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. 2018-25775-C
					)
Jacob Schwartz,					)
					)
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 Jacob Schwartz (“Respondent”), who owns and operates a Confined Feeding Operation (“CFO”) at 4372 W 500 N, 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 Jacob Schwartz, 4372 W 500 N, Portland, IN 47371.

5. During an investigation, including a spill response October 19, 2018 through November 1, 2018 and inspections on October 23 and 26, 2018 conducted by representatives of IDEM, the following violations were found:

a. Pursuant to Indiana Code (“IC”) 13-30-2-1, a person may not do any of the following: (7) Construct, install, operate, conduct, or modify, without prior approval of the department, any equipment or facility of any type that may: (A) cause or contribute to pollution; or (B) be designed to prevent pollution.

As noted during the inspections on October 23 and 26, 2018, Respondent operated a CFO without proper approval because he failed to transfer ownership of the permitted barns to his name. Additionally, the CFO had a spill into Votaw Ditch. Subsequently, Respondent submitted a transfer of ownership request, and IDEM issued an Approval Transfer of Ownership letter to Respondent on January 16, 2019.

b. Pursuant to 327 Indiana Administrative Code (“IAC”) 19-4-1(a), CFOs must have a valid approval to operate; or (2) close in accordance with 327 IAC 19-16.

Pursuant to IC 13-18-10-1(b), a person may not operate a confined feeding operation without obtaining the prior approval of the department.

As noted during the inspections on October 23 and 26, 2018, Respondent did not have a valid approval to operate a CFO at the Site. Respondent did not transfer the ownership of the permitted barns to his name. Subsequently, Respondent submitted a transfer of ownership request, and IDEM issued an Approval Transfer of Ownership letter to Respondent on January 16, 2019.

c. Pursuant to IC 13-18-4-5(a) except as provided in subsection (b), 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 of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.

As noted during the October 19 through November 1, 2018 spill investigation and October 23 and 26, 2018 inspections, Respondent’s manure storage structure chronically over-flowed. IDEM became aware of this after receiving a complaint on October 19, 2018. The spill was noted at the west pump out/pit access on the north hog barn where two large manure flows stretched the length of the cornfield into the culvert under County Road 330 East, releasing manure into Votaw Ditch.

d. Pursuant to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of any contaminants or solid waste upon the land, except through the use of sanitary landfills, incineration, composting, garbage grinding, or another method acceptable to the board.

As noted during the October 19 through November 1, 2018 spill investigation and inspections on October 23 and 26, 2018, Respondent deposited or caused and/or allowed the deposit of contaminants and/or solid waste upon the land in a method which has not been determined by the board to be acceptable. Specifically, Respondent deposited or caused manure to spill at the west pump out/pit access on the north hog barn where two large manure flows stretched on land the length of the cornfield into the culvert under County Road 330 East, releasing manure into Votaw Ditch.

e. 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 October 19 through November 1, 2018 spill investigation and inspections on October 23 and 26, 2018, Respondent allowed manure to enter Votaw Ditch at 330 East, 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 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 management system located at the Site. There was no evidence that the manure caused a fish kill.

f. Pursuant to 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall, upon discovery of a spill that damages the waters of the state:

(a) Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

(b) Undertake or cause others to undertake activities needed to accomplish a spill response.

(c) As soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Land Quality, Emergency Response Section: (317) 233-7745 for in-state calls, Area Code 1-888-233-7745 for out-of- state (toll free) calls. If new or updated spill report information becomes known that indicates a significant increase in the likelihood of damage to the waters of the state, the responsible party shall notify the department as soon as possible but within two (2) hours of the time the new or updated information becomes known.

(d) Submit to the Department of Environmental Management, a written copy of the spill report if requested in writing by the department.

(e) Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

(A) For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and

(B) For spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

As noted during the October 19 through November 1, 2018 spill investigation and October 23 and 26, 2018 inspections, Respondent failed to report the spill to IDEM within two (2) hours of discovery. IDEM was notified of the spill by a private citizen complaint on October 19, 2018. Respondent failed to contain the spill and failed to conduct a spill response prior to the IDEM spill investigation and inspections.

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. Within thirty (30) days of the Effective Date, Respondent shall submit to IDEM a Best Management Practices Plan that describes how the manure will be managed going forward to avoid over application and discharges into waters of the state.

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

Debbie O’Brien, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

5. Respondent is assessed a civil penalty of Zero Dollars ($0). This penalty reflects a significant reduction from the original proposed civil penalty based on evidence submitted to IDEM by Respondent which adequately demonstrated Respondent’s inability to pay the original proposed civil penalty.

6. 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	$100 per week late

7. 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.

8. 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

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 8, 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 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.

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
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:
				____3/14/19_____________________
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality