STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. B-2038
)
GENE FOGLE, OWNER )
JAMES D. COY, OPERATOR )
)
Respondents. )
AGREED ORDER
The Complainant and the Respondents 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. Consistent with IC 13-30-3-3(c), the execution of this Agreed Order by Respondents does not constitute an admission of liability for the alleged violations which are the subject of this action.
I. FINDINGS OF FACT
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondents are Gene Fogle, who owns, and James D. Coy who operates (hereinafter referred to as "Respondents"), a hog farm located in Decatur County, Greensburg, Indiana.
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
Mr. Gene Fogle, Owner
Mr. James D. Coy, Operator
2529 W. 650 North
Greensburg, Indiana 47240
5. Designated representatives of the Indiana Department of Environmental Management (IDEM) conducted an inspection on November 22, 1996, and a record review, and Indiana Department of Natural Resources (IDNR), Conservation Officer (CO) along with an IDEM representative conducted a confined feeding spill clean up and damage assessment on August 25, 1995, at a hog farm owned and operated by the Respondents located in Decatur County, Greensburg, Indiana.
6. Based on the above noted inspection, record review, and spill containment IDEM contends that Respondents are in violation of the following provisions of the Indiana Code (IC) and Indiana Administrative Code (IAC):
7. IC 13-30-2-1 requires, in substance, that 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, (a) into the environment or (b) into any publicly owned treatment works; in any form that causes or would cause pollution that violated rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.
8. 327 IAC 2-1-6(a)(1) states, in substance, that 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, 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;
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.
9. 327 IAC 2-6-1 defines "Spill" as any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage or other loss of oil, hazardous and/or otherwise objectionable substance which enters or threatens to enter the waters of the state.
10. 327 IAC 2-6-2 requires, in substance, that in the event of a spill into waters of the state, the responsible party must:
a. Immediately report the event to IDEM;
b. Insure that the spilled material is immediately contained and cleaned up;
c. Immediately notify the nearest downstream water user; and,
d. As deemed necessary, submit a report(s) to IDEM with details of the
event.
11. Investigations conducted by IDEM have led to the following allegations. On August 24, 1995, an IDNR Conservation Officer (CO) was dispatched to conduct a fish kill and stream pollution investigation at a Branch of Clifty Creek in Decatur County, Greensburg, Indiana. The CO observed and documented that approximately 10,275 dead and dying fish of various species were located in the creek. A bright pinkish-purple color was present in the creek and determined to be hog waste. The bright pinkish-purple color was found upstream from the fish kill where a hog waste lagoon was overflowing into the creek. The CO determined that this lagoon was located at the confined feeding operation owned and operated by the Respondents. It was determined that the lagoon had overflowed, which caused the hog waste to flow into the creek.
12. The report indicates that the Respondents stated that the unusually high amounts of rainfall for August 1995 caused the lagoon to overflow. The CO report states that the Respondents were at the site daily and the lagoon should not have been allowed to overflow. The CO estimated the amount of hog waste which entered the creek was approximately 15,000 to 20,000 gallons, allegedly resulting in the fish kill in the Clifty Creek.
13. As evidenced by the above noted CO's report, IDEM alleges Respondents have violated IC 13-30-2-1 in that the Respondents have caused or allowed the discharge, of a contaminant or waste (hog manure), either alone or in combination with contaminants from other sources, into the environment.
14. IDEM alleges the Respondents have violated 327 IAC 2-1-6 in that the Respondents have caused the violation of minimum water quality conditions of being free from substances and materials that produce color, odor or other conditions in such degree as to create a nuisance and which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.
15. Additionally, IDEM's records indicate that this spill was initially reported by a neighbor and not by the Respondents. Therefore, IDEM alleges the Respondents failed to immediately report the spill of a contaminant as required by 327 IAC 2-6-2.
16. On November 22, 1996, a representative of IDEM inspected the site and indicated that there was no evidence of any new breaches in the lagoon walls. The inspector's report indicated that the Respondents have repaired the lagoon which was breached during the August 1995 fish kill. However, during the inspection, the inspector noted that there was not enough freeboard to prevent this type of spill from occurring again. The wastewater was within 6 inches of the top of the east side, and 8-10 inches on the southwest corner of the lagoon at the time of the November 22, 1996 inspection. The Respondents were notified through a letter dated December 4, 1996, that they needed to submit a confined feeding application to IDEM, as the facility did not have the required confined feeding approval.
17. According to a letter submitted by the Respondents on December 19, 1996, the lagoon has been pumped down approximately one (1) foot.
18. IC 13-18-10-2(b), requires, in substance, that plans and specifications for waste treatment or control facilities for a confined feeding operation must secure the approval of the department. The department shall approve construction or operation of the confined feeding operation if the water pollution control proposal is satisfactory. IC 13-11-2-40 defines "confined feeding operation" to include any animal feeding operation that is causing a violation of water pollution control laws or any rules of the board or any confined feeding operation of at least 600 swine. Furthermore, IC 13-18-10-3 provides that the Commissioner of IDEM may disallow continued operation by any operator when it is found that the confined feeding operation is causing a violation of IC 13-18 or any rules of the Water Pollution Control Board.
19. On January 6, 1997, Respondents submitted an application for confined feeding approval. IDEM's representatives returned the application to Respondents by mail on January 9, 1997, for additional information. It has been determined that the application is now complete.
20. In recognition of the settlement reached, Respondents waive 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 the Complainant or his delegate, and has been received by the Respondents. This Agreed Order shall have no force or effect until the Effective Date.
2. Upon the Effective Date of this Agreed Order, the Respondents shall immediately take the necessary actions to prevent future discharge of pollutants into the waters of the state. Respondents shall comply with IC 327 IAC 2-1-6 and IC 13-30-2-1.
3 Within two (2) weeks of the Effective Date of this Agreed Order, the lagoon shall be pumped down so far as to allow a minimum of fifteen (15) inches of freeboard at all times and the hog manure shall be disposed of properly in order to prevent ponding or runoff to any stream, drainage ditch, or other body of water. Upon the issuance of the confined feeding approval, the conditions of the freeboard requirement contained in the confined feeding approval will supersede the conditions outlined in this item.
4. Upon issuance of the confined feeding approval, the Respondents will adhere to the following schedule:
TASK DEADLINE
a. Construct concrete pit 60 days after Effective Date
b. Cease discharge to lagoon immediately upon completion of concrete pit construction
c. Complete closure of lagoon 90 days after completion of concrete
(Remove and properly dispose pit construction
of liquid and sludge)
Inability of the Respondents to complete the above tasks by the stated deadlines for reasons beyond their control, including but not limited to adverse weather conditions or unavailability of contractors, shall be considered a force majeure event, and shall not be grounds for the imposition of stipulated penalties if prompt notification is made to IDEM of the event and the anticipated time of delay. The burden of establishing a force majeure event shall be upon the Respondents; IDEM will issue acknowledgment of the event as a force majeure within a reasonable time after notification.
5. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Ms. Aletha Lenahan
Case Manager, Water Enforcement
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
6. Respondents are assessed a civil penalty of Two Thousand Four Hundred Dollars ($2,400). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.
7. In the event the following terms and conditions are violated, the Complainant may assess and the Respondents shall pay a stipulated penalty in the following amounts for failure to comply with:
Violation Penalty
Paragraph 3 $500 per day for failure to maintain at least 15 inches of freeboard in the lagoon until the confined feeding approval is obtained.
Paragraph 4 $500 per day for failure to comply with the stated deadlines.
8. Stipulated penalties shall be due and payable within thirty (30) days after Respondents receive written notice that the Complainant has determined a stipulated penalty is due.
9. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46206-7060
10. In the event that the civil penalty required by paragraph 6 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondents 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.
11. This Agreed Order shall apply to and be binding upon the Respondents, its officers, directors, principals, agents, successors to the interest of the Respondents, subsidiaries, and assigns. The Respondents' signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in corporate, or partnership status of the Respondents shall in any way alter its status or responsibilities under this Agreed Order.
12. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.
13. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
14. Under the authority of IC 14-22-10-6, Respondents shall reimburse the Indiana Department of Natural Resources (IDNR), Division of Wildlife for the value of the damage to the natural resources. IDNR has determined this figure to be $3,696.48. The Respondents shall provide Complainant with documentation of the reimbursement immediately upon payment. Payment shall be made to the Natural Resources Damage Fund within thirty (30) days of the Effective Date of this Order, and sent to:
IDNR Division of Fish and Wildlife
Contaminant Account
Room W237, IGC South
402 W. Washington Street
Indianapolis, Indiana 46204
15. This Agreed Order shall remain in effect until Respondents have complied with all terms and conditions outlined in paragraphs 3, 4, 6 and 14 of the Order.
TECHNICAL RECOMMENDATION: RESPONDENTS:
Department of Environmental Management
By: _________________________ By: ______________________________
Mark Stanifer, Section Chief
Office of Enforcement Printed: ____________________________
Title: ______________________________
Date: _______________ Date: ______________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________________
Ann S. Long, Attorney
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: ______________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF ,1997.
FOR THE COMMISSIONER:
Signed on 8/26/97
David J. Hensel
Director
Office of Enforcement
cc: U.S. EPA Region 5, Water Section
Decatur County Health Department