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. 2019-25983-C

 

 

)

 

WIN PRODUCTIONS 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 Indiana Code (“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 IC 13-13-1-1.

 

2.        Respondent is Win Productions LLC (“Respondent”), which owns and operates a Confined Feeding Operation (“CFO”) with Farm ID No. 336, located at 5526 North Knox Road, in Petersburg, Pike County, Indiana (“Site”).

 

3.        Respondent’s CFO Animal Waste Approval No. AW-5906 expired on September 25, 2018.  Respondent submitted CFO Approval Application to IDEM on March 18, 2019.  IDEM issued a CFO Approval without Construction to Respondent on April 25, 2019.

 

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

 

5.        Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) on June 25, 2019 via Certified Mail to:

 

Brian Bradshaw, Registered Agent

Win Productions LLC

46619 County Highway 2

Griggsville, IL 62340

 

6.        Respondent owns and operates a swine CFO with nine production buildings, two two-stage earthen storage lagoons, one manure solids building with the capacity for 3,146 sows and 900 nursery pigs.

 

7.        During an investigation, including a spill response on January 2, 2019 and inspections on January 8, January 10, and May 2, 2019 conducted by representatives of IDEM, the following violations were found:

 

a.            Pursuant to 327 Indiana Administrative Code (“IAC”) 2-1-6(a)(1), all surface 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 that do any of the following:

(A)         will settle to form putrescent or otherwise objectionable deposits;

(B)         are in amounts sufficient to be unsightly or deleterious;

(C)         produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

(D)         are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses; and

(E)         are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

 

As noted during the spill response on January 2, 2019, Respondent allowed manure from secondary earthen lagoons E11 and E13 to enter drainage ways that outfall to the White River. Additionally, as noted during an inspection on May 2, 2019, Respondent allowed manure from lagoon E11 to enter drainage ways that outfall to the White River. The discharges of manure were in an amount sufficient to be unsightly or deleterious, that produced color, odor, or other conditions in such a degree to create a nuisance and/or was in an amount to be acutely toxic to, or otherwise severely injure or kill aquatic life, or other animals, plants, or humans. The origin of the spills was Respondent’s manure management system located at the Site. There is no evidence that the manure discharges caused a fish kill during the spill response on January 2, 2019 or inspections on January 8, 10, or May 2, 2019.

 

b.            Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall, upon discovery of a spill that damages the waters of the state:

(a)          Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

(b)          Undertake or cause others to undertake activities needed to accomplish a spill response.

(c)          As soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Land Quality, Emergency Response Section: (317) 233-7745 for in-state calls, Area Code 1-888-233-7745 for out-of- state (toll free) 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.

 

As noted during the spill response on January 2, 2019 and an inspection on May 2, 2019, Respondent did not report the spills to IDEM within two (2) hours of discovery. IDEM was notified of spills by a private citizen on January 2, 2019 and on or about May 1, 2019.

 

c.            Pursuant to IC 13-18-4-5(a), a person may not throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or 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 327 IAC 2-1-6(a)(1), a rule adopted by the board of IC 13-18-4-1 and IC 13-18-4-3.

 

As noted during the spill response on January 2, 2019 and an inspection on May 2, 2019, Respondent released manure into drainage ways that outfall to the White River.

 

d.            Pursuant to IC 13-30-2-1(1), a person may not 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 in any form that causes or would cause pollution that violates or would violate 327 IAC 2-1-6(a)(1), a rule adopted by the board under the environmental management laws.

 

As noted during the spill response on January 2, 2019 and an inspection on May 2, 2019, Respondent released manure into drainage ways that outfall to the White River, a water of the state.

 

e.            Pursuant to 327 IAC 19-3-1(a), a CFO shall be managed to avoid an unpermitted discharge into waters of the state.

 

As noted during the spill response on January 2, 2019 and an inspection on May 2, 2019, Respondent did not manage the CFO in a manner to avoid an unpermitted discharge of manure into drainage ways that outfall to the White River, a water of the state. Manure overtopped secondary earthen lagoons E11 and E13 on January 2, 2019 and lagoon E11 on May 2, 2019. The manure flowed into drainage ways that outfall to the White River, a water of the state.

 

f.             Pursuant to 327 IAC 19-3-1(d), all waste management systems must be designed, constructed, and maintained to minimize leaks and seepage and prevent manure releases or spills, as well as ensure compliance with water quality standards in 327 IAC 2.

 

As noted during the January 8, 2019 inspection, manure waste water was exiting Farrowing House 8E from below the fan shroud and several pump-out covers were missing.

 

As noted during the January 10, 2019 inspection, manure was no longer exiting from below Farrowing House 8E’s fan shroud as a result of pulling the plug in the recently cleaned out Room 12 to allow the manure waste water to drain to a lagoon. Additionally, covers were installed over pump-out ports.

 

As noted during the May 2, 2019 inspection, manure waste water was exiting Farrowing House 8E from below the fan shroud.

 

g.            Pursuant to 327 IAC 19-4-1(a), CFO’s must: (1) have a valid approval to operate; or (2) close in accordance with 327 IAC 19-16.

 

As noted during the January 8 and 10, 2019 inspections, Respondent housed over six hundred (600) swine which were confined, fed, and maintained for at least forty-five (45) days during a twelve (12) month period without a valid Approval to operate. Respondent’s CFO Approval expired on September 25, 2018.

 

On March 18, 2019, Respondent submitted a CFO Approval Application. On April 25, 2019, IDEM issued a CFO Approval without Construction to Respondent.

 

h.            Pursuant to 327 IAC 19-7-5(d) and (e), a manure test must be obtained that provides sufficient information about the manure content to allow for nutrient recommendations for existing or planned crops and to minimize nutrient leaching The frequency of this testing must be: (1) specified in the manure management plan; and (2) conducted a minimum of once every year. Additionally, manure samples must be representative of the manure that is land applied. If manure is mixed from separate manure storage facilities prior to land application, a composite sample may be taken. If manure is land applied from separate and distinct storage facilities, a sample must be taken from each unique production system.

 

As noted during the January 8, January 10, and May 2, 2019 inspections, Respondent did not maintain annual manure test documentation on-site.

 

i.              Pursuant to 327 IAC 19-7-6(a), CFOs must carry out proper management of dead livestock as required by 345 IAC 7-7 to ensure that there shall be: (1) no discharge of mortality or liquids that have been in contact with mortality to waters of the state; and (2) no disposal in a manure storage facility that is not specifically designed to treat animals mortalities.

 

As noted during the May 2, 2019 inspection, Respondent did not properly manage the concrete animal composter to prevent and/or control storm water run-on and run-off causing mortality liquids to discharge to waters of the state.

 

j.              Pursuant to 327 IAC 19-9-1(a), all valid approvals, amendments, renewals, and notifications relevant to the approvals must be: (1) added to the operating record in accordance with required time frames established in this article and IC 13-18-10; and (2) maintained and updated in the operating record.

 

As noted during the January 8 and 10, 2019 inspections, Respondent did not have all valid approvals, amendments, renewals, and notifications relevant to the approvals as well as other required information in compliance with 329 IAC 19-9-1 added to the operating record.

 

k.            Pursuant to 327 IAC 19-9-1(b), the operating record must contain all records from the following, if applicable: (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; and (12) 327 IAC 19-14-3(f), regarding land application records for five (5) years.

 

As noted during the January 8, 2019 inspection, Respondent did not have an emergency response plan and required land application information in the operating record. Specifically, Respondent did not have in the operating record the following land application information: expected crop yield, record of precipitation events, calculations for phosphorus and nitrogen applied, land application site monitoring activities (field tile monitoring), and a narrative explaining basis for determining the manure application rates/appropriate agronomic rate. Additionally, Respondent did not have a current emergency response plan in the operating record.

 

As noted during the January 10, 2019 inspection, Respondent had an Emergency Spill Response Plan on-site that included documentation of the January 2, 2019 spill response.

 

l.              Pursuant to 327 IAC 19-11-1(a), all CFOs that are defined as Concentrated Animal Feeding Operations (“CAFOs”) in 40 CFR 122.23(b)(2) and all CAFOs with a National Pollutant Discharge Elimination System (“NPDES”)  permit must meet the storm water requirements in 40 CFR 122.23(e) and 40 CFR 122.42(e)(1) through 40 CFR 122.42(e)(2).

 

As noted during the May 2, 2019 inspection, Respondent failed to meet storm water requirements of 40 CFR 122.42(e)(1) through 40 CFR 122.42(e)(2) by allowing surface water run-on and surface water run-off contaminated with manure from lagoon E11 and from Farrowing House E8 and morality liquids from the concrete animal composter to discharge to waters of the state. Additionally, Respondent did not maintain required CAFO storm water management records in the operating record.

 

m.          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 run-off. Practices (other than those that control the generation or source or sources of pollutants) used to divert, infiltrate, reuse, or otherwise manage storm water run-off so as to reduce pollutants in storm water discharges from the site.

 

As noted during the May 2, 2019 inspection, Respondent did not properly store manure in lagoon E11 and Farrowing House 8E and mortalities in the concrete animal composter to prevent contamination of storm water.

 

n.            Pursuant to 327 IAC 19-13-1(d), if uncovered, liquid manure storage facilities must be maintained with a minimum freeboard of two (2) feet or as specified in the approval conditions.

 

As noted during the spill response on January 2, 2019, freeboard levels of lagoons E11 and E13 did not meet the minimum 2 feet freeboard level. Additionally, as noted during the inspection on January 8, 2019, freeboard levels of all four lagoons did not meet the minimum 2 feet freeboard level. As noted during the May 2, 2019 inspection, freeboard levels of lagoon E11 and primary lagoon E10 did not meet the minimum 2 feet freeboard level.

 

o.            Pursuant to 327 IAC 19-13-1(e), uncovered liquid manure storage facilities must have clearly identified markers to indicate manure levels relative to the approved freeboard elevation.

 

As noted during the January 8, January 10, and May 2, 2019 inspections, freeboard level measurements on the secondary lagoons freeboard markers were not clearly identified relative to the approved freeboard elevation.

 

p.            Pursuant to 327 IAC 19-13-1(g), all earthen berms for manure storage facilities must be: (1) stabilized with vegetation or alternative erosion control measures; and (2) maintained to allow for visual inspection and prevent growth of trees or shrubs.

 

As noted during the January 8, 2019 inspection, Respondent allowed tree growth on the embankment of primary lagoon E12.

 

As noted during the January 10, 2019 inspection, Respondent had removed the trees on the embankment of primary lagoon E12.

 

As noted during the May 2, 2019 inspection, Respondent allowed tree growth on the embankment of secondary lagoon E13.

 

q.            Pursuant to 327 IAC 19-14-3(f), the following land application information must be added to the operating record as needed in accordance with the required time frames established in this article and IC 13-18-10 and must be maintained and updated in the operating record: (1) Expected crop yields. (2) The date or dates manure, litter, or process wastewater is applied to each field. (3) Precipitation events at the time of application and for twenty-four (24) hours prior to and following application. (4) Test methods used to sample and analyze manure, litter, process wastewater, and soil. (5) Results from manure, litter, process wastewater, and soil sampling. (6) An explanation of the basis for determining manure, litter, and process wastewater application rates. (7) Calculations showing the manure nitrogen and phosphorus to be applied to each field. (8) Total amount of nitrogen and phosphorus actually applied to each field, including documentation of calculations for the total amount applied. (9) The method used to apply the manure, litter, or process wastewater. (10) The date or dates of manure, litter, and process wastewater application equipment inspection. (11) USDA soil survey maps of currently available land application sites. (12) The type of manure applied. (13) A written conservation plan with an explanation of conservation practices used must be completed and implemented prior to land application on highly erodible land, if required in section 4(j) of this rule.

 

As noted during the January 8, January 10, and May 2, 2019 inspections, Respondent did not maintain required manure land application information in the operating record. Specifically, Respondent did not have the following information: expected crop yield, record of precipitation events, calculations for phosphorus and nitrogen applied, land application site monitoring activities (field tile monitoring), and a  narrative explaining basis for determining the manure application rates/appropriate agronomic rate.

 

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.            Respondent shall comply with statutes and rules listed in the findings above.

 

3.            Upon the Effective Date, Respondent shall comply with 327 IAC 19-3-1(a). Specifically, Respondent shall manage its confined feeding operation so as to avoid an unpermitted discharge into waters of the State.

 

4.            Upon the Effective Date, Respondent shall comply with 327 IAC 9-9-1(a). Specifically, Respondent shall maintain in the operating record all valid approvals, amendments, renewals, and notifications relevant to the approvals.

 

5.            Upon the Effective Date, Respondent shall comply with 327 IAC 19-13-1(d). Specifically, Respondent shall maintain freeboard levels of all lagoons at minimum of two (2) feet or as specified in the approval conditions.

 

6.            Upon the Effective Date, Respondent shall comply with 327 IAC 19-13-1(e). Specifically, Respondent shall clearly identify freeboard markers to indicate manure levels relative to the approved freeboard elevation.

 

7.            Within thirty (30) days of the Effective Date, Respondent shall comply with 327 IAC 19-13-1(g). Specifically, Respondent shall remove all foreign material in the lagoons and remove woody vegetation on all four lagoon earthen berms.

 

8.            Within thirty (30) days of the Effective Date, Respondent shall comply with 327 IAC 19-11-1(a). Specifically, Respondent shall store manure and mortalities so to prevent contamination of storm water.

 

9.            Within thirty (30) days of the Effective Date, Respondent shall comply with 327 IAC 19-3-1(d). Specifically, Respondent shall clean up mortality liquid releases and properly land apply manure.

 

10.         Upon the Effective Date, Respondent shall comply with 327 IAC 19-11-2(b). Specifically, Respondent shall add to the operating record CAFO Storm Water Contamination Documentation for any future manure and mortality liquid releases to storm water.

 

11.         Upon the Effective Date, Respondent shall comply with 327 IAC 19-9-1(b). Specifically, Respondent shall add documentation of any future manure or manure waste water releases to the “spill anticipation and assessment” section of Respondent’s Emergency Spill Response Plan.

 

12.         Upon the Effective Date, Respondent shall comply with 327 IAC 19-11-1(a) and 327 IAC 19-11-2(b). Specifically, Respondent shall store mortalities and manure so as to prevent contamination of storm water. Additionally, Respondent shall maintain CAFO storm water management records in the operating record.

 

13.         Upon the Effective Date, Respondent shall comply with 327 IAC 19-7-5(d) and (e). Specifically, Respondent shall conduct an annual manure test that provides sufficient information about the manure content to allow for nutrient recommendations for existing or planned crops and to minimize nutrient leaching. Manure test results shall be added to the on-site operating record.

 

14.         Upon the Effective Date, Respondent shall comply with 327 IAC 19-14-3(f). Specifically, Respondent shall complete marketing and distribution information and record sheets (Attachment A), place the information and record sheets in the operating record, and maintain the information for a period of five (5) years.

 

15.         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

 

16.             Respondent is assessed and agrees to pay a civil penalty of Twenty-Nine Thousand Four Hundred Dollars ($29,400.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund in twelve (12) quarterly installments.  The monthly installment payments shall be Two Thousand Four Hundred Fifty Dollars ($2,450.00) each. The first installment shall be due by January 31, 2021 and the remaining payments shall be made every thirty (30) days thereafter. Interest shall accrue on unpaid amounts at the rate established by IC 24-4.6-1-101.

 

17.         In the evet 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 7

$250 per week late

Order paragraph 8

$250 per week late

Order paragraph 9

$250 per week late

Order paragraph 14

$250 per week late

 

18.         Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30th 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.

 

19.         Civil and stipulated penalties are payable by 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 N1340

100 North Senate Avenue

Indianapolis, IN 46204

 

20.         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 19, above.

 

21.         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.

 

22.         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.

 

23.         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.

 

24.         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.

 

25.         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.

 

26.         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.

 

27.         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:  _________________________

 

Jennifer Reno, Chief

 

 

Land 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 8/14/2020________________

 

Peggy Dorsey

 

Assistant Commissioner

 

Office of Land Quality