STATE OF
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BEFORE THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case
No. 2004-13937-S |
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JASON DAVIDSON, |
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Respondent |
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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, except a proceeding to enforce this 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.
Respondent is Jason Davidson (“Respondent”), who owns and
operates a confined feeding operation, log # AW-5220, located at 5183 North 450
East, in Portland, Jay County, Indiana (“Site”).
3.
The Indiana Department of Environmental Management (“IDEM”)
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to IC 13-30-3-3, on January 10, 2005, IDEM mailed a
Notice of Violation via Certified Mail to:
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Jason
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5006
East 500 North |
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5.
Inspections on April 7 and 8, 2004, were conducted at the
Site by representatives of IDEM’s Offices of Emergency Response and Land
Quality. The following violations were
in existence or observed at the time of these inspections:
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.
Reportable spills of animal manure from the Site into Limberlost Creek, waters
of the state, occurred on or about April 7, 2004 and were not properly
contained, responded to, and/or reported by Respondent, a violation of 327 IAC
2-6.1-7.
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 Respondent caused and/or allowed the discharge of animal manure from the Site
on or about April 7, 2004 into Limberlost Creek, waters of the state, that produced other conditions in such degree to create a
nuisance, in violation of 327 IAC 2-1-6(a)(1).
C.
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.
The Respondent caused and/or allowed the discharge of animal manure, a pollutant,
from the Site on or about April 7, 2004 into Limberlost Creek, waters of the
state, without a valid NPDES permit and without meeting any of the exclusions
in 327 IAC 5-2-4, in violation of 327 IAC 5-2-2.
D.
Pursuant to 327 IAC 16-3-1(a), a confined feeding operation
shall be managed to avoid an unpermitted discharge into waters of the state.
The Respondent did not manage the confined feeding operation to avoid an
unpermitted discharge into the waters of the state, resulting in a discharge of
animal manure from the Site on or about April 7, 2004 into Limberlost Creek,
waters of the state, without a valid permit, in violation of 327 IAC 16-3-1
(a).
E.
Pursuant to 327 IAC 16-9-5 (b) the operating record must
contain all applicable records from the following: 327 IAC 16-9-1 (e) regarding completed
self-monitoring records for three (3) years; 327 IAC 16-10-1, regarding minimum
acreage records; 327 IAC 16-10-2 (c), regarding land application records for
five years; 327 IAC 16-10-5 (c), regarding marketing and distribution records
for three years; and documentation of any spill response implemented in
accordance with 327 IAC 16-9-4 (a) (3) by confined feeding operation personnel
within the past five years.
The operating record of the Respondent on or about April 8, 2004 did not
contain all applicable records from 327 IAC 16-10-2 (c)(2), regarding land application
records for five years.
F.
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 Respondent caused and/or allowed the discharge of animal manure, an
organic matter, from the Site on or about April 7, 2004 into Limberlost Creek,
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.
G.
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 Respondent caused and/or allowed animal manure, a
contaminant or waste, into the environment from the Site on or about April 7,
2004, a 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).
6.
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 his 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, pursuant to 327 IAC 5-4-3 and 327 IAC
15-15-5, submit a notice of intent (“NOI”) for a National Pollutant Discharge
Elimination System (“NPDES”) permit for the Site. This NOI shall be sent to:
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Confined
Feeding Section, Office of Land Quality |
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Indiana
Department of Environmental Management |
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Attn: Jerry Rud, Chief |
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Permits Section |
3.
Respondent is assessed a civil penalty of Five Thousand Dollars
($5,000). The civil penalty shall be
paid in the following manner: eight quarterly payments of Six Hundred Twenty
Five Dollars ($ 625) each. The first
installment of the civil penalty shall be due and payable to the Environmental
Management Special Fund within thirty (30) days of the Effective Date of this
Agreed Order. The three subsequent
installments shall be respectively due within 120, 210, 300, 390, 480, 570, and
660 days of the Effective Date of this Agreed Order.
4.
In the event the terms and conditions of the following
paragraph are violated, the Complainant may assess and the Respondent shall pay
a stipulated penalty in the following amount:
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Violation |
Penalty |
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Failure to comply with Order Paragraph No. 2 |
$ 500 per week that NOI is not |
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submitted by due date |
5.
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 any of the stipulated penalties 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.
6.
Civil and stipulated penalties are payable by check to the
Environmental Management Special Fund.
Checks shall include Case Number 2004-13937-S and shall be mailed to:
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Indiana Department of Environmental Management |
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Cashier Mail Code: 50-10C |
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7.
In the event that any installment of the civil penalty
required by Order Condition No. 3 is not
paid in accordance with the schedule set forth in Order Condition No. 3, the
entire unpaid balance shall be due and payable immediately. The Respondent shall pay interest on the
entire unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall begin to accrue on the
date the unpaid installment is due and interest shall continue to accrue until
the civil penalty is paid in full.
8.
This Agreed Order shall apply to and be binding upon the
Respondent, his 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 his 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 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.
11.
This Agreed Order shall remain in effect until Respondent
has complied with all terms and conditions of this Agreed Order.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT |
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Department
of Environmental Management |
Matt Dirksen |
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By: |
____________________ |
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Jason Davidson |
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Paul Higginbotham, Chief |
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Solid Waste/UST Section |
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_____________________ |
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Office
of Enforcement |
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Date: |
3/22/06________ |
Date: |
3/31/06___________ |
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COUNSEL
FOR COMPLAINANT: |
COUNSEL
FOR RESPONDENT: |
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Department
of Environmental Management |
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By: |
Nicole Sipe __________ |
By: |
__________________ |
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Office
of Legal Counsel |
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Date: |
__4-24-2006__________ |
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__________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
__24th__ |
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___April__________ |
, 20_06_. |
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For
the Commissioner: |
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Signed March 1, 2006 |
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Matthew
T. Klein |
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Assistant
Commissioner for |
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Compliance
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