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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. JAMES MINICH d/b/a MINICH
DAIRY FARM, Respondent. |
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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
2.
Respondent, James
Minich d/b/a Minich Dairy Farm owns and operates a Confined Feeding Operation
(“CFO”), LOG # 4255, located at 4282 South County Road 425 West in LaPorte, LaPorte 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 via Certified Mail to:
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Mr. James Minich, Owner |
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James
Minich d/b/a Minich Dairy Farm |
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5. 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; 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.
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 National Pollutant Discharge Elimination System (“NPDES”) permit obtained
prior to the discharge.
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.
Pursuant to 327 IAC 16-3-1(e)(1), manure to be staged
or applied to land in Indiana must be staged or applied in such a manner as not
to enter or threaten to enter waters of the state.
Pursuant
to IC 13-30-2-1, 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, discharges, or emissions requirements adopted by the
appropriate board under the environmental management laws.
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 Indiana; or 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 IC13-18-4-1 and IC 13-18-4-3.
Pursuant
to 327 IAC 5-4-3(c)(3), no AFO with fewer than the numbers of animals set forth
in subsection (b)(10) shall be designated as a CAFO unless pollutants are
discharged in one (1) of the following ways:
(A)
Into waters of
the state through a:
1.
manmade ditch;
2.
flushing system;
or
3.
similar manmade
device.
(B) Directly
into waters of the state that originate outside of the facility and pass over,
across, or through the facility or otherwise come into direct contact with the
animals confined in the operation.
Respondent
caused and/or allowed the discharge of animal manure, a contaminant or waste,
into the environment from the Site on or about March 7, 2008, in violation of 327
IAC 2-1-6(a)(1), 327 IAC 5-2-2, 327 IAC 16-3-1(a), 327 IAC 16-3-1(e)(1), IC
13-30-2-1, and IC 13-18-4-5.
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 comply with all applicable provisions of the Indiana Administrative Code
(“IAC”), including but not limited to 327 IAC 2-1-6(a)(1), 327 IAC 5-2-2, 327 IAC 16-3-1(a), 327 IAC 16-3-1(e)(1), 327 IAC
5-4-3(c )(3), IC 13-30-2-1, and IC 13-18-4-5.
3. Within
ninety (90) days of the Effective Date, Respondent shall submit to IDEM, an
NPDES permit application for permit to discharge wastewater concentrated animal
feeding operation (CAFO).
4. Upon
the issuance of an NPDES CAFO Permit, Respondent shall immediately implement CAFO
rules and permit conditions.
5. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Jamal Naas, Enforcement Case
Manager |
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Indiana Department of
Environmental Management |
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Office of Enforcement – Mail
Code 60-02 |
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For NPDES Permit application submittal, the
application shall be sent to:
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Daniel Bruggen, Environmental
Manager |
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Indiana Department of
Environmental Management |
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Office of Land Quality – Confined
Feeding Section - Mail Code 65-45 |
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6. Respondent
is assessed a civil penalty of Seven Thousand Dollars ($7,000). 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.
7. 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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3 |
Failure
to submit an NPDES CAFO Application, within the specified period. |
$500
per week late, or part thereof |
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4 |
Failure
to immediately implement CAFO Rules and permit conditions, upon permit
issuance. |
$1000
per week late, or part thereof. |
8. 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.
9. Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” The check 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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10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. This
Agreed Order shall remain in effect until Respondent has
complied with the terms of Order Paragraph Nos. 3 through 9, and IDEM issues a
Resolution of Case letter.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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James Minich d/b/a Minich Dairy Farm |
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By: |
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By: |
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Mark W. Stanifer, Chief |
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Printed: |
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Water Enforcement Section |
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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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By: |
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By: |
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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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DAY
OF |
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, 2008. |
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For the Commissioner: |
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Signed on August 14, 2008 |
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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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