STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2018-25884-C
					)
Egg innovations, llc,					)
					)
Respondent.					)

AGREED ORDER

Complainant and 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 (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Egg Innovations, LLC (“Respondent”), which owns and/or operates the farm with ID No. 6848, located at 69194 County Road 25, in New Paris, Elkhart County, Indiana (“Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via Certified Mail on April 8, 2019, to Tana Wilhelmi, facility representative, and Wes Larue, Registered Agent for Egg Innovations, LLC.

5. Respondent owns and/or operates a free-range layer operation with three (3) production buildings. IDEM issued a Confined Feeding Operation Approval with Construction (“CFO Approval”) to Respondent on July 1, 2015.

6. During an investigation, including inspections on August 27, 2018 and November 27, 2018, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 327 Indiana Administrative Code (“IAC”) 19-13-1(c), manure at the production area must be stored in an approved waste management system until removed for land application in accordance with 327 IAC 19-14.

As noted during an inspection on November 27, 2018, Respondent failed to store manure in an approved waste management system. Manure was stored in piles outside of the production facilities.

During a conference call on May 22, 2019, Respondent stated that manure stockpiled outside of the production building had been removed. A follow-up inspection performed by the IDEM inspector on July 12, 2019 confirmed the manure had been properly managed.

b. Pursuant to 327 IAC 19-11-2(b), the following storm water management practices must be implemented: (1) Good housekeeping. All areas that may contribute pollutants to storm water discharges should be maintained in a clean, orderly manner. (2) Preventative maintenance. A preventative maintenance program including timely inspection and maintenance schedule of storm water management devices. (3) Sediment and erosion control. Identify areas that, due to topography, activities, or other factors, have a high potential for significant soil erosion and identify structural, vegetative, and initiate stabilization measures to limit erosion. (4) Management of storm water runoff. Practices (other than those that control the generation or source or sources of pollutants) used to divert, infiltrate, reuse, or otherwise manage storm water runoff so as to reduce pollutants in storm water discharges from the site.

As noted during an inspection on August 27, 2018 and November 27, 2018, Respondent failed to discharge gutters and downspouts away from the pasture/runs. Storm water in contact with the pasture/runs is considered contaminated and must be properly managed.

A follow up inspection on December 5, 2019 by an IDEM inspector confirmed the storm water management issues noted during the inspections has been resolved. Several truckloads of soil were spread in the ponding water area. The soil was spread and graded eliminating the pond. Additional storm water control measures were implemented and approved by the inspector as well.

c. Pursuant to 327 IAC 19-9-1(b),the operating record must also contain all records from the following, if applicable: (1) 327 IAC 19-7-1(c) and 327 IAC 19-7-1(d), all requirements within the current version of the complete application. (2) 327 IAC 19-7-3, the farmstead plan. (3) 327 IAC 19-7-5, the manure management plan. (4) 327 IAC 19-10, a ground water monitoring plan. (5) 327 IAC 19-11-2(c), the storm water management certification. (6) 327 IAC 19-12-4(d), certification by a registered professional engineer. (7) 327 IAC 19-12-4(r) and 327 IAC 19-12-4(s), regarding construction requirements. (8) 327 IAC 19-13-1(f), regarding completed self-monitoring records for five (5) years. (9) 327 IAC 19-13-4, the current emergency response plan, and documentation of any spill response implemented by CFO personnel within the past five (5) years. (10) Updated calculation of minimum acreage required to meet land application requirements under 327 IAC 19-14-2(a), and copies of all land use agreements described in 327 IAC 19-14-2(b). (11) 327 IAC 19-14-3(b), justification of nitrogen losses. (12) 327 IAC 19-14-3(f), regarding land application records for five (5) years. (13) 327 IAC 19-14-4(h), regarding emergency land application of manure. (14) 327 IAC 19-14-5, a spray irrigation plan. (15) 327 IAC 19-14-6(d), regarding land application monitoring activities. (16) 327 IAC 19-14-7(c), regarding marketing and distribution records for five (5) years. (17) Documentation of maintenance activities on liquid manure storage facilities. (18) Copies of any written waivers related to reduction of the set back distances. (19) All required permits issued by the department.

As noted during an inspection on November 27, 2018, Respondent failed to maintain and/or provide the required operating records.

On May 22, 2019 and June 13, 2019 Respondent provided self-monitoring inspections for review. The IDEM inspector reviewed and approved the records.

d. Pursuant to 327 IAC 19-4-1(b), the following conditions apply to all confined feeding approvals: (1) The owner/operator must comply with all terms and conditions of the approval and this article. (2) The owner/operator shall take all reasonable steps to prevent, minimize, or correct any adverse impact on the environment resulting from noncompliance with the approval or this article.

As noted during an inspection on August 27, 2018 and November 27, 2018, Respondent failed to maintain vegetation in the E1, P1, and P2 pasture/runs as required by the CFO Approval.

A follow-up inspection performed by the IDEM inspector on July 12, 2019 confirmed the pastures have an adequate amount of vegetation to allow the chickens to access.

8. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 Complainant or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Immediately upon the Effective Date, Respondent shall comply with 327 IAC 19 and the CFO Approval.

3. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Jodi Pisula, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

4. Respondent is assessed and agrees to pay a civil penalty of fifteen thousand two hundred dollars ($15,200.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”.

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

Paragraph	Penalty
Order paragraph # 2	$100 per week

6. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

7. 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:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

8. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the “Environmental Management Special Fund,” and shall be payable to IDEM in the manner specified in Paragraph 7, above.

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

10. 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 this Agreed Order did not contain the invalid terms.

11. 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.

12. This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

13. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

14. Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

15. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with EPA or any other agency or entity.

16. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By:________________________				By: _________________________
	Linda McClure, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: _______________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	________________________, 20_____.
				For the Commissioner:
				__Signed 3/9/20______
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality