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. 2014-22253-C
					)
The kopp corporation,					)
					)
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 The Kopp Corporation (“Respondent”), which owns the facility with Farm ID No.4481, located at 17203 Pine Rd., in Batesville, Franklin 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 The Kopp Corporation, Kevin Kopp, President, Kelly Kopp, Registered Agent, and Tim Schwab, Manager. Kopps Land & Livestock Corporation merged with and became The Kopp Corporation in 1989.

5. Respondent owns a CFO with approximately 600 beef cattle in one confinement building.

6. During an investigation including an inspection on March 11, 2014 conducted by a representative of IDEM, the following violations were found:

a. 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 in any form that causes or would cause pollution that violates or would violate 327 IAC 19, a rule adopted by the board under the environmental management laws.

As noted during the inspection, Respondent applied manure on frozen and snow covered ground in violation of 327 IAC 19-3-1(f).

b. Pursuant to 327 IAC 19-14-4(f), CFOs not described in subsection (e) may surface apply manure on frozen or snow covered ground in accordance with subsections (g) through (i). Injection or incorporation of manure into the soil on the same day is not prohibited. 327 IAC 19-14-4(g) states that for purposes of this section, an emergency application is only allowed when there is an immediate need to apply manure to comply with manure storage requirement of 327 IAC 19-12-4 due to unforeseen circumstances affecting the storage of the liquid manure. The unforeseen circumstances must be beyond the control of the owner of the CFO, including but not limited to, natural disaster, extreme weather conditions, or equipment or structural failure. 327 IAC 19-14-4(h) states that emergency land application of manure on frozen or snow covered ground requires the notification of IDEM by phone prior to the application, specifying the CFO owner’s name, the facility name, the reason for emergency application, the date of land application, the location of the application field, and the estimated gallons of manure to be applied.

As noted during the inspection, Respondent land applied manure on the surface of frozen and snow covered ground without meeting the criteria of 327 IAC 19-14-4(g) or the requirements of 327 IAC 19-14-4(h).

c. Pursuant to 327 IAC 19-3-1(f), manure must be applied in such a manner as to not threaten or enter waters of the state, prevent ponding for more than twenty-four (24) hours, manure releases, and spills, and minimize nutrient leaching beyond the root zone.

As noted during the inspection, Respondent did not apply manure in a manner to prevent manure from threatening or entering waters of the state, and prevent manure releases, and spills, and minimize nutrient leaching beyond the root zone.

d. Pursuant to 327 IAC 19-11-2(b), the following storm water management practices must be implemented: (1) Good house keeping. All areas that may contribute pollutants to storm water discharges should be maintained in a clean, orderly manner. (2) Preventative maintenance. A preventative maintenance program including timely inspection and maintenance schedule of storm water management devices. (3) Sediment and erosion control. Identify areas that, due to topography, activities, or other factors, have a high potential for significant soil erosion and identify structural, vegetative, and initiate stabilization measures to limit erosion. (4) Management of storm water runoff. Practices (other than those that control the generation or source or sources of pollutants) used to divert, infiltrate, reuse, or otherwise manage storm water runoff so as to reduce pollutants in storm water discharges from the site.

As noted during the inspection, Respondent did not have adequate run-on/run-off control measures to prevent waste from leaving the containment area and reduce pollutants in storm water discharges from the site.

9. 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, rules, and/or permit conditions listed in the findings above.

3. Within fifteen (15) days of the Effective Date, Respondent shall submit a detailed plan for implementing stormwater management practices involving manure containment and run-on/run-off controls.

4. Within ninety (90) days of the Effective Date, Respondent shall implement and establish the stormwater management practice plan.

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

Trent Lindley, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

6. Respondent is assessed and agrees to pay a civil penalty of Seven Thousand Dollars ($7,000.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”.

7. 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	$250 per week late
Order Paragraph #4	$250 per week late

8. 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.

9. 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 North Senate Avenue

Indianapolis, IN 46204-2251

10. 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 6, above.

11. This Agreed Order shall apply to and be binding upon Respondent and its 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 its status or responsibilities under this Agreed Order.

12. 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.

13. 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.

14. 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 its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

15. 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.

16. 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.

17. 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.

18. 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 September 19, 2014__
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality