Commissioner, Indiana Department of Environmental Management,
Ronnie Scherb d/b/a Scherb Dairy, Respondent
2006 OEA 16 (05-S-E-3561)
[2006 OEA 16, page 16 begins]
burden of proof
confined animal feeding operation
Complainant: Nicole Lyn Sipe, IDEM
Respondent: Ronnie Scherb, pro se
July 19, 2006
FURTHER CASE ACTIVITY:
[2006 OEA 16, page 17 begins]
STATE OF INDIANA ) BEFORE
THE INDIANA OFFICE OF
COUNTY OF MARION )
IN THE MATTER OF: )
COMMISSIONER, INDIANA DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT )
v. ) CAUSE
RONNIE SCHERB d/b/a SCHERB DAIRY )
OF LAW AND
This constitutes notice of a Final Order. This matter
having come before the Court on the final hearing of the petition for
administrative review by James Butcher, held on June 21, 2006; and the
Environmental Law Judge, being duly advised and having considered the pleadings
and evidence presented at the hearing, makes the following findings of fact,
conclusions of law and Order:
Findings of Fact
- On May 15, 2003, the Indiana
Department of Environmental Management (IDEM) issued a Notice of Violation
(NOV) to Ronnie Scherb d/b/a Scherb Dairy (the “Respondent”) for
violations of 327 IAC. The parties were unable to reach a settlement
- On June 1, 2005, the IDEM
issued a Notice and Order of the Commissioner of the Department of
Environmental Management (the “CO”) to the Respondent.
- On June 20, 2005, the
Respondent, by his counsel, Mark Shere, filed his Petition for Review in
- A prehearing conference was
held on July 6, 2005, at which both parties were present by counsel. A
case management order was issued, including, but not limited, to a date
for completing discovery. This deadline was subsequently extended to
January 23, 2006.
- On December 7, 2005, the IDEM
filed its Notice of Filing of Discovery Request.
[2006 OEA 16, page 18 begins]
- On January 19, 2006, counsel
for Respondent filed his Notice of Withdrawal of Counsel and Scherb’s
Motion for Extension. On January 26, 2006, this Environmental Law Judge
(the “ELJ”) granted counsel’s request to withdraw and granted the
Respondent an extension until February 7, 2006 to answer IDEM’s discovery
- The Respondent did not answer
the discovery requests.
- On February 22, 2006, IDEM
filed its Motion for Proposed Order of Dismissal and Suspension of
Dispositive Motion Deadline. On February 24, 2006, this ELJ granted the motion
for extension of time to file dispositive motions and ordered the
Respondent to answer the IDEM’s discovery requests within ten (10)
business days of the receipt of the order. The IDEM’s Requests for
Admission were deemed admitted.
- The Respondent failed to
respond to the discovery requests.
- On March 15, 2006, IDEM filed
its Renewed Motion for Proposed Order of Dismissal.
- On March 17, 2006, this ELJ
issued its Notice of Proposed Order of Default to the Respondent allowing
him seven (7) days from service of the Notice to respond or be held in
default. The Respondent failed to respond.
- On March 31, 2006, the Notice
of Proposed Order of Default was re-issued by certified mail, return
receipt requested. The Respondent received the notice on April 3, 2006.
- On April 19, 2006, counsel for
the IDEM filed its Request for Entry of Order of Dismissal or, in the
Alternative, Motion for Suspension of Dispositive Motion Deadline.
- On April 19, 2006, this ELJ
issued its Order of Default and for Status Conference (April 19, 2006
Order). The Respondent was held in default and found to be in violation
of the regulations specified in the CO. The amount of penalty and
corrective actions were unresolved.
- On April 26, 2006, the IDEM
filed its Motion to Reconsider the April 19, 2006 Order of Default and for
- A status conference was held on
May 5, 2006 with the Respondent present and counsel for IDEM participating
by telephone. The remaining issues were set for hearing on June 14,
- On May 22, 2006, the IDEM filed
another Motion to Reconsider.
- On June 14, 2006, a hearing was
held. The IDEM presented evidence regarding the amount of the penalty and
the corrective actions that the Respondent needed to undertake.
- IDEM’s Request for Admission
#38 states “The civil penalty of $10,000 set out in the Notice and Order
is not arbitrary and capricious.” Exhibit IDEM #3.
[2006 OEA 16, page 19
- The civil penalty in this
matter was calculated in accordance with the Civil Penalty Policy. This
policy was published by the IDEM under IND. CODE
§ 13-14-1-11.5. IDEM’s Civil Penalty Policy is a nonrule policy
document, ID No. Enforcement 99-0002-NPD, originally adopted on April 5,
- There are no aggravating or
mitigating factors to consider in this matter nor did the Respondent receive any economic benefit.
- The Respondent continues to
operate a small animal feeding operation.
Conclusions of Law
- The Office of Environmental
Adjudication (“OEA”) has jurisdiction over the decisions of the
Commissioner of the IDEM and the parties to the controversy pursuant to IC
- This office must apply a de
novo standard of review to this proceeding when determining the facts
at issue. Indiana Dept. of Natural Resources v. United Refuse
Co., Inc., 615 N.E.2d 100 (Ind. 1993). Findings of fact must be based
exclusively on the evidence presented to the ELJ, and deference to the
agency’s initial factual determination is not allowed. Id.;
I.C. 4-21.5-3-27(d). “De novo review” means that:
all are to be determined
anew, based solely upon the evidence adduced at that hearing and independent of
any previous findings.
Grisell v. Consol. City of Indianapolis, 425 N.E.2d 247
- The IDEM has filed two Motions
to Reconsider this ELJ’s April 19, 2006 Order finding the Respondent in
default as to the violations, but not as to the civil penalty or the
corrective actions. The IDEM complains that the ELJ has improperly placed
the burden of proof on the IDEM and that, the Respondent, as the person
who initiated this appeal, should have the burden of proof. However, it
is apparent from the statutes that the IDEM, as the complainant, has the
burden in this case. IND. CODE § 13-3-3-9
states “In hearings under this chapter, the burden is
on the complainant to show the alleged violation.”
[2006 OEA 16, page 20
- In addition, IDEM complains
that this ELJ was incorrect in not finding in IDEM’s favor on all issues.
However, it is clear that, under the trial rules, it is proper to enter a
limited order as a sanction for failure to respond to discovery.
Indiana Rules of Trial Procedure, Rule 37(B)(2) lists the possible
(2) Sanctions by court in which action is pending. If a party or an
officer, director, or managing agent of a party or an organization, including a
governmental organization, or a person designated under Rule 30(B)(6) or 31(A)
to testify on behalf of a party or an organization, including a governmental
organization, fails to obey an order to provide or permit discovery, including
an order made under subdivision (A) of this rule or Rule 35, the court in which
the action is pending may make such orders in regard to the failure as are just,
and among others the following:
(a) An order that the matters regarding which the order was made or any
other designated facts shall be taken to be established for the purposes of the
action in accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting him from introducing designated
matters in evidence;
(c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding or
any part thereof, or rendering a judgment by default against the disobedient
(d) In lieu of any of the foregoing orders or in addition thereto, an
order treating as a contempt of court the failure to obey any orders except an
order to submit to a physical or mental examination under Rule 35;
(e) Where a party has failed to comply with an order under Rule 35(A)
requiring him to produce another for examination, such orders as are listed in
paragraphs (a), (b), and (c) of this subdivision, unless the party failing to
comply shows that he is unable to produce such person for examination. In lieu
of any of the foregoing orders or in addition thereto, the court shall require
the party failing to obey the order or the attorney advising him or both to pay
the reasonable expenses, including attorney's fees, caused by the failure,
unless the court finds that the failure was substantially justified or that
other circumstances make an award of expenses unjust.
In accordance with IND. CODE § 4-21.5-3-22, 315
IAC 1-3-1(b)(18) and Indiana Trial Rule 37(B)(2), it was within the ELJ’s
discretion to issue this order. The April 19, 2006 Order issued by this ELJ is
affirmed and IDEM’s Motions to Reconsider are DENIED.
[2006 OEA 16, page 21
- The IDEM used the Civil Penalty
to determine the appropriate penalty in this matter. According to this policy,
a civil penalty is calculated by “(1) determining
a base civil penalty dependent on the severity and duration of the
violation, (2) adjusting the penalty for special factors and
circumstances, and (3) considering the economic benefit of noncompliance.”
The base civil penalty is calculated taking into account two factors: (1)
the potential for harm and (2) the extent of deviation.
- The policy states that the
potential for harm may be determined by considering “the likelihood and degree of exposure of persons or the
environment to pollution” or “the degree of adverse effect of
noncompliance on statutory or regulatory purposes or procedures for
implementing the program”. There are several factors that may be
considered in determining the likelihood of exposure. These are the
toxicity and amount of the pollutant, the sensitivity of the human
population or environment exposed to the pollutant, the amount of time
exposure occurs and the size of the violator.
- The Requests for Admissions
establish that as a result of the Respondent’s activities, liquid animal
manure ran into a tributary to Little Birch Creek from the farm field used
by the Respondent for land application (Request for Admission #19) and
that dead minnows were observed in this tributary on the same date and
place as the manure spill (Request for Admission #25).
- The policy also considers the
extent of deviation from the rule. In this instance, the Respondent
admits that he did not incorporate the manure into the soil even though he
believed that it was going to rain on that date and that, in fact, it did
rain (Request for Admissions #13 and #15). The Respondent also admits
that he took no action to contact IDEM to report the spill (Requests for
Admissions #20, 21 and 22) or to mitigate the spill until IDEM personnel
appeared (Request for Admissions #26, 27, 28 and 29). He also admits that
he did not have a permit authorizing the discharge of manure from the farm
field (Request for Admissions #31, 32, 33, 34 and 35).
- The ELJ concludes that the
potential for harm and the extent of deviation should both be classified
ELJ finds that there were no aggravating or mitigating factors to consider
and that the Respondent received no economic benefit. Therefore, the
appropriate penalty is the lowest amount in the penalty matrix for a
moderate/moderate violation. The Respondent is assessed a penalty of
seven thousand and five hundred dollars ($7,500).
[2006 OEA 16, page 22
- Pursuant to 327 IAC 16-2-5, a
confined animal feeding operation is defined as including an animal
feeding operation that causes a violation of the water pollution control
laws or regulations. As a confined animal feeding operation, Scherb’s
operation must have approval to operate (327 IAC 16-4-1) and must have an
emergency spill response plan (327 IAC 16-9-4).
AND THE COURT, being duly advised, hereby ORDERS, ADJUDGES AND
DECREES that the Complainant has met its burden of proof in this
1. The Respondent is ORDERED to pay a civil penalty of $7,500
dollars to the IDEM. This penalty shall be remitted to the IDEM within
thirty (30) days of the Respondent’s receipt of this Order. Checks shall be
made payable to the Environmental Management Special Fund, with the Cause
Number indicated on the check and mailed to:
Cashier-Mail Code 50-10C
100 N. Senate Ave.
Indianapolis, IN 46204-2251
2. Within thirty (30) days of his receipt of this Order, the
Respondent shall submit a Spill Response Plan of the Site in accordance with
327 IAC 16-9-4 of the Confined Feeding Operations Rule.
3. Within thirty (30) days of receipt of this Order, the Respondent
shall submit a complete Confined Feeding Operation approval application for
all confined feeding activities at the Site in accordance with 327 IAC
16-4-1 et seq. of the Confined Feeding Operations Rule. This Approval
Application shall be sent to:
Indiana Department of Environmental Management
Office of Land Quality – Mail Code MC 65-45, IGCN 1101
100 N. Senate Ave.
Indianapolis, IN 46206-6015
[2006 OEA 16,
page 23 begins]
You are hereby further notified that pursuant to provisions of
code § 4-21.5-7.5, the Office
of Environmental Adjudication serves as the Ultimate Authority in the
administrative review of decisions of the Commissioner of the Indiana
Department of Environmental Management. This is a Final Order subject to
Judicial Review consistent with applicable provisions of IC 4-21.5.
Pursuant to IC 4-21.5-5-5, a Petition for Judicial Review of this Final
Order is timely only if it is filed with a civil court of competent
jurisdiction within thirty (30) days after the date this notice is served.
IS SO ORDERED THIS 19th day of July, 2006.
Environmental Law Judge
[2006 OEA 16: end of opinion]