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. 2017-24962-C
					)
Bio Town AG, 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 Bio Town Ag Inc. (“Respondent”), which owns/operates a Concentrated Animal Feeding Operation with FID No. 6091, located at 402 West 100 North, in Reynolds, White County, Indiana (“Site”).

3. Respondent owns and/or operates a Confined Animal Feeding Operation permitted farm with livestock operations of 4,500-head beef cattle and 800-head sow and swine.

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

5. Pursuant to IC 13-30-3-3, on March 28, 2018, IDEM issued a Notice of Violation (“NOV”) on March 23, 2018 via Certified Mail to:

Brian Furrer, President	Gutwein Ras LLC, Registered Agent
Bio Town Ag, Inc.	250 Main Street, Suite 590
402 West 100 North	Lafayette, IN 47901
Reynolds, IN 47980

6. During an investigation including an inspection on October 6, 2017 conducted by representatives of IDEM, the following violations were found:

a. Pursuant to 327 Indiana Administrative Code (“IAC”) 19-13-1(a), all waste management systems and application equipment must be maintained and operated to meet the approval conditions.

As noted during the inspection, Respondent failed to manage and operate its facility in accordance with the approval conditions. The vegetation around each of the lagoons was overgrown hindering the ability to adequately conduct weekly self-inspections. The pump associated with E-12, the silage leachate tank, was broken at the time of the inspection. Silage leachate was observed around the west side of the silage pad labeled E-11.

b. Pursuant to 327 IAC 19-13-1(d), if uncovered, liquid manure storage structures must be maintained with a minimum freeboard of two (2) feet or as specified in the approval conditions.

As noted during the inspection, Respondent failed to maintain the lagoons labeled E-14-E and E-14-W with a minimum freeboard of two (2) feet or the required amount specified in the approval conditions.

c. Pursuant to IC 13-18-10-1 and 327 IAC 19-1-2(b), a person may not start: (1) construction of a CFO; or (2) expansion of a CFO that increases animal capacity or manure containment capacity, or both; without obtaining prior approval of the department.

As noted during the inspection, Respondent failed to obtain prior approval for expansion of the CFO before constructing a new silage pad next to the pad labeled E-11. Subsequently, Respondent submitted an application on July 26, 2018 and approval for the pad next to the existing E-11 silage pad was issued on September 19, 2018.

d. Pursuant to 327 IAC 19-11-1(a), all CFOs that are defined as concentrated animal feeding operations (CAFOs) in 40 CFR 122.23(b)(2) must meet storm water requirements in 40 CFR 122.23(e) and 40 CFR 122.42(e)(1) through 40 CFR 122.42(e)(2). Specifically, pursuant to 40 CFR 122.42(e)(1)(i), a CAFO must ensure adequate storage of manure, litter, and process wastewater, including procedures to ensure proper operation and maintenance of the storage facilities.

As noted during the inspection, Respondent stored a large pile of corn cobs designated as bedding without IDEM approval.

e. Pursuant to 327 IAC 19-2-33, “process wastewater” means water directly or indirectly used in the operation of the CFO and includes any water that comes into contact with or is a constituent of any raw materials, products, or byproducts, including bedding.

f. Pursuant to 327 IAC 19-2-48, “waste management system” means any approved method of managing manure or process waste water at the CFO.

g. Pursuant to 327 IAC 19-12-4(b), all waste management systems must be designed to not discharge to surface waters of the state. If a waste management system discharges or is designed to discharge, a NPDES CAFO permit under 32 IAC 15-16 is required.

As noted during the inspection, Respondent had a large pile of corn cobs designated as bedding without IDEM approval.

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 permit conditions listed in the findings above.

3. Within thirty (30) days of the Effective Date, Respondent shall provide a schedule which includes a timetable for mowing the vegetation around each of the lagoons to IDEM. Specifically, after April 1st and before November 30th and each year according to the timetable in order to adequately conduct weekly self-inspections.

4. Within thirty (30) days of the Effective Date, Respondent shall provide documentation of the November 2017 pump repair associated with lagoon E-12 to IDEM for review.

5. Upon the Effective Date, Respondent shall provide adequate amount of freeboard in the lagoons labeled E-14-E and E-14-W.

6. Upon the Effective Date, Respondent shall implement best management practices for all corn cob/stalk bedding piles to manage process wastewater and run-on/run-off.

7. Within one hundred and twenty (120) days of the Effective Date, Respondent shall develop and submit to IDEM for approval a Construction Plan (CP), which describes and includes the specifications for the construction of an enclosed structure to store the corn cob/stalk bedding pile materials and to manage process wastewater and storm water run-on/run-off. The CP shall include, but not be limited to, the following:

a. The structure must include an impermeable roof.

b. Any dry feed or bedding material stored in the structure must have a very low moisture content that will not lead to natural fermentation and leachate production.  If Respondent wishes to store dry feed or bedding material in the structure that leads to the production of leachate, it must first notify IDEM, submit a plan to manage the leachate, and obtain IDEM’s express written approval of the plan.

c. Before construction of the structure, a soils investigation must be performed to determine depth to the seasonal high water table. If present, the seasonal high water table must be lowered to at least 2 feet below the floor of the structure.

d. The roof must be maintained in good condition and must have adequate coverage of the bedding material to prevent rain from blowing into the building for the life of the use of the structure.

e. Run-on and run-off must be diverted away from the structure.

f. The structure must meet property line setbacks.

The CP shall include an implementation and completion schedule, including specific milestone dates.

Respondent shall notify IDEM in writing of variations to the approved CP.

8. Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan(s) and adhere to the milestone dates therein. The approved CP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

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

Linda McClure, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

10. Respondent is assessed and agrees to pay a civil penalty of seven thousand dollars ($7,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.

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	Penalty
Order paragraph #3, 4, 7, and 8	$100 per week late

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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

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 13, 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 its 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. 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 L. McClure, Chief
	Land Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
RESPONDENT:
				COUNSEL FOR RESPONDENT:
By: _________________________
				By: ________________________
Printed: ______________________
				Date: ______________________
Title: ________________________
				By: _________________________
Date: _______________________
				RESPONDENT:
COUNSEL FOR RESPONDENT:
				Printed: ______________________
By: ________________________
				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 8/5/2019
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality