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United States v. Ysselstein

United States District Court, N.D. Iowa, Western Division

April 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SJERP YSSELSTEIN and MEADOWVALE DAIRY, LLC, Defendants.

          CONSENT DECREE

          Hon. Leonard T. Strand United States District Court Judge

         TABLE OF CONTENTS

         I. INTRODUCTION............................................................................................................................2

         II. JURISDICTION AND VENUE.......................................................................................................3

         III. APPLICABILITY............................................................................................................................4

         IV. DEFINITIONS.................................................................................................................................5

         V. COMPLIANCE REQUIREMENTS................................................................................................9

         VI. REVIEW AND APPROVAL PROCEDURES..............................................................................15

         VII. CIVIL PENALTY..........................................................................................................................17

         VIII. STIPULATED PENALTIES.........................................................................................................18

         IX. FORCE MAJEURE........................................................................................................................21

         X. DISPUTE RESOLUTION.............................................................................................................24

         XI. INFORMATION COLLECTION AND RETENTION.................................................................26

         XII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS......................................................28

         XIII. COSTS...........................................................................................................................................29

         XIV. NOTICES.......................................................................................................................................30

         XV. EFFECTIVE DATE.......................................................................................................................31

         XVI. RETENTION OF JURISDICTION...............................................................................................31

         XVII. MODIFICATION...........................................................................................................................31

         XVIII. TERMINATION............................................................................................................................32

         XIX. PUBLIC PARTICIPATION..........................................................................................................32

         XX. SIGNATORIES/SERVICE............................................................................................................33

         XXI. INTEGRATION.............................................................................................................................33

         XXII. FINAL JUDGMENT......................................................................................................................33

         XXIII. APPENDICES................................................................................................................................34

         I. INTRODUCTION

         WHEREAS, Plaintiff United States of America, by the authority of the Attorney General of the United States and through its undersigned counsel, acting at the request and on behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), filed a Complaint in this action on February 26, 2016 alleging that Sjerp Ysselstein and Meadowvale Dairy, LLC (collectively "Defendants") violated Section 301 of the Clean Water Act ("CWA"), 33 U.S.C. § 1311, and the terms and conditions of two National Pollutant Discharge Elimination System ("NPDES") permits issued under Section 402 of the CWA, 33 U.S.C. § 1342.

         WHEREAS, the Complaint sought injunctive relief and civil penalties pursuant to Sections 309(b) and (d) of the CWA, 33 U.S.C. §§ 1319(b) and (d).

         WHEREAS, Defendant Meadowvale Dairy, LLC is a limited liability company formed in the State of Iowa, with a principal place of business in Rock Valley, Iowa.

         WHEREAS, Defendant Sjerp Ysselstein owns and operates Meadowvale Dairy, which consists of two permitted concentrated animal feeding operations ("CAFOs") in Rock Valley, Iowa: (1) Meadowvale Dairy - North Site ("Meadowvale North"), located at 1760 300th Street; and (2) Meadowvale Dairy - South Site ("Meadowvale South") located at 1730 310th Street.

         WHEREAS, Meadowvale North and Meadowvale South each qualify, and qualified at all times relevant to this action, as "large" CAFOs as that term is defined at 40 C.F.R. § 122.23(b)(4).

         WHEREAS, the Iowa Department of Natural Resources ("IDNR") issued NPDES Permit No. IA00077844 (the "North Permit") to Meadowvale North and NPDES Permit No. IA0077852 (the "South Permit") (collectively the "NPDES Permits") to Meadowvale South.

         WHEREAS, the Complaint alleges that Defendants violated Section 301 of the CWA, 33 U.S.C § 1311(a) and the NPDES Permits, by: (1) discharging Manure and Process Wastewater into Waters of the United States on at least three Days between June 19, 2014 and July 22, 2014; (2) failing to dewater Settled Open Feedlot Effluent Basins ("SOFEBs") to less than ten (10) percent of storage capacity before winter; and (3) failing to install Depth Markers in all open SOFEBs between August 27, 2013 and September 1, 2014.

         WHEREAS, Defendants submitted an individual NPDES Permit application to IDNR on September 4, 2015 to account for an additional 2, 550 head of cattle, thereby expanding Meadowvale Dairy's NPDES permit coverage to expressly include the Calf Hut and the Concrete Bunker.

         WHEREAS, IDNR approved Defendants' construction permit application (CP-A2015-165), authorizing the construction of a new SOFEB with associated solids settling facilities to increase the storage capacity of Meadowvale South.

         WHEREAS, during the settlement negotiations preceding this Consent Decree, Defendants implemented interim runoff controls at Meadowvale North and Meadowvale South to reduce the probability of an unauthorized discharge.

         WHEREAS, Defendants do not admit any liability to the United States arising out of the transactions or occurrences alleged in the Complaint.

         WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties, and that tins Consent Decree is fair, reasonable, and in the public interest.

         NOW THEREFORE, with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED AND DECREED as follows:

         II. JURISDICTION AND VENUE

         1. This Court has jurisdiction over the subject matter of this action, pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and Section 309(b) of the CWA, 33 U.S.C. § 1319(b), and over the Parties. Venue properly lies in this District pursuant to Section 309(b) of the CWA, 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1391 and 1395(a), because it is the judicial district where the Defendants are located and where the alleged violations occurred. For purposes of this Consent Decree, or any action to enforce this Consent Decree, Defendants consent to the Court's jurisdiction in any action to enforce this Consent Decree and consent to venue in this judicial district.

         III. APPLICABILITY

         2. The obligations of this Consent Decree apply to and are binding upon the United States and upon the Defendants and their officers, directors, employees, agents, servants, successors, assigns, and all persons, firms, and corporations under contract with the Defendants to perform obligations of this Consent Decree.

         3. Unless EPA otherwise agrees in writing, no transfer of ownership or operation of the Facility, whether in compliance with the procedures of this Paragraph or otherwise, shall relieve Defendants of their obligation to ensure that the terms of the Consent Decree are implemented, unless: (a) the Plaintiff consents to relieve Defendants of their obligations, and (b) the transferee agrees to undertake the obligations required by this Decree, as they apply to the Facility being transferred, and to be added as a Party under the Decree and thus bound by the terms thereof. At least thirty (30) Days prior to such transfer, Defendants shall provide a copy of this Consent Decree to the proposed transferee and shall simultaneously provide written notice of the prospective transfer, together with a copy of the proposed written agreement, to the United States in accordance with Section XIV of this Decree (Notices). Any attempt to transfer ownership or operation of the Facility without complying with this Paragraph constitutes a violation of this Consent Decree.

         4. Within thirty (30) Days after the Effective Date of this Consent Decree, the Defendants shall provide a copy of this Consent Decree to all officers, directors, employees. agents, and managers whose duties might reasonably include compliance with any substantive provision of this Consent Decree, as well as to a principal responsible officer or senior management official of any contractor retained to perform substantive work required under this Consent Decree. Defendants shall condition any such contract upon performance of the work in conformity with the terms of this Consent Decree.

         5. In any action to enforce this Consent Decree, Defendants shall not raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to take any actions necessary to comply with the provisions of this Consent Decree.

         IV. DEFINITIONS

         6. Terms used in this Consent Decree that are defined in the CWA or in regulations promulgated pursuant to the CWA shall have the meanings assigned to them in the CWA or such regulations, unless otherwise provided in this Consent Decree. Whenever the terms set forth below are used in this Consent Decree, the following definitions shall apply:

a. "Complaint" shall mean the Complaint filed by the United States in this action in the Northern District of Iowa on February 26, 2016.
b. "Consent Decree" or "Decree" shall mean this Decree and all appendices attached hereto listed in Section XXIII (Appendices). In the event of a conflict between this Decree and any appendix, this Decree shall control.
c. "Date of Entry" shall mean the date on which this Consent Decree is entered by the United States District Court for the Northern District of Iowa.
d. "Date of Lodging" shall mean the date on which this Consent Decree is lodged with the United States District Court for the Northern District of Iowa for a period of public comment.
e. "Day" shall mean a calendar Day unless expressly stated to be a business Day. In computing any period of time under this Consent Decree, where the last Day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business on the next business Day.
f. "Deliverable" shall mean any written document required to be prepared and/or submitted by or on behalf of Defendants for purposes of this Consent Decree.
g. "Depth Marker" shall mean a tool designed to monitor liquid levels in lagoons or impoundments, including SOFEBs, EMSBs, and Formed Manure Storage Structures.
h. "Earthen Manure Storage Basins" or "EMSBs" shall mean an earthen cavity, either covered or uncovered, which receives Manure and Process Wastewater discharges from a confinement feeding operation.
i. "EPA" shall mean the United States Environmental Protection Agency and any of its successor departments or agencies.
j. "Effective Date" shall have the definition provided in Section XV of the Consent Decree.
k. "Facility" or "Facilities" shall mean one or more of the four component parts of the Meadowvale Dairy in Rock Valley, Iowa including: (i) Meadowvale Dairy - North Site ("Meadowvale North") located at 1760 300th Street that is approximately 135 acres in size and confines approximately 6, 750 head of cattle; (ii) Meadowvale Dairy - South Site ("Meadowvale South") located at 1730 310th Street that is approximately 50 acres in size and confines approximately 3, 250 head of cattle; (iii) the Calf Hut located to the southwest of Meadowvale South that confines approximately 1, 500 head of cattle with one confinement barn used to house immature cattle; and (iv) the Concrete Bunker located to the north of the Calf Hut, separated from Meadowvale South by 310th Street, that stores excess Manure and Process Wastewater.
l. "Freeboard" shall mean the difference in elevation between the designed storage capacity and the overflow level of a lagoon or impoundment.
m. "Formed Manure Storage Structures" shall mean a covered or uncovered impoundment used to store Manure or Process Wastewater from an animal feeding operation, which has walls and a floor constructed of concrete, concrete block, wood, steel, or similar materials.
n. "IDNR" shall mean the Iowa Department of Natural Resources and any of its successor departments or agencies.
o. "Land Application Area" shall mean land under the control of Defendants, whether owned, rented, or leased, to which Manure, litter or Process Wastewater from the Facility is or may be applied in accordance with and as described in the Nutrient Management Plan.
p. "Manure" shall include solids, bedding, compost and raw materials or other materials commingled with Manure or set aside for disposal.
q. "NPDES" shall mean the National Pollutant Discharge Elimination System authorized under Section 402 of the CWA, 33 U.S.C. § 1342.
r. "NPDES Permits" shall mean the NPDES permits issued by IDNR to Meadowvale North (Permit No. IA0077844) and Meadowvale South (Permit No. IA0077852) in effect on the Date of Lodging, and any future ...

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