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-2323(b)
                                )
Charles J. McQuillan, Owner                )
McQuillan Custom Pumping,                )
                                )
        Respondent.                    )

2.    Respondent is Charles J. McQuillan, Owner, McQuillan Custom Pumping (hereinafter referred to as "Respondent"), which owns and operates a waste spray irrigation contracting company.

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. Tom Nuenschwander        and to:        Mr. Charles J. McQuillan, Owner
    Agri Enterprises, Incorporated            McQuillan Custom Pumping
    673 S. 500 E.                         8667 Wabash Road
    Bluffton, Indiana 46714                Celina, Ohio 45822

5.    This Agreed Order settles issues concerning violations of rules and statutes that occurred in May of 1998 for which Charles J. McQuillan and McQuillan Custom Pumping were responsible, and not those issues concerning Agri Enterprises, Incorporated which will be addressed under Cause No. B-2323(a).

6.    IC 13-18-4-5 states, "A person may not:
        (1)    throw, run, drain, or otherwise dispose into any of the streams or waters of             Indiana; or
        (2)    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."

7.    IC 13-30-2-1(1) states that a person may not, "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:
        (A)    the environment; or
        (B)    any publicly owned treatment works;
    in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws."

8.    327 IAC 5-2-2 states, "Any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge."

9.    327 IAC 2-1-6(a) states, in part, "The following are minimum water quality conditions:

    (1)    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, visible oil sheen, 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."

10.    327 IAC 2-6.1 defines "Spill" as any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss of petroleum, hazardous substances, extremely hazardous substances, or objectionable substances. It also 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.    Assure 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 to IDEM with details of the event.

11.    IDEM and IDNR staff conducted inspections of the Agri Enterprises' dairy farm operation on leased property located in Wells County, Indiana, on May 16, 17, and 18, 1998. These inspections are documented by the Initial Incident Report by IDEM's Emergency Response Section (Incident Number 9805158), the IDNR Report of Water Pollution (DNR Case Number 98-90-090439), analysis of water samples taken by IDEM, IDNR, and Town of Ossian Waste Water Treatment Plant staff, and photographs and video tape taken of the incident by IDEM and IDNR staff. The inspections indicate:

    A)    During May of 1998, the Agri Enterprises, Inc. was leasing and operating a dairy cattle farm located at 4825 E. SR 224, in Wells County, Indiana. The Agri Enterprises, Inc. hired the Respondent to land apply dairy cattle waste from the waste lagoon at the dairy farm. The Respondent ended its pumping activities on the evening of May 13, 1998, or the early morning of May 14, 1998. Dairy waste from the land application activities at the Agri Enterprises' dairy farm was observed draining and being disposed of into the tributary of Eight Mile Creek on May 16, 1998 and May 17, 1998, by IDEM and IDNR staff. In addition to the dairy cattle waste from the land application activities, on May 17, 1998, IDEM and IDNR staff observed a path of dairy cattle waste from the waste lagoon to the tributary of Eight Mile Creek, indicating that dairy cattle waste ran directly from the lagoon into the tributary. Therefore, the Agri Enterprises and the Respondent caused and contributed to dairy cattle waste draining and being disposed of into the tributary of Eight Mile Creek, causing or contributing to a polluted condition and a significant fish kill in the tributary of Eight Mile Creek and in Eight Mile Creek in violation of provisions of IC 13-18-4-5.

    B)    The Respondent and Agri Enterprises, Inc. violated IC 13-30-2-1(1), in that they discharged dairy cattle waste from the lagoon and from the land application

activities into the environment that caused pollution and violated rules adopted by the Water Pollution Control Board.

    C)    The Respondent and Agri Enterprises, Inc. violated 327 IAC 5-2-2 in that they discharged dairy cattle waste into the tributary of Eight Mile Creek as a point source discharge without a valid NPDES permit obtained prior to the discharge.

    D)    The Respondent and Agri Enterprises, Inc. violated 327 IAC 2-1-6(a) in that they caused the violation of minimum water quality conditions in the tributary of Eight Mile Creek and in Eight Mile Creek. The dairy cattle waste that was discharged from the lagoon and from land application activities was attributable to the agricultural land use practices at the dairy farm and formed putrescent or otherwise objectionable deposits; was in amounts sufficient to be unsightly or deleterious; caused conditions to such degree as to create a nuisance; was in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans; and was 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. The observations and reports by IDEM and IDNR indicate that the spill resulted in a polluted condition and a significant fish kill in the tributary of Eight Mile Creek and Eight Mile Creek and affected an estimated total of 19.5 miles of Eight Mile Creek in Wells County, Allen County and Huntington County, Indiana.

    E)    The Respondent and Agri Enterprises, Inc. also violated 327 IAC 2-6.1 in that the discharge of dairy cattle waste was a spill as defined by 327 IAC 2-6.1. The Respondent and Agri Enterprises, Inc. did not report the event to IDEM within 2 hours of discovery, assure that the spilled material was immediately contained and cleaned up, or immediately notify the nearest downstream water user as required by 327 IAC 2-6.1-7.

20.    On January 4, 1999, the Respondent submitted a letter to IDEM that stated, in part, that the Respondent's employees that were involved in this incident have been released and all pumping is now being supervised by the Respondent.

21.    In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

2.    For a period of two years from the Effective Date, the Respondent will continue to supervise all waste pumping activities that it performs in Indiana. The Respondent will assure that all pumping activities are performed in compliance with all Indiana rules and statutes including IC 13-18-4-5, IC 13-30-2-1, 327 IAC 5-2-2, 327 IAC 2-1-6, and 327 IAC 2-6.1.

3.    The Respondent is hereby assessed a civil penalty of Four Thousand Dollars ($4,000). Within thirty (30) days of the Effective Date of this Agreed Order, the Respondent shall pay an initial installment penalty payment of One Thousand Dollars ($1,000) to the Environmental Management Special Fund. Thereafter, the Respondent shall pay 3 additional installment payments of One Thousand Dollars ($1,000), due 4 months after the Effective Date, 7 months after the Effective Date, and 10 months after the Effective Date, until the total assessed civil penalty is paid in full.

4.    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:

         Violation                        Penalty
    Paragraph 2:                $5,000 per incident for failure to supervise its waste pumping activities that it performs in Indiana.

5.    Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

6.    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 46207-7060

7.    In the event that the civil penalty required by paragraph 3 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent 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.

8.    This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's 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 its status or responsibilities under this Agreed Order.

9.    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.

10.    The 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.

11.    This Agreed Order shall remain in effect until Respondent has complied with the requirements of paragraphs 2 and 3 of this Agreed Order.

By:     _________________________        By:     _________________________
    Mark W. Stanifer, Section Chief
    Office of Enforcement            Printed: ________________________

                            Title:     ________________________

Date: _______________                Date:     _______________

COUNSEL FOR COMPLAINANT:            COUNSEL FOR RESPONDENT:
Department of Environmental Management

By: _________________________            By: _____________________
Nancy A. Holloran
Office of Legal Counsel                
Department of Environmental Management

Date: _______________                Date: _______________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 1999.

                            For the Commissioner,

                            _Signed 6/9/99____________
                            Felicia Robinson George
                            Assistant Commissioner
                            Office of Enforcement
                    

Converted by Andrew Scriven