VIA CERTIFIED MAIL:                VIA CERTIFIED MAIL:

TO:    Mr. Daniel J. Schmucker        and TO:    Tom Jurgielewicz, Owner
    16526 Darling Road                    Jurgielewicz Duck Farm
    New Haven, Indiana 46774                P.O. Box 68
                                Barnes Road
                                Moriches, NY 11955
                            

        IC 13-18-4-5 which 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."

        IC 13-30-2-1(1) which states, "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."

        327 IAC 2-1-6(a) which 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."

        327 IAC 2-6.1-7 states that 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, do the following:

        (1)    Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

        (2)    Undertake or cause others to undertake activities needed to accomplish a spill response.

        (3)    As soon as possible but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response: Area code 1-888-233-7745 for in-state calls (toll free), 1-317-233-7745 for out-of-state calls. If new or updated spill report information becomes known that indicates a significant increase in the likelihood of damage to the waters of the state, the responsible party shall notify the department as soon as possible but within two (2) hours of the time the new or updated information becomes known.

        (4)    Submit to the Department of Environmental Management, Office of Emergency Response, 2525 North Shadeland Avenue, P.O. Box 6016, Indianapolis, IN, 46206-6015, a written copy of the spill report if requested in writing by the department.

        (5)    Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

            (A)    for spills to surface waters that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the State of Indiana; and

            (B)    for spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

    Daniel J. Schmucker's and the Jurgielewicz Duck Farm's violations of the above Indiana Code and Indiana Administrative Code provisions are based on the following: inspections conducted by IDEM, the Allen County Health Department, and the Allen County Emergency Management Agency on October 6, 1998, the Initial Incident Report by IDEM's Emergency Response Section (Incident Number 98-05-014), IDEM's Office of Solid and Hazardous Waste Management compliance-inspection report, analysis of water samples, and photographs taken of the incident by IDEM staff. The reports and other documents indicate:

        During October of 1998, Daniel J. Schmucker owned and operated a duck farm operation located at 16526 Darling Road, in Allen County, Indiana (the site), and Jurgielewicz Duck Farm owned the ducks. On October 6, 1998, the Allen County Emergency Management Agency received a report of contamination of waters of the state from a private citizen. The Allen County Emergency Management Agency reported the pollution incident to IDEM during the morning of October 6, 1998. Upon arrival at the site during the afternoon of October 6, 1998, IDEM staff and Allen County Health Department staff noted that there were approximately 5,000 ducks in a confined "range" area and then proceeded downstream from the site to conduct field screening samples for ammonia/nitrogen concentrations. It was noted that Allen County Health Department staff had reported to the site prior to the October 6, 1998, inspection and had observed obvious visual discoloration of the ditch water involved (believed to be named Wilbur Ditch).

        Approximately .5 mile downstream from the site, IDEM and Allen County Health Department staff observed that the water was heavily discolored (pinkish color) and was obviously impacted to that point. Water flow was very limited in the ditch channel, however there was depth to the water. Field screening samples for ammonia/nitrogen concentrations were taken at three locations. The sample taken at 17733 Ehle Road, approximately three quarters of a mile south of Roberts Road, indicated an ammonia/nitrogen concentration of 4 parts per million (ppm). The sample taken further downstream at 17807 Doty Road and the sample taken upstream from the site both indicated negative for ammonia/nitrogen.

        IDEM and Allen County Health Department staff then returned to the farm site and conducted a visual inspection of the facility. They observed that the duck farm had approximately 10,000 ducks onsite. There was an enclosed building which housed approximately 5,000 young birds and an outside open "range" that contained approximately 5,000 birds. They observed a relatively small lagoon or surface impoundment located adjacent to the open range lot. The lagoon was completely full and had no freeboard. The lagoon was draining out and discharging directly into Wilbur Ditch. Due to the excessive erosion cut where the discharge was taking place, it was obvious that the drainage and discharge had been occurring for considerable time. Photographs were taken of the lagoon and the discharge. Waste and wastewater from the open range lot was observed draining off the lot and draining into the ditch area as well. Mr. Schmucker stated, among other things, that he had not pumped the lagoon for two years and that he was aware of the discharge and stated that it had been occurring for some time.

        Mr. Schmucker stated that the birds were owned by a company from Long Island, New York and that he contracts with them. The company was later identified as the Jurgielewicz Duck Farm, Tom Jurgielewicz, Owner. IDEM staff advised Mr. Schmucker of his obligations to stop and contain the discharge. A septic hauler was called to pump the lagoon down. On October 6, 1998, four truck loads (approximately 10,000 gallons) of wastewater were hauled out of the lagoon. On October 7, 1998, IDEM staff returned to the site and observed that a contractor was on site constructing an earthen berm to contain the discharge drainage from the site. Mr. Schmucker stated that he would make arrangements to further pump down the lagoon. However, as of approximately 11:30 A.M. on October 7, 1998, no pumping had yet occurred.

    These inspections, photographs and water samples indicate that Daniel J. Schmucker, as owner and operator of the duck farm, and Jurgielewicz Duck Farm, Tom Jurgielewicz, Owner, as owner of the ducks, are responsible for violation of:

    (A)    IC 13-18-4-5, in that wastewater from the lagoon and from the confined "range" area (organic matter) was allowed to drain into the ditch that caused pollution and violated rules adopted by the Water Pollution Control Board.

    (B)    IC 13-30-2-1(1), in that wastewater from the lagoon and from the confined "range" area was discharged into the environment that caused pollution that violated rules and standards adopted by the Water Pollution Control Board.

    (C)    327 IAC 2-1-6(a) in that the discharge of waste from the duck farm operation were in amounts that were unsightly and deleterious, produced color and other conditions in such degree as to create a nuisance, or were acutely toxic, thereby violating minimum water quality conditions in the ditch.

    (D)    327 IAC 2-6.1 in that a hazardous and objectionable substance drained into waters of the state and the responsible party did not report the event to IDEM, assure that the spilled material was contained and cleaned up, and did not notify the nearest downstream water user.

    In accordance with IC 13-30-3-3, the Commissioner is required to notify Daniel J. Schmucker and Jurgielewicz Duck Farm in writing that he believes a violation exists and offer you an opportunity to enter into an Agreed Order that provides for the actions required to correct the violations and for payment of a civil penalty. The Commissioner is not required to extend this offer for more than sixty (60) days.

    If settlement is not reached within sixty (60) days of receipt of this Notice, the Commissioner may issue an order pursuant to IC 13-30-3-4 that contains the actions you must take to achieve compliance, the required time frames, and an appropriate civil penalty. Pursuant to IC 13-30-4-1, the Commissioner may assess penalties of up to $25,000 per day of any violation.

    Entering into an Agreed Order will prevent the issuance of an Order of the Commissioner under IC 13-30-3-4 or the filing of a civil court action under IC 13-14-2-6. IDEM encourages timely settlement by Agreed Order, thereby saving time and resources. Timely settlement by Agreed Order may result in a reduced civil penalty. Settlement discussions will also give you the opportunity to present any mitigating factors that may be relevant to the violations. In addition, as provided in IC 13-30-3-3, you may enter into an Agreed Order without admitting that the violation occurred

    Please contact Terry Ressler, Enforcement Case Manager at 317/232-8433 within fifteen (15) days after receipt of this Notice regarding your intent to settle this matter. If you are willing to resolve this matter as provided for in the enclosed Agreed Order, please sign and return it to the Office of Enforcement at the above address within the sixty (60) day settlement period.

                            For the Commissioner:

Dated: ____________________            ____Signed 10/30/98_________
                            Felicia Robinson George
                            Assistant Commissioner of Enforcement

cc:    Allen County Health Department
    U.S. EPA, Region 5

Converted by Andrew Scriven