STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2002-11387-S
)
DARRELL KEMP, )
)
)
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 (AComplainant@)
of the Indiana Department of Environmental Management, a department of
the State of Indiana created by IC 13-13-1-1.
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Respondent is Darrell Kemp ("Respondent@),
who owns a confined feeding operation located at CR 1100 E and CR 600 N,
Loogootee, Davies County, Indiana ("the Site").
3. The Indiana Department of Environmental Management (AIDEM@)
has jurisdiction over the parties and the subject matter of this action.
4. Pursuant to IC 13-30-3-3, on June 7, 2002, IDEM issued a Notice of
Violation via Certified Mail to:
Darrell Kemp
RR 3, Box 293
Loogootee, Indiana 47553
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An inspection on December 6, 2001, was conducted at the Site by a representative
of IDEM=s Office of Land Quality
(OLQ). The following violations were in existence or observed at the time
of this inspection:
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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, be unsightly, or otherwise impair the
designated uses. Manure was discharged from the Site into a tributary of
West Boggs Lake, waters of the state, in an amount sufficient to be deleterious.
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Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains
any mode of transportation or 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, if possible, to prevent additional spilled material
from entering the waters of the state; undertake or cause others to undertake
activities needed to accomplish a spill response; and as soon as possible,
but within two (2) hours of discovery, communicate a spill report to the
Department of Environmental Management, Office of Response. Manure was
discharged into a tributary of West Boggs Lake, waters of the state, and
was not properly contained, responded to or reported.
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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. Pollutants were discharged from the Site into a
tributary of West Boggs Lake, waters of the state, without a valid NPDES
permit.
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Pursuant to IC 13-18-4-5, a person may not throw, run, drain, or otherwise
dispose into any of the streams or waters of Indiana; or 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 IC 13-8-4. Manure was discharged from
the Site into a tributary of West Boggs Lake, waters of the state, in violation
of 327 IAC 2-1-6(a)(1), which is a rule adopted by the Indiana Water Pollution
Control Board, and thus violated IC 13-18-4-5.
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Pursuant to IC 13-30-2-1, 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
rules, standards, or discharge of emission requirements adopted by the
appropriate board pursuant to this article. Pollutants were discharged
from the Site into a tributary of West Boggs Lake, waters of the state,
in violation of 327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, which are rules
adopted by the Indiana Water Pollution Control Board, and thus violated
IC 13-30-2-1(1).
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Respondent submitted an application for a National Pollutant Discharge
Elimination System (NPDES) permit for the Site on July 26, 2002.
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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.
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Respondent shall within thirty (30) days of the Effective Date of this
Agreed Order, submit a copy of the Spill Response Plan required by 327
IAC 16-9-4.
3. All submittals required by this Agreed Order, unless notified otherwise
in
writing, shall be sent to:
Janet Arnold, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
4. Respondent is assessed a civil penalty of One Thousand Dollars
($1,000). This penalty reflects a significant reduction based upon evidence
submitted by the Respondent which adequately demonstrated an inability
to pay the original penalty amount assessed based on IDEM's civil penalty
policy. Said penalty amount shall be due and payable to the Environmental
Management Special Fund in twelve (12) installment payments of Eighty-Three
Dollars and Thirty-Three Cents ($83.33). The first installment payment
shall be due and payable within thirty (30) days of the Effective Date
of this Agreed Order. Each subsequent payment shall be due and payable
on July 1, 2003; August 1, 2003; September 2, 2003; October 1, 2003; November
3, 2003; December 1, 2003; January 1, 2004; February 2, 2004; March 1,
2004; April 1, 2004; and May 3, 2004; 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.
5. In the event the terms and conditions of the following paragraphs
are violated, the Complainant may assess and the Respondent shall pay a
stipulated penalty in the following amount:
Violation Penalty
Failure to comply with Order paragraph 2 $500 per week submittal is
late
6. 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 Respondents for violation of the Agreed Order. In lieu of any of the
stipulated penalties given above, the Complainant may seek any other remedies
or sanctions available by virtue of Respondents' violation of this Agreed
Order or Indiana law, including, but not limited to, civil penalties pursuant
to IC 13-30-4.
7. 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 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
8. In the event that the civil penalty required by Order paragraph
4, is not paid accordingly, 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.
9. This Agreed Order shall apply to and be binding upon the Respondent,
their 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.
10. In the event that any terms of the 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.
11. 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.
12. This Agreed Order shall remain in effect until Respondent has complied
with all terms and conditions of this Agreed Order and IDEM issues a close-out
letter to the Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: _________________________ By:
Paul Higginbotham, Chief Darrell Kemp
Solid Waste-UST Section
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 ____________________, 2003.
For the Commissioner:
Signed July 15, 2003
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs