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. 2011-20389-S
					)
Jackson Dairy Farm, 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 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 Jackson Dairy Farm, Inc. (“Respondent”), who owns/operates a Concentrated Animal Feeding Operation (“CAFO”), with General Permit # ING804937, located at 789 East Old Kokomo Road, in Marion, Grant 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, on October 21, 2011, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

Mr. Robert L. Jackson, President & Registered Agent

Jackson Dairy Farm, Inc.

789 E. Old Kokomo Road

Marion, Indiana 46953

5. During an investigation, including an inspection on July 13, 2011, conducted by a representative 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:

(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.

Respondent allowed manure into Little Newby Ditch, a water of the state. Specifically, Respondent land applied manure which entered a field tile and subsequently entered Little Newby Ditch on July 13, 2011.

b. Pursuant to Indiana Code (“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 327 IAC 2-1-6(a)(1), a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3. Respondent land applied manure which entered a field tile and subsequently entered Little Newby Ditch and caused or contributed to a polluted condition of waters as determined by 327 IAC 2-1-6(a)(1).

c. Pursuant to 327 IAC 15-15-4(b)(1), manure, litter, or process wastewater to be staged or applied to land in Indiana must be staged or applied in such a manner as not to enter or threaten to enter waters of the state. Respondent allowed manure into Little Newby Ditch, a water of the state. Specifically, Respondent land applied manure which entered a field tile and subsequently entered Little Newby Ditch on July 13, 2011.

6. Respondent adequately responded to the spill on or before July 19, 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 statutes and rules in the findings here and/or above at issue.

3. Drainage from the perimeter tile surrounding the manure pond will continue to be collected and contained with the following steps being taken by Respondent:

a) Drainage from the perimeter tile will be collected and tested on a monthly basis for ammonia nitrogen levels. Testing for other constituents and contaminants may be undertaken to assist in determining the source of contamination within the perimeter tile.

b) Sampling and testing of water from the manure lagoon will be done as part of the effort to find and identify possible common identifying characteristics.

c) Collection and sampling of seasonal ground water may be done to assist in determining the source of contamination within the perimeter tile.

If ammonia nitrogen levels drop and stabilizes at acceptable levels, as determined by IDEM, then no further investigation will be required and collection and containment efforts will be discontinued.

4. Once a source of tile contamination is determined, Respondent shall submit a plan for correction and remediation within 30 days.

5. If the investigation of the perimeter tile has not found a conclusive source of contamination by September 1, 2012, Respondent shall submit a plan for managing the perimeter tile within 30 days.

6. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Linda L. McClure, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

7. Respondent is assessed a civil penalty of Six Thousand Dollars ($6,000). Respondent shall pay a portion of this penalty in the amount of One Thousand Two Hundred Dollars ($1,200) due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date. Interest will not be charged on the principal amount over the repayment period. 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 Nineteen Thousand Two Hundred and Seventy-Four Dollars ($19,274).

8. 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 Four Thousand Eight Hundred Dollars ($4,800), Respondent shall pay fifty percent (50%) of the difference between the proposed cost of the SEP (Nineteen Thousand Two Hundred and Seventy-Four Dollars ($19,274)) and the actual cost of the SEP.

9. As a Supplemental Environmental Project, Respondent will construct a vegetative buffer/infiltration area as described in Appendix A. The proposed buffer/infiltration is estimated to total approximately 8 acres. Preliminary work indicates that elevation and slopes can be maintained to allow the buffer/infiltration area to maintain existing drainage pathways as a whole. The vegetative area will slow the velocity of surface storm water drainage, allowing the settling out of suspended soil particles and infiltration of runoff and uptake of nutrients by vegetation. The vegetative buffer/infiltration area will be mown and harvested once or twice per year to control vegetative growth and allow nutrient removal to control soil fertility levels.

10. In the event that Respondent do not complete the SEP by October 30, 2013, the full amount of the civil penalty as stated in paragraph 7 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.

11. In the event 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	Action	Penalty
4	Failure to submit perimeter correction/remediation plan	$250 per week
5	If applicable, failure to submit perimeter tile management plan.	$250 per week

12. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th 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.

13. 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

14. 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 7, above.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 COMPLAINANT:				COUNSEL FOR RESPONDENT:
For the Department of Environmental Management
By: ________________________				By: ________________________
	Deputy Attorney General
Date: _______________________				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_________	DAY OF	________________	, 20____.
				For the Commissioner:
				Signed May 31, 2012_
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality