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. 2018-25713-C
					)
THOMAS M. HOMAN,					)
					)
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 Thomas Homan (“Respondent”), who owns/operates a Confined Feeding Operation (“CFO”) with ID number 3724, located at 1947 East Division Road in Portland, Jay 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:

Thomas M. Homan, Owner/Operator

1947 East Division Road

Portland, Indiana 47371

5. During an investigation including an inspection on October 2, 2018 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 327 Indiana Administrative Code (“IAC”) 19-3-1(f), manure must be applied in such a manner as to not threaten or enter waters of the state, prevent ponding for more than twenty-four (24) hours, manure releases and spills and minimize nutrient leaching beyond the root zone.

As noted during the investigation, Respondent land applied manure that entered a field tile and subsequently the Salamonie River in violation of 327 IAC 19-3-1(f).

b. Pursuant to Indiana Code (“IC”) 13-18-4-5(a), a person may not: (1) throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or (2) 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 Indiana Administrative Code (“IAC”) 2-1-6(a)(1), a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.

As noted during the investigation, Respondent land applied manure that entered a field tile and migrated into a ditch. The manure ponded in the ditch and subsequently discharged into the Salamonie River, a water of the state. The discharge of manure caused a fish kill.

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 investigation, Respondent allowed manure to enter into a nearby ditch, which ultimately discharged into the Salamonie River resulting in a fish kill.

d. Pursuant to 327 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;

(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 investigation, Respondent allowed manure to enter Salamonie River. The discharged manure was in an amount sufficient to be unsightly or deleterious, produced color, odor, or other conditions in such a degree to create a nuisance, and/or was in an amount sufficient to be acutely toxic to, or otherwise severely injure or kill aquatic life, or other animals, plants, or humans. The discharge of manure resulted in a fish kill.

6. Respondent cooperated with IDEM in investigating and responding to the manure release.

7. On March 27, 2019, Respondent provided the following additional information to IDEM regarding the alleged violations:

(A) Respondent monitored field tile outlets after land application to check for discharges, none were visible;

(B) Upon discovery of the discharge event, Respondent closed the valve at the field tile where the discharge originated; and

8. 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. Respondent shall comply with 327 IAC 19-3-1(f). Specifically, Respondent shall apply manure in such a manner as to not threaten or enter waters of the state, prevent ponding for more than twenty-four (24) hours, manure releases and spills and minimize nutrient leaching beyond the root zone.

4. Respondent shall locate each tile outfall and ensure that manure is not released through field tiles.

5. Respondent is assessed and agrees to pay a civil penalty of Eight Thousand Dollars ($8,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund in ten (10) installments. The first installment of Eight Hundred ($800) shall be paid within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”. Subsequent installments of Eight ($800) shall be paid within sixty (60) days of the Effective Date, ninety (90) days of the Effective Date, one hundred twenty (120) days, one hundred fifty (150) days, one hundred eighty (180) days, two hundred ten (210) days, two hundred forty (240) days, two hundred seventy (270) days, and three hundred (300) days of the Effective Date.

6. 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

7. 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.

8. 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.

9. 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.

10. 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.

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

12. 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.

13. 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.

14. 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 EPA or any other agency or entity.

15. 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			Printed: ______________________
Land Enforcement Section
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 7/17/2019
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality