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. 2002-11420-S

)

MUNCIE SOW UNIT, LLC, ) )

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 terns 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, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Muncie Sow Unit, LLC ("Respondent"), which operates a confined feeding operation (CFO), facility ID#3580, which is owned by Tielen Realty, LLC, located at 17280 North County Road 350 East, Delaware County, Indiana ("Site").

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.
    1. Pursuant to IC 13-30-3-3, on April 24, 2002, IDEM issued a Notice of Violation via Certified Mail to:
Muncie Sow Unit, LLC
John Tielen, Registered Agent
17280 N. CR 350 E.
Eaton, Indiana 47338 5. An inspection, on March 19, 2002, was conducted at the Site by a representative of IDEMs Office of Land Quality ("OLQ"). The following violations were in existence or observed at the time of this inspection:
    1. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge is prohibited, unless in conformity with a valid NPDES permit obtained prior to the discharge. During the above noted investigation, IDEM observed that the Respondent allowed the discharge of hog manure, a pollutant, from the Site into waters of the state without a valid NPDES permit.
    2. Pursuant to 327 IAC 16-3-1(a), a confined feeding operation shall be managed to avoid an upermitted discharge into waters of the state. During the above noted investigation, IDEM observed that Respondent was not properly managing the Site and allowed the unpermitted discharge of hog manure from the Site into waters of the state.
    3. Pursuant to 327 IAC 16-9-1(a), all waste management systems and application equipment must be maintained and operated to meet the approval conditions. During the above noted investigation, IDEM observed that the Respondent was not maintaining the waste management systems at the Site pursuant to approval conditions, resulting in a discharge of hog manure from the Site.
    4. Pursuant to 327 IAC 16-9-1(b), management of liquid and solid manure must be in compliance with the following: (1) this article, (2) the confined feeding operation approval, and (3) all applicable state and federal laws. During the above noted investigation, IDEM observed that the Respondent was not managing the liquid manure at the Site in compliance with it's confined feeding approval and applicable state and federal laws.
    5. Pursuant to 327 IAC 16-9-1(d), if uncovered, liquid manure storage structures must be maintained with a minimum freeboard of two (2) feet or as specified in the approval conditions. During the above noted investigation, IDEM observed that the Respondent did not maintain a minimum freeboard of two (2) feet as required by 327 IAC 16-9-1(d).
F. 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. During the above noted investigation, IDEM observed that the Respondent allowed the discharge of hog manure, a waste, from the Site into waters of the state in violation of 327 IAC 5-2-2, and 327 IAC 16-3-1(a), rules adopted by the Water Pollution Control Board, thus violating 13-30-2-1(1).
 
    1. IDEM received a National Pollutant Discharge Elimination System (NPDES) permit application from the Respondent on July 8, 2002.
7. IDEM received a Spill Response Plan from the Respondent on November 1, 2002. 8. 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.
    1. Respondent shall maintain compliance with all applicable rules, regulations, statutes, approvals and permits.
    2. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall remove and properly land apply or store in a an approved manure storage structure all manure from the depopulated building involved in the discharge of manure on March 19, 2002.
    3. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit documentation detailing manure removal/disposal and or removal/storage methods utilized to comply with Order Condition 3 above.
    4. Within one hundred twenty (120) days of the Effective Date of this Agreed Order, the Respondent shall complete and implement a Comprehensive Nutrient Management Plan (CNMP) for the Site. A copy of the CNMP must be included in the operating record of the Site and made available to IDEM representatives upon request.
    5. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall ensure that all manure storage structures on Site have a minimum of two (2') feet of freeboard as required by 327 IAC 16-9-1(d).
7. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to: Dirk Andres, Enforcement Case Manager Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015 8. Respondent is assessed a civil penalty of twenty thousand two hundred and fifty dollars ($20,250.00), but the penalty is reduced to fifteen thousand dollars ($15,000.00). This penalty reflects a reduction based upon evidence submitted by the Respondent which demonstrated an inability to pay the original penalty amount assessed based on IDEM's civil penalty policy. a. Respondent shall make six (6) equal quarterly payments of two thousand five hundred dollars ($2,500.00) to the Environmental Management Special Fund on: June 30, 2003, September 30, 2003, December 30, 2003, March 30, 2004, June 30, 2004, and September 30, 2004.
    1. If IDEM determines at any time during the effective period of this
Agreed Order that the Respondent has failed to comply with any conditions of this Agreed Order, subject to any extension granted by IDEM, the Respondent agrees to pay the entire unpaid balance of the fifteen thousand dollars ($15,000.00) to the Environmental Management Special Fund within thirty (30) days of receipt of the notice to pay by IDEM. 9. 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. 3 $1,000.00 per week
Failure to comply with Order paragraph No. 4 $ 500.00 per week
Failure to comply with Order Paragraph No. 5 $ 500.00 per week
Failure to comply with Order Paragraph No. 6 $ 1,000.00 per week

10. 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 Respondents violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

11. 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
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
    1. In the event that the civil penalty required by Order Paragraph No. 8, is not paid accordingly, 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.
13. "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent's best efforts to fulfill the obligation. The requirement that the Respondent exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.

The Respondent shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting its claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM.

If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is directly attributable to the event constituting the force majeure.

14. 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.

15. 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.

16. 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.

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

 TECHNICAL RECOMMENDATION: RESPONDENT: Department of Environmental Management Muncie Sow Unit, LLC 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

Department of Environmental Management

Date: _______________________ Date: ______________________
 
 

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

For the Commissioner:

Signed on April 21, 2003

___________________________

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs