STATE OF INDIANA		)		BEFORE THE INDIANA DEPARTMENT
		)	SS:	OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION		)
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
	Complainant,				)
					)
	v.				)	Case No. 2004-13820-S
					)		2004-13821-S
STRAUSS VEAL FEEDS, INC. AND					)
DAVID LEWIS,					)
					)
	Respondents.				)

AGREED ORDER

The Complainant and the Respondents 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, a department of the State of Indiana created by IC 13-13-1-1.

2. Strauss Veal Feeds, Inc., case # 2004-13820-S (Respondent #1) operates the confined feeding operation (CFO) and David Lewis, case # 2004-13821-S (Respondent #2) owns the CFO with the approval number AW-4858 located at 4338 East 100 North, in Ossian, Wells County, Indiana (Site).

3. The Indiana Department of Environmental Management (IDEM) has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, on or about June 15, 2004 IDEM issued a Notice of Violation via Certified Mail to:

David Grant, President Strauss Veal Feeds, Inc. 600 Strauss Provimi Road New Manchester, Indiana 46962	Donald Strauss, Registered Agent Strauss Veal Feeds, Inc. 600 Strauss Provimi Road New Manchester, Indiana 46962
David Lewis 1692 East 800 North Ossian, Indiana 46777

5. An inspection, on October 24, 2003, was conducted at the Site by a representative of IDEM’s Office of Land Quality (OLQ). The following violations were in existence or observed at the time of this inspection:

A. Pursuant to 327 IAC 2-1-6(a)(1), all 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 will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans, and which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance.

The Respondents caused and/or allowed the discharge of animal manure from the Site on or about October 24, 2003 into John Dettmer Ditch, waters of the state, that settled to form putrescent or otherwise objectionable deposits that was in an amount sufficient to be unsightly or deleterious that produced color, visible oil sheen, odor, or other conditions in such degree to create a nuisance which was in amounts sufficient to be acutely toxic to, or otherwise severely injure or kill aquatic life, other animals, plants or humans, in violation of 327 IAC 2-1-6(a)(1).

B. Pursuant to 327 IAC 2-6.1-7, any person who operates, controls or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state, contain the spill, if possible, to prevent additional spilled material from entering the waters of the state; undertake or cause others to undertake activities needed to accomplish a spill response; and as soon as possible, but within two hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response.

Reportable spills of animal manure from the Site into John Dettmer Ditch, waters of the state, occurred on or about October 24, 2003 and were not properly contained by the Respondents in violation of 327 IAC 2-6.1-7.

C. Pursuant to 327 IAC 16-3-1(a), a confined feeding operation shall be managed to avoid an unpermitted discharge into waters of the state.

The Respondents did not manage the confined feeding operation to avoid an unpermitted discharge into, waters of the state, resulting in discharges of animal manure from the Site on or about October 24, 2003 into John Dettmer Ditch, waters of the state, without a valid permit, in violation of 327 IAC 16-3-1(a).

D. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES Permit obtained prior to the discharge.

The Respondents caused and/or allowed the discharge of animal manure, a pollutant, from the Site on or about October 24, 2003 into John Dettmer Ditch, waters of the state, without a valid NPDES permit and without meeting any of the exclusions in 327 IAC 5-2-4, in violation of 327 IAC 5-2-2.

E. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or to 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 a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.

The Respondents caused and/or allowed the discharge of animal manure, an organic matter, from the Site on or about October 24, 2003 into John Dettmer Ditch, waters of the state, in violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and/or 327 IAC 5-2-2, and thus violated IC 13-18-4-5.

F. Pursuant to IC 13-30-2-1(1), no person may 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 or into any publicly owned treatment works in any form which causes or would cause pollution which violates or which would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

The Respondents caused and/or allowed the discharge of animal manure, a contaminant or waste, into the environment from the Site on or about October 24, 2003, in violation of 327 IAC 2-6.1-7, 327 IAC 2-1-6(a)(1) and/or 327 IAC 5-2-2, and thus violated IC 13-30-2-1(1).

6. In recognition of the settlement reached, Respondents 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 the Complainant or his delegate, and has been received by the Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondents shall comply with 327 IAC 2-1-6 (a) (1), 327 IAC 2-1-6.1-7, 327 IAC 16-3-1 (a), 327 IAC 5-2-2, IC 13-18-4-5, and IC 13-30-2-1 (1).

3. Within thirty (30) days of the Effective Date of this Agreed Order, the Respondents shall submit a Spill Response Plan for the Site in accordance with 327 IAC 16-9-4.

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

Melissa Farrington, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015

5. Respondents are jointly and severally liable for a civil penalty of Seven Thousand Dollars ($7,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.

6. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondents shall pay a stipulated penalty in the following amount:

Violation	Penalty
Failure to comply with Order paragraph No. 3	$ 500/per week plan is late

7. Stipulated penalties shall be due and payable within thirty (30) days after Respondents receive written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondents for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondents violation of this Agreed Order or 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:

Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060

9. In the event that the civil penalty required by Order paragraph five (5) is not paid within thirty (30) days of the Effective Date of this Agreed Order, the Respondents shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

10. This Agreed Order shall jointly and severally apply to and be binding upon the Respondents, their successors and assigns. The Respondents’ signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondents shall in any way alter its status or responsibilities under this Agreed Order.

11. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

12. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents 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 shall remain in effect until IDEM issues a Resolution of Case letter to Respondents.

TECHNICAL RECOMMENDATION:			RESPONDENT #1:
			Strauss Veal Feeds, Inc.
By:			By:
	Paul Higginbotham, Chief		Printed:
	Solid Waste/UST Section		Title:
	Office of Enforcement
Date:			Date:
COUNSEL FOR COMPLAINANT:			COUNSEL FOR RESPONDENT #1:
Department of Environmental Management
By:			By:
	Office of Legal Counsel		Printed:
			Title:
Date:			Date:
RESPONDENT #2:			COUNSEL FOR RESPONDENT #2:
David Lewis
By:			By:
Printed:			Printed:
			Title:
			Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF		, 2005.
			For The Commissioner:
			Signed on May 9, 2005
			Matthew T. Klein
			Assistant Commissioner for Compliance
			and Enforcement