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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
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OF
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Complainant, |
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v. |
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Case No. 2019-25980-C |
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white river, 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 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. 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 White River, LLC (“Respondent”),
which owns/operates a Confined Feeding Operation (“CFO”) with ID No. 6432, located
at 13897 E. C.R. 800 S., in Loogootee, Martin
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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Tom
Nugent, President |
Ryan Priest,
Registered Agent |
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White River,
LLC |
White River,
LLC |
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13121 N
State Road 58 |
506 S. JL
Wilson Rd |
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Elnora, IN
47529 |
Bloomfield,
IN 47424 |
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Brian
Scheid, Risk Coordinator/Operator |
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White River,
LLC |
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P.O.
Box461 |
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Loogootee,
IN 47553 |
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5.
During an investigation including an inspection
on February 5, 2019, conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 327 Indiana Administrative
Code (“IAC”) 19-14-4(h)(3)(C), the following requirement applies to all
emergency land application of manure on frozen or snow covered ground: Application
may not be closer than two hundred (200) feet from any surface water.
As noted during the inspection,
Respondent land applied manure on frozen or snow covered
ground on January 23, 2019 without meeting the requirements of 327 IAC
19-14-4(h). The land application on frozen or snow covered
ground did not conform to the required two hundred (200) feet setback distance
from surface water. The distance from the manure application field to the
surface water was one hundred thirty seven (137) feet.
b. Pursuant to 327 IAC 19-14-4(k) any
manure application, except those described in subsection (l), that causes a
water quality violation: (1) is a violation of this article; and (2) may result
in enforcement action.
As noted
during the inspection, Respondent land applied manure on frozen or snow covered ground within two hundred (200) feet of surface
water allowing manure to seep into a nearby ditch. A field test of the water
from the ditch showed that the water contained 5 ppm of ammonia-nitrogen.
c.
Pursuant to 327 IAC 19-7-5(c), a soil test must
be obtained that provides sufficient information about soil fertility to allow
for nutrient recommendations for existing or planned crops. Soil tests may not
represent more than twenty (20) acres per sample. The frequency of this testing
must be: (1) specified in the manure management plan; and (2) conducted a
minimum of once every four (4) years unless a different frequency is approved
by the department in writing and is included in the manure management plan.
As
noted during the inspection, Respondent failed to provide soil testing results
at the time of the inspection.
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/or
permit conditions listed in the findings above.
3.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 327 IAC 19-14-4(h)(3)(C) and 327 IAC 19-14-4(k). Specifically, Respondent shall submit a spill
response plan to forestall an incident of land applied manure entering a surface
water.
4.
Respondent shall ensure that land applied
manure on frozen or snow covered ground does not enter
surface water.
5.
Respondent shall maintain soil testing results
in the facility’s manure management plan, and operating records, and shall make
them available to IDEM during an inspection.
6.
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 |
7.
Respondent is assessed and agrees to pay a
civil penalty of Five Thousand Dollars ($5,000). 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”.
8.
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 |
$200 per a
week late |
9.
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.
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 Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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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, 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.
12.
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.
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.
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.
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 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.
16.
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.
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 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.
19.
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: |
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Jennifer
Reno, Chief |
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Land
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Compliance
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Office of
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RESPONDENT: |
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COUNSEL FOR RESPONDENTS: |
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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 11/24/2020 |
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Peggy
Dorsey |
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Assistant
Commissioner |
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Office of
Land Quality |
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