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. 2019-26293-C
					)
2W2M 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 2W2M LLC (“Respondent”), which owns and operates a swine confined feed operation (CFO), Farm ID No. 6496, located at 7410 West County Road 900 South in Redkey, Jay County, Indiana, 47373 (“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 UPS to:

Eldon Wray, Owner/Operator	Eldon Wray, Registered Agent
2W2M LLC	7410 West 900 South
50 West Stoever Avenue	Ridgeville, IN 47380
Myerstown, PA 17067

5. During an investigation including an inspection and a record review on May 22, 2019 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to IC 13-30-2-1, a person may not do any of the following: 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.

As noted during the May 22, 2019 inspection, the facility perimeter drainage tile system for Building E-1 discharged into a catch basin. This same catch basin then drained to a field tile which discharged into Dinner Creek. The perimeter tile system tested eight (8) ppm for ammonia/nitrogen. No fish kill occurred. In addition, spray irrigation was conducted on a field with a 0-4 percent slope. The application rate exceeded the infiltration rate of the soil which caused manure to pond in the low areas of the field and enter Dinner Creek around a plugged field tile. Dinner Creek tested eight (8) ppm for ammonia/nitrogen at the manure point of entry and approximately 2.5 miles downstream at State Road 1. No fish kill occurred.

b. Pursuant to 327 Indiana Administrative Code (“IAC”) 2-1-6, the following are minimum surface water quality conditions: all surface waters at all times and at all places, including waters within 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 (i) color; (ii) visible oil sheen; (iii) odor; or (iv) other conditions: in such a degree as to create a nuisance.

c. Pursuant to IC 13-18-4-5, a person may not (1) throw, run, drain, or otherwise dispose; or (2) cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed; into any of the streams or waters of Indiana any organic or inorganic matter that causes or contributes to a polluted condition of any of the streams or waters.

d. Pursuant to 327 IAC 19-3-1(b), a CFO must be constructed and operated in a manner that minimizes nonpoint source pollution entering waters of the state.

As noted during the May 22, 2019 inspection, several swine feed grain bins were not maintained to minimize leaks, seepage, and prevent manure releases or spills, as well as ensure compliance with the water quality standards in 327 IAC 2.

On October 15, 2019, this Finding of Fact number 5(d) was amended to reflect a change in regulatory citing from 327 IAC 19-3-1(d) to 327 IAC 19-3-1(b). The revised citing 327 IAC 19-3-1(b) more accurately describes the observed violation.

e. Pursuant to 327 IAC 19-7-6(a), Confined Feeding Operations (CFO’s) 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 animal mortalities.

As noted during the May 22, 2019 inspection, a mortality compost which was located outside on a cement pad did not adequately control run-on/run-off and would shed water into a clean storm water basin located west of the cement pad.

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

As noted during the May 22, 2019 inspection, the perimeter drainage tile system was changed without prior regulatory approval. The system is approved to outlet into a perimeter tile infiltration area indicated on the farmstead plan. The facility re-routed the tile into a catch basin which receives surface water, water from the infiltration area, and water from perimeter tile. This basin then outlets through a field tile into Dinner Creek. The perimeter tile system and infiltration areas tested eight (8) PPM ammonia/nitrogen.

g. Pursuant to 327 IAC 19-14-5(a), spray irrigation of manure and process wastewater must be conducted to prevent equipment leaks and excessive application. Application is deemed excessive when the application rate exceeds the infiltration rate of the soil where the application is occurring.

As noted during the May 22, 2019 inspection, spray irrigation was conducted on a field with a 0-4 percent slope. The application rate exceeded the infiltration rate of the soil which caused manure to pond in the low areas of the field and enter Dinner Creek around a plugged field tile. Dinner Creek tested eight (8) ppm for ammonia/nitrogen at the manure point of entry and approximately 2.5 miles downstream at State Road 1. No fish kill occurred.

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 statutes and rules listed in the findings of fact above.

3. Upon the Effective Date, Respondent shall comply with IC 13-30-2-1, 327 IAC 2-1-6, and IC 13-18-4-5. Specifically, Respondent shall cease any discharge not covered by a permit.

4. Within thirty (30) days of the Effective Date, Respondent shall comply with 327 IAC 19-4-1(b). Specifically, Respondent shall submit a facility change to IDEM’s CFO/CAFO permitting section that assures surface water, infiltration water, and perimeter drain water is managed in a way that prevent contaminated discharges to waters of the state.

5. Upon the Effective Date, Respondent shall cease all discharges from perimeter tile drain until IDEM approves facility change notification.

6. Upon the Effective Date, Respondent shall monitor the perimeter tile drain monthly and check for presence of ammonia nitrogen with a field test/sample kit. The perimeter tile drain will be visually inspected for discoloration, odor, and other indicators of the presence of livestock waste. An ammonia nitrogen field test kit shall be used for on-site monitoring. The record of monitoring shall be submitted to IDEM and kept in the farm operating record. If ammonia nitrogen, discoloration, or other abnormal indicators are found during the monthly check of the perimeter tile drain, a corrective action plan shall be developed and submitted to IDEM outlining the steps the Respondent shall take to achieve compliance.

a. No discharge from perimeter tile drain will be permitted by IDEM until IDEM confirms ammonia nitrogen concentration to be less than or equal to 1 ppm.

7. Upon the Effective Date, Respondent shall submit the monthly perimeter tile drain field sample results to IDEM within fifteen (15) days.

8. After Six (6) consecutive monthly perimeter tile drain tests demonstrate the ammonia nitrogen concentration to be less than or equal to 1 ppm, Respondent shall request to terminate sampling per this Agreed Order numbers 6 and 7 by providing written notice to IDEM that this performance standard has been achieved.

a. IDEM will sample the perimeter tile drain to verify compliance has been achieved per the conditions outlined in this Agreed Order.

9. Within thirty (30) days of the Effective Date, Respondent shall comply with 327 IAC 19-3-1(b). Specifically, Respondent shall clean up grain bin releases and repair leaking grain bins in such a way to prevent leaks, seepage, or spills. Respondent shall improve and maintain run-on/run-off control around grain bins.

10. Within forty-five (45) days of the Effective Date, Respondent shall submit photo documentation showing both the cleanup of grain bin releases and the repair of the leaking grain bins.

11. Within thirty (30) days of the Effective Date, Respondent shall comply with 327 IAC 19-7-6(a). Specifically, Respondent shall clean up and repair the compost area in such a way to prevent leaks, seepage, or spills. Respondent shall improve and maintain run-on/run-off control around compost area.

12. Within forty-five (45) days of the Effective Date, Respondent shall submit photo documentation showing both the cleanup and repair of the compost area.

13. Within 90 days of the Effective Date, Respondent shall comply with IC 13-30-2-1. Specifically, Respondent shall remove the manure from the perimeter tile infiltration area West of building E4 (a roofed animal mortality compost barn), properly collect and stage the removed manure away from drains, sample the excavated manure, and properly land apply.

14. Upon the Effective Date, Respondent shall comply with 327 IAC 19-14-5(a). Specifically, Respondent shall cease the application of manure by spray irrigation in areas where the application rate exceeds the infiltration rate.

15. Upon the Effective Date, Respondent shall comply with 327 IAC 19-14-5(a). Specifically, Respondent shall cease applying manure onto saturated soils.

16. All submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, shall be sent to:

Gregory Pipher, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

17. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Sixteen Thousand Dollars ($16,000.00). 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.”

18. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay stipulated penalties in the following amounts:

Paragraphs	Stipulated Penalty
#9, #11, #13	$500.00 per week
#4	$250.00 per week
#10, #12	$100.00 per week

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

20. 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

21. 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 20 above.

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

23. 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.

24. 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.

25. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

26. 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.

27. 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.

28. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents’ efforts to comply with this Agreed Order.

29. 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.

30. 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.

31. 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 3/25/2020
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality