STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2019-26728-C |
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FREEDOM PORK
FARMS, LLC, |
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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 Indiana Code (“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 IC
13-13-1-1.
2.
Respondent is Freedom Pork Farms, LLC
(“Respondent”), which owns and operates the confined feeding operation with Farm
ID #6778, AW #6323 located at 9706 S 100 E, 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 on
February 18, 2020 to:
Jennifer
Sands, Vice President |
Freedom
Pork Farms LLC |
3891
West Hill Lake Road |
Claypool,
Indiana 46510 |
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United
States Corporation Agents, Inc., Registered Agent |
Freedom
Pork Farms LLC |
605
West Edison, Suite D |
Mishawaka,
Indiana 46545 |
5.
Freedom Pork Farms, LLC is a wean-to-finish
swine operation.
6.
During
an investigation including inspections on March 4, 2019, August 9, 2019, and
December 9, 2019 conducted by a representative of IDEM, the following violations
were found:
a.
Pursuant
to 327 Indiana Administrative Code 19-4-1(b), the owner/operator must comply with all terms and conditions of
the CFO approval and this article, 327 IAC 19.
Pursuant to 327 IAC 19-12-3(a)(2), waste
management systems must be located at least three hundred (300) feet from
surface waters.
As noted during
the inspections, Respondent failed to construct two (2) earthen surface water
diversion swales, which were required by the original CFO Approval issued on
August 22, 2013 in order to provide at least 300 feet
of drainage control.
On March 3, 2020 a follow up inspection was conducted and
confirmed that two (2) earthen surface water diversion swales were constructed.
On June 12, 2020,
photographic documentation was submitted showing reseeding of disturbed soil
areas where the two (2) earthen surface water diversion swales have been
constructed.
7.
Orders
of the Commissioner are subject to administrative review by the Office of
Environmental Adjudication under IC 4-21.5; however, in recognition of the
settlement reached, Respondent acknowledges notice of this right and 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 listed
in the findings of fact above.
3.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise
in writing, shall be sent to:
Jodi
Pisula, Enforcement Case Manager |
Office
of Land Quality |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
4.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of One
Thousand Two Hundred Dollars ($1,200.00). Said penalty amount shall be due and
payable to the Environmental Management Special Fund in twelve (12) monthly installments. The first installment of One Hundred Dollars
($100.00) shall be paid within thirty (30) days of the Effective Date; the 30th
day being the “Due Date”, and the remaining installment payments shall be made
every thirty (30) days thereafter.
5.
The civil penalty is payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number
of this action and shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN,
Room 1340 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
6.
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 5, above.
7.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
8.
This Agreed Order shall apply to and be binding
upon Respondent and all successors and assigns. Respondent shall provide a copy
of this Agreed Order, if in force, to any subsequent owners, successors, or
assigns before ownership rights are transferred.
9.
No change in ownership, corporate, or
partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this
Agreed Order.
10.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of 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.
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 the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
13.
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.
14.
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 violations
specified in the NOV.
15.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the U.S. Environmental
Protection Agency (U.S. 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 the U.S. EPA or any
other agency or entity.
16.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Jennifer
Reno, 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
THIS |
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DAY OF |
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For the Commissioner: |
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Signed 9/22/2020 |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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