NOTICE OF VIOLATION
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Via
Certified Mail No: |
Via
Certified Mail No: |
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To: |
John
M. Divine & Linda M. Divine |
To: |
Abydel Farms, LLC |
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13278
E 800 South |
c/o
DCG Services, Inc |
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Loogootee,
Indiana 47553 |
P.O.
Box 4175 |
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Wilmington,
Delaware 19807 |
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Via Certified
Mail No: |
Via
Certified Mail No: |
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To: |
DCG
Services, Inc. |
To: |
George R.
Ziegler |
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P.O. Box
4175 |
7512 Beard
Road |
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Wilmington,
Delaware 19807 |
Loogootee,
Indiana 47553 |
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Case No. 2013-21977-Q
Based on an investigation, the Indiana Department of Environmental
Management (IDEM) has reason to believe that John M. and Linda M. Divine, Abydel Farms, LLC., DCG Services,
Inc., and George R. Ziegler (Respondents) have violated environmental statutes
and rules. The violations are based on
the following:
1.
Respondents
are John M. and Linda M. Divine, Abydel Farms, LLC., DCG Services, Inc., and George R. Ziegler
(Respondents). John M. and Linda M.
Divine own the property located at Sections 9 & 10, Township 4 North, Range
3 West, Williams, IND. USGS Quad located near Cale,
Martin County, Indiana (the Site). John
M. and Linda M. Divine conveyed the title of the property to Abydel Farms LLC on December 27, 2012. However, Abydel
Farms LLC is not registered with the Indiana Secretary of State as required by
State statute and does not have a registered agent within Indiana as required
by State statute. DGC Services Inc. is
the registered agent for Abydel Farms LLC but is not
registered in the State of Indiana as required by State statute. John M. Divine (Respondent Divine) has
operated equipment on the Site without the required permits. George R. Ziegler has operated equipment on
the Site without the required permits.
2.
On
May 1, 2013, IDEM received information from Indiana Department of Natural
Resources (IDNR) staff that violations of environmental statues and rules had
occurred at the Site. IDNR staff also notified
IDEM that John M. and Linda M. Divine had transferred title to the property at
the Site to Abydel Farms, LLC.
3. On
May 30, 2013, IDEM staff and the United States Army Corps of Engineers (the
Corps) staff conducted an inspection at the Site. During this inspection, it was observed and
documented that Respondents had caused unauthorized discharge of fill materials
into waters of the state, including wetlands.
During the inspection, IDEM staff observed and documented the discharge
of side cast dredged material from Sulphur Creek into
adjacent wetlands, the mechanical clearing of forested wetlands, the discharge
of earthen material into Sulphur Creek, the
excavation of new stream channels, and the draining of wetlands from tile
installation and constructed conveyance. IDEM staff documented that
approximately 49 acres of forested wetlands and 5,900 linear feet of Sulphur Creek and its tributaries were impacted.
4. On
June 28, 2013, the Corps sent notification to Respondent Divine that the Corps
exercises regulatory jurisdiction over Sulphur Creek
and the adjacent wetlands under Section 404 (33 USC 1344) of the Clean Water
Act, and that it is unlawful under Section 301 of the Act (33 USC 1311) to
place dredged or fill materials into Waters of the United States without prior
authorization. Respondent was notified
that the Corps had not received a Department of the Army permit issued in
accordance with Section 404 for the work completed at the Site.
5. Pursuant
to 327 IAC 5-2-2, any discharge of pollutants to Waters of the State as a point
source discharge, except for exclusions made in 327 ICA 5-2-4, is prohibited
unless in conformity with a valid NPDES permit obtained prior to the discharge.
Pursuant to IC 13-30-2-1, it is
unlawful for any person to discharge, emit, cause, or allow any contaminant or
waste, including any noxious odor, either alone or in combination with
contaminants from other sources in the environment 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.
During the inspection conducted at the
Site by IDEM and the Corps on May 30, 2013, it was observed that Respondents
had placed fill material and woody debris in wetland areas and tributaries of Sulphur Creek, which constituted point source discharge of
pollutants to Waters of the State, in violation of 327 IAC 5-2-2, and therefore
is in violation of IC 13-30-2-1.
6. Pursuant
to 327 IAC 2-1-6(a)(1), all surface 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, which are in amounts
sufficient to be acutely toxic to, or to otherwise severely injure or kill
aquatic life, other animals, plants, or humans.
During
the above referenced inspection conducted at the site by IDEM and the Corps on
May 30, 2013, it was documented that Respondents placed fill material and woody
debris in wetland areas and tributaries of Sulphur
Creek at the Site, resulting in objectionable deposits, and Respondents failed
to maintain and protect existing beneficial uses, degraded the water quality,
and interfered with the existing and potential uses of the wetlands at the Site,
in violation of 327 IAC 2-1-6(a)(1) and IC 13-30-2-1.
In accordance
with IC 13-30-3-3, the Commissioner herein provides notice that violations may
exist and offers an opportunity to enter into an Agreed Order providing for the
actions required to correct the violations and, as necessary and appropriate,
for the payment of a civil penalty. The
Commissioner is not required to extend this offer for more than 60 days.
As provided in
IC 13-30-3-3, an alleged violator may enter into an Agreed Order without
admitting that the violations occurred.
IDEM encourages settlement by Agreed Order, thereby resulting in quicker
correction of the environmental violations and avoidance of extensive
litigation. Timely settlement by Agreed
Order may result in a reduced civil penalty.
Also, settlement discussions will allow the opportunity to present any
mitigating factors that may be relevant to the violations.
If an Agreed
Order is not entered into within 60 days of receipt of this Notice of
Violation, the Commissioner may issue a Notice and Order under IC 13-30-3-4 containing
the actions that must be taken to correct the violations and requiring the
payment of 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.
Please
contact Terry Ressler at (317)232-8433 within 15 days after receipt of this
Notice to discuss resolution of this matter.
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For the
Commissioner: |
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Date:______________ |
Signed on
January 13, 2014 |
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Mary E.
Hollingsworth, Branch Chief |
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Surface
Water, Operations & Enforcement Branch |
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Office of
Water Quality |
cc: Martin County SWCD
Indiana
Department of Environmental Resources
U.S. Army
Corps of Engineers
U.S.
Environmental Protection Agency