STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, ) )

Complainant, )

)

v. ) Case No. 2002-11183-S

)

UNITED FEEDS, INC., ) )

Respondent. )
 
 

AGREED ORDER

The Complainant and the 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 (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is United Feeds, Inc. (ARespondent@), which owns and operates the Confined Feeding Operation, Approval # 1329, located at C.R. 650 N. and S.R. 421, in Sheridan, Boone County, Indiana (ASite@).
    1. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.
    2. Pursuant to IC 13-30-3-3, on April 4, 2002, IDEM issued a Notice of Violation via Certified Mail to:
John Swisher, President John M. Corbett, Registered Agent United Feeds, Inc. C/O United Feeds, Inc. P.O. Box 108 4310 West SR 38 Sheridan, IN 46069 Sheridan, IN 46069 5. An inspection, on December 7, 2001, was conducted at the Site by a representative of IDEM=s Office of Land Quality (OLQ). The following violations were in existence or observed at the time of this inspection: A. Pursuant to 327 IAC 2-1-6(a)(1), 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 that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans, and which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance. The Respondent caused or allowed the discharge of animal manure from the Site into McCoy Ditch, waters of the state, in violation of 327 IAC 2-1-6(a)(1).
    1. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge. The Respondent caused or allowed the discharge of animal manure from the Site into McCoy Ditch, waters of the state, without a valid NPDES permit, in violation of 327 IAC 5-2-2.
    2. Pursuant to 327 IAC 2-6.1-7, any person who operates, controls or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state contain the spill, if possible, to prevent additional spilled material from entering the waters of the state; undertake or cause others to undertake activities needed to accomplish a spill response; and as soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response. The Respondent caused or allowed the discharge of animal manure into McCoy Ditch, waters of the state, and did not contain, respond to or report the spill, in violation of 327 IAC 2-6.1-7.
D. Pursuant to IC 13-30-2-1(1), 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, into the environment or into any publicly owned treatment works in any form which causes or would cause pollution which violates or which would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws. The Respondent caused or allowed the discharge of animal manure from the Site into McCoy Ditch, waters of the state, in direct violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, rules adopted by the Indiana Water Pollution Control Board.

E. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or to cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters, any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under Sections 1 and 3 of this chapter. The Respondent caused or allowed the discharge of animal manure from the Site into McCoy Ditch, waters of the state, in direct violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, rules adopted by the Indiana Water Pollution Control Board.

 6. 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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
    2. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit an Emergency Spill Response Plan. The Emergency Spill Response Plan shall include the information listed at 327 IAC 16-9-4(c)(1-5).
    3. The Respondent shall monitor the spray application of animal manure in a manner consistent with rule 327 IAC 16-10-3(c).
4. Beginning on the Effective Date of this Agreed Order, the Respondent shall observe the following set-back distances when surface applying animal waste:
    1. Surface water (as defined in 327 IAC 16-2-39)-200 feet.
    2. Drinking water wells-200 feet.
    3. Drainage inlets (as defined in 327 IAC 16-2-10)-200 feet.
    4. Public Roads-100 feet.
5. Prior to each land application event, the Respondent shall place flags or other boundary markers in the field to mark the setback distances described in Order paragraph 4, above.

6. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

 Craig Henry, Enforcement Case Manager Office of Enforcement Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

7. Respondent is assessed a civil penalty of Seven Thousand ($7,000.00) Dollars. Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.

8. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation Penalty

Failure to comply with Order paragraph No. 2 $500.00 per week

Failure to comply with Order paragraph No. 4 $500.00 per event

 Failure to comply with Order paragraph No. 5 $500.00 per event 9. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent violation of this Agreed Order or 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:

 Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

11. In the event that the civil penalty required by Order paragraph 7, is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

12. This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

13. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.
    1. The 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.

15. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order.

16. This Agreed Order resolves all violations cited in the Notice of Violation issued to the Respondent on April 3, 2002.

 TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management United Feeds, Inc.
By: _________________________ By: _________________________
Paul Higginbotham
Chief, Solid Waste/UST Section Printed: ______________________
Office of Enforcement
Title: ________________________
Date: ________________________ Date: ________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Office of Legal Counsel

Date: _______________________ Date: ______________________
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2003.

For the Commissioner:

Adopted January 28, 2003

Felicia A. Robinson
Deputy Commissioner
for Legal Affairs