STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT OF
COMMISSIONER OF THE DEPARTMENT )
) SS: ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. B-2272
)
)
SHENANDOAH PARTNERS, )
)
Respondent. )
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.
1. Complainant is the Commissioner (hereinafter referred to as "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 Shenandoah Partners, (hereinafter referred to as "Respondent"),
who owns a turkey confined feeding operation (the "Site") located near Dugger,
Indiana, at County Road 350 South and County Road 450 East in Sullivan
County.
3. The IDEM has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation on September 22,
1998, via Certified Mail to:
Mr. David Gradison, General Partner Mr. Joe Gradison, Operations Manager
Shenandoah Partners Shenandoah Partners
6330 E. 75th Street, Suite 156 6330 E. 75th Street, Suite 156
Indianapolis, IN 46250 Indianapolis, IN 46250
5. Designated representatives of the IDEM conducted inspections of Respondent's
turkey confined feeding operation on October 10, 1997, November 5, 1997,
February 12, 1998, and July 7, 1998. Based on the inspections and a record
review, IDEM contends Respondent has violated the following provisions of the
Indiana Code (IC) and the Indiana Administrative Code (IAC).
6. 327 IAC 2-6.1-4 contains definitions as follows:
(15) "Spill" means any unexpected, unintended, abnormal, or unapproved
dumping, leakage, drainage, seepage, discharge or other loss of petroleum,
hazardous substances, extremely hazardous substances, or objectionable
substances.
(16) "Spill response"for purposes of this rule means the following:
(A) the spill is contained; and
(B) free material is removed
(17) "Spill report" means an oral report that includes .... the location and time
of the spill; the identification of the substance spilled, the quantity of
substance that has been or may further be spilled, the identification of the
person making the spill report, and what measures have been or will be
undertaken to perform a spill response and any other information that may
be significant to the response action.
7. 327 IAC 2-6.1-7, requires, in part, that 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 waters of the state, do the following:
(1) Contain the spill, if possible, to prevent additional spilled material from
entering the waters of the state.
(2) Undertake or cause others to undertake activities needed to accomplish a spill
response.
(3) 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: Area code 1-888-233-7745 for in state calls (toll free).
327 IAC 2-1-6(a)(1) states, in substance, that 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 attibutable to
municipal, industrial, agricultural, and other land use practices or other
discharges:
a. that will settle to form putrescent or otherwise objectionable deposits;
b. that are in amounts sufficient to be unsightly or deleterious;
c. that produce color, odor or other conditions in such degree as to create a
nuisance;
d. which are in amounts sufficient to be acutely toxic to, or to otherwise
severely injure or kill aquatic life, other animals, plants, or humans.
IC 13-18-4-5 states, in part, that it is unlawful for a 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 section 1 and 3 of this chapter.
10. IC 13-30-2-1 states, in part, that a person may not discharge, emit, cause, allow, or
threaten to discharge, emit, cause, or allow any contaminant ...., either alone or in
combination with contaminants from other sources, into the environment .... in
any form that causes or would cause pollution that violates or would violate rules,
standards, or discharge or emission requirements adopted by the appropriate board
under the environmental management laws.
11. 327 IAC 5-2-2 states, in part, that 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.
12. On October 10, 1997, IDEM field staff conducted an investigation of discharge of
animal waste from Respondent's confined feeding operation. During the
investigation it was determined that Respondent had allowed improper stockpiling
of turkey manure from Respondent's nearby turkey barns which resulted in
manure-contaminated run-off water entering a tributary of Busseron Creek There
was no containment of the liquid run-off. IDEM contends Respondent's failure to
neither report the release, nor contain it, nor immediately clean-up the spill
constitutes violations of 327 IAC 2-6.1-7. IDEM contends Respondent's
discharge of manure-contaminated run-off into a tributary of Busseron Creek
constitutes violation of 327 IAC 2-1-6(a)(1), IC 13-18-4-5, IC-13-30-2-1 and 327
IAC 5-2-2.
On November 5, 1997, a follow up inspection was conducted at the site by IDEM.
There was no improvement in the management of the waste. The stockpiles of
manure remained next to the tributary. Water samples were collected in the
tributary approximately 60 feet downstream of the first stockpile. The sample
analysis results revealed an Ammonia Nitrogen concentration of 620 mg/l and a
Biochemical Oxygen Demand concentration of 2,600 mg/l. IDEM contends this
discharge constitutes pollution of the tributary and violation of 327 IAC 2-6.1,
327 IAC 2-1-6(a)(1), IC 13-18-4-5, IC 13-30-2-1, and 327 IAC 5-2-2.
On December 12, 1997, IDEM staff of the Office of Enforcement contacted Joe
Gradison, operations manager for Respondent's Timberline Farms, and
communicated that Respondent must cease continuing to stockpile manure in such
a way as to allow contaminants to enter the local waterway.
15. On February 12, 1998, IDEM field staff of the Office of Water Management made
another follow up visit to the site. The stockpiles had been removed. However,
the manure-saturated soil remaining from these stockpiles resulted in puddles of
contaminated water. IDEM contends that there remained the potential for
manure-contaminated run-off to waters of the state which constitutes violation of
IC 13-30-2-1 and IC 13-18-4-5(2).
On July 7, 1998, IDEM field staff of the Office of Solid and Hazardous Waste, Solid Waste Compliance inspected the Site and found turkey manure stockpiled between barns and the wood lot. Some stockpiled manure had vegetative growth on it, indicating outdoor storage for more than 30 days. There were no run-on or
run-off controls in the area of the stockpiles to prevent a manure-contaminated
discharge to surface waters. IDEM contends this constitutes a continuing threat to
violate 327 IAC 2-6.1, 327 IAC 2-1-6(a)(1), IC 13-18-4-5, IC 13-30-2-1, and 327
IAC 5-2-2.
17. Pursuant to IC 13-30-3-3(c), entry into the terms of this Agreed Order does not
constitute an admission of any violation contained herein.
In recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the
Complainant or his delegate, and has been received by the Respondent. This
Agreed Order shall have no force or effect until the Effective Date.
2. Respondent shall cease discharge of turkey manure-contaminated run-off and
comply with all applicable sections of the Indiana Code and the Indiana
Administrative Code.
Respondent shall not store manure in the open at Respondent's Timberline Farm
at the location along the banks of the waterway observed used for open storage on
October 10, 1997, November 5, 1997, February 12, 1998, and July 7, 1998, for
more than twenty-four (24) hours.
4. Within twenty-one (21) days of the Effective Date of this Agreed Order,
Respondent shall submit to the IDEM Office of Solid and Hazardous Waste,
Land Use Section, 100 N. Senate Ave., P.O. Box 6015, Indianapolis, Indiana
46206-6015, an application for confined feeding operation approval, including a
Waste Management Plan to properly store and dispose of its turkey manure.
Respondent shall provide the Land Use Section with any requested additional
information within the time requested.
5. Respondent is assessed a Civil Penalty of Nine Thousand Nine Hundred Dollars
($9,900). 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.
6. In the event the following terms and conditions are violated, the Complainant may
assess and the Respondent shall pay a stipulated penalty in the following amounts:
VIOLATION PENALTY
Paragraph #3 $1000 per day of stockpiling beyond 24 hours
Paragraph #4 $ 500 per day delay in submitting items/information
7. 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
Respondents for violation of the Agreed Order. In lieu of assessment of the
stipulated penalty given above, the Complainant may seek any other remedies or
sanctions available by virtue of Respondent's violation of this Agreed Order, or
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 Cause Number (B-2272) of
this action and shall be mailed to:
IDEM Cashier
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46206-7060.
9. In the event that the civil penalty amount required by paragraph 5 is not paid when
due, Respondent shall pay interest on the unpaid, overdue 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.
This Agreed Order shall apply to and be binding upon the Respondent, its officers,
directors, principals, agents, successors, subsidiaries, and assigns. 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
corporate, or partnership status of the 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 the 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 shall remain in effect until Respondent has complied with all
terms and conditions of this Agreed Order and Complainant has issued a close-out
letter to Respondent.
TECHNICAL RECOMMENDATION RESPONDENT
Shenandoah Partners
By: _________________________ By: _________________________
Mark W. Stanifer, Chief Name __________________
Water Enforcement Section Title __________________
Office of Enforcement Date: _______________
Department of Environmental
Management
Date: _______________
COUNSEL FOR COMPLAINANT COUNSEL FOR RESPONDENT
By: _________________________ By: _________________________
Nancy Holloran
Office of Legal Counsel
Department of Environmental
Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS _______ DAY OF _______________________, 1998.
For the Commissioner:
_signed January 11, 1999____
Felicia Robinson George
Assistant Commissioner for Enforcement
Converted by Andrew Scriven