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. 2020-27123-C
					)
HOWARD ELLER DBA ELLER FARMS,					)
					)
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 Howard Eller dba Eller Farms (“Respondent”), who owns and operates the Farm with ID No. 889, located at 9005 W 200 N in Kokomo, Howard 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 United States Postal Service (“USPS”) to:

Howard Eller

8785 W 00 NS

Kokomo, Indiana 46901

5. Howard Eller dba Eller Farms is a nursery to finisher swine operation.

6. During an investigation including a records review on April 28, 2020 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 327 Indiana Administrative Code (“IAC”) 19-14-3(b), the application rate of nitrogen (N) must not exceed the N requirements based on the recommendations in:

(1) Purdue University Cooperative Extension Service publication ID-101: animal Manure as a Plant Nutrient Resource, February 2001, available from the Cooperative Extension Service, Purdue University, West Lafayette, Indiana 47907; or

(2) Tr-State Fertilizer Recommendations for Corn, Soybeans, Wheat and Alfalfa, Extension Bulletin E-2567 (New), July 1995, available from the Cooperative Extension Service, Purdue University, West Lafayette, Indiana 47907; for current or planned crops of the upcoming growing season as documented in the operating record. Minimum N loss estimates must be used otherwise justified. The justification must be kept in the operating record.

Respondent land applied manure above the calculated agronomic rate. Nitrogen on one field was over applied by 168% and over applied on a second field by 48%.

b. Pursuant to 327 IAC 19-14-3(d), as of the effective date of this article, the following must comply with the phosphorus application rates in Table 1:

(1) Large CAFOs, as defined in 40 CFR 122.23(b) that were approved for initial construction after February 13, 2003.

(2) CAFOs with a NPDES permit.

(3) CFOs approved for initial construction after the effective date of this article.

Respondent land applied manure above the calculated agronomic rate. Phosphorus on one field was over applied by 28%.

7. 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 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 rules listed in the findings of fact above.

3. Effective Immediately, Respondent shall comply with 327 IAC 19-14-3(b) and (d). Specifically, Respondent shall restrict land application of manure to fields until the nitrogen and phosphorus levels have dropped to the appropriate agronomic rates permitted. Respondent shall also utilize proper guidance to determine the proper agronomic rate and change the rate the manure is applied accordingly.

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

Jodi Pisula, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

5. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Nine Thousand Dollars ($9,000.00). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within thirty (30) days of the Effective Date; the thirtieth day being the “Due Date.”

6. 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:

Paragraph	Stipulated Penalty
Order paragraph #3	$100.00 per incident

7. 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.

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

Accounts Receivable

IGCN, Room 1340

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

11. 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.

12. 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.

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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

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

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management				Howard Eller dba Eller Farms
By: ___________				By: _________________________
	Jennifer Reno, 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 10/29/2020____________
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality