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STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT OF
                ) SS:        ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
            Complainant,        )
                            )    
                v.            )    CAUSE NO.     B-2408
                            )
                            )
WILDER CORPORATION OF DELAWARE,    )
                        )
            Respondent.         )

AGREED ORDER

    The Complainant and the 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.

I. FINDINGS OF FACT

    1.    Complainant is the Commissioner (hereinafter referred to as "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 Wilder Corporation of Delaware, (hereinafter referred to as "Respondent"), who owns a farm and swine confined feeding operation (the "Site") located south of Linton on County Road 400 South in Section 9, T6N, R7W, Greene County, Indiana. The Site is leased to Kokomo Grain/GIS. Wilder Corporation of Delaware is responsible for proper removal and disposal of the manure from the confined feeding operation which consists of 3,150 nursery pigs and 7,480 finishing hogs. The operation received terms and conditions of approval No. 2714, issued by IDEM on June 2, 1993.

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

          On October 10, 1995, Respondent entered into an Agreed Order with the IDEM in Cause No. B-1719 in which Respondent was to manage its system of emptying its swine waste storage pit to prevent the discharge of swine waste to waters of the State.

    5.    Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail on December 22, 1998, to:

            Mr. Maurice F. Wilder, President and Resident Agent
            Wilder Corporation of Delaware
            R.R. 2, Box 610
            Linton, Indiana 47441

    6.    Designated representatives of the IDEM and the Indiana Department of Natural Resources (IDNR) conducted investigations of Respondent's swine confined feeding operation on November 5, 1998, and November 16, 1998. Based on the investigations and a record review, Respondent has been found in violation of the following provisions of the Indiana Code (IC) and the Indiana Administrative Code (IAC).

          IC 13-18-4-5 states, in part, that it is unlawful for a person to throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or to 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 a rule of the board adopted under section 1 and 3 of this chapter.

    8.    327 IAC 2-6.1-4 contains definitions as follows:

        (15)    "Spill" means any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss of petroleum, hazardous substances, extremely hazardous substances, or objectionable substances.

        (16)    "Spill response"for purposes of this rule means the following:
             (A) the spill is contained; and
              (B) free material is removed

        (17)    "Spill report" means an oral report that includes .... the location and time of the spill; the identification of the substance spilled, the quantity of substance that has been or may further be spilled, the identification of the person making the spill report, and what measures have been or will be undertaken to perform a spill response and any other information that may be significant to the response action.

          327 IAC 2-6.1-7, requires, in part, that any person who operates, controls or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the waters of the state, do the following:

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

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

        (3) As soon as possible but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response: Area code 1-888-233-7745 for in state calls (toll free).

          327 IAC 2-1-6(a)(1) states, in substance, that all 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:

        a.    that will settle to form putrescent or otherwise objectionable deposits;

        b.    that are in amounts sufficient to be unsightly or deleterious;

        c.    that produce color, odor or other conditions in such degree as to create a nuisance;

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

    11.    IC 13-30-2-1 states, in part, that a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant ...., 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 rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

    12.    327 IAC 5-2-2 states, in part, that any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.
        
    13.    On November 4, 1998, a complaint was received through the State Emergency Management Agency by the IDEM, Office of Environmental Response. On November 5, 1998, field staff of the IDEM, Office of Solid and Hazardous Waste Management and the Indiana Department of Natural Resources conducted an investigation of the discharge of animal waste from Respondent's confined feeding operation. During the investigation, brown colored swine manure from Respondent's hog facility was observed discharging into Brewer Ditch. Field tests indicated a concentration of at least 8 ppm Ammonia Nitrogen in Brewer Ditch at the discharge point. Manure was pooled outside of the hog facility on the south side in a swale and straw had been put over some of the manure. The liquid manure was draining through a culvert under Respondent's access road and into the County Road 400 S. roadside ditch and thence into Brewer Ditch approximately 300 feet to the east. It was not until the mid-afternoon of November 5, 1998, that Respondent ceased the manure discharge into Brewer Ditch by constructing temporary earthen dams ahead of the access road culvert and ahead of Brewer Ditch. IDEM contends that Respondent's failure to report the release, failure to immediately contain it, and failure to immediately clean it up constitutes violations of 327 IAC 2-6.1-7. IDEM contends that Respondent's discharge of manure into Brewer Ditch constitutes violation of 327 IAC 2-1- 6(a)(1), IC 13-18-4-5, IC-13-30-2-1 and 327 IAC 5-2-2.

          The investigation also noted manure and dead fish in the drainage basin located between Brewer Ditch and Respondent's hog barns on the north side of County Road 400 S. IDEM requested that the basin be cleaned as part of Respondent's comprehensive spill response to prevent manure discharge to Brewer Ditch. When the drainage basin fills with field drainage rainwater it potentially will discharge to Brewer Ditch.

          A follow up inspection at the site by IDEM was conducted on November 16, 1998, at 1:00 p.m. The manure clean-up was not completed. Manure- contaminated water remained in the drainage basin east of Respondent's hog

barns. The C.R. 400 S. roadside ditch, which had earlier been pumped by Respondent, now contained manure-contaminated water and Respondent's earthen dams, which had been constructed to stop the manure discharge on November 5, 1998, were leaking manure-contaminated water into the County Road 400 S. roadside ditch and into Brewer Ditch. Field testing for Ammonia Nitrogen at the discharge point into Brewer Ditch revealed more than 8 ppm Ammonia Nitrogen. IDEM contends that Respondent's discharge of manure into Brewer Ditch constitutes violation of 327 IAC 2-6.1, 327 IAC 2-1-6(a)(1), IC 13- 18-4-5, IC 13-30-2-1, and 327 IAC 5-2-2.

          Subsequent to the issuance of the December 22, 1998, Notice of Violation, IDEM made a follow-up inspection on December 30, 1998, and observed a dark, brown- to- black colored discharge into Brewer Ditch from the manure- contaminated drainage basin described in Paragraph 14 above. The IDEM field test for Ammonia Nitrogen in the discharge at Brewer Ditch measured greater than 8 ppm. Respondent had its excavating contractor temporarily seal the discharge from the drainage basin later that day. Respondent must timely arrange for removal of manure contaminants in the drainage basin to prevent potential discharge of pollutants to Brewer Ditch.

          On January 21, 1999, February 2, 1999, and February 15, 1999, IDEM inquired and learned from Respondent that clean-up of manure contamination of the drainage basin was yet to be completed. IDEM met with Respondent on-site on February 18, 1999. Respondent now plans to clean the pond as soon as possible.
                         
         18. Pursuant to IC 13-30-3-3(c), entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein.

         19. In recognition of the settlement reached, Respondent 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 the Complainant or his delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

    2.    Respondent shall comply with all applicable sections of the Indiana Code and the Indiana Administrative Code referenced in the above Findings.


    3.    Respondent shall not discharge swine waste into the waters of the state, including the County Road 400 S. roadside ditch and Brewer Ditch.

         Respondent shall maintain adequate freeboard in its hog building waste pits to prevent overflow, maintain records for inspection review of the weekly recording of the manure level of its concrete waste pits, not store manure and manure- contaminated water in the drainage basin east of its hog barn and implement land application procedures to assure no swine waste release to waters of the state.

    5.    Within ten (10) days of the Effective Date of this Agreed Order, Respondent shall complete the implementation of training of its personnel in spill response, inform the IDEM Office of Enforcement of completion of the spill response training, submit to the IDEM its manure management plan as required by IC 13-18-10-2.3, and provide the Office of Enforcement a copy. Respondent shall make a timely response to IDEM written comments on the manure management plan within the time frame requested.
    
          Respondent is assessed a Civil Penalty of Fifteen Thousand Dollars ($15,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.

    7.    In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

             VIOLATION    PENALTY            
    
        Paragraph #5            $500 per day delay in submitting the manure management plan, or responding to comments within the time frame requested, or reporting to IDEM the completion of spill response training.

    8.    Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of assessment of the stipulated penalty given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

    9.    Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number (B-2408) of this action and shall be mailed to:
                
                IDEM Cashier
                100 N. Senate Avenue
                P.O. Box 7060
                Indianapolis, Indiana 46207-7060.
                        
    10.    In the event that the civil penalty amount required by paragraph 6 is not paid when due, Respondent shall pay interest on the unpaid, overdue balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

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

    12.    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 the Agreed Order did not contain the invalid terms.

    13.    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.

    14.    This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and Complainant has issued a close-out letter to Respondent.

TECHNICAL RECOMMENDATION            RESPONDENT
                                Wilder Corporation of Delaware

By: _________________________                By: _________________________
    Mark W. Stanifer, Chief                 Maurice Wilder, President     Water Enforcement Section                
    Office of Enforcement                Date: _______________
    Department of Environmental
     Management

Date: _______________                    

COUNSEL FOR COMPLAINANT        COUNSEL FOR RESPONDENT

By: _________________________                By: _________________________
    Nancy Holloran
    Office of Legal Counsel
    Department of Environmental
     Management

Date: _______________                    Date: _______________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______ DAY OF _______________________, 1999.

                            For the Commissioner:

                            __signed 3/24/99_____________
                            Felicia Robinson George
                            Assistant Commissioner of Enforcement

Converted by Andrew Scriven