STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

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Complainant,

 

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v.

 

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Case No. 2015-22896-C

 

 

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kerkhoff llc,

 

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Respondent.

 

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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 Kerkhoff LLC (“Respondent”), which owns the Confined Feeding Operation (“CFO”) with farm ID number 1725, (“Approval”) located at 3075 E 1000 N, in Frankfort, Clinton 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 Daniel Kerkhoff, Kerkhoff LLC, and Hunter Reece, Registered Agent for Kerkhoff LLC.

 

5.            Respondent owns and operates a CFO with an approximate total capacity for 4,000 nursery pigs and 2,400 finish hogs.

 

6.            During an investigation including an inspection on February 25, 2015 conducted by a representative of IDEM, the following violations were found:

 

a.            Pursuant to 327 Indiana Administrative Code (“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.

 

As noted during the inspection on February 25, 2015, manure from approximately 1,319 finishing hogs was stored in an unapproved waste management system.

 

b.            Pursuant to 327 IAC 19-4-1(b)(1), the owner/operator must comply with all terms and conditions of the CFO approval and 327 IAC 19.

 

As noted during the inspection on February 25, 2015, manure from approximately 1,319 finish hogs was stored in an unapproved waste management system and an unapproved barn recently confined nursery pigs.  The unapproved waste management systems are noted as E8 and E4 on the original farmstead map and CFO Facility Detail Information Sheet that were submitted with the most recent approval in 2010.  The 2010 approval authorized two nursery pig barns (E2 & E3), one finish hog barn (E1), and eight existing earthen lined lagoons.  The approval noted that all other existing confinement barns and concrete storage pits will not be utilized without prior approval from IDEM.

 

c.            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 acres per sample.  The frequency of this testing must be specified in the manure management plan, and conducted a minimum of once every four years unless a different frequency is approved by the department in writing and is included in the manure management plan.

 

As noted during the inspection on February 25, 2015, Respondent’s operating record was not complete with respect to the required soil testing requirements.  Soil tests were not available during the inspection.  Soil tests were submitted to IDEM on July 8, 2015.

 

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

 

3.            Respondent shall immediately following the Effective Date, remove any animals that are in an unapproved confinement building.

 

4.            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

 

5.            Respondent is assessed and agrees to pay a civil penalty of Five Thousand Seven Hundred Dollars ($5,700.00).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.

 

6.            Civil 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

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.            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.

 

8.            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.

 

9.            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.

 

10.         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.

 

11.         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.

 

12.         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.

 

13.         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.

 

14.         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.

 

15.         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 May 17, 2016

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality