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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2018-25498-C |
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Russel L. Foust, Operator, and Just pork, inc., |
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Respondents. |
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AGREED ORDER
Complainant
and Respondents desire to settle and compromise this action without hearing or
adjudication of any issue of fact or law, and consent to the entry of the
following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into the
terms of this Agreed Order does not constitute an admission of any violation
contained herein. Respondents’ entry into this Agreed Order shall not
constitute a waiver of any defense, legal or equitable, which Respondents may
have in any future administrative or judicial proceeding, except a proceeding
to enforce this order.
I.
FINDINGS OF FACT
1.
Complainant is the Commissioner (“Complainant”)
of the Indiana Department of Environmental Management (“IDEM”), a department of
the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.
2.
Respondents are Russel L. Foust, and Just Pork,
Inc. (“Respondents”), who own/operate a Confined Animal Feeding Operation with
FID No. 6954, located at CR 700 E & CR 1150 S, in Galveston, Cass County,
Indiana (“Site”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) on August 23, 2018 via Certified Mail to:
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Russel
L. Foust, Operator |
Russel
L. Foust, Registered |
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Just
Pork, Inc. |
Agent
for Just Pork, Inc. |
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11460
S. CR 700 E. |
2830
E. CR 350 S. |
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Galveston,
IN 46932 |
Logansport,
IN 46947 |
5.
During an investigation including an inspection
on July 17, 2018 conducted by a representative of IDEM, the following
violations were found:
a. Pursuant
to 327 Indiana Administrative Code (“IAC”) 19-4-1(b)(1), the owner/operator
must comply with all terms and conditions of the CFO approval and this article,
327 IAC 19.
As noted during the inspection, Respondents
did not comply with all terms and conditions of the CFO approval and 327 IAC
19. Specifically, an earthen berm/drainage diversion designed to divert
surface/storm water away from a mapped wetlands area located west of the
facility was not constructed in accordance with the May 3, 2017 CFO Approval
with Construction and Special Approval Conditions. Respondents constructed an
earthen swale drainage diversion and submitted the Facility Change Notification
to IDEM on July 20, 2018, and IDEM verified this construction during a
follow-up inspection on April 3, 2019.
b. Pursuant to
327 IAC 19-4-1(b)(2), the owner/operator shall take all reasonable steps to
prevent, minimize or correct any adverse impact on the environment resulting
from noncompliance with the CFO approval or this article, 327 IAC 19.
As noted during the inspection, Respondents
failed to take all reasonable steps to prevent, minimize or correct any adverse
impact on the environment resulting from noncompliance with the CFO approval
and 327 IAC 19. Specifically, an earthen berm/drainage diversion designed to
divert surface/storm water away from a mapped wetlands area located west of the
facility was not constructed in accordance with the May 3, 2017 CFO Approval
with Construction and Special Approval Conditions. Respondents constructed an
earthen swale drainage diversion and submitted the Facility Change Notification
to IDEM on July 20, 2018, and IDEM verified this construction during a
follow-up inspection on April 3, 2019.
c. Pursuant
to 327 IAC 19-8-3(b), the owner/operator must submit written notification to
the department of any changes to the operation as approved. The department will
review the changes and decide if amendments are necessary. At any time the
department may decide an amendment is necessary, and the owner/operator must
comply with the amended approval.
As noted during the inspection, Respondents
did not submit a completed CFO Facility Change Notification form and updated
Farmstead Plan to IDEM prior to populating swine barn 1 P and barn 2 P for the
following changes:
1.
Two water wells were installed instead of one.
2.
Barn 2 P perimeter drain tile riser was moved
from the northwest corner to the southwest corner.
3.
Rock outlet distributors for the two perimeter
drain tile discharges are reportedly not going to be constructed.
Subsequently, Respondents made the above
changes and submitted the Facility Change Notification and updated farmstead
plan to IDEM on July 20, 2018.
d. Pursuant
to 327 IAC 327 IAC 19-12-4(r), the owner/operator shall notify the commissioner
in writing two (2) days prior to scheduled construction of a waste management
system. If an owner/operator completes
construction of an approved waste management system and wishes to utilize that
portion prior to finishing construction of the entire facility, multiple
notices shall be submitted.
As noted during the inspection, Respondents
failed to submit the CFO Construction Notification form (State form 50210
R3/11-12) to IDEM as required prior to the scheduled construction of two (2)
production barns which were completed June 25, 2018. Respondents constructed an
earthen swale drainage diversion and submitted the Facility Change Notification
to IDEM on July 20, 2018. IDEM verified the earthen swale drainage diversion during
a follow-up inspection on April 3, 2019.
6. In recognition of the settlement reached,
Respondents waive any right to administrative and judicial review of this
Agreed Order.
II. ORDER
1.
This Agreed Order shall be effective
(“Effective Date”) when it is approved by Complainant or Complainant’s
delegate, and has been received by Respondents. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondents shall comply with the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Respondents are assessed and agree to pay a
civil penalty of two thousand eight hundred dollars ($2,800). Respondents are
jointly and severally liable for all civil penalty assessments. Said penalty
amount shall be due and payable to the Environmental Management Special Fund in
four (4) installments. The first
installment of seven hundred dollars ($700.00) shall be paid within thirty (30)
days of the Effective Date; the 30th day being the "Due Date". Subsequent installments of seven hundred
dollars ($700.00) shall be paid within one hundred twenty (120) days of the
Effective Date, two hundred ten (210) days of the Effective Date, and three
hundred sixty-five (365) days of the Effective Date.
4.
Civil penalties are payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number
of this action and shall be mailed to:
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Indiana
Department of Environmental Management |
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Office
of Legal Counsel |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis, IN 46204 |
5.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date, Respondents
shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1.
The interest shall be computed as having accrued from the Due Date until the
date that Respondents pays any unpaid balance. Such interest shall be payable
to the Environmental Management Special Fund, and shall be payable to IDEM in
the manner specified in Paragraph 4, above.
6.
This Agreed Order shall apply to and be binding
upon Respondents and their successors and assigns. Respondents’ signatories to
this Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership,
corporate, or partnership status of Respondents shall in any way alter its
status or responsibilities under this Agreed Order.
7.
In the event that any terms of this 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 this Agreed Order did not
contain the invalid terms.
8.
Respondents shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondents shall ensure that all contractors, firms
and other persons performing work under this Agreed Order comply with the terms
of this Agreed Order.
9.
This Agreed Order is not and shall not be
interpreted to be a permit or a modification of an existing permit. This Agreed
Order, and IDEM’s review or approval of any submittal made by Respondents
pursuant to this Agreed Order, shall not in any way relieve Respondents of their
obligation to comply with the requirements of their applicable permits or any
applicable Federal or State law or regulation.
10.
Complainant does not, by its approval of this
Agreed Order, warrant or aver in any manner that Respondents’ compliance with
any aspect of this Agreed Order will result in compliance with the provisions
of any permit, order, or any applicable Federal or State law or regulation. Additionally,
IDEM or anyone acting on its behalf shall not be held liable for any costs or
penalties Respondents may incur as a result of Respondents’ efforts to comply
with this Agreed Order.
11.
Nothing in this Agreed Order shall prevent or
limit IDEM’s rights to obtain penalties or injunctive relief under any
applicable Federal or State law or regulation, except that IDEM may not, and
hereby waives its right to, seek additional civil penalties for the same
violations specified in the NOV.
12.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the EPA or any other
agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not
be held liable for any costs or penalties Respondents may incur as a result of
such communications with EPA or any other agency or entity.
13.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Linda
McClure, Section Chief |
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Enforcement Section |
Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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Date: ______________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For the
Commissioner: |
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_5/29/19________________________ |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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