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. 2015-23356-C

 

 

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WILLOW DAIRY, LLC D.B.A. WARREN DAIRY,

 

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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 Willow Dairy, LLC d.b.a. Warren Dairy (“Respondent”), which owns and operates a Confined Feeding Operation (“CFO”), with CFO Approval Number 6843, located at the southwest corner of County Road 110 North and County Road 700 W in Williamsport, Warren County, Indiana (“Site”).

 

3.         Respondent was issued CFO Approval Number 6843 on March 2, 2015, which will expire on March 2, 2020.

 

4.         Respondent owns and operates a CFO with approximately 6,000 dairy cattle.

 

5.         IDEM has jurisdiction over the parties and the subject matter of this action.

 

6.         Pursuant to IC 13-30-3-3, on December 31, 2015, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

 

Mr. Craig Achen

Mr. Craig Achen, Registered Agent

Willow Dairy, LLC d.b.a. Warren Dairy

Willow Dairy, LLC d.b.a. Warren Dairy

75 Elm Street

8444 S. CR 900 W

P.O. Box 922

Ambia, Indiana  47917

Annandale, Minnesota  55302

 

 

7.         During an investigation, including inspections conducted on August 24, 2015, September 4, 2015, and September 23, 2015, by a representative of IDEM, the following violations were found:

 

a.         Pursuant to 327 Indiana Administrative Code (“IAC”) 19-12-4(s), the applicant shall execute and send to the commissioner an affidavit, under penalty of perjury, that a waste management system was constructed, and shall be operated, in accordance with the requirements of the approval and this article.  The owner/operator must submit to IDEM, on a form provided by the department, the affidavit within thirty (30) days after the date construction of an approved waste management structure is completed, and prior to the introduction of any animals or manure.  The affidavit must be completed, notarized, and returned to IDEM assuring that the waste management system was constructed and shall be operated in accordance with the requirements of the approval.  The affidavit must also include identification of what parts of the waste management system are completed at the time of the submittal.  If an owner/operator performs partial construction of an approved facility and wishes to utilize that portion prior to completing construction of the entire facility, multiple affidavits shall be submitted.  No portion of a waste management system, including animal feed and similar feedstock storage areas, shall be utilized unless that portion, or a combination of the waste management system for that portion, is completely constructed prior to the introduction of animals and provides a minimum of one hundred eighty (180) days storage for manure, wastewater, and/or leachate.

 

Respondent failed to submit the required construction completion affidavit for the concrete silage pad (P8) prior to use of the concrete silage pad (P8).  Specifically, on August 24, 2015, an IDEM CFO Construction Inspector observed silage stored in two (2) bays of the concrete silage pad (P8).

 

On August 26, 2015 and September 5, 2015, Respondent submitted a construction completion affidavit that was inadequate because the concrete silage pad (P8) curb had not been constructed as per the Approval Plans.  The CFO Construction Inspector observed the concrete silage pad (P8) curb being poured on September 23, 2015.

 

 

b.         Pursuant to CFO Approval, Special Condition 3(c), Permittee must submit to IDEM a [construction] completion affidavit, along with the registered professional engineer (PE) certification forms for earthen and concrete liquid manure storage structures within thirty (30) days after the date construction is complete and prior to the introduction of any animals, manure/wastewater, or feed silage placement.  Those structures include the concrete pad/silage bunker (P8).

 

Respondent failed to submit the required construction completion affidavit for the concrete silage pad (P8) prior to use of the concrete silage pad (P8).  Specifically, on August 24, 2015, an IDEM CFO Construction Inspector observed silage stored in two (2) bays of the concrete silage pad (P8).

 

On August 26, 2015 and September 5, 2015, Respondent submitted a construction completion affidavit that was inadequate because the concrete silage pad (P8) curb had not been constructed as per the Approval Plans.  The CFO Construction Inspector observed the concrete silage pad (P8) curb being poured on September 23, 2015.

 

c.            Pursuant to 327 IAC 19-3-1(d), all waste management systems must be designed, constructed, and maintained to minimize leaks and seepage and prevent manure releases or spills, as well as ensure compliance with the water quality standards in 327 IAC 2.

 

Respondent’s concrete silage pad (P8) was not constructed to minimize leaks, seepage, and prevent manure releases or spills, as well as ensure compliance with the water quality standards in 327 IAC 2.  A planned curb had not been installed to prevent silage leachate runoff.  Specifically, on September 4, 2015, a CFO Construction Inspector observed silage leachate running off the concrete silage pad (P8) and into the rough construction ditch on the west side of the concrete silage pad (P8).

 

d.            Pursuant to 327 IAC 19-8-3(b), the owner/operator must submit written notification to the department of any changes to the operation as approved.

 

A CFO Construction Inspector, on September 23, 2015, observed that Respondent had constructed an additional concrete ramp from the southwest corner of the concrete silage pad (P8) into the leachate chamber (P9), without first submitting a facility change request.

 

On November 19, 2015, Respondent submitted the Facility Change Form for the additional ramp.

 

e.            Pursuant to 327 IAC 19-12-4(h), waste management systems not specifically listed in this section must be designed and constructed in accordance with the requirements of IC 13-18-10-4(b).  The design must be submitted to the department before construction can commence.

 

A CFO Construction Inspector, on September 23, 2015, observed that Respondent had constructed an additional concrete ramp from the southwest corner of the concrete silage pad (P8) into the leachate chamber (P9), without first submitting a facility change request.

 

On November 19, 2015, Respondent submitted the Facility Change Form for the additional ramp.

 

f.             Pursuant to Approval Condition, Special Approval 1, Permittee must follow the construction requirements of 327 IAC 19-12 (Manure Handling and Storage; Site, Design, and Construction Requirements for Waste Management Systems).

 

A CFO Construction Inspector, on September 23, 2015, observed that Respondent had constructed an additional concrete ramp from the southwest corner of the concrete silage pad (P8) into the leachate chamber (P9), without first submitting a facility change request.

 

On November 19, 2015, Respondent submitted the Facility Change Form for the additional ramp.

 

g.            Pursuant to 327 IAC 19-12-4(d), all liquid manure storage facilities must be constructed according to the Indiana NRCS Conservation Practice Standard Code 313: Waste Storage Facility, September 2005.  Construction of all liquid manure storage facilities approved after the effective date of this article must be certified upon completion by a registered professional engineer on a form provided by the department.

 

On September 8, 2015, the Earthen Lined Waste Storage Pond (Chamber 2 or P10) was approved for emergency use prior to certification of adequacy by a Professional Engineer (PE).  An IDEM CFO Construction Inspector observed Chamber 2 receiving waste on September 23, 2015.  A Chamber 2 PE Certification was received on September 30, 2015.  The PE certification was inadequate and a Notice of Deficiency was issued on October 19, 2015.

 

h.            Pursuant to IC 13-18-10-2.2(a), if an applicant receives an approval under this chapter and completes construction or expansion, not more than thirty (30) days after the date the applicant completes the construction or expansion the applicant shall execute and send to the department an affidavit that affirms under penalties of perjury that the confined feeding operation was constructed or expanded and will be operated in accordance with the requirements of the department’s approval.

 

Respondent failed to submit a construction completion affidavit that assured the Earthen Lined Waste Storage Pond (Chamber 2 or P10) was constructed and operated in accordance with the requirements of the Approval.  Specifically, on September 5, 2015, a construction completion affidavit for the Earthen Lined Waste Storage Pond (Chamber 2 or P10) was received without the required information and without a completed PE Certification.

 

8.         Respondent submitted a construction completion affidavit and a Professional Engineer Certification for the Earthen Lined Waste Storage Pond (Chamber 2 or P10) on January 14, 2016.  Respondent submitted a construction completion affidavit for the concrete silage pad (P8) on January 14, 2016.

 

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 and rules listed in the findings above.

 

3.            Respondent shall respond to any Notice of Deficiency (“NOD”) issued by the Confined Feeding Permitting Section within the stated timeframes in the NOD.  If such timeframes are not met, IDEM may assess stipulated penalties as described in Order Paragraph 6.

 

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

 

Linda McClure, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

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 Fifteen Thousand and Two Hundred Dollars ($15,200).  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.            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:

 

Order Paragraph #3 [Failure to respond timely to NODs]

$250 per week

 

7.            Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30th 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.

 

8.            Civil penalties 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

Office of Legal Counsel

IGCN, Room N1307

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.         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.

 

11.         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.

 

12.         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.

 

13.         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.

 

14.         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.

 

15.         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.

 

16.         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.

 

17.         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

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DAY OF

________________________,

20___.

 

 

For the Commissioner:

 

 

 

** Signed April 14, 2016 **

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality