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STATE OF
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BEFORE THE
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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. 2018-25789-C |
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METZGER
CATTLE COMPANY, INC., |
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Respondent. |
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AGREED ORDER
Complainant
and Respondent 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. Respondent’s entry into this Agreed Order shall not
constitute a waiver of any defense, legal or equitable, which Respondent 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.
Respondent is Metzger Cattle Company, Inc. (“Respondent”),
which owns/operates a Confined Feeding Operation (“CFO”) with ID number 1000,
located at 76 East County Road 800 South in Claypool, Kosciusko 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”) via Certified Mail to:
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Rodney
W. Metzger, President & Registered Agent |
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Metzger
Cattle Company, Inc. |
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76
East CR 800 South |
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Claypool,
Indiana 46510 |
5.
During an investigation including a record
review on November 15, 2018 conducted by a representative of IDEM, the
following violations were found:
a. Pursuant to 327 Indiana Administrative
Code (“IAC”) 19-13-1(d), if uncovered, liquid manure storage facilities must be
maintained with a minimum freeboard of two (2) feet or as specified in approval
conditions.
As noted during the inspection,
Respondent failed to maintain the lagoon which receives runoff from barns #1,
#2, and #4 with a minimum freeboard of two (2) feet.
b.
Pursuant to 327 IAC 19-6-1(d), any increase in
animal capacity or manure containment capacity requires a new application under
IC 13-18-10-1 and the requirements therein.
As noted
during the inspection, Respondent failed to submit a CFO application to IDEM
prior to increasing the CFO manure containment capacity. In the Spring of
2016, Respondent dug a lagoon without an approval to capture the leachate and
runoff from the silage pad. The unapproved structure was constructed without a
valid approval from IDEM.
6.
On January 30, 2019, IDEM issued a Facility
Change Approval with Partial Closure Certification. Subsequently, an application for a new CFO
manure containment capacity is no longer required.
7. In recognition of the settlement reached,
Respondent waives 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 Respondent. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondent shall comply with the rules and/or permit
conditions listed in the findings above.
3.
Respondent shall maintain the lagoon which
receives runoff from barns #1, #2, and #4 with a minimum freeboard of two (2)
feet.
4.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Chike Okeke, Enforcement Case Manager |
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Office of Land Quality |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
5.
Respondent is assessed and agrees to pay a
civil penalty of Seven Thousand Six Hundred Eight Seven Dollars and Fifty Cents
($7,687.50). Said penalty amount shall
be due and payable to the Environmental Management Special Fund within thirty
(30) days of the Effective Date; the 30th day being the “Due Date”.
6.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondent shall
pay a stipulated penalty in the following amount:
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Paragraph |
Penalty |
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Order
paragraph #4 |
$250 per week late |
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Order
paragraph #6 |
$200 per
week late |
7.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated
penalty is due. Failure to notify
Respondent in writing in a timely manner of stipulated penalty assessment shall
not waive Complainant’s right to collect such stipulated penalty or preclude
Complainant from seeking additional relief against Respondent for violation of
this Agreed Order. Neither assessment nor payment of stipulated penalties shall
preclude Complainant from seeking additional relief against Respondent for a
violation of this Agreed Order; such additional relief includes any remedies or
sanctions available pursuant to Indiana law, including, but not limited to, civil
penalties pursuant to IC 13-30-4.
8.
Civil and stipulated 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 |
9.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent 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 Respondent 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 8, above.
10.
This Agreed Order shall apply to and be binding
upon Respondent and its successors and assigns. Respondent’s 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 Respondent shall in any way
alter its status or responsibilities under this Agreed Order.
11.
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.
12.
Respondent shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondent shall ensure that all contractors, firms and
other persons performing work under this Agreed Order comply with the terms of
this Agreed Order.
13.
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 Respondent pursuant to this Agreed Order, shall not in any way relieve
Respondent of its obligation to comply with the requirements of its applicable
permits or any applicable Federal or State law or regulation.
14.
Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that
Respondent’s 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 Respondent may incur as a
result of Respondent’s efforts to comply with this Agreed Order.
15.
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.
16.
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 Respondent
may incur as a result of such communications with EPA or any other agency or
entity.
17.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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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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Nancy Johnston,
Section Chief |
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Enforcement
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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
THIS |
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____________________,
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For the
Commissioner: |
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Signed on
4/9/2019 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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