STATE OF
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BEFORE THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case
No. 2004-13974-S |
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TRANSFARM, INC., |
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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 Transfarm, Inc. ("Respondent"),
which owns and operates the confined feeding operation ("CFO"), CFO
Approval No. AW-5010, located at 332 West 100 North, in Reynolds,
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 August 30, 2004, IDEM issued a
Notice of Violation via Certified Mail to:
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Brian
Furrer |
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President
and Registered Agent |
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Transfarm,
Inc. |
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332
West 100 North |
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5.
Inspections, on November 18, 19 & 20, 2003, were
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 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.
A reportable spill of waste liquid from the Site into an unnamed ditch (waters
of the state) occurred on or about November 18-20, 2003 and was not properly contained and/or responded to and/or reported
by the Respondent, in 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:
(A)
that will settle to form objectionable deposits;
(B)
that are in amounts sufficient to be unsightly or
deleterious;
(C)
that produce color, visible oil sheen, odor, or other
conditions in such degree as to create a nuisance;
(D)
which are in amounts sufficient to be acutely toxic to, or
otherwise severely injure or kill aquatic life, other animals, plants, or
humans; and
(E)
which are in concentrations or combinations that will cause
or contribute to the growth of aquatic plants or algae to such degree as to
create a nuisance, be unsightly, or otherwise impair the designated uses.
(F)
The Respondent caused and/or allowed the discharge of waste
liquid from the Site on or about November 18-20, 2003, into an unnamed ditch
(waters of the state) that was in an amount sufficient
to be unsightly or deleterious, that produced color, visible oil sheen, odor,
or other conditions in such degree to create a nuisance, which was in amounts
sufficient to be acutely toxic to, or otherwise severely injure or kill aquatic
life, other animals, plants or humans, 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 waste liquid, a
pollutant, from the Site on or about November 18-20, 2003, into an unnamed
ditch (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 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 waste liquid, an
organic matter, from the Site on or about November 18-20, 2003 into an unnamed
ditch (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 Respondent caused and/or allowed the discharge of
waste liquid, a contaminant or waste, into the environment from the Site on or
about November 18-20, 2003, in violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1)
and 327 IAC 5-2-2, and thus violated IC 13-30-2-1(1).
F.
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 waters of the state, resulting in
discharges of waste liquid from the Site on or about November 18-20, 2003, into
an unnamed ditch, waters of the state, without a valid permit, in
violation of 327 IAC 16-3-1(a).
6.
On March 9, 2006, IDEM issued Respondent a General National
Pollutant Discharge Elimination System ("NPDES") permit, No.
ING805560, for the Site. The permit
includes plans for:
A.
Converting the run-off collection lagoon at the composting
pad into a manure storage structure that complies with the requirements found
at 327 IAC 16.
B.
Building cattle barns to replace some of the open feed lots;
and
C.
Construction of a waste management system for the collection
and storage of process wastewater (as defined at 327 IAC 5-4-3(b)(12)) from the
production area at the Site.
7.
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.
The Respondent shall complete sufficient cattle barns to
house the number of cattle currently on Lot Nos. 1, 2, 3, 4, 5, 10, 11 & 12
and the associated manure management system within one (1) year of the
Effective Date of the General NPDES permit, No. ING805560, for the Site. These lots are noted on Respondent's
Farmstead Plan, attached hereto and incorporated by reference as "Attachment
A."
3.
The Respondent shall remove the cattle from Lot Nos. 1, 2,
3, 4, 5 and 12 and permanently seed all of these lots on or before March 9,
2006.
4.
Following the seeding and establishment of vegetation on Lot
Nos. 1, 2, 3, 4, 5 and 12 as referenced above, the Respondent shall maintain no
less than 50% vegetation on these lots.
5.
Should circumstances prevent completion of the projects
described in Order Conditions 2, 3, and 4 above and Respondent has made a good
faith effort to comply, the Respondent may request and the complainant may
grant a one hundred and eighty (180) day extension to complete the projects.
6.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
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Indiana Department of Environmental Management |
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Craig Henry, Enforcement Case Manager |
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Office of Enforcement Mail Code 60-02 |
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7.
Respondent is assessed a civil penalty of Three Thousand
Seven Hundred Twenty Five ($3,725.00) Dollars. 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.
8.
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:
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Violation |
Penalty |
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Failure to comply with Order paragraph No.3 |
$1,000.00 per week |
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Failure to comply with Order paragraph No. 4 |
$1,000.00 per week |
9.
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.
10.
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:
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Indiana Department of Environmental Management |
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Cashier Mail Code 50-10C |
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11.
In the event that the civil penalty required by Order
paragraph No. 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.
12.
"Force Majeure" for purposes of this Agreed
Order, is defined as any event arising from causes totally beyond the control
and without fault of the Respondent that delays or prevents the performance of
any obligation under this Agreed Order despite Respondent's best efforts
to fulfill the obligation. The
requirement that the Respondent exercise "best efforts to fulfill the obligation"
includes using best efforts to anticipate any potential force majeure event and
best efforts to address the effects of any potential force majeure event (1) as
it is occurring and (2) following the potential force majeure event, such that
the delay is minimized to the greatest extent possible. "Force Majeure" does not
include changed business or economic conditions, financial inability to
complete the work required by this Agreed Order, or increases in costs to
perform the work.
The Respondent shall notify IDEM by calling the case manager within three (3) calendar
days and by writing no later than seven (7) calendar days after it has knowledge
of any event which the Respondent contends is a force majeure. Such notification shall describe the
anticipated length of the delay, the cause or causes of the delay, the measures
taken or to be taken by the Respondent to minimize the delay, and the timetable
by which these measures will be implemented. The Respondent shall include with any
notice all available documentation supporting its claim that the delay was
attributable to a force majeure.
Failure to comply with the above requirements shall preclude Respondent
from asserting any claim of force majeure for that event. The Respondent shall have the burden of
demonstrating that the event is a force majeure. The decision of whether an event is a
force majeure shall be made by IDEM.
If a delay is attributable to a force majeure, IDEM shall extend, in writing,
the time period for performance under this Agreed Order, by the amount of time
that is directly attributable to the event constituting the force majeure.
13.
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.
14.
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.
15.
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.
16.
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 |
Transfarm, Inc. |
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By: |
____________________ |
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Paul Higginbotham, Chief |
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Solid Waste/UST Section |
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Office
of Enforcement |
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Date: |
__________________ |
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____________________ |
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COUNSEL
FOR COMPLAINANT: |
COUNSEL
FOR RESPONDENT: |
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Department
of Environmental Management |
Bose McKinney & Evans, LLP |
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By: |
________ __________ |
By: |
____________________ |
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Office
of Legal Counsel |
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Date: |
__________________ |
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______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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For
the Commissioner: |
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Signed April 12, 2006 |
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Matthew
T. Klein |
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Assistant
Commissioner for |
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Compliance
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