Based on an investigation by designated representatives of the Indiana Department of Environmental Management (IDEM) on September 16 and 23, 2003, T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C., located at 1652 N. C.R. 1100 W., in Fair Oaks, Jasper County, Indiana, were in violation of the following environmental statutes and rules:

A. 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 hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response.

A reportable spill of animal manure from the Site into Curtis Ditch, waters of the state, occurred on or about September 9, 2003, and was not properly contained and/or responded to and/or reported by T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C., in violation of 327 IAC 2-6.1-7.

B. Pursuant to 327 IAC 2-1-6(a)(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 that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans, and which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance.

T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C. caused and/or allowed the discharge of animal manure from the Site on or about September 9, 2003, into Curtis Ditch, waters of the state, that settled to form putrescent or otherwise objectionable deposits, that was in an amount sufficient to be unsightly or deleterious, that produced color, visible oil sheen, odor, or other conditions in such degree to create a nuisance, which was in amounts sufficient to be acutely toxic to, or otherwise severely injure or kill aquatic life, other animals, plants or humans, which was in concentrations or combinations that caused or contributed to the growth of aquatic plants or algae to such a degree as to create a nuisance, in violation of 327 IAC 2-1-6(a)(1).

C. Pursuant to 327 IAC 5-2-2, 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.

T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C., caused and/or allowed the discharge of animal manure, a pollutant, from the Site on or about September 9, 2003, into Curtis Ditch, waters of the state, without a valid NPDES permit and without meeting any of the exclusions in 327 IAC 5-2-4, in violation of 327 IAC 5-2-2.

D. 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 IC 13-18-4-1 and IC 13-18-4-3.

T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C., caused and/or allowed the discharge of animal manure, an organic matter, from the Site on or about September 9, 2003, into Curtis Ditch, waters of the state, in violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and/or 327 IAC 5-2-2, and thus violated IC 13-18-4-5.

E. 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.

T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C., caused and/or allowed the discharge of animal manure, a contaminant or waste, into the environment from the Site on or about September 9, 2003, in violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and/or 327 IAC 5-2-2, and thus violated IC 13-30-2-1(1).
F. Pursuant to 327 IAC 16-3-1(a), a confined feeding operation shall be managed to avoid an unpermitted discharge into waters of the state.

T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C., did not manage the confined feeding operation to avoid an unpermitted discharge into waters of the state, resulting in a discharge of animal manure from the Site on or about September 9, 2003, into Curtis Ditch, waters of the state, without a valid permit, in violation of 327 IAC 16-3-1(a).

G. Pursuant to 327 IAC 16-9-5(b), the operating record must contain all applicable records from the following: 327 IAC 16-9-1(e) regarding completed self-monitoring records for three (3) years; 327 IAC 16-10-1, regarding minimum acreage records; 327 IAC 16-10-2(c), regarding land application records for five (5) years; 327 IAC 16-10-5(c), regarding marketing and distribution records for three (3) years; and documentation of any spill response implemented in accordance with 327 IAC 16-9-4(a)(3) by confined feeding operation personnel within the past five (5) years.

The operating record of T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C., on or about September 23, 2003, did not contain all applicable records from 327 IAC 16-10-2(c), regarding land application records for five years, in violation of 327 IAC 16-9-5(b).

H. Pursuant to 327 IAC 16-9-1(a), all waste management systems and application equipment must be maintained and operated to meet the approval conditions.

T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C., on or about September 9, 2003, did not operate the manure application equipment in accordance with the approval conditions, in violation of 327 IAC 16-9-1(a).

I. Pursuant to 327 IAC 16-9-1(e), the owner/operator shall inspect all waste management systems for compliance with this article and the approval conditions and, if applicable, freeboard as specified in subsection (d) or
the approval, at least one (1) time each month. Completed self-monitoring records must be kept in the operating record described in section 5 of this rule.

T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C., on or about September 23, 2003, did not maintain self-monitoring records of waste management system inspections, in violation of 327 IAC 16-9-1(e).

J. Pursuant to 327 IAC 16-10-3(c), to prevent leaks or excessive application of liquid manure spray irrigation must be conducted: under the constant supervision of a person designated by the owner/operator or as specified in the approval, with devices to detect pressure loss due to leaks and devices to shut down the system if leaks are detected or in accordance with a spray irrigation plan approved by the department.

T & M Limited Partnership, Bos Family Farms, Inc. and Windy Ridge Dairy, L.L.C., on or about September 9, 2003, did not conduct liquid manure spray irrigation under the constant supervision of a designated person, with devices to detect pressure loss due to leaks and devices to shut down the system if leaks are detected or in accordance with a spray irrigation plan approved by the department, in violation of 327 IAC 16-10-3(c).
In accordance with IC 13-30-3-3, the Commissioner is required to notify an alleged violator in writing that a violation may exist and offer an opportunity to enter into an Agreed Order providing for the actions required to correct the violations and for the payment of a civil penalty. The Commissioner is not required to extend this offer for more than sixty (60) days.

Entering into an Agreed Order will prevent the issuance of a Notice and 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 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 allow the opportunity to present any mitigating factors that may be relevant to the violations. In addition, as provided in IC 13-30-3-3, an alleged violator may enter into an Agreed Order without admitting that the violation occurred.

If settlement is not reached within sixty (60) days of receipt of this Notice of Violation, the Commissioner may issue a Notice and Order containing the actions that must be taken 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 for each violation.

To discuss this matter further, please contact Craig Henry at 317/233-1136 within fifteen (15) days after receipt of this Notice to request a conference. If settlement is reached, an Agreed Order will be prepared and sent for review and signature.

For the Commissioner:
 
 

Date: Signed February 2, 2004

Felicia A. Robinson
Deputy Commissioner
for Legal Affairs

cc: Jasper County Health Department
Jasper County Public File, L file
Daniel P. McInerny, Esq., Bose McKinney & Evans, LLP
Steve Bos, Bos Family Farms, Inc.
www.in.gov/idem