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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. 2023-29280-S |
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JEFF
MCGUIRE D.B.A. MCGUIRE FARMS, |
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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 Indiana Code (“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 IC
13-13-1-1.
2.
Respondent
is Jeff McGuire d.b.a. McGuire Farms (“Respondent”), who stockpiled land
application material along an unnamed road located north of Greenbriar Road,
Lynnville, Warrick County, Indiana, Parcel ID #: 87-05-33-300-008.000-009
(“Site 1”) and along an unnamed road located south of New Harmony/Sheldon Road,
Boonville, Warrick County, Indiana, Parcel ID #: 87-09-17-200-006.000-002 [location of largest stockpiled amount], 87-09-17-200-005.000-002, and 87-09-17-200-007.000-002 (“Site 2”).
Respondent land applied a portion of the stockpiled
material in March 2023 and April 2023 approximately two (2) miles east of the
intersection of Greenbriar Road and Bateman Road, Lynnville, Warrick County,
Indiana (“Site 3”).
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 July 18, 2023, via certified mail to:
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Jeff McGuire |
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McGuire Farms |
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3899 Wilzbacher
Road |
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Boonville, Indiana
47601 |
5. During
an investigation including a record review conducted on June 5, 2023 and inspections conducted on January 26, 2023 and
February 9, 2023, by a representative of IDEM, the following violations were
found:
a. Pursuant
to 327 Indiana Administrative Code (“IAC”) 6.1-4-3(b), any person who prepares
or applies a biosolid or industrial waste product shall ensure that the
applicable requirements in this article and the permit are met when the
biosolid or industrial waste product is prepared for application to the land or
is applied to land.
As noted during the record review in March 2023 and April
2023, at Site 3, Respondent land applied an Industrial Waste Product (“IWP”),
obtained from Azteca Milling L.P., in noncompliance with 327 IAC 6.1.
b. Pursuant
to 327 IAC 6.1-2-54, “Stockpiling” means the temporary placement of a dewatered
biosolid or industrial waste product in a pile for more than twenty-four (24)
hours but less than six (6) months at the land application site in accordance
with an approved management plan.
Pursuant to 327 IAC 6.1-4-8(e), stockpiling of a biosolid
or industrial waste product at a land application site must be handled in
accordance with an approved management plan, including the following:
(1) Setback
distances from residences and public buildings, surface waters, wells, and
other structures.
(2) Site
characteristics, including the following:
(A) Flood
plains.
(B) Water
table.
(C) Slope.
(3) Handling
practices, including the following:
(A) Length of
time the biosolid or industrial waste product will be stockpiled.
(B) Run-off
control measures.
(C) Berm
construction.
(4) Nuisance
control measures.
(5) Other
applicable information.
As noted during the inspections, Respondent allowed IWP
to be stored at Site 1 and Site 2, without an approved management plan, for
greater than 24-hours but less than six (6) months.
c. Pursuant
to 327 IAC 6.1-1-3(b), a land application permit is required for the disposal
in Indiana of any biosolid, industrial waste product, or pollutant-bearing
water by application upon or incorporation into the soil except for the
exclusions listed under subsection (c).
As noted
during the record review, Respondent land applied IWP in March 2023 and April
2023 at Site 3 without a Permit.
5. Respondent appropriately land applied
the stockpiled material by July 2023.
6. Orders
of the Commissioner are subject to administrative review by the Office of
Environmental Adjudication under IC 4-21.5; however, in recognition of the
settlement reached, Respondent acknowledges notice of this right and 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 rules listed
in the findings of fact above.
3.
Immediately upon the Effective Date,
Respondent shall cease receiving IWP to land apply.
4.
Within thirty (30) days of the Effective
Date, if Respondent wishes to continue accepting IWP to blend/compost and land
apply the blend/compost, Respondent shall submit a complete application for an Industrial
Waste Product Land Application Permit.
5.
Within thirty (30) days of the Effective
Date, if Respondent wishes to continue accepting IWP to blend/compost and land
apply the blend/compost, Respondent shall submit a complete application for
construction/operation of a storage structure.
6.
In the event IDEM determines that the submitted
application for an Industrial Waste Product Land Application Permit is
deficient or otherwise unacceptable, Respondent shall revise and resubmit the application
to IDEM in accordance with IDEM’s notice.
7.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise in writing, shall be sent to:
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Linda
McClure, 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 |
8.
Pursuant to IC 13-30-4-1, Respondent is
assessed a civil penalty of Twelve Thousand Dollars ($12,000). After this
Agreed Order is adopted (signed by the Assistant Commissioner of the Office of
Land Quality), Respondent shall pay by the due date printed on the Invoice that
will be attached to the adopted Agreed Order. Respondent shall pay a portion of
this penalty in the amount of Three Thousand Dollars ($3,000). Said penalty
amount shall be due and payable to the “Indiana Department of Environmental
Management.”
In lieu of payment of the remaining
civil penalty, Respondent shall perform and complete a Supplemental
Environmental Project (“SEP”). Respondent estimates that this SEP will cost
Twenty Thousand Dollars ($20,000). Within Fifteen Days (15) days of completing
this SEP, Respondent shall submit written notice and documentation to IDEM
which substantiates all actions taken and costs incurred with respect to the
SEP. In the event that
the cost of the SEP is less than Nine Thousand Dollars ($9,000), Respondent
shall pay fifty percent (50%) of the difference between Nine Thousand Dollars
($9,000) and the final (actual) cost of the SEP.
As a Supplemental Environmental
Project, Respondent shall reduce
or irradicate invasive tree species from the proposed project land area. The
proposed area is roughly 40 acres and consists of wild trees and brush
(satellite image included with attached documents). Of the trees found in this
area, we estimate roughly half (covering around 10 acres) to be invasive
species such as Bradford Pear, Russian and Autumn Olive, and Tree-of-heaven.
This project will use a combination of mechanical and chemical removal
to reduce or irradicate the number of invasive trees in the area. First, the
trees to be removed will be identified. A brush grinder will be used to cut and
grind the stumps of the targeted trees. An herbicide solution will be applied
in conjunction with cutting to kill the tree’s root system and prevent future
growth or offshoots. Continued monitoring of the area will be conducted and
further herbicide applied when necessary to discourage any regrowth. The
removal work will be performed by company employees familiar with the equipment
and chemical implements to be used.
Removal of these invasive trees will allow native plant, animal, and
insect species to better thrive. Wildflowers and native grasses will be able to
grow, which will attract pollinators and provide improved pastureland for
grazing cattle.
The SEP Project shall be completed by
March 30, 2024.
Civil and stipulated penalties are payable to
the “Indiana Department of Environmental Management”
by:
Mail:
Civil penalties are payable by check to the “Indiana Department of
Environmental Management.” 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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Accounts
Receivable |
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P.O. Box 3295 |
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Indianapolis, IN
46206 |
Online:
Accounts Receivable is accepting payments online by e-Check, Master
Card, Visa or Discover. Please visit www.in.gov/idem. Under Online Services, click Online Payment
options and follow the prompts. A processing fee of $0.40 plus 2.06% will be
charged for credit card payments. A processing fee of $0.15 will be
charged for eCheck payments.
The Case Number is required to complete the process.
Phone:
You may also call us at 317-234-3099 and follow the instructions for
Master Card, Visa or Discover payments. A processing fee of $0.40 plus 2.06%
will be charged for credit card payments. A processing fee of $0.15 will
be charged for eCheck payments.
The Case Number is required to complete the process.
9. If Respondent does not complete the SEP
by March 30, 2024, the full amount of the civil penalty, as stated above, an
additional penalty of 10 percent on the remaining amount, less the portion of
the civil penalty Respondent has already paid, shall be payable to “Indiana
Department of Environmental Management” and shall be payable to IDEM in the
manner specified in Order Paragraph 8.
10. In the event the terms and conditions of
the following paragraphs are violated, Complainant may assess
and Respondent shall pay stipulated penalties in the following amounts:
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Paragraph |
Stipulated
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Order
paragraph #4 |
$400 per event. |
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Order
paragraph #5 |
$400 per
week |
11. Stipulated
penalties shall be due and payable after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; at which time, a
separate invoice will be issued. Complainant may notify Respondent at any
time that a stipulated penalty is due. Failure to notify Respondent in writing
in a timely manner of a 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.
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 an additional penalty of 10 percent, payable to the “Indiana Department of Environmental
Management,” and shall be
payable to IDEM in the manner specified in Paragraph 8, above.
13.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
14.
This Agreed Order shall apply to and be
binding upon Respondent and all successors and assigns. Respondent shall
provide a copy of this Agreed Order, if in force, to any subsequent owners,
successors, or assigns before ownership rights are transferred.
15.
No change in ownership, corporate, or
partnership status of Respondent shall in any way alter the Respondent’s status
or responsibilities under this Agreed Order.
16.
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.
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.
18.
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 the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
19.
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.
20.
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 violations
specified in the NOV.
21.
Nothing in this Agreed Order shall prevent
IDEM or anyone acting on its behalf from communicating with the U.S.
Environmental Protection Agency (U.S. 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 U.S. EPA
or any other agency or entity.
22.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
REMAINDER OF
PAGE LEFT BLANK INTENTIONALLY
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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Jennifer Reno, Chief |
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Land Enforcement Section |
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Compliance Branch |
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Office of Land Quality |
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Date: |
9/14/2023 |
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COUNSEL FOR RESPONDENT: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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For the Commissioner: |
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Signed 9/27/2023 |
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Peggy Dorsey |
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Assistant Commissioner |
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Office of Land Quality |
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