STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

 

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

) CASE NO. 2000-9040-S

v. )

)

RICHARD RAGER, )

)

Respondent. )

AGREED ORDER

The Complainant and the 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. The 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.
  1. The Respondent is Richard Rager (hereinafter referred to as "Respondent"), who owns and operates a hog feeding operation located at 9189 N. SR 15, Confined Feeding Approval # AW3793, Roann, Wabash County, Indiana, (the "Site").
  2. 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:

Richard Rager

9189 N. SR 15

Roann, IN 46974

  1. Designated representatives of IDEM conducted inspections at the Site on February 25, February 28 and February 29, 2000.

  2. Based on information gathered by IDEM during the above noted inspections, the Respondent has been found in violation of:

A. 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 this state, or to 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 Sections 1 and 3 of this chapter. Manure contaminated surface water was found leaking from a treatment lagoon at the Site and accumulating in surface water drainage ways, fields and standing pools.

B. Pursuant to IC 13-30-2-1(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, or discharge or emission requirements adopted by the appropriate board under the environmental management laws. Manure contaminated surface water was discharged into the environment.

C. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge is prohibited, unless in conformity with a NPDES Permit obtained prior to the discharge. The Site does not have a NPDES permit to discharge contaminants into waters of the state.
    1. Pursuant to 327 IAC 2-1-6(a)(1)(A), (B), and (C), 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 that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, odor or other conditions in such degree as to create a nuisance. The Site discharged pollutants into waters of the state.
    1. Pursuant to 327 IAC 2-6.1-7, any person who operates, controls or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state contain the spill, if possible, to prevent additional spilled material from entering the waters of the state; undertake or cause others to undertake activities needed to accomplish a spill response; and as soon as possible, but within two (2) hours of discovery, communicate a spill to the Department of Environmental Management, Office of Land Quality. A proper spill response was not initiated until an inspector arrived at the Site.
  1. A second spill/unpermitted discharge occurred on May 22, 2000 at the Site resulting in violations as referenced in paragraphs 6 (A) through (E) of the Findings of Fact section above. The Respondent waives issuance of a Notice of Violation for the violations associated with the second spill/unpermitted discharge and to the settlement period of sixty (60) days as provided for by IC 13-30-3-3.

8. In recognition of the settlement reached, the 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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
  1. The Respondent shall maintain compliance with all applicable laws and rules from the date of issuance of this Agreed Order.
  2. The Respondent shall, upon the Effective Date of this Agreed Order, not operate, manage or participate in the management of a confined feeding operation as defined by IC 13-11-2-40.
  3. The Respondent shall, within one hundred twenty (120) days of the Effective Date of this Agreed Order, remove all manure from manure storage structures (i.e. buildings, concrete pits, and lagoon) at the Site and properly land apply the manure or properly dispose of the manure.
  4. The Respondent shall, within one hundred twenty (120) days of the Effective Date of this Agreed Order, remove all associated appurtenances and conveyance structures from uncovered liquid manure storage structures.
  5. The Respondent shall, within one hundred forty-five (145) days of the Effective Date of this Agreed Order, submit certification to IDEM that states, under penalty of perjury, the Respondent has complied with Order Conditions 4 and 5 above.
  6. Unless notified otherwise in writing, all submittals required by this Agreed Order shall be sent to:

    7. Thomas F. Newcomb, Enforcement Case Manager

    Office of Enforcement

    Indiana Department of Environmental Management

    100 North Senate Avenue

    P.O. Box 6015

    Indianapolis, Indiana 46206-6015

     

  7. The Respondent is assessed a civil penalty of Twenty Four Thousand, Three Hundred Seventy Five Dollars ($24,375.00). The penalty amount has been reduced to Zero dollars ($0) based on documentation submitted by Respondent demonstrating an inability to pay a civil penalty.
  8. In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

    9. Violation Penalty

    Order Condition 4 $1,000 per week that manure not removed and properly land applied and/or disposed.

    Order Condition 5 $1,000 per week that associated appurtenances or conveyance structures are not removed.

    Order Condition 6 $100 per week certification is late.

  9. Stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this Agreed Order and shall be mailed to:

    10. Cashier

    Indiana Department of Environmental Management

    100 North Senate Avenue

    P.O. Box 7060

    Indianapolis, Indiana 46207-7060

  10. This Agreed Order shall apply to and be binding upon the Respondent, officers, directors, principals, agents, successors, subsidiaries, and assigns. The 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 ownership, corporate, or partnership status of the Respondent shall in any way alter the Respondent’s 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 the Agreed Order did not contain the invalid terms.
  12. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The 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 shall remain in effect until the Respondent demonstrates that he has complied with all terms and conditions of this Agreed Order.

 

 

 

 

TECHNICAL RECOMMENDATION: RESPONDENT: RICHARD RAGER

By: By:

Paul Higginbotham

Solid Waste- UST Enforcement Section Printed:

Office of Enforcement

Department of Environmental Management Title:

Date: Date:

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

By: By:

Printed: Printed:

Office of Legal Counsel

Department of Environmental Management

Date: Date:

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , 2001.

 

FOR THE COMMISSIONER:

 

(signed 7/11/2002)

Felicia A. Robinson

Deputy Commissioner

Legal Affairs