STATE OF
) SS: OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2003-12790-S
)
MARK and BILLIE SHAFFER, d/b/a
SHAFFER FARMS, )
)
Respondent. )
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.
I. FINDINGS
OF FACT
1. Complainant is the Commissioner
(“Complainant”) of the Indiana Department of Environmental Management, a
department of the State of
2. Respondents are Mark and Billie
Shaffer, d/b/a Shaffer Farms (“Respondents”), who own/operate the Confined
Feeding Operation, approval # AW 2165, located at 5245 E. C. R. 850 S., in
Amboy,
3. The
4.
Pursuant to IC 13-30-3-3, on
Mark and Billie Shaffer
5245 E. C. R. 850 S.
Amboy, IN 46911
5. An inspection, on
A. 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 hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental
Response.
A
reportable spill of animal manure from the Site into the road side ditch of
S.R.19, waters of the state, occurred on or about
B. 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.
The Respondents caused and/or allowed the discharge of animal manure from the Site on or about February 10, 2003, into the road side ditch of S.R.19, waters of the state, that settled to form putrescent or otherwise objectionable deposits, in violation of 327 IAC 2-1-6(a)(1).
C.
Pursuant to 327 IAC
The Respondents caused and/or allowed the discharge of animal
manure, a pollutant, from the Site on or about
D. 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 IC 13-18-4-1 and IC 13-18-4-3.
The Respondents caused and/or allowed the discharge of animal manure, an organic matter, from the Site on or about February 10, 2003, into the road side ditch of S.R.19, waters of the state, in violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and/or 327 IAC 5-2-2, and thus violated IC 13-18-4-5.
E. 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.
The Respondents caused and/or allowed the discharge of animal manure, a contaminant or waste, into the environment from the Site on or about February 10, 2003, in violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and/or 327 IAC 5-2-2, and thus violated IC 13-30-2-1(1).
F. Pursuant to 327 IAC 16-3-1(c), a confined feeding operation shall immediately take all reasonable steps to prevent spills or the discharge of manure in violation of the approval or 327 IAC 16 et seq., including seepage and leakage.
The Respondents failed to take all reasonable
steps to prevent the spill or discharge of manure from
the Site on or about
G. Pursuant to 327 IAC 16-9-5(a) the following information must be added to the operating record in accordance with required time frames established in 327 IAC 16 and IC 13-18-10, and must be maintained and updated in the operating record all valid approvals, amendments, and notifications relevant to the approvals, the current manure management plan, and the current emergency spill response plan.
The Respondents, on or about February 10, 2003, did not add to the operating record in accordance with the required time frames established in 327 IAC 16 and IC 13-18-10 and/or failed to maintain and update in the operating record all valid approvals, amendments, and notifications relevant to the approvals, the current manure management plan, and/or the current emergency spill response plan, in violation of 327 IAC 16-9-5(a).
H. Pursuant to 327 IAC 16-10-2(c), the following information must be added to the operating record as needed in accordance with required time frames established in this article and IC 13-18-10, and must be maintained and updated in the operating record: the type of manure applied, results of manure tests, soil tests for all manure application sites, the amount of manure applied, the application method used, identification of locations and number of acres on which manure is applied, the dates on which the manure is applied, determination of the agronomic rates for potentially available nitrogen used to apply manure to each field.
The Respondents, on or about February 10, 2003, did not add to the operating record in accordance with required time frames established in 327 IAC 16-10-2(c) and IC 13-18-10 and/or failed to maintain and update in the operating record, the type of manure applied, results of manure tests,
soil tests for all manure application sites, the amount of manure applied, the application method used, identification of locations and number of acres on which manure is applied, the dates on which the manure is applied, determination of the agronomic rates for potentially available nitrogen used to apply manure to each field, in violation of 327 IAC 16-10-2(c).
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 submitted to IDEM an application for a National Discharge Pollution Elimination System (NPDES) permit.
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. 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
3. Beginning immediately, the Respondents shall maintain a minimum of
twelve (12) inches of freeboard in the manure storage lagoon at the site.
4. The Respondents are assessed a civil penalty of Five Thousand Six Hundred
Dollars ($5,600.00). The civil penalty has been waived based upon evidence
submitted by the Respondents that adequately demonstrated an inability to pay the
original penalty amount assessed based on IDEM's civil penalty policy.
5. 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. 3 $1,500.00 per week
6. 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 Respondents' violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.
7. 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
8. 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 its status or responsibilities under this Agreed Order.
9. 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.
10. 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.
11. This Agreed Order shall remain in effect until the Respondents have complied with all terms and conditions of this Agreed Order.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Mark Shaffer, d/b/a Shaffer
Farms
By: _________________________ By: _________________________
Paul Higginbotham
Chief, Solid
Waste/UST Section Printed:
______________________
Office of Enforcement
Title:
________________________
Date: ________________________ Date: ________________________
RESPONDENT:
Billie
Shaffer, d/b/a Shaffer Farms
By:
_________________________
Printed:
______________________
Title:
________________________
Date:
________________________
COUNSEL FOR COMPLAINANT: COUNSEL
FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Office of
Legal Counsel
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2004.
For the Commissioner:
Signed September 29, 2004
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs