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 |
||||