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. 2011-20260-S
					)	Case No. 2011-20331-S
					)
Bowman dairy farm, 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 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 Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Bowman Dairy Farm, LLC (“Respondent”), which owns and/or operates a Confined Feeding Operation (“CFO”) with Farm ID Number 0511 located at 2270 N County Road 900 E in Hagerstown, Henry County, Indiana (the “Site”).

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

4. Pursuant to IC 13-30-3-3, on September 7, 2011, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

Mr. Trent Bowman, Registered Agent

Bowman Dairy Farm, LLC

2270 N. CO. Road 900 E

Hagerstown, Indiana 47346

5. During an investigation, including an inspection on March 31, 2011, June 9, 2011 and June 24, 2011, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to IC 13-18-4-5, it is unlawful for any 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 IC 13-18-4-1 and IC 13-18-4-3. Animal waste was allowed in an intermittent ditch which flows to White Branch, a water of the state.  Specifically, Respondent’s contractor land applied animal waste on March 30, 2011, which entered an intermittent ditch, which flows into the White Branch and caused or contributed to a polluted condition of waters as determined by 327 IAC 2-1-6(a)(1).

b. Pursuant to 327 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:

(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, visible oil sheen, 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; and

(E) which 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.

Animal waste was allowed into White Branch, a water of the state. Specifically, Respondent’s contractor land applied animal waste on March 30, 2011 which entered an intermittent ditch, which flows into the White Branch, on March 31, 2011.

c. Pursuant to IC 13-30-2-1(1), no person shall 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 16-3-1(e), a rule adopted by the board under the environmental management laws. Animal Waste was allowed into the White Branch, a water of the state. Specifically, Respondent’s contractor land applied animal waste on March 30, 2011 which entered an intermittent ditch, which flows into the White Branch, on March 31, 2011 and caused or would cause pollution that violates or would violate 327 IAC 16-3-1(e).

d. Pursuant to 327 IAC 16-3-1(e), manure to be staged or applied to land in Indiana must be staged or applied in such a manner as to not enter or threaten to enter waters of the state, to prevent run-off, ponding for more than 24 hours, and spills, and to minimize nutrient leaching beyond the root zone. Respondent engaged a contractor for manure application, who did not stage or land apply manure in a manner to prevent manure from entering or threatening to enter waters of the state. Specifically, Respondent’s contractor land applied animal waste on March 30, 2011, which entered the White Branch, a water of the state, on March 31, 2011.

e. Pursuant to 327 IAC 16-3-1(a), a confined feeding operation shall be managed to

avoid an unpermitted discharge into waters of the state. Respondent did not manage the confined feeding operation in a manner to avoid an unpermitted discharge of manure into the White Branch, a water of the state.

f. Pursuant to 327 IAC 16-9-1(b), Management of liquid or solid manure must be in compliance with the following:

(1) This article 327 IAC 16.

(2) The confined feeding operation approval.

(3) All applicable state and federal laws.

Respondent did not manage manure in compliance with this article, the confined feeding operation approval or all state and federal laws.

g. Pursuant to Confined Feeding Operation Approval AW-6000, Condition Number 10, manure must be applied in a manner that will not cause runoff to any stream, drainage ditch, or other body of water and to minimize nutrient leaching. Respondent’s contractor did not land apply manure in a manner to avoid runoff to any stream, drainage ditch, or other body of water.

h. Pursuant to 327 IAC 16-4-2(1), the owner/operator must comply with all terms and conditions of the confined feeding approval and this article, 327 IAC 16. Respondent did not comply with all terms and conditions of the confined feeding approval and 327 IAC 16. Specifically, Respondent constructed a concrete pad (for later use as silage bunker/storage area) without approval.

6. Respondent submitted a CFO Approval Application for approval of the silage bunker/storage area on June 1, 2011.

7. 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 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 findings here and/or above at issue.

3. Respondent is assessed a civil penalty of Nine Thousand Eight Hundred Thirteen Dollars ($9,813). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of One Thousand Nine Hundred Sixty-Two Dollars ($1,962). Said penalty amount shall be due and payable to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (“SEP”). Respondent estimates that this SEP will cost Twenty-Eight Thousand Three Hundred Seventy One Dollars and Seventy-Five Cents ($28,371.75). Within fifteen (15) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less than Fifteen Thousand Seven Hundred Two Dollars ($15,702), Respondent shall pay fifty percent (50%) of the difference between the proposed cost of the SEP ($28,371.75) and the actual cost of the SEP.

4. As a Supplemental Environmental Project, Respondent shall construct grass waterways in the crop fields west and northwest of the livestock facilities to reduce sediment, nutrients, pesticides and other potential contaminants in storm water runoff from leaving the fields and to improve surface water quality (Attachment A). These fields receive applications of livestock manure at agronomic rates almost yearly. The location of the proposed waterways serves as a surface drainage area for the crop fields northwest of the dairy facilities and several fields west of the facilities. A conservative estimate of area to be served by the proposed waterways is 450-500 acres. The area of the proposed grass waterways is estimated to total approximately 3.75 acres. The width of the proposed waterway will be a minimum of 25 feet. Preliminary work indicates that elevation and slopes can be maintained to allow the waterway to follow existing drainage pathways as a whole. The grass waterways will slow the velocity of surface storm water drainage, allowing the settling out of suspended soil particles, infiltration of runoff and uptake of nutrients by vegetation. Re-grading of the grass waterway is permissible as necessary to prevent erosion. The grass waterway will not be cost shared through USDA NRCS programs, but design standards will follow NRCS standards recognized for maximum efficiency of the grass waterway. The waterway would be established and maintained according to practice standards in the USDA Field Office Technical Guide.

5. In the event that Respondent does not complete the SEP by November 30, 2013 the full amount of the civil penalty as stated in paragraph 3 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM’s notice to pay. Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

6. Civil 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

7. 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 3, above.

8. 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.

9. 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.

10. 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.

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 its obligation to comply with the requirements of the applicable permits or any applicable Federal or State law or regulation.

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 same violation specified in the NOV.

14. Nothing in this Agreed Order shall prevent IDEM, or anyone acting on its behalf, from communicating with the 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 EPA or any other agency or entity.

15. 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: _________________________
	Nancy L. Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
Date: _______________________				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_________	DAY OF	_________________, 20____.
				For the Commissioner:
				Signed 8/20/12___________
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality