VIA CERTIFIED MAIL:

NOTICE OF VIOLATION

Mr. Gene Fogle, Owner

Mr. James D. Coy, Operator

2529 W. 650 North

Greensburg, Indiana 47240

Cause No. B-2038

Designated representatives of the Indiana Department of Environmental Management (IDEM) conducted a record review, and an inspection on November 22, 1996, and the Indiana Department of Natural Resources (IDNR), Conservation Officer (CO) along with an IDEM representative conducted a confined feeding spill clean up and damage assessment on August 8, 1995, at a hog farm owned by Gene Fogle and operated by James D. Coy located in Decatur County, Greensburg, Indiana.

Based on the above noted inspection, record review, and spill containment you were found in violation of the following provisions of the Indiana Code (IC) and Indiana Administrative Code (IAC):

IC 13-30-2-1 requires, in substance, that 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, (a) into the environment or (b) into any publicly owned treatment works; in any form that causes or would cause pollution that violated rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

327 IAC 2-1-6 states, in substance, that 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, 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 defines "Spill" as any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage or other loss of oil, hazardous and/or otherwise objectionable substance which enters or threatens to enter the waters of the state.

327 IAC 2-6-2 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. Insure 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(s) to IDEM with details of the

event.

Investigations conducted by IDEM have determined that:

On August 8, 1995, an IDNR Conservation Officer (CO) was dispatched to conduct a fish kill and stream pollution investigation at a Branch of Clifty Creek in Decatur County, Greensburg, Indiana. The CO observed and documented that approximately 10,275 dead and dying fish of various species were located in the creek. A bright pinkish-purple color was present in the creek and determined to be hog waste. The bright pinkish-purple color was found about 10 yards upstream from the fish kill where a hog waste lagoon was overflowing into the creek. It was determined that this lagoon was located at the confined feeding operation owned by Gene Fogle and operated by James D. Coy. The CO determined that the lagoon had been allowed to overflow which caused the hog waste to flow into the creek.

The CO's report indicates that Mr. Coy stated that the unusually high amounts of rainfall (8) for August 1995, caused the lagoon to overflow. The CO's report states that Mr. Coy was at the site daily and the lagoon should not have been allowed to overflow. The CO estimated the amount of hog waste which entered the creek was approximately 15,000 to 20,000 gallons, resulting in the fish kill in the Clifty Creek.

As evidenced by the above noted CO's report, you have violated IC 13-30-2-1 in that you have caused or allowed the discharge, of a contaminant or waste (hog manure) including any noxious odor, either alone or in combination with contaminants from other sources, into the environment.

You have violated 327 IAC 2-1-6 in that you have caused the violation of minimum water quality conditions of being free from substances and materials that produce color, odor or other conditions in such degree as to create a nuisance and which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

Additionally, IDEM's records indicate that this spill was initially reported by a neighbor and not by you. Therefore, you failed to immediately report the spill of a contaminant as required by 327 IAC 2-6-2.

On November 22, 1996, a representative of IDEM inspected the site and indicated that there was no evidence of any new breaches in the lagoon walls. The inspector's report indicated that you had repaired the lagoon which was breached during the August 1995 fish kill. However, during the inspection, the inspector noted that there is not enough freeboard to prevent this type of spill from occurring again. The wastewater was within 6 inches of the top of the east side, and 8-10 inches on the southwest corner of the lagoon at the time of the November 22, 1996 inspection. You were notified through a letter dated December 4, 1996, that you need to submit a confined feeding application to IDEM, as the facility does not have the required confined feeding approval.

According to your December 19, 1996 letter, the lagoon has been pumped down approximately 1 foot. Although you have made efforts to divert the rain water run-off, it is IDEM's inspector's opinion that heavy rain in combination of with additional hog waste could cause the lagoon to overflow if immediate steps are not taken to pump down the lagoon.

IC 13-18-10-2(b), requires, in substance, that plans and specifications for waste treatment or control facilities for a confined feeding operation must secure the approval of the department. The department shall approve construction or operation of the confined feeding operation if the water pollution control proposal is satisfactory. IC 13-11-2-40 defines "confined feeding operation" to include any animal feeding operation that is causing a violation of water pollution control laws or any rules of the board or any confined feeding operation of at least 600 swine. Furthermore, IC 13-18-10-3 provides that the Commissioner of IDEM may disallow continued operation by any operator when it is found that the confined feeding operation is causing a violation of IC 13-18 or any rules of the Water Pollution Control Board.

Record reviews indicate that your facility contains at least six hundred (600) swine and is considered a confined feeding operation. On January 6, 1997, you submitted an application for confined feeding approval. IDEM's representatives returned the application to you by mail on January 9, 1997. It has been determined that the application was incomplete. Accordingly, you continue to be in violation of IC 13-18-10-2.

In accordance with IC 13-30-3-3, the Commissioner is required to notify you in writing that the Commissioner believes a violation exists and offer you 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.

If settlement is not reached within sixty (60) days of your receipt of this Notice, the Commissioner may issue an Order pursuant to IC 13-30-3-4, containing 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.

The timely entry into an Agreed Order will prevent the necessity of an Order of the Commissioner being issued under IC 13-30-3-4, or the filing of a civil court action under IC 13-14-10 or IC 13-14-2-6. Advantages of entering into an Agreed Order are:

1. You may not be required to admit that any violation occurred.

2. The civil penalty may be less than that imposed under an Order of the Commissioner.

Please contact Aletha Lenahan at (317) 232-8407 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:

Signed on 3/27/97

Patrick Carroll

Director

Office of Enforcement

cc: U.S. EPA Region 5, Water Section

Decatur County Health Department