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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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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.
2016-24003-C |
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maurice loehmer, d/b/a |
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LOEHMER
DAIRY |
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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.
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 (“IDEM”),
a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is Maurice Loehmer, d/b/a Loehmer
Dairy (“Respondent”), who operates the Confined Feeding Operation (“CFO”) with farm
ID number 6150, (“Permit”) located at 4639 N 400 E in Monterey, Pulaski County,
Indiana (“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 (“NOV”) via Certified Mail to Maurice Loehmer, Operator for
Loehmer Dairy.
5.
Respondent
operates a CFO approved for a total capacity of 600 dairy cows.
6.
During an investigation including an
inspection on June 23, 2016, conducted by a representative of IDEM, the
following violations were found:
a.
Pursuant to IC 13-18-10-1(a)(2),
a person may not start expansion of a CFO that increases animal capacity or
manure containment capacity, or both, without obtaining prior approval of the
department.
As noted during the inspection on June
23, 2016, Respondent started an expansion of a CFO that increased animal
capacity and manure containment capacity without obtaining prior approval of
the department. Specifically, Respondent
constructed and operated an expansion of the CFO that included a silage pad,
freestall barn, and associated manure management structures on the east side of
N 400 E, adjacent to the existing permitted facility on the west side of N 400
E.
b.
Pursuant to 327 IAC 19-6-1(d), any increase
in animal capacity or manure containment capacity requires a new application
under IC 13-18-10-1 and the requirements therein.
As noted during the inspection on June
23, 2016, Respondent failed to submit a new application prior to the expansion
of the CFO, which increased the animal capacity and manure containment capacity
of the CFO.
7.
On July 5, 2016, Respondent submitted a CFO
application that included the buildings that were constructed
without prior approval.
8.
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 the statute and
rule listed in the findings above.
3.
Within 15 days of the Effective Date,
Respondent shall remove the existing pipe between the stormwater pond and
Anstis Ditch.
4.
Within 15 days of the Effective Date,
Respondent shall address the maintenance of the north end and southeast corner of
P/E18.
5.
Within 15 days of the Effective Date,
Respondent shall submit a plan regarding management of the manure coming from
P/E18 until the approval of the proposed standard is
implemented.
6.
Within 15 days of the Effective Date,
Respondent shall submit a plan that will be used until
the approval of the proposed standard is implemented, addressing the storm
water drain on the southwest corner of the silage area P/E17.
7.
Respondent shall respond to any Notice of
Deficiency (“NOD”) issued by the Confined Feeding Section within the stated
timeframes in the NOD. If such
timeframes are not met, IDEM may assess stipulated
penalties as described in Order Paragraph 10.
8.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Trent
Lindley, Enforcement Case Manager |
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Office
of Land Quality |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
9.
Respondent is assessed
and agrees to pay a civil penalty of Seven Thousand Dollars ($7,000.00). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”.
10.
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 |
Penalty |
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Order
Paragraph #3 |
$200 if
not done by due date |
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Order
Paragraph #4 |
$100 per
week late |
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Order
Paragraph #5 |
$100 per
week late |
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Order
Paragraph #6 |
$100 per
week late |
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Order
Paragraph #7 |
$100 per
week late |
11.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant
may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of stipulated penalty assessment shall not waive Complainant’s
right to collect such stipulated penalty or preclude Complainant from seeking
additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief
includes any remedies or sanctions available pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
12.
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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Office
of Legal Counsel |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
13.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or
before their Due Date, Respondent shall pay interest on the unpaid balance at
the rate established by IC 24-4.6-1. The
interest shall be computed as having accrued from the
Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the
Environmental Management Special Fund, and shall be payable to IDEM in the
manner specified in Paragraph 12, above.
14.
This Agreed Order shall apply to and be
binding upon Respondent and his 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 his status or
responsibilities under this Agreed Order.
15.
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.
16.
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.
17.
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 his
obligation to comply with the requirements of his applicable permits or any
applicable Federal or State law or regulation.
18.
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.
19.
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.
20.
This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of
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By:
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By: _________________________ |
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Nancy Johnston, Section
Chief |
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Enforcement Section |
Printed:
______________________ |
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Office of Land Quality |
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Title:
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Date: __________________ |
Date:
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COUNSEL FOR RESPONDENT: |
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By:
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Date:
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For the
Commissioner: |
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Signed on
March 1, 2017_ |
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Peggy Dorsey, |
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Deputy
Assistant Commissioner |
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Office of
Land Quality |
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