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. 2019-26347-C
					)
New Generation Dairy 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 New Generation Dairy Inc. (“Respondent”), which owns and operates the facility with Farm ID # 6545 located at 11113 West 750 South in Owensville, Gibson 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, on October 30, 2019, IDEM issued a Notice of Violation (“NOV”) via UPS to:

New Generation Dairy Inc.

Attn: Brian Rexing, President and Registered Agent

8280 South 175 West

Fort Branch, Indiana 47648

5. During an investigation conducted by a representative of IDEM on July 23, 2019 and a July 26, 2019 follow-up inspection including a record review conducted by IDEM representatives, the following violations were found:

a. Pursuant to IC 13-30-2-1, A person may not do any of the following: (1) 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: (A) the environment (B) any publicly owned treatment works; in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental manager laws (2) Increase the quantity or strength of a discharge of contaminants into the waters of Indiana without prior approval of the department. (3) Deposit any contaminants upon the land in a place and manner that creates or would create a pollution hazard that violates or would violate a rule adopted by one (1) of the boards…(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 July 23, 2019 inspection and in violation of IC 13-30-2-1, manure from the Respondent’s lagoon on the West side of the facility (E6 on the Farmstead Plan) overflowed onto and across the gravel drive south of the southern freestall barn (E2), continued south and west of E2 into the field and the western boundary of the facility and onto an adjoining property not owned by the Respondent. The Respondent stated that the release was “approximately 15,000 gallons.”

b. Pursuant to 327 Indiana Administrative Code (“IAC”) 2-6.1-7(3), Any person who operates, controls, or maintains any mode of transportation or facility from which a spill occurs shall, as soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response: Area Code 1-888-233-7745 for in-state calls (toll free), or (317) 233-7745 for out-of-state 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.

As noted during the July 23, 2019 inspection and in violation of 327 IAC 2-6.1-7(3), the Respondent failed to notify IDEM of the spill documented in a. above. Any reportable spill must be reported to IDEM and recorded in the facility Operating Record.

c. Pursuant to 327 IAC 19-13-1:

(A) 327 IAC 19-13-1(a); All waste management systems and application equipment must be maintained and operated to meet the approval conditions.

(B) 327 IAC 19-13-1(b); Management of manure must be in compliance with the following: (1) this article (2) The CFO approval (3) All applicable state and federal laws.

(C) 327 IAC 19-13-1(c), Manure at the production area must be stored in an approved waste management system until removed for land application in accordance with 327 IAC 19-14.

(D) 327 IAC 19-13-1(d); All waste management systems must be designed, constructed, and maintained to minimize leaks and seepage and prevent releases and spills, as well as ensure compliance with the water quality standards in 327 IAC 2. If uncovered, liquid manure storage facilities must be maintained with a minimum freeboard of two (2) feet or as specified in the approval conditions.

As noted during the July 23, 2019 inspection and in violation of 327 IAC 19-13-1, manure from the Respondents location failed to be maintained within the manure storage structure. Also, the Respondent’s facility concrete manure storage pit, E6, was permitted to overflow and manure was observed land ponding south and southwest of the manure storage pit.

d. Pursuant to 327 IAC 19-14-3(f), The following land application information must be added to the operating record as needed in accordance with required time frames established in this article and IC 13-18-10 and must be maintained and updated in the operating record: (1) Expected crop yields. (2) The date or dates manure, litter, or process wastewater is applied to each field. (3) Precipitation events at the time of application and for twenty-four (24) hours prior to and following application. (4) Test methods used to sample and analyze manure, litter, process wastewater, and soil. (5) Results from manure, letter, process wastewater, and soil sampling. (6) An explanation of the basis for determining manure, litter, and process wastewater application rates. (7) Calculations showing the manure nitrogen and phosphorus to be applied to each field. (8) Total amount of nitrogen and phosphorus actually applied to each field, including documentation of calculations for the total amount applied. (9) The method used to apply the manure, litter, or process wastewater. (10) The date or dates of manure, litter, and process wastewater application equipment inspection. (11) USDA soil survey maps of currently available land application sites. (12) The type of manure applied. (13) A written conservation plan with an explanation of conservation practices used must be completed and implemented prior to land application on highly erodible land, if required in section 4(j) of this rule. CAFOs with an NPDES permit must have a nutrient management plan prior to land application on highly erodible land.

As noted during the July 26, 2019 inspection and in violation of 327 IAC 19-14-3(f), Respondent’s Land Application Records are incomplete and do not include all of the required information.

6. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and waive 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 permit conditions listed in the findings of fact above.

3. Upon the Effective Date, Respondent shall comply with IC 13-30-2-1. Specifically, Respondent shall cease to 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.

4. Within thirty (30) days of the Effective Date, Respondent shall comply with IC 13-30-2-1. Specifically, Respondent shall:

a. Notify and gain authorization of neighboring property owner of impacted land and communicate activities to mitigate discharged manure.

b. Clean up discharged manure through pumping and scraping the solids.

c. After cleanup, perform or have performed Ammonia and Nitrogen field screening (or laboratory testing) on impacted land to verify cleanup was performed adequately.

d. Install clean backfill to impacted area.

e. Test the removed manure solids for accurate land application.

f. Submit documentation of work completion and field screening to Order Paragraph 10.

5. Upon the Effective Date, Respondent shall comply with 327 IAC 2-6.1-7(3). Specifically, Respondent shall report to IDEM any reportable spill and also record in the facility Operating Record.

6. Upon the Effective Date, Respondent shall comply with 327 IAC 19-13-1(a), (b), and (d). Specifically, Respondent shall maintain and operate correctly the waste management systems and waste application equipment.

7. Upon the Effective Date, Respondent shall comply with 327 IAC 19-13-1(d). Specifically, Respondent shall ensure the adequate removal of manure and manure is properly land applied to maintain required storage freeboard.

8. Upon the Effective Date, Respondent shall comply with 327 IAC 19-13-1(c). Specifically, Respondent shall cease the unapproved manure management structure and thus remove manure and land apply according to land application requirements 327 IAC 19-14. Manure must be stored in an approved location.

9. Upon the Effective Date, Respondent shall comply with 327 IAC 19-14-3(f). Specifically, Respondent shall obtain, update, and record all required, applicable Land Application records in the Operating Record. This Operating Record must be maintained for a minimum of 5 years.

10. All submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, 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

11. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Fifteen Thousand Two Hundred Dollars ($15,200). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Three Thousand Eight Hundred Dollars ($3,800). Said penalty amount shall be due and payable to the “Environmental Management Special Fund.” In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (“SEP”). Respondent estimates that this SEP will cost Thirty-Five Thousand One Hundred and Twenty-Eight Dollars ($35,128). The minimum cost of the SEP is less than Twelve Thousand One Hundred and Sixty Dollars ($12,160). Within fifteen (15) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP.

As a Supplemental Environmental Project, Respondent shall install an underground pipe from the Reception pit to an existing approved manure storage (stack pad lagoon) when the main lagoon is full. This will increase manure storage in emergency situations due to weather. There will also be a pump installed in the stack pad lagoon to send manure back to the main lagoon when the system is not full. Respondent shall:

1. Contact IDEM CFO Permitting Section to apply for a Facility Change. Upon receipt of the facility change and accompanying plans, IDEM will review and determine if the SEP must be applied for as an amendment or new approval.

2. If received, Respondent shall respond to CFO Permitting Notice of Deficiencies (NOD) within stated timeframes.

3. Work may not begin until approval is received from IDEM.

4. Submit documentation of completion and expenses to Order Paragraph 10.

The SEP shall be completed by no later than December 31, 2020. Implementation of this SEP will provide pollution protection from manure spills during emergency situations caused by heavy rains.

In the event that Respondent does not complete the SEP by December 31, 2020, the full amount of the civil penalty, as stated in paragraph 11 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM’s notice to pay. Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

12. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay stipulated penalties in the following amounts:

Paragraphs	Stipulated Penalty
4 [Cleanup discharge manure and submit documentation]	$100.00 per week

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

14. 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

15. 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 14 above.

16. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

17. This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

18. No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

19. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

20. 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.

21. 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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

22. 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.

23. 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 violations specified in the NOV.

24. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 the U.S. EPA or any other agency or entity.

25. 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 McClure, 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 March 4, 2020______
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality