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. 2018-25697-S
					)
DAVID SCHMIDT,					)
					)
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 David Schmidt (“Respondent”), who owns/operates a farm located at 3873 South 200 East, in Monroe, Adams 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 December 4, 2018 via Certified Mail to:

David Schmidt

3873 South 200 East

Monroe, IN 46772

5. During an inspection on September 23, 2018, 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 September 23, 2018 inspection, Respondent allowed manure from land application into Blue Creek, a water of the state, 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 which was in amounts 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 Respondent’s manure that was land applied to a middle field at the Site. The manure flowed into a drainage line that crosses the Site and into Blue Creek.

On January 8, 2019, Respondent provided a map identifying drainage lines, field tile outlets, grassed waterways, and surface water conveyance channels under or immediately bordering the land application site.

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 of IC 13-18-4-1 and IC 13-8-4-3.

As noted during the inspection on September 23, 2018, the unpermitted discharge of manure into Blue Creek introduced contaminants and scum in the surface water resulting in a fish kill. Respondent responded to the spill by pumping, hauling, and land applying the manure liquids from the creek to a nearby soybean field.

As noted during a follow-up inspection on September 25, 2018 by a representative of IDEM, no water quality violations were found on this date.

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 September 23, 2018 inspection, Respondent caused and/or allowed the discharge of manure, a contaminant or waste, into Blue Creek, a water of the state.

6. 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. Upon the Effective Date, Respondent shall monitor identified drainage lines, field tile outlets, waterways, and surface water conveyance channels immediately following land application of manure. Monitoring shall be based on color, flow, volume and volume change, and odor and change in odor. Respondent shall monitor during and immediately following land application of the manure or process wastewater.

4. If there is evidence of manure or process wastewater discharging from the drainage lines, field tile outlets, grassed waterways, or surface water conveyance channels, Respondent shall immediately notify IDEM’s 24-Hour Spill Hotline (888) 223-7745. Respondent shall immediately cease land application and stop or capture the manure or process wastewater flow. Respondent shall either land apply or return any flow that is captured to a manure storage facility.

5. 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

6. Respondent is assessed and agrees to pay a civil penalty of Six Thousand Dollars ($6,000.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund in twenty (20) monthly installments. The monthly installment payments shall be $300 each. The first installment shall be due within thirty (30) days of the Effective Date and the remaining installment payments shall be made every 30 days thereafter. Interest shall accrue on unpaid amounts at the rate established by IC 24-4.6-1-101.

7. The civil penalty is 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

8. Respondent is liable for reimbursement to the Indiana Department of Natural Resources (“IDNR”) for the value of the damage to fish and wildlife, under authority of IC 14-22-10-6. IDNR determined this figure to be One Thousand Four Hundred Sixty Dollars and Fifty-Eight Cents ($1,460.58). Payment shall be due and payable to the Contaminants Account in three (3) installment payments of $486.86. The first installment payment is due within sixty (60) days of the Effective Date of this Order and the remaining installment payments shall be made every sixty (60) days thereafter. Respondent shall provide Complainant with documentation of reimbursement immediately upon payment

Attention to: Restoration Biologist

IDNR Division of Fish and Wildlife

Room W-273, IGCS

402 West Washington Street

Indianapolis, Indiana 46204

9. 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 6, above.

10. This Agreed Order shall apply to and be binding upon Respondent and his 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 his status or responsibilities under this Agreed Order.

11. 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.

12. 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.

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

14. 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.

15. 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.

16. 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.

17. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management				David Schmidt
By: _________________________				By: _________________________
	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 5/21/19__________
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality