surface water
diversion berm on the south and southwest side of the proposed P1 swine
confinement building, and the establishment of a perimeter drain rock outlet
and grass infiltration management area.
4.
Respondent submitted to IDEM a topographic
survey demonstrating that the current drainage pattern on the south and
southwest side of the proposed P1 swine confinement building does not flow
towards the wetland area.
5.
To avoid stipulated penalties, as described in
Order Paragraph 9, Respondent is advised to follow the CFO Approval Application
checklist in Attachment A and Record Book in Attachment B to ensure a complete
CFO Facility Change 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 9.
7.
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 |
8.
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”.
9.
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 #3 |
$250 per
week late |
10.
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.
11.
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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Accounts
Receivable |
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IGCN,
Room N1340 |
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100
North Senate Avenue |
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Indianapolis, IN 46204 |
12.
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 10, above.
13.
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.
14.
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.
15.
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.
16.
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 its applicable
permits or any applicable Federal or State law or regulation.
17.
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.
18.
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.
19.
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.
20.
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, 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 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
1/29/2020 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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