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. 2016-24706-C
					)
millennium agricultural services, 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 Millennium Agricultural Services, LLC (“Respondent”), which owns and operates the facility with Farm ID No. 604, (“Approval”) located at 1819 N 230 W, in Frankfort, Clinton 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 Matthew Neal, Registered Agent for Millennium Agricultural Services, LLC.

5. Respondent owns and operates a Concentrated Animal Feeding Operation (“CAFO”) with fourteen production buildings, each with a concrete pit beneath slatted floors for the storage of liquid manure from a total of 6,000 finishing hogs.

6. During an investigation including a spill response on July 31, 2017 and an inspection on August 14, 2017, 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 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 color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

(D) 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; and

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

As noted during the spill response on July 31, 2017, Respondent allowed manure to enter the unnamed creek at County Road 200 N. The unnamed ditch discharges in to the South Fork of Wildcat Creek, a water of the state. The discharge of manure was in an amount sufficient to be unsightly or deleterious, that produced color, odor, or other conditions in such a degree to create a nuisance and/or was in an amount to be acutely toxic to, or otherwise severely injure or kill aquatic life, or other animals, plants, or humans. The origin of the spill was the Respondent’s manure management system located at the Site. The discharge of the manure did not cause any fish kill.

b. Pursuant to 327 IAC 19-3-1(a), a Confined Feeding Operation (“CFO”) shall be managed to avoid an unpermitted discharge into waters of the state.

As noted during the spill response on July 31, 2017 and an inspection on August 14, 2017, Respondent did not manage the CFO in a manner to avoid an unpermitted discharge of manure into an unnamed ditch that discharges in to the South Fork of Wildcat Creek, a water of the state. Manure in a hog barn, identified as building F1 at the Site, overflowed after insufficient storage and a water line break caused a discharge to waters of the state.

c. Pursuant to 327 IAC 19-3-1(d), all waste management systems must be designed, constructed, and maintained to minimize leaks and seepage and prevent manure releases or spills, as well as ensure compliance with the water quality standards in 327 IAC 2.

As noted during the spill response on July 31, 2017 and an inspection on August 14, 2017, Respondent’s hog barns identified as F1 and F6, were not maintained to minimize leaks, seepage and prevent manure releases or spills, as well as ensure compliance with water quality standards in 327 IAC 2. Specifically, manure in building F1 overflowed after insufficient storage and a water line break in building F6 also caused a discharge. The discharge in building F6 did not reach waters of the state. A broken pump out port and the unmanaged storage in building F6 were also causing manure to leak and seep from the containment structure.

d. Pursuant to 327 IAC 19-13-1(b), management of manure must be in compliance with this article, the CFO Approval, and all applicable state and federal laws.

As noted during the spill response on July 31, 2017 and an inspection on August 14, 2017, Respondent did not manage the manure in compliance with 327 IAC 19 or the CFO Approval. Specifically, the manure in Respondent’s hog barn identified as F1, overflowed after insufficient storage and a water line break caused a discharge to waters of the state. Insufficient storage and a water line break in building F6 also caused a discharge. The discharge in building F6 did not reach waters of the state. A broken pump out port and the unmanaged storage in building F6 were also causing manure to leak and seep from the containment structure.

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 statutes, rules, and/or Approval conditions listed in the findings above.

3. Within sixty (60) days of the Effective Date, Respondent shall comply with 327 IAC 19. Specifically, Respondent shall bring all manure levels of the hog barns to a manageable level and submit a plan describing the manure management process going forward and the elimination of the potential for a spill to occur in the future.

4. Within thirty (30) days of the Effective Date, Respondent shall repair any pump out ports that have been broken, specifically Respondent shall repair the pump out port noted during the August 14, 2017 inspection, on building F6.

5. Within thirty (30) days of the Effective Date, Respondent shall submit documentation for the spill response implemented from the spill noted in the August 14, 2017 inspection from building F6, as required by 327 IAC 19-9-1(b)(9).

6. Within thirty (30) days of the Effective Date, Respondent shall submit a Facility Change Notification describing the construction, dimensions, and ongoing future maintenance of the constructed berm that has been considered as part of the Supplemental Environmental Project for this Agreed Order. The stabilization of vegetation or alternative erosion control measures must be maintained to allow for visual inspection and prevent growth of trees and shrubs.

7. Respondent shall keep records of the use of each tanker when used for emergency purposes at the Site, such as a water pipe break that reduces the manure containment capacity, with the completed weekly self-monitoring records.

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

Trent Lindley, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

9. Respondent is assessed and agrees to pay a civil penalty of Fourteen Thousand Dollars ($14,000.00). Within thirty (30) days of the Effective date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Two Thousand Eight Hundred Dollars ($2,800.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”. In lieu of payment of the remaining civil penalty, Respondent shall perform and complete two Supplemental Environmental Projects (“SEPs”). Respondent estimates that the SEPs will cost a total of Eight-teen Thousand Five Hundred Dollars ($18,500.00). Within thirty (30) days of the Effective Date, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the two SEPs. In the event that the cost of the SEPs are less than Eleven Thousand Two Hundred Dollars ($11,200.00), Respondent shall pay 100% of the difference between the actual cost of the SEPs and the $11,200.00.

10. As a Supplemental Environmental Project, Respondent shall install a berm at the Site, which will require storm water to filter and travel further over grass before possibly reaching waters of the state. Construction of the berm started on April 20, 2018. After completion of the berm and a review of the Facility Change mentioned in paragraph 6 above, the berm will be inspected by a representative of IDEM before issuing a resolution of case letter.

11. As a Supplemental Environmental Project, Respondent has purchased two tanker trailers to be used in an emergency, such as a water pipe break that reduces the manure containment capacity, creating an option to avoid or when emergency land application of manure is not available.

12. 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	Penalty
Order Paragraph #’s 3, 4, 5, or 6	$100 per week late

13. 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.

14. 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

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

15. 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 14, above.

16. 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.

17. 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.

18. 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.

19. 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 its applicable permits or any applicable Federal or State law or regulation.

20. 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.

21. 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.

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 Johnston, 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 on June 26, 2018____________
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality