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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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Complainant, |
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Case No. 2018-25877-C |
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NATHANIEL
GRABER & LESTER WAGLER |
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D/B/A K & T GOBBLERS, |
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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 Nathaniel Graber & Lester Wagler d/b/a K & T Gobblers (“Respondents”), who own/operate
a Confined Feeding Operation (“CFO”) with ID number 6705, located at 2950 N.
1200 E. in Loogootee, Daviess 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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Nathaniel
Graber & Lester Wagler, Owners |
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d/b/a
K & T Gobblers |
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2950
N. 1200 E. |
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Loogootee,
Indiana 47553 |
5.
During an investigation including an inspection
on November 13, 2018 conducted by a representative of IDEM, the following
violation was found:
a. 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,
Respondents failed to submit a CFO application to IDEM prior to increasing the
CFO manure containment capacity.
Respondents constructed a manure storage building north of building E4
without an approval from IDEM. The
unapproved structure contained no manure at the time of the inspection.
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 rule and/or permit
condition listed in the findings above.
3.
Within sixty (60) days of the Effective Date,
Respondents shall submit a complete CFO Approval Application as required per
327 IAC 19. The CFO Approval Application shall seek approval for the unpermitted
waste storage north of building E4 at the Site. A CFO Approval Application
Packet is included in Attachment A.
4.
To avoid stipulated penalties, as described in
Order Paragraph 8, Respondents are advised to follow the CFO Approval
Application checklist in Attachment A to ensure a complete CFO Approval
Application is submitted.
5.
Respondents shall respond to any Notice of
Deficiency (“NOD”) issued by the Confined Feeding Permitting Section within the
stated timeframes in the NOD. If such timeframes are not met, IDEM may assess
stipulated penalties as described in Order Paragraph 8.
6.
All submittals required by this Agreed Order,
unless Respondents are 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 |
7.
Respondents are assessed and agrees to pay a
civil penalty of Two Thousand Two Hundred Dollars ($2,200). Respondents are jointly and severally liable
for all civil penalty assessments, including stipulated penalties. 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”.
8.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondents shall
pay a stipulated penalty in the following amount:
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Paragraph |
Penalty |
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Order
paragraph #3 |
$250 per
week late |
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Order
paragraph #5 |
$200 per
week late |
9.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondents receive written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant may notify Respondents at any time that a
stipulated penalty is due. Failure to
notify Respondents 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 Respondents for
violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondents 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.
10.
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 |
11.
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 pay 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 10, above.
12.
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 their status or responsibilities under this Agreed Order.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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 L.
McClure, Section Chief |
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Enforcement
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Printed: ______________________ |
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Office of
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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RESPONDENT: |
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By:
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Printed: ______________________ |
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Title: ________________________ |
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Date: _______________________ |
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COUNSEL FOR RESPONDENTS: |
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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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Signed on
8/1/2019 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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