STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

 

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

) CASE NO. 2000-9981-S

v. )

)

DRIGGS FARMS OF INDIANA, INC., )

)

Respondent. )

AGREED ORDER

The Complainant and the 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.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Driggs Farms of Indiana, Inc. (hereinafter referred to as "Respondent"), who is a company doing business located at 400 South Chamber Drive, Decatur, Adams County, Indiana (the "Site").

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

 

 

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail on January 16, 2001, to:

Howard Driggs, Jr., President Howard Driggs, Jr., Registered Agent

P.O. Box 717 400 South Chamber Drive

Toledo, OH Decatur, IN 46733

  1. On November 21, 2000, an investigation was conducted in response to a discharge of ice cream wastewater at the Site.
  2. Based on the above noted investigation, the Respondent was found in violation of the following statute and rules:

A. Pursuant to IC 13-30-2-1(1), a person may not discharge, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste into the environment or any publicly owned treatment works in any form that causes or would cause pollution. During the above noted inspection, ice cream rinse water was discharged into the Kohne Ditch leading to the St. Mary's River.

B. Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains a facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state, contain the spill to prevent additional spilled material from entering the waters of the state, respond to the spill, and notify IDEM within two (2) hours 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. A spill of ice cream rinse water was not properly contained, and was not reported to IDEM within two (2) hours of the spill occurrence.

C. Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and at all places 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. During the above noted inspection, ice cream rinse water was discharged into the Kohne ditch leading to the St. Mary's River.

D. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge. During the above noted inspection, ice cream rinse water was discharged into the Kohne ditch leading to the St. Mary's River, and the Respondent did not have a valid NPDES permit.

 

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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall submit a Spill Response Plan to IDEM within thirty (30) days of the Effective Date of this Agreed Order.

3. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Jennifer Andres, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, Indiana 46206-6015

  1. Respondent is assessed a civil penalty of six thousand, five hundred sixty two dollars and fifty cents ($6,562.50). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of one thousand, three hundred twelve dollars and fifty cents ($1,312.50). Said penalty amount shall be due and payable to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project ("SEP"). Respondent estimates that this SEP will cost two hundred fifty six thousand, seven hundred forty dollars and no cents ($256.740.00). Within thirty (30) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP.

5. As a Supplemental Environmental Project, Respondent shall install a new equalization tank with mixing and air capabilities. The Respondent shall also install additional level controls in the new tank and existing barges. The Respondent shall also seal the manholes that connect the barges to the wastewater pit. The Respondent shall install a containment wall around the wastewater pit. Respondent shall complete these projects by no later than April 20, 2001.

 

6. In the event that the Respondent does not complete the SEP by April 20, 2001, the full amount of the civil penalty as stated in Order paragraph 4 above, plus interest established by IC 24-4.6-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM’s notice to pay. Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

7. In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

Violation Penalty

Order Condition #2 $100 per day the Spill Response Plan is late

8. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of assessment of any of the stipulated penalty given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent's violation of this Agreed Order, or Indiana Law, including but not limited to civil penalties pursuant to IC 13-30-4.

9. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:

Cashier

IDEM

100 North Senate Avenue

P.O. Box 7060

Indianapolis, Indiana 46207-7060

10. In the event that the civil penalty required by Order paragraph 4 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

11. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

12. 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 the Agreed Order did not contain the invalid terms.

13. The 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.

14. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By:___________________________ By:____________________________

Paul Higginbotham, Chief

Solid Waste Section Printed:________________________

Office of Enforcement

Title:__________________________

Date:_________________________ Date:__________________________

 

COUNSEL FOR COMPLAINANT:

Department of Environmental Management

By:___________________________

Office of Legal Counsel

Department of Environmental Management

Date:__________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __________ DAY OF __________________, 2001.

 

For the Commissioner:

 

 

Signed on May 1, 2001

_________________________

Felicia A. Robinson

Assistant Commissioner

Office of Enforcement