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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. ALTO DAIRY COOPERATIVE, 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 in these Findings of Fact. The 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 (“IDEM”), a department of the State of
2.
Respondent is
Alto Dairy Cooperative (“Respondent”), which owns/operates a Confined Feeding
Operation, Farm ID # 4960, with Approval Number AW-3810, located near North Manchester,
Kosciusko 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 March 8, 2007 via Certified
Mail to:
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Paul Nuttelman |
Mark Rose |
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Alto Dairy |
PLC Farms |
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12096 S 400E |
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5.
During an inspection
conducted by representatives of IDEM, the following violations were found:
a. Pursuant to 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, any person
who operates, controls, or maintains any facility from which a spill occurs
shall, upon discovery of a spill that damages the waters of the state so as to
cause death or acute injury or illness to humans or animals:
1. Contain
the spill, if possible, to prevent additional spilled material from entering
the waters of the state.
2. Undertake
or cause others to undertake activities needed to accomplish a spill response.
3. As
soon as possible, but within two (2) hours of discovery, communicate a spill
report to the Department of Environmental Management.
4. Submit
to the Department of Environmental Management, a written copy of the spill
report if requested in writing by the department.
5. Except
from modes of transportation other than pipelines, exercise due diligence and
document attempts to notify the following:
(a) For
spills to surface water that cause damage, the nearest affected downstream
water user located within ten (10) miles of the spill and in the state of
(b) For
spills to soil outside the facility boundary, the affected property owner or
owners, operator or operators, or occupant or occupants.
Pursuant
to 327 IAC 5-2-2, any discharge of pollutants into the waters of the state as a
point source discharge is prohibited unless in conformity with a valid NPDES
permit obtained prior to the discharge.
Pursuant to 327 IAC 2-1-6(a), 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:
1.
that
will settle to form objectionable deposits;
2.
that
are in amounts sufficient to be unsightly or deleterious;
3.
that
produce color, visible oil sheen, odor, or other conditions in such degree as
to create a nuisance;
4.
which
are in amounts sufficient to be acutely toxic to, or otherwise severely injure
or kill aquatic life, other animals, plants, or humans; and
5.
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.
Respondent
caused and/or allowed the discharge of animal manure from the Site on or about
October 30, 2006 into a private pond, which discharges to waters of the state,
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 2-6.1-5, 327 IAC 2-6.1-7, 327 IAC 5-2-2,
and 327 IAC 2-1-6(a)(1).
b. 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.
Respondent
caused and/or allowed the discharge of animal manure, an organic matter, to
run, drain or seep from the Site on or about October 30, 2006 into a private
pond, which discharges to waters of the state, in violation of 327 IAC 2-6.1-5,
327 IAC 2-6.1-7, 327 IAC 5-2-2, and 327 IAC 2-1-6(a)(1), and thus violated IC
13-18-4-5.
c.
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.
Respondent caused and/or allowed the discharge of animal manure, a
contaminant or waste, into the environment from the Site on or about October
30, 2006, in violation of 327 IAC 2-6.1-5, 327 IAC 2-6.1-7, 327 IAC
5-2-2, and 327 IAC 2-1-6(a)(1), and thus violated IC 13-30-2-1(1).
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.
Respondent did not manage the confined feeding operation to avoid an
unpermitted discharge into, waters of the state, resulting
in discharges of animal manure from the Site on or about October 30, 2006 into a
private pond, which discharges to waters of
the state, without a valid permit, in violation of 327 IAC 16-3-1(a).
e. Pursuant to 327 IAC
16-3-1(e), manure to be staged or applied to land in
Respondent staged manure and/or applied manure to land in a manner
that entered waters of the state from the Site on or about October 30, 2006 and
failed to prevent run-off and/or spills from the Site on or about October 30,
2006, in violation of 327 IAC 16-3-1(e).
f. Pursuant to 327 IAC
16-9-1(f), all waste management systems and application equipment must be
maintained and operated to meet the approval condition that uncovered liquid
manure storage structures must have clearly identified markers to indicate
manure levels relative to the approved freeboard elevation.
Respondent
did not have clearly identified markers to indicate manure levels relative to
the approved freeboard elevation of its uncovered liquid manure storage
structures when the Site was inspected on November 1, 2006.
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 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
immediately comply with 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, 327 IAC 16-3-1(a),
327 IAC 16-3-1(e), 327 IAC 16-9-1(f), 327 IAC 5-2-2, 327 IAC 2-1-6(a), IC
13-18-4-5, IC 13-30-2-1(1), and conditions of Approval Number AW-3810, as
listed in the findings here and/or above at issue.
3. Respondent
shall implement the compliance plan (CP), attached hereto as Exhibit A, for the
Site in accordance with the schedule contained therein. The CP is incorporated into this Agreed Order
and shall be deemed an enforceable part thereof.
4. Respondent
shall, within 12 months of the Effective Date (Performance Period), demonstrate
six consecutive months of compliance (Compliance Demonstration) with all
requirements for the Site. During the
Performance Period, Respondent shall be subject to stipulated penalties, as
specified below, for failure to timely implement the CP at the Site. In the event that Respondent fails to make
the Compliance Demonstration, Respondent shall, within sixty days of becoming
aware that the Compliance Demonstration cannot be achieved, develop and submit
to IDEM, for approval, an “Additional Action Plan” which identifies the
additional actions that Respondent will take to achieve and maintain compliance
with the effluent limitations contained in its NPDES Permit. The Additional Action Plan, if required,
shall include an implementation and completion schedule, including specific
milestone dates.
5. The
plan required by Paragraph 4 above is subject to IDEM approval. In the event
IDEM determines that any plan submitted by Respondent is deficient or otherwise
unacceptable, Respondent shall revise and resubmit the plan to IDEM in
accordance with IDEM’s notice. After three submissions of such plan by
Respondent, IDEM may modify and approve any such plan and Respondent must
implement the plan as modified by IDEM.
Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved plan and adhere to the milestone dates therein for the Site. The approved Additional Action Plan shall be
incorporated into the Agreed Order and shall be deemed an enforceable part
thereof. Failure by Respondent to submit
any plan by the specified date, or to meet any of the milestones in the
approved plan will subject Respondent to stipulated penalties as described
below. Failure to achieve compliance at
the conclusion of work under an Additional Action Plan will subject Respondent
to additional enforcement action.
6.
Respondent shall
notify IDEM, in writing, within ten (10) days of completion of each action
contained in any approved plan. The
notification shall include a description of the action completed and the date
it was completed.
7.
All submittals
required by this Agreed Order, unless Respondent is notified otherwise in
writing by IDEM, shall be sent to:
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Dave
Knox, Enforcement Case Manager |
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Office
of Enforcement – Mail Code 60-02 |
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Indiana
Department of Environmental Management |
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8.
Respondent is
assessed a civil penalty of Six Thousand One Hundred Twenty Five Dollars
($6,125). Said penalty amount shall be
due and payable to the Environmental Management Special Fund within thirty (30)
days of the Effective Date. 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.
9.
In the event the
terms and conditions of the following paragraphs are violated, Complainant may
assess and Respondent shall pay a stipulated penalty in the following amount:
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Paragraph |
Violation |
Stipulated Penalty |
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2 |
Violation of any rule, statute, or Approval |
$500 per event per day |
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3 |
Failure to implement the CP |
$500 per event per day |
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4
and 5 |
Failure
to timely submit any plan |
$500
per each week or part
thereof late |
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5 |
Failure
to meet any milestone date or other
requirement of any approved plan |
$750
per each week or part
thereof late |
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6 |
Failure
to notify IDEM
within 10 days of completion
of each action contained in any approved plan |
$250
per each week or part
thereof late |
10.
Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, 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.
11.
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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12.
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 they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership, corporate, or partnership
status of Respondent shall in any way alter its status or responsibilities
under this Agreed Order.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
This Agreed
Order shall remain in effect until Respondent has complied with all terms and
conditions of Paragraph Nos. 2 through 11 of this Agreed Order and IDEM issues
a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Alto Dairy Cooperative |
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Mark Stanifer, Chief |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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Deputy Attorney General |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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, 2007. |
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For the Commissioner: |
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Signed on August 22, 2007 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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ATTACHMENT
A
COMPLIANCE
PLAN
Alto
Dairy Cooperative
Farm
ID #4960
North
Manchester,
IDEM
Case No. 2007-16582-S
1. Pre-Application Measures
a. Respondent
shall provide IDEM with soil maps available from the Kosciusko County NRCS
office which depict available percolation test results and soil type
information for the Site within thirty (30) days of Effective Date.
b. For
the period of time that the Agreed Order remains in effect, (Respondent) or its
contractor will provide the South Bend North Regional Office of IDEM with
twenty-four (24) hours advanced notice before starting land application
activities. Specifically, a notice shall
be sent to the attention of Steve Schaefer via facsimile at (574) 245-4877 or
via direct telephone contact at (574) 245-4880, followed by a written notice
within five (5) days of the phone call.
c. No
surface application of manure shall occur if:
1) there
is a weather forecast of equal or greater than fifty percent (>50%)
chance of one half inch (0.5”) or more of rain for the twenty-four hour (24)
period before or after the proposed surface application of manure; and/or
2) site
soil conditions are such that surface application of manure would likely result
in run-off; and/or
3) one
half inch (0.5”) or more of rainfall has occurred locally within the past 24
hours; and/or
4) total
ammonia nitrogen (TAN) levels at county tile test points A and B (See
Illustrations 2 and 3; 2.a. and 3.e., below) are at any detectable level (>1 ppm).
2.
Application
Process
a. During
manure application process, Respondent shall use an approved total ammonia
nitrogen (TAN) test kit to monitor TAN levels at county tile test points A and
B (See Illustrations 2 and 3).
Respondent shall monitor and document test readings prior to manure
application as well as at intervals of approximately every four (4) hours for
twenty-four (24) hours after application.
If at any time there is a detectable (> 1 ppm) TAN test reading, Respondent
shall cease manure application until results lower to a non-detectable level.
b. Respondent
shall lower the manure application rate by increasing the speed of the traveler
motion to ensure no more than ¼ acre-inch application rate is reached.
c.
Respondent shall
purchase and implement use of additional irrigation line to reach more surface
area such that a lower overall manure application rate may be successfully
achieved, using the rate of < ¼ acre-inch application as a benchmark.
d.
If the growing
season permits, Respondent may surface apply lagoon liquid on growing
crops. However, this method shall only
be implemented during dry seasons and/or conditions, and application rate shall
remain < ¼ acre-inch application.
3. Physical Changes
a. Respondent
has located two drain tile lines exiting the Site (See Illustration 2,
attached). The tiles are located
approximately thirty-six (36) inches below the ground surface. If Respondent locates any additional tiles
associated with the Site, Respondent shall notify IDEM and actively pursue
inclusion of the newly located tiles into the working purposes and procedures
of this CP.
b. Respondent
shall connect a twenty-four (24) inch round non-slotted smooth core tile with a
removable top cap to each of the existing tiles. A sump will be provided at a depth of
approximately 1.5 feet below the field tile depth location to allow for pump
removal of accumulated liquid if elevated TAN levels are detected, as noted in
Diagram 1 (see attached).
c. Respondent
shall install and implement use of a gate valve system, as noted in Diagram 1
(see attached) with an observation tube immediately upstream of each gate
valve. Respondent shall replace forty
(40) linear feet of the perforated tile with solid six (6) inch PVC pipe to
prevent hydraulic backflow around the gate valve and/or the twenty-four (24)
inch observation tube.
d.
Respondent shall
cap the tiles where they exit the field by shutting each gate valve (only
during periods of manure application), and shall monitor for total ammonia
nitrogen levels as described in 2.a., above, while not allowing any forms of
liquid past the valves. The gate valves
shall remain closed for a minimum of forty-eight hours after manure application
ceases, but shall not be reopened until total ammonia nitrogen test reading is
at a non-detectable level, as described in 2.a., above.
4. Emergency Response
a. As
noted in 2.a. and 3.e., above, Respondent shall monitor county tiles at points
A and B for TAN (see Illustrations 2 and 3) during manure application, and
shall cease application if TAN reaches detectable level (> 1 ppm).
b. The
gate valves shall remain closed for a minimum of forty-eight hours after manure
application ceases, but shall not be reopened until total ammonia nitrogen test
reading is at a non-detectable level, as described in 2.a., above.
c. With
the gate valve closed, the captured infiltration will be monitored. If TAN level remains detectable after seven
(7) days, the captured liquid shall be removed by sump pump and liquid manure
handling wagon and returned to lagoon, or applied on another approved site.
d. If
discharge contains > 1 ppm of total ammonia nitrogen at the county
tile, Respondent shall cease application and remove the liquid in the
observation tube with a sump pump and liquid manure handling wagon and return
it to lagoon. Any TAN concentration that
is > 1 ppm is an illegal discharge to waters of the state by a CFO/CAFO, and
requires the Respondent to comply with the Spill Rule, including but not
limited to: reporting the spill within two hours of discovery and doing a spill
clean-up.
REMAINDER OF
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