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. 2013-21699-C
					)
RONALD SCHERB D/B/A SCHERB DAIRY,					)
					)
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 Ronald Scherb d/b/a Scherb Dairy (“Respondent”), who owns and operates Confined Feeding Operation (“CFO”), Facility ID No. 80, CFO Animal Waste No. 5958, located at 6541 North County Road 200 West, Brazil, Clay 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) on September 11, 2014 via Certified Mail to:

Ronald Scherb d/b/a Scherb Dairy

6541 North County Road 200 West

Brazil, Indiana 47834

5. Respondent owns a dairy Confined Feeding Operation. On April 14, 2009, Respondent obtained CFO approval AW-5958.

6. During an investigation, including an inspection on April 2, 2013, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 327 Indiana Administrative Code (“IAC”) 5-2-2, any discharge of pollutants into waters of the State as a point discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a National Pollutant Discharge Elimination System (“NPDES”) permit obtained prior to discharge.

As noted during the investigation, including an inspection on April 2, 2013, manure from Respondent’s feedlot concrete collection pit discharged into a tributary to Little Birch Creek on March 10, 2013 without a valid NPDES permit. The unpermitted discharge resulted in a fish kill. Respondent responded to the spill by pumping liquids out of the tributary and into Respondent’s aboveground manure storage tank.

b. Pursuant to IC 13-18-4-5, a person may not: (1) throw, run, drain, or otherwise dispose into any of the streams or waters on 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 a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.

As noted during the investigation, including an inspection on April 2, 2013, Respondent caused and/or allowed manure to enter a tributary to Little Birch Creek from overflow from Respondent’s feedlot concrete collection pit.

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 or into any publicly owned treatment works in any form that causes or would cause pollution that violates or would violate 327 IAC 2-1-6(a)(1).

As noted during the investigation, including an inspection on April 2, 2013, Respondent caused and/or allowed manure to enter into a tributary to Little Birch Creek.

d. Pursuant to 327 IAC 2-1-6(a)(1), all surface waters at all times and at all places, including waters within the mixing zone, shall meet 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:

a) that will settle to form putrescent or otherwise objectionable deposits;

b) that are in amounts sufficient to be unsightly or deleterious;

c) that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

d) which are in amounts sufficient to be acutely toxic to, or otherwise severely injure or kill aquatic life, other animals, plants, or humans; and

e) which 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 designated uses.

As noted during the investigation, including an inspection on April 2, 2013, the unpermitted discharge of manure into a tributary to Little Birch Creek introduced contaminants and scum in the surface water resulting in a fish kill. Respondent responded to the spill by pumping from two locations in the tributary, hauling the liquids back to Respondent’s farm, and storing the manure in Respondent’s aboveground manure storage tank.

e. Pursuant to 327 IAC 19-3-1(a), a confined feeding operation shall be managed so as to avoid an unpermitted discharge into waters of the State.

As noted during the investigation, including an inspection on April 2, 2013, Respondent’s concrete collection pit overflowed. Manure discharged into a tributary of Little Birch Creek.

f. Pursuant to 327 IAC 19-13-1(f), the owner/operator shall inspect all waste management systems for compliance with this article and the approval conditions and, if applicable, freeboard as specified in subsection (d) or the approval, at least one (1) time each week. Completed self monitoring records must be kept in the operating record described in section 5 of this rule.

As noted during the inspection on April 2, 2013, Respondent did not maintain self monitoring records on-site in the operating record.

g. Pursuant to 327 IAC 19-7-3(a-g) and 327 IAC 19-9-1(b)(2), a farmstead plan with required information in subsections a through g must be maintained in the operating record.

As noted during the inspection on April 2, 2013, Respondent did not maintain a farmstead plan on-site in the operating record.

h. Pursuant to 327 IAC 19-9-1(b), the operating record must contain the following, if applicable: (9) 327 IAC 19-13-4, the current emergency response plan, and documentation of any spill response implemented by CFO personnel within the past five (5) years.

As noted during the April 2, 2013 inspection, Respondent did not maintain a complete record of the most recent spill response on March 10, 2013 on-site in the operating record.

i. Pursuant to 327 IAC 19-7-5(c), a soil test must be obtained that provides sufficient information about soil fertility to allow for nutrient recommendations for existing or planned crops. Soil tests may not represent more than twenty (20) acres per sample. The frequency of this testing must be: (1) specified in the manure management plan; and (2) conducted a minimum of once every four (4) years unless a different frequency is approved by the department in writing and is included in the manure management plan.

As noted during the April 2, 2013 inspection, Respondent did not maintain soil test documentation on-site. The most recent soil test results are from August 2008.

j. Pursuant to 327 IAC 19-7-5(d) and (e), a manure test must be obtained that provides sufficient information about the manure content to allow for nutrient recommendations for existing or planned crops and to minimize nutrient leaching. The frequency of this testing must be: (1) specified in the manure management plan; and (2) conducted a minimum of once every year. Additionally, manure samples must be representative of the manure that is land applied. If manure is mixed from separate manure storage facilities prior to land application, a composite sample may be taken. If manure is land applied from separate and distinct storage facilities, a sample must be taken from each unique production system.

As noted during the April 2, 2013 inspection, Respondent did not maintain annual manure test documentation on-site. The most recent manure test results are from February 2008.

k. Pursuant to 327 IAC 19-14-3(b) and (e), 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 or Tri-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. Additionally, beginning with the effective date of this article, CFOs and CAFOs not listed in subsection (d) must comply with the phosphorus application rates in Table 2.

As noted during the April 2, 2013 inspection, Respondent did not produce adequate documentation demonstrating that the agronomic rate of nitrogen and, if applicable, phosphorus was not exceeded.

l. Pursuant to 327 IAC 19-14-3(f), the following land application must be added to the operating record as needed in accordance with the required time frames established in this article and IC 13-18-10 and must be maintained and updated the operating record: expected crop yields; the date or dates manure, litter, or process wastewater is applied to each field; precipitation events at the time of application and for twenty-four (24) hours prior to and following application; test methods used to sample and analyze manure, litter, process wastewater, and soil; results from manure, litter, process wastewater, and soil sampling; an explanation of the basis for determining manure, litter, and process wastewater application rates; calculations showing the manure nitrogen and phosphorus to be applied to each field; total amount of nitrogen and phosphorus actually applied to each field, including documentation of calculations for the total amount applied; the method used to apply the manure, litter, or process wastewater; the date or dates of manure, litter, and process wastewater application equipment inspection; USDA soil survey maps of currently available land application sites; the type of manure applied; and 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.

As noted during the April 2, 2013 inspection, Respondent did not maintain required land application information on-site.

7. 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 maintain its existing CFO Approval, dated June 16, 2014, for the full 5 year term of the approval.

4. Respondent shall comply with 327 IAC 2-1-6(a)(1). Specifically, Respondent shall refain from introducing into waters of the state substances, materials, floating debris, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges:

a) that will settle to form putrescent or otherwise objectionable deposits;

b) that are in amounts to be unsightly or deleterious;

c) that produce color, visible oil sheen, odor, or other conditions to such degree as to create a nuisance;

d) which are in are amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans; and

e) which 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.

5. Upon the Effective Date, Respondent shall comply with 327 IAC 19-3-1(a). Specifically, Respondent shall manage its confined feeding operation so as to avoid an unpermitted discharge into waters of the State.

6. Upon the Effective Date, Respondent shall comply with 327 IAC 19-13-1(f). Specifically, Respondent shall inspect all waste management systems for compliance with this article and the approval conditions and, if applicable, freeboard as specified in subsection (d) or the approval, at least one (1) time each week. Completed self monitoring records shall be kept in the operating record on-site.

7. Upon the Effective Date, Respondent shall comply with 327 IAC 19-7-3. Specifically, Respondent shall maintain a farmstead plan with the required information in subsections a through g in the operating record on-site.

8. Upon the Effective Date, Respondent shall comply with 327 IAC 19-9-1(b). Specifically, a current emergency response plan, including documentation of the March 10, 2013 spill response implemented by CFO personnel, shall be kept in the operating record on-site.

9. Upon the Effective Date, Respondent shall comply with 327 IAC 19-7-5(c). Specifically, a soil test shall be obtained that provides sufficient information about soil fertility to allow for nutrient recommendations for existing or planned crops.

10. Upon the Effective Date, Respondent shall comply with 327 IAC 19-7-5(d) and (e). Specifically, a manure test shall be obtained that provides sufficient information about the manure content to allow for nutrient recommendations for existing or planned crops and to minimize nutrient leaching.

11. Upon the Effective Date, Respondent shall comply with 327 IAC 19-14-3(b) and (e). Specifically, documentation justifying the application rate of nitrogen (N) does 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 and the phosphorus application rates in Table 2 of this rule must be maintained in the operating record.

12. Upon the Effective Date, Respondent shall comply with 327 IAC 19-14-3(f)(1-11). Specifically, Respondent shall add to the operating record all applicable information required by 327 IAC 19-14-3(f)(1-11).

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

Jennifer Reno, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

14. Respondent is assessed and agrees to pay a civil penalty of six thousand dollars ($6,000). Respondent shall pay One Thousand Two Hundred Dollars ($1,200) within thirty (30) days of the Effective Date. Said penalty 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 this SEP will cost Ten Thousand Four Hundred Eighty Dollars ($10,480.00). Within fifteen (15) days of completing the SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less than Nine Thousand Six Hundred Dollars ($9,600.00), Respondent shall pay 50% of the difference between the required cost of the SEP ($9,600.00) and the actual cost of the SEP.

15. As a Supplemental Environmental Project (Attachment A), Respondent shall clean and reconstruct a natural drainage way as a grass waterway on Respondent’s crop field south of the livestock facility. The grass waterway will maintain water quality by slowing the velocity of surface storm water drainage, allowing the settling out of suspended soil particles, reducing infiltration of runoff and increasing uptake of nutrients by vegetation. The grass water way will reduce and control soil erosion, nutrients, organics, pesticides, and other potential contaminants from entering into storm water runoff.

In the event that Respondent do not complete the SEP by November 1, 2015, the full amount of the civil penalty as stated in paragraph 13 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondents have already paid, will be due within fifteen (15) days from Respondents’ receipt of IDEM’s notice to pay. Interest, at a 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.

16. The civil penalty is 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

Cashier

100 North Senate Avenue

Indianapolis, IN 46204-2251

17. Respondent is liable for reimbursement to the Indiana Department of Natural Resources (“IDNR”) for the value of the damage to fish and wildlife, under authority of IC 14-22-10-6. IDNR had determined this figure to be One Hundred Forty-Five Dollars and Thirty-Six Cents ($145.36). Payment shall be made to the Contaminants Account within thirty (30) days of the Effective Date of this Order. Respondent shall provide Complainant with documentation of reimbursement immediately upon payment and sent:

Attention to: Restoration Biologist

IDNR Division of Fish and Wildlife

Room W-273, IGCS

402 West Washington Street

Indianapolis, Indiana 46204

18. 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 16, above.

19. 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.

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. 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.

22. 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.

23. 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.

24. 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.

25. 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 the EPA or any other agency or entity.

26. 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:
				Signed on 9/18/14_____
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality