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. 2018-25684-C
					)
shockney & son 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 Indiana Code (“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 IC 13-13-1-1.

2. Respondent is Shockney & Son Inc., which owns/operates a hog confined feeding operation (“CFO”), Facility ID No. 3181, CFO Animal Waste No. 5426, located at 7473 East 100 South, in Union City, Randolph 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”) on February 6, 2019 via Certified Mail to:

J. Mason Shockney, Registered Agent

Shockney & Son Inc.

7473 E. 1005

Union City, IN 47390

5. Respondent owns/operates a hog CFO. On March 26, 2015, Respondent obtained CFO approval AW-5426.

6. During an investigation, including a spill response on September 5 and 6, 2018 by representatives of the Indiana Department of Natural Resources (“IDNR”) and IDEM, and an inspection on September 12, 2018 by IDEM representatives, 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, Respondent allowed mortality compost leachate to enter into Dismal Creek, a water of the state, near 7473 East County Road 100 South. The discharge of leachate 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 drainage from Respondent’s mortality compost pile to a nearby field tile that discharges into Dismal Creek. The investigation found evidence the leachate caused a fish kill.

b. Pursuant to Indiana Code (“IC”) 13-18-4-5(a), a person may not throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or 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 adopted by the board under IC 13-18-4-1 and IC 13-8-4-3.

As noted during the spill response, Respondent released mortality compost leachate into a field tile that discharged into Dismal Creek, a water of the state.

c. Pursuant to IC 13-30-2-1(1), a person may not 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 2-1-6(a)(1), a rule adopted by the board under the environmental management laws.

As noted during the spill response, Respondent released mortality compost leachate into a field tile that discharged into Dismal Creek, a water of the state.

d. 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 water quality standards in 327 IAC 2.

As noted during the inspection on September 12, 2018, Respondent did not maintain building labeled E-1 to minimize leaks and seepage and prevent manure releases or spills. A leak was discovered in the northeast corner of the pit wall of building E-1.

e. Pursuant to 327 IAC 19-7-6(a), CFOs must carry out proper management of dead livestock as required by 345 IAC 7-7 to ensure that there shall be: (1) no discharge of mortality or liquids that have been in contact with mortality to waters of the state; and (2) no disposal in a manure storage facility that is not specifically designed to treat animal mortalities.

As noted during the September 12, 2018 inspection, Respondent did not manage its mortality compost pile in such a way to prevent liquids from mortalities into Dismal Creek, a water of the state.

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 and rules listed in the findings above.

3. Effective immediately, Respondent shall cease the release of mortality compost leachate.

4. Within ninety (90) days of the Effective Date, Respondent shall clean up the mortality compost area and properly dispose of all accumulated compost materials.

5. Within one hundred five (105) days of the Effective Date, Respondent shall submit to IDEM photo documentation showing the completion of the cleanup of the mortality compost area. Additionally, Respondent shall submit written documentation showing proper disposal of accumulated compost materials (i.e, land application, transport to solid waste land disposal, or burial).

6. Within ninety (90) days of the Effective Date, Respondent shall repair the leak in the pit wall of Building E-1.

7. Within one hundred five (105) days of the Effective Date, Respondent shall submit photo documentation showing the repair of the leak in the pit wall of Building E-1.

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

Jennifer Reno, 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 Zero Dollars ($0). This penalty reflects a significant reduction from the original proposed civil penalty based upon evidence submitted to IDEM by Respondent which adequately demonstrated Respondent’s inability to pay the original proposed civil penalty.

10. 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:

Order Paragraph 4	$500 per week late
Order Paragraph 5	$100 per week late
Order Paragraph 6	$500 per week late
Order Paragraph 7	$100 per week late

11. 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.

12. 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 N1340

100 North Senate Avenue

Indianapolis, IN 46204

13. 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 12, above.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. Nothing in this Agreed Order shall prevent or limit 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 communication with the EPA or any other agency or entity.

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				Shockney & Son Inc.
By: _________________________				By: _________________________
	Linda L. McClure, Section Chief
	Land 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 11/19/19______
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality