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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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Complainant, |
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Case No. 2018-25169-C |
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RYAN A. GALLOWAY, |
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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 Ryan A. Galloway, who owns/operates
a confined feeding operation (“CFO”), Farm ID No. 6945, CFO Approval No. AW-6650,
located at 2321 North County Road 250 West, in Covington, Fountain 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”) on May 18, 2018 via Certified Mail to:
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Ryan
A. Galloway, Joseph A. Galloway, and Amanda M. Galloway |
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1082
North County Road 400 West |
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Covington,
IN 47932 |
5.
On July 27, 2018, IDEM issued an Approval
Transfer of Ownership transferring ownership of the March 10, 2017 hog CFO
approval from Ryan A. Galloway, Joseph A. Galloway, and Amanda M. Galloway to
Ryan A. Galloway.
6.
During an investigation, including inspections
conducted on September 25, 2017 and March 16, 2018 conducted by a
representative of IDEM, the following violations were found:
a.
Pursuant to Indiana Code (“IC”)
13-18-10-2.2(a), not more than thirty (30) days after the completion of
construction or expansion of a confined feeding operation, the applicant shall
execute and send to the department an affidavit that affirms under penalties of
perjury that the confined feeding operation:
(1) was constructed
or expanded; and
(2) will be operated;
in accordance with the requirements of the department’s approval.
As noted during the investigation, Respondent
failed to submit the CFO Completed Construction Affidavit Form within thirty
(30) days after the date of completing the construction of buildings P1 and P2
and prior to populating the buildings with swine. During the March 16, 2018 inspection, IDEM
was informed the construction of buildings P1 and P2 were completed at the end
of 2017.
b.
Pursuant to 327 IAC 19-12-4(s), the applicant
shall execute and send to the commissioner an affidavit, under penalty of
perjury, that a waste management system was constructed, and shall be operated,
in accordance with the requirements of the approval and this article. The owner/operator shall submit to IDEM, on a
form provided by the department, the affidavit within thirty (30) days after
the date construction of an approved waste management structure is completed,
and prior to the introduction of any animals or manure. The affidavit must be completed, notarized,
and returned to IDEM assuring the waste management system was constructed and
shall be operated in accordance with the requirements of the approval. The affidavit must also include
identification of what parts of the waste management system are completed at
the time of submittal. If an
owner/operator performs partial construction of an approved facility and wishes
to utilize that portion prior to completing construction of the entire
facility, multiple affidavits shall be submitted. No portion of a waste management system,
including animal feed and similar feedstock storage areas, shall be utilized
unless that portion, or a combination of the waste management system for that
portion, is completely constructed prior to the introduction of animals and
provides a minimum of one hundred eighty (180) days storage for manure,
wastewater, and/or leachate.
As noted during the investigation,
Respondent failed to submit the CFO Completed Construction Affidavit Form within
thirty (30) days after the date of completing construction of buildings P1 and
P2 and prior to populating the buildings with swine.
On April 13, 2018, Respondent submitted
the CFO Completed Construction Affidavit Form.
c.
Pursuant to 327 Indiana Administrative Code
(“IAC”) 19-12-4(d), all liquid manure storage facilities must be constructed
according to the Indiana NRCS Conservation Practice Standard Code 313: Waste
Storage Facility, October 2016. Construction
of all liquid manure storage facilities approved after the effective date of
this article must be certified upon completion by a registered professional
engineer on a form provided by the department.
The engineer’s certification must be kept in the operating record and
submitted with the affidavit required by subsection (s).
As noted during the investigation,
Respondent failed to submit the Professional Engineer (“PE”) Certification Construction
of Concrete Liquid Manure Storage Structures Form within thirty (30) days after
the date of completing the construction of buildings P1 and P2 and prior to
populating P1 and P2 buildings with swine.
During the March 16, 2018 inspection, IDEM was informed the construction
of buildings P1 and P2 were completed at the end of 2017 and populated on
January 5, 2018.
On August 30, 2018, Respondent submitted
the PE Certification Construction of Concrete Liquid Manure Storage Structures
Form.
d.
Pursuant to 327 IAC 19-8-3(b), the
owner/operator must submit written notification to the department of any
changes to the operation as approved.
The department will review the changes and decide if amendments are
necessary. At any time the department
may decide an amendment is necessary, and the owner/operator must comply with
the amended approval.
As noted
during the September 25, 2017 inspection, Respondent poured round concrete
columns instead of the approved square columns as specified in the CFO
approval. As noted during the March 16,
2018 inspection, Respondents installed twelve inch (12”) perimeter drain tile
risers with a side discharge located on the riser pipe. The approved construction plans in the March
10, 2017 CFO approval specify a thirty-six inch (36”) diameter perimeter drain
sump with a rock discharge outlet located approximately fifty feet (50’) east
of buildings P1 and P2. Respondents
failed to submit the CFO Facility Change Notification Form describing changes
from the approved plans contained in CFO Approval.
On April 13,
2018, Respondent submitted the CFO Facility Change Notification Form. IDEM acknowledged the changes with no
objections on July 24, 2018.
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 the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Respondent is assessed and agrees to pay a
civil penalty of Two Thousand Eight Hundred Dollars ($2,800). 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”.
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:
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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 |
5.
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 4, above.
6.
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.
7.
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.
8.
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.
9.
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 its applicable permits or any applicable Federal or State
law or regulation.
10.
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.
11.
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.
12.
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
Environmental Management |
Ryan A. Galloway |
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By: _________________________ |
By: _________________________ |
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Nancy
Johnston, Section Chief |
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Enforcement
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Printed:
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Office of
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Title:
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Date:
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Date: ________________________ |
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COUNSEL FOR RESPONDENT: |
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Ryan A. Galloway |
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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
1/10/19______ |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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