STATE OF
) SS: OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2002-12489-S and
) 2002-12534-S
MILCO DAIRY, L.L.C. and )
VREBA-HOFF DAIRY DEVELOPMENT, L.L.C., )
)
Respondents. )
AGREED
ORDER
The Complainant and the Respondents 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, except a proceeding to enforce this order.
I. FINDINGS OF
FACT
1.
Complainant is the Commissioner (AComplainant@) of the Indiana Department
of Environmental Management, a department of the State of
2. Respondents are Milco Dairy, L.L.C. who owns/operates, and Vreba-Hoff Dairy Development, L.L.C. which developed (herein after referred to as Respondents), the confined feeding operation (CFO), CFO approval # AW-4859 located at 9302 S. C.R. 275 E., in Lewisville, Henry County, Indiana (ASite@).
3.
The
4.
Pursuant to IC 13-30-3-3, on
|
Nico Niessen |
John Vander
Hoff |
|
Registered
Agent |
Vreba Hoff
Dairy |
|
Milco Dairy Farm,
L.L.C. |
Development,
L.L.C. |
|
9302 S. C.R. 275
E. |
|
|
|
|
5. Inspections, on September 12 and 23, 2002, were conducted at the Site by representatives of IDEM’s Office of Land Quality (OLQ). The following violation was in existence or observed at the time of these inspections:
Pursuant to 327 IAC
The
Respondents did not construct the manure control facilities, at the site, in
compliance with the terms and conditions of CFO approval # AW-4859, in violation
of 327 IAC
6. In recognition of the settlement reached, the Respondents waive any right to administrative and judicial review of this Agreed Order.
7. The Respondents have installed a reinforced concrete (12" X 16") beam at the top of the sand-pit wall and the concrete kick-outs have been extended four (4) feet vertically to the top of the sand-pit walls.
8. The existing perimeter tile at the sand-pit has been reconfigured to drain into a sump area. The water collected in the sump is pumped into the earthen lagoon.
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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.
2. Within ninety (90) days of the Effective Date of this Agreed Order, the Respondents shall install a silage leachate containment curb at the silage storage pad, in accordance with Attachment B.
3. Beginning immediately and continuing until the requirements of Order condition 2 are met, the Respondent shall install and maintain an earthen berm to contain the silage leachate at the silage pad .
4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Craig Henry, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
5. The Respondents are assessed a civil penalty of Eleven Thousand Two Hundred ($11,200.00) Dollars. Within thirty (30) days of the Effective Date of this Agreed Order, Respondents shall pay a portion of this penalty in the amount of Five Thousand Thirty Three ($5,033.00) Dollars. Said penalty amount shall be due and payable to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondents shall perform and complete Supplemental Environmental Projects (“SEP”). Respondents estimate that SEP 1 will cost Eight Thousand ($8,000.00) Dollars. Within thirty (30) days of completing SEP 1, Respondents shall submit written notice and documentation to IDEM that substantiates all actions taken and costs incurred with respect to SEP
1. In the event that the cost of SEP 1 is less than Eight Thousand ($8,000.00) Dollars, Respondents shall pay thirty three percent (33%) of the difference between the proposed cost of SEP 1 ($8,000.00) and the actual cost of the SEP. Respondents estimate that SEP 2 will cost Seven Thousand ($7,000.00) Dollars. Within thirty (30) days of completing SEP 2, Respondents shall submit written notice and documentation to IDEM that substantiates all actions taken and costs incurred with respect to SEP 2. In the event that the cost of SEP 2 is less than Seven Thousand ($7,000.00) Dollars, Respondents shall pay fifty percent (50%) of the difference between the proposed cost of SEP 2 ($7,000.00) and the actual cost of the SEP.
As SEP 1 (see Attachment A), Respondents shall complete a Certified Nutrient Management Plan (CNMP). As SEP 2 (see Attachment A), Respondents shall implement conservation practices (i.e. grass waterways, grass filter strips, etc.) as approved by IDEM. Respondents shall complete SEP 1 within ninety (90) days of the Effective Date of this Agreed Order. SEP 2 shall be completed within one year of the Effective Date of this Agreed Order. Implementation of these SEPs will reduce soil loss from the site and reduce the amount of sediment and contaminated run-off reaching waters of the state.
In the event that the Respondents do not complete SEP 1 within ninety (90) days of the Effective Date of this Agreed Order and SEP 2 within one year of the Effective Date of this Agreed Order, the full amount of the civil penalty as stated above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty the Respondents have already paid, will be due within fifteen (15) days from Respondents' 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.
6. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondents shall pay a stipulated penalty in the following amount:
|
Violation |
Penalty |
|
Failure to comply
with Order paragraph No. 2 |
$1,000.00 per
week |
|
Failure to comply
with Order paragraph No. 3 |
$1,000.00 per
week |
7. Stipulated penalties shall be due and payable within thirty (30) days after the Respondents receive 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 the Respondents' violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.
8. 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
Indiana Department of Environmental Management
9. In the event that the civil penalty required by Order paragraph 5 is not paid within thirty (30) days of the Effective Date of this Agreed Order, the Respondents 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.
10. This Agreed Order shall apply to and be binding upon the Respondents, their successors and assigns. The Respondents' 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 Respondents shall in any way alter their status or responsibilities under this Agreed Order.
11. 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.
12. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
13. This Agreed Order shall remain in effect until the Respondents have complied with all terms and conditions of this Agreed Order.
RESPONDENT:
Milco Dairy, L.L.C.
By: _________________________
Printed: ______________________
Title: ________________________
Date: ________________________
COUNSEL FOR RESPONDENT:
By: ________________________
Date: ______________________
RESPONDENT:
Vreba-Hoff Dairy Development, L.L.C.
By: _________________________
Printed: ______________________
Title: ________________________
Date: ________________________
COUNSEL FOR RESPONDENT:
By: ________________________
Date: ______________________
TECHNICAL RECOMMENDATION:
Department of Environmental
Management
By: _________________________
Paul Higginbotham
Chief, Solid Waste/UST Section
Office of Enforcement
Date: ________________________
COUNSEL FOR COMPLAINANT:
Department of Environmental
Management
By: _________________________
Office of Legal Counsel
Date: _______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________,
2004.
For the Commissioner:
Adopted
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs
Attachment
A
Milco
Dairy, L.L.C.
Supplemental Environmental Project Proposal
SEP 1
1. SEP Project Description:
A Certified Nutrient Management Plan (CNMP) will be completed for Milco Dairy, L.L.C. The CNMP will examine current management practices, as well as resource concerns for Milco Dairy, L.L.C. Pertinent technical information will be provided by NRCS staff, Professional Engineers, and an Agronomist.
2. SEP categories that will apply to proposed SEP:
Environmental Audits-The CNMP is a grouping of conservation practices and management activities which, when implemented as part of a conservation system, will help to ensure that both production and natural resource protection goals are achieved (NRCS, CNMP Guidance Manual).
3. Environmental benefits of SEP:
Environmental audits will constantly identify, address and monitor possible problems in all three applicable media (air, soil & water).
4. Projected Costs/Savings of SEP:
The cost of performing a CNMP for Milco Dairy, L.L.C. is as follows:
* Professional Engineering Services for building certifications: $3,000.00
* Charge to complete CNMP (Approx. 65 hours): $5,000.00
5. Time line for SEP:
It will take 6-12 weeks to complete a CNMP. The effort has to be coordinated between the producer, and several professional groups. The CNMP for Milco Dairy, L.L.C. will begin within thirty (30) days of the Effective Date of this Agreed Order.
SEP 2.
1. SEP Project Description-Milco Dairy, L.L.C. will implement conservation projects at the site. The specific projects will be submitted to IDEM for approval following completion of a CNMP. The projects may include but are not limited to: grass waterways, grass filter strips and clean water diversion.
2. SEP Categories that will apply to proposed SEP:
Pollution prevention-conservation projects will prevent contaminated run-off from reaching waters of the state.
3. Environmental Benefits of SEP-Suggested projects may prevent soil erosion, divert clean storm water to reduce contaminated run-off and/or filter run-off to prevent contaminants from reaching waters of the state.
4. Projected Cost-Milco Dairy, L.L.C. is proposing spending $7,000.00 on conservation projects within one year of the Effective Date of this Agreed Order.
5. Timeline for SEP: This SEP shall be completed within one year of the Effective Date of this Agreed Order.
SEP credit calculation
|
|
Estimated
Cost |
Offset
Ratio |
Penalty
Reduction |
|
SEP 1 |
$8,000.00 |
3:1 |
$2,666.67 |
|
SEP 2 |
$7,000.00 |
2:1 |
$3,500.00 |