STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CAUSE NO. B-2435
v. )
)
JOHN TIELEN, d.b.a. MUNCIE SOW UNIT, )
)
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, a department of the State of Indiana
created by IC 13-13-1-1.
2. Respondent is John Tielen (hereinafter referred to as "Respondent"), who owns and
operates Muncie Sow Unit, a Confined Feeding Operation with an Approval # AW 3269,
at 17280 North Co. Rd. 350 E, Eaton, located in Delaware County, Indiana (hereinafter
referred to as "the Site").
3. The Indiana Department of Environmental Management ("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 via Certified Mail to:
John Tielen
Muncie Sow Unit, Approval # AW-3269
17280 North Co. Rd. 350E
Eaton, IN 47338
5. On February 2, 1999 and February 3,1999, IDEM conducted an inspection at the Site.
6. During the above noted inspections, the following violations were observed:
a. 327 IAC 2-6.1-7, which states 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 soil or surface 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), (317)233-7745 for out-of-state calls. If
new or updated spill report information becomes known that indicates a
significant increase in the likelihood of damage to the waters of the state,
the responsible party shall notify the department as soon as possible but
within two (2) hours of the time the new or updated information becomes
known.
(4)Submit to the Department of Environmental Management, Office of
Environmental Response, 2525 North Shadeland Avenue, P.O. Box 6015,
Indianapolis, IN 46206-6015, a written copy of the spill report if
requested in writing by the department.
(5)Except from modes of transportation other than pipelines, exercise due
diligence and document attempts to notify the following:
(A)For spills to surface water that cause damage, the nearest
affected downstream water user located within ten (10) miles of
the spill and in the state of Indiana; and
(B)For spills to soil outside the facility boundary, the affected
property owner or owners, operator or operators, or occupant or
occupants."
This violation is based on the fact that during the above noted inspections, the
Respondent caused or allowed the discharge of animal manure from a lagoon
located on the Site and failed to report the spill to IDEM.
b. 327 IAC 2-1-6(a)(1), which states: "The following are minimum water quality
conditions:
(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:
(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, visible oil sheen, 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;
(i) to assure protection of aquatic life, concentrations of toxic substances
shall not exceed the final acute value (FAV = 2 (AAC)) in the undiluted
discharge or the acute aquatic criterion (AAC) outside the zone of initial
dilutions or, if applicable, the zone of discharge-induced mixing;
(AA)for certain substances, the AAC are established and set forth in
Table 1 (which table incorporates Table 2); and
(BB) for substances for which an AAC is not specified in Table 1, or if
in a different AAC can be scientifically justified based on new
technological data or site-specific conditions concerning water quality
characteristics or species present, an AAC can be calculated by the
commissioner using the procedures in section 8.2 of this rule; and
(ii) this clause shall not apply to the chemical control of plants and
animals when that control is performed in compliance with approval
conditions specified by the Indiana department of natural resources as
provided by IC 14-2-1; and
(E) 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, be
unsightly, or otherwise impair the designated uses." This violation is based on
the fact that during the above noted inspections, the Respondent caused or
allowed the discharge of animal manure from a lagoon located at the Site,
resulting in a fish kill.
c. 327 IAC 5-2-2, which states: "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." This violation is based on the fact that during the above noted
inspections, the Respondent caused or allowed the discharge of animal manure
from a lagoon located at the Site into an open ditch leading to Estey Creek.
d. IC 13-18-4-5, which states that: "A person may not:
(1)throw, run, drain, or otherwise dispose into any of the streams or
waters of Indiana; or
(2)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." This violation is based on the fact that during the above noted
inspections, the Respondent caused or allowed the discharge of animal manure
from a lagoon located at the Site into an open ditch leading to Estey Creek.
e. IC 13-30-2-1(1), which states that: "A person may not do any of the following:
(1) 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:
(A) the environment; or
(B) any publicly owned treatment works;
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." This violation is
based on the fact that during the above noted inspections, the Respondent caused
or allowed the discharge of animal manure from a lagoon located at the Site into
an open ditch leading to Estey Creek, and that the lagoon located on the Site was
at full capacity.
7. 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 maintain compliance with all applicable laws and rules from the date of
issuance of this Agreed Order.
3. Respondent shall, within thirty (30) days of the Effective Date of this Agreed Order,
submit a Confined Feeding Approval Application to IDEM.
4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall
be sent to:
Confined Feeding Program, Office of Land Use Section
Office of Solid and Hazardous Waste Management (N1120)
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
5. Respondent is assessed a civil penalty of $6,806.25, to be paid in four (4) equal payments
of $1,701.56. The first payment of $1,701.56 shall be due on or before October 30,
1999. The second payment of $1,701.56 shall be due on or before January 30, 2000.
The third payment of $1,701.56 shall be due on or before March 30, 2000. The fourth
and final payment shall be due on or before June 30, 2000.
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
Order Condition #2 $100 per day
Order Condition #3 $100 per day application is late
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 Respondent for violation of the Agreed Order.
In lieu of assessment of any 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 of this action and shall be mailed
to:
Cashier
IDEM
100 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
9. In the event that the civil penalty required by paragraph 5 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.
10. This Agreed Order shall apply to and be binding upon the Respondent, its officers,
directors, principals, agents, successors, subsidiaries, 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.
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. 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.
13. 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
By:___________________________ By:____________________________
Paul Higginbotham, Chief
Solid Waste 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 __________________, 1999.
For the Commissioner:
Signed on September 22, 1999
_________________________
Felicia Robinson George
Assistant Commissioner
Office of Enforcement
Converted by Andrew Scriven