STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )
 
 

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

) CASE NO. 2001-10258-S

v. )

)

PREMA-LEAN PORK, LLC, )

)

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. 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.

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 Prema-Lean Pork, LLC (hereinafter referred to as "Respondent"), Log #1939, located at 4287 E Co. Rd. 850N, Morristown, Shelby County, Indiana (hereinafter referred to as 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 to:

 Prema-Lean Pork, LLC Pryramid Partners Inc., Registered Agent 5062 West Base Road John Corya

Greensburg, IN 47240 5062 West Base Road

Greensburg, IN 47240
  1. On October 12, 2000, IDEM conducted an investigation in response to a spill at the Site.
  2. Based on the above noted investigation, the following violations were observed:
    1. Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and at all places, including the mixing zone, 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 that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans, and which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance. During the above noted inspection, Respondent caused or allowed the discharge of animal manure from the Site into waters of the state.
    2. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge is prohibited, unless in conformity with a National Pollutant Discharge Elimination System (NPDES) permit obtained prior to the discharge. During the above noted inspection, Respondent caused or allowed the discharge of animal manure from the Site into waters of the state without a valid NPDES permit.
C. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or to cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters, any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under Sections 1 and 3 of this chapter. During the above noted inspection, Respondent caused or allowed the discharge of animal manure from the Site into waters of the state.

D. Pursuant to IC 13-30-2-1(1), no person may discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form which causes or would cause pollution which violates or which would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws. During the above noted inspection, Respondent caused or allowed the discharge of animal manure into waters of the state.
  1. The Respondent complied with the requirements of 327 IAC 2-6.1-7.
  2. Following the October 12, 2000, spill, the Respondent has taken the following action towards compliance and spill prevention:
    1. The original line that had become clogged has been replaced by two 6" underground lift lines.
    2. The flush system operated at the site has been changed from a 24 hour flush, to operating only during work hours.
    3. Inspections are now being conducted at 10 p.m. each night in addition to during work hours in an attempt to alleviate future problems.
    4. Levees, with valves, have been constructed on the Site in natural drainage areas for the purpose of catching any effluent that would be accidentally discharged. The valves will remain closed except for the discharge of rainwater.
    5. Gutters have been installed on the farrowing barn to divert rainwater away from the lagoons. The area between the barn and the lagoon will be excavated to allow any liquid that is collected to drain into the lagoon.
9. 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. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit a Spill Response Plan. Attachment A of this Agreed Order outlines the elements that need to be included in a Spill Response Plan.

3. Within Sixty (60) days of the Effective Date of this Agreed Order, Respondent shall, pursuant to 327 IAC 5-4-3, submit an application for a National Pollutant Discharge Elimination System (NPDES) permit for the Site. This NPDES permit application shall be sent to:

 Jon Mangles, Chief

Water Permitting Branch

Office of Water Quality

IGCN, Rm N1203

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, Indiana 46206-6015

4. Respondent shall, by May 1, 2002, direct the water from the gutter system installed on the buildings at the Site to a drain tile system to be constructed by the Respondent.

5. 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

6. Respondent is assessed a civil penalty of Five Thousand, Six Hundred and Eighty Seven Dollars and Fifty Cents ($5,687.50). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.
 
 

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 $500 per week the Spill Plan submittal is late

Order Condition #3 $500 per week the NPDES application 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 Case 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 Condition #6 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 successors 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 -UST Section Printed:________________________

Office of Enforcement

Title:__________________________

Date:_________________________ Date:__________________________
 
 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By:___________________________ By:____________________________

Office of Legal Counsel

Department of Environmental Management

Date:__________________________ Date:___________________________
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __________ DAY OF __________________, 2002.
 
 

For the Commissioner:
 
 
 
 
 
 

Adopted April 30, 2002

Felicia A. Robinson

Deputy Commissioner

Legal Affairs