STATE OF INDIANA

COUNTY OF MARION

)
)
)


SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

STRIEGEL DESIGN & CONSTRUCTION, INC.,

Respondent.

)
)
)
)
)
)
)
)
)
)






Case No. 2006-15743-W

 

 

AGREED ORDER

 

Complainant and 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 (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondent is Striegel Design & Construction, Inc. (“Respondent”), which owns and operates a contracting company that was responsible for conducting a manure lagoon excavation/closure project located at 3091 North 700 West, Brownstown, Jackson County, Indiana (the “Site”).

 

3.                  IDEM has jurisdiction over the parties and the subject matter of this action.

 

4.                  Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation on June 20, 2006 via Certified Mail to:

 

Monte Striegel, President & Registered Agent

Striegel Design & Construction, Inc.

50 North CR 650 West

Medora, IN   47260

 

5.         During an investigation conducted at the Site by a representative of IDEM on March 28, 2006, and April 4, 2006, the following violations were found:

 

a.         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 putrescent or otherwise 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 to otherwise severely injure or kill aquatic life, other animals, plants, or humans,

 

E.                 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.

 

Respondent caused and/or allowed the discharge of animal manure from the Site into tributaries of Bee Creek, waters of the state, that settled to form objectionable deposits, were in amounts sufficient to be unsightly or deleterious, and that produced color or other conditions in such degree as to create a nuisance, in violation of 327 IAC 2-1-6(a)(1).

 

b.         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 tributaries of Bee Creek, waters of the state, occurred on or about March 27, 2005, and was not properly contained and/or responded to and/or reported by the Respondent, in violation of 327 IAC 2-6.1-7.

 

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.

 

Respondent caused and/or allowed the discharge of animal manure, a pollutant, from the Site into tributaries of Bee 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 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 Indiana Code 13-18-4-1 and Indiana Code 13-18-4-3.

 

Respondent caused and/or allowed the discharge of animal manure, an organic matter, from the Site into tributaries of Bee Creek, waters of the state, in violation of 327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, rules adopted by the Water Pollution Control Board, 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 animal manure, a contaminant or waste, into the environment from the Site, in violation of 327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, rules adopted by the Water Pollution Control Board, and thus violated IC 13-30-2-1(1).

 

6.         As noted in follow-up inspections, several items were addressed since the spill was confirmed on March 28, 2006, including:

 

a.         The sludge in the bottom of the manure lagoon was excavated and land applied to surrounding farm fields, and the lagoon was covered and graded with soil.  The area was then vegetated and stabilized.

 

b.         The dirt dams in the drainage way between the lagoon and the ravine were removed and the contaminated soil was land applied on surrounding fields.  Field tests conducted on April 4, 2006, revealed the level of ammonia-nitrogen leaving the site was at an acceptable level.  The drainage way was vegetated and stabilized.  The third dam in the drainage way was replaced with heavy brush and tree branches to help act as a filter during times of heavy rainfall.

 

c.         An old farrowing house which was on the property was demolished and the manure in the pit was land applied on surrounding farm fields.  The concrete walls of the pit were then pushed in, the pit filled with dirt, and the area graded.  This area was also vegetated and stabilized.

 

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 Complainant or Complainant’s delegate, and has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  Respondent shall comply with 327 IAC 2-1-6(a)(1), 327 IAC 2-6.1-7, 327 IAC 5-2-2, IC 13-18-4-5, and IC 13-30-2-1(1).

 

3.                  Respondent is assessed a civil penalty of Seven Thousand Dollars ($7,000).  In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, 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.

 

4.                  The civil penalty is payable by check to the “Environmental Management Special Fund.”  Checks shall include the Case Number of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

5.                  This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns.  Respondent’s signatories to this Agreed Order certify that he is fully authorized to execute this Agreed Order and legally bind the party he represents.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

6.                  In the event that any terms of this 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 this Agreed Order did not contain the invalid terms.

 

7.                  The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.

 

8.                  This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit.  This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permit or any applicable Federal or State law or regulation.

 

9.                  Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent's compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation.  Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

 

10.             Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

 

11.             Nothing in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action.  IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the EPA or any other agency or entity.

 

12.             This Agreed Order shall remain in effect until Respondent has with the terms of Order Paragraph Nos. 3 and 4 and IDEM issues a Resolution of Case letter.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Striegel Design & Construction, Inc.

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2007.

 

 

For The Commissioner:

 

 

 

Signed on June 4, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement