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. 2019-26142-C
					)
sam beer farms, inc.,					)
					)
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[s] is Sam Beer Farms, Inc. (“Respondent”), which owns/operates a Confined Feeding Operation (“CFO”), with CFO ID # 7021 located at located at 1928 W. Price Road, in Milford, Kosciusko 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 to:

Sam Beer Farms, Inc.

Attn: Sam Beer, Owner/Operator

1928 W. Price Road

Milford, Indiana 46542

5. During an investigation including an inspection on February 21, 2019 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 327 Indiana Administrative Code (“IAC”) 19-12-4(d), all liquid manure storage facilities must be constructed according to the Indiana NRCS Conservation Practice Standard Code 313: Waste Storage Facility, October 2016. Construction of all liquid manure storage facilities approved after the effective date of this article must be certified upon completion by a registered professional engineer on a form provided by the department. The engineer’s certification must be kept in the operating record and submitted with the affidavit required by subsection (s).

As noted during the inspection, Respondent populated the newly constructed structure with animals prior to submitting a professional engineer’s certification and a construction completion affidavit to IDEM. The introduction of animals or manure prior to submitting a professional engineer’s certification violates the rule. Respondent received an Approval to Construct on July 27, 2018. Respondent submitted a Construction Notification to IDEM on October 8, 2018. The construction of the structure was completed on February 20, 2019.

b. Pursuant to 327 IAC 19-12-4(s), the applicant shall execute and send to the commissioner an affidavit, under penalty of perjury, that a waste management system was constructed, and shall be operated, in accordance with the requirements of the approval and this article. The owner/operator shall submit to IDEM, on a form provided by the department, the affidavit within thirty (30) days after the date construction of an approved waste management structure is completed, and prior to the introduction of any animals or manure. The affidavit must be completed, notarized, and returned to IDEM assuring that the waste management system was constructed and shall be operated in accordance with the requirements of the approval. The affidavit must include identification of the parts of the waste management system that were completed at the time of the submittal. If an owner/operator performs partial construction of an approved facility and wishes to utilize that portion prior to completing construction of the entire facility, multiple affidavits must be submitted. No portion of a waste management system, including animal feed and similar feedstock storage areas, shall be utilized unless that portion, or a combination of the waste management system for that portion, is completely constructed prior to the introduction of animals and provides a minimum of one hundred eighty (180) days storage for manure, wastewater, and/or leachate.

As noted during the inspection, Respondent failed to submit to IDEM the required construction completion affidavit prior to the introduction of animals or manure. An approval to construct was issued to Respondent on July 27, 2018. Respondent submitted a construction start notification to IDEM on October 8, 2018. Respondent completed the construction of CFO structure on February 20, 2019. Respondent populated the newly constructed structure prior to submitting a construction completion affidavit and professional engineer’s certification report.

6. 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 the rules listed in the findings of fact above.

3. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Two Thousand Seven Hundred Fifty Dollars ($2,750). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within thirty (30) days of the Effective Date; the thirtieth day being the “Due Date.”

4. 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

5. 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 4, above.

6. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

7. This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

8. No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

9. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of 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. 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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

12. 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.

13. 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 violations specified in the NOV.

14. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 the U.S. EPA or any other agency or entity.

15. 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:
	Linda L. McClure, Chief
	Land Enforcement Section		Printed:
	Compliance Branch
	Office of Land Quality		Title:
Date:			Date:
			COUNSEL FOR RESPONDENT:
			By:
			Printed:
			Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF		, 20_____
			For the Commissioner:
			Signed on 5/13/2020
			Peggy Dorsey
			Assistant Commissioner
			Office of Land Quality