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. 2017-24480-S
					)
Daniel T demaree d/b/a Boone county					)
EXPRESS WASHOUT,					)
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 Daniel T Demaree d/b/a Boone County Express Washout (“Respondent”), who owns and operates the company located at 6909 E CR 350 S, 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 T Demaree, Owner	Daniel T Demaree, Owner
Boone County Express Washout	Boone County Express Washout
6909 E CR 350 S	9235 W 300 S
Frankfort, Indiana 46041	Jamestown, Indiana 46147

5. Respondent operates a livestock truck washout with two manure treatment lagoons.

6. During an investigation including an inspection on April 28, 2017 conducted by representatives of IDEM, the following violations were found:

a. Pursuant to 327 Indiana Administrative Code (IAC) 2-1-6(a)(1), all surface 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 do any of the following:

(A) will settle to form putrescent or otherwise objectionable deposits;

(B) are in amounts sufficient to be unsightly or deleterious;

(D) 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 ; and

(E) are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

As noted in incident report number 72986, Respondent discharged manure water containing ammonia nitrogen levels greater than 8 ppm into Scott Ditch, a water of the state, that was in an amount sufficient to be unsightly or deleterious, that produced color, odor, or other conditions in such a degree to create a nuisance, and/or which was in amounts to be acutely toxic to, or otherwise severely injure or kill aquatic life, or other animals, plants, or humans. The origin of the spill was the Respondent’s holding lagoon system. Respondent was discharging manure from the truck wash into the lagoon system. The manure was leaving the lagoon through the PVC pipe and ponding on the surrounding fields before finding the collapsed field tiles that discharged the manure into Scott Ditch.

b. Pursuant to 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state, do the following:

(1) Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

(2) Undertake or cause others to undertake activities needed to accomplish a spill response.

(3) As soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management.

(4) Submit to the Department of Environmental Management a written copy of the spill report if requested in writing by the department.

(5) Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

(A) For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and

(B) For spills outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

As noted in Incident Report number 72986, Respondent failed to report a spill of manure water into Scott Ditch a water of the state on April 28, 2017. The origin of the spill was the Respondent’s holding lagoon system. Respondent was discharging manure from the truck wash into the lagoon system. The manure was leaving the lagoon through the PVC pipe and ponding on the surrounding fields before finding the collapsed field tiles that discharged the manure into Scott Ditch.

c. Pursuant to IC 13-18-4-5(a), 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.

As noted in Incident Report number 72986, on April 28, 2017, Respondent discharged manure water containing ammonia nitrogen levels greater than 8 ppm into Scott Ditch, a water of the state.

d. 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 2-1-6(a)(1) and 329 IAC 10-4-2, rules adopted by the board under the environmental management laws.

As noted in Incident Report number 72986, Respondent discharged manure water containing ammonia nitrogen levels greater than 8 ppm into Scott Ditch, a water of the state, in violation of 327 IAC 2-1-6(a)(1). Also, there was a large pile of bedding, approximately 100 cubic yards in size, on the south side of the property. Contaminated runoff was observed coming from this uncovered pile and migrating off the property into the neighbor’s corn field.

e. Pursuant to 329 IAC 10-4-2, no person shall cause or allow the storage, containment, processing, or disposal of solid waste in a manner which creates a threat to human health or the environment, including the creating of a fire hazard, vector attraction, air or water pollution, or other contamination.

As noted in Incident Report number 72986, Respondent caused and/or allowed a large pile of bedding, approximately 100 cubic yards in size, on the south side of the property, to be disposed at the Site in a manner which creates a threat to human health or the environment. Contaminated runoff was observed coming from this uncovered pile and migrating off the property into the neighbor’s corn field.

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. Within thirty five (35) days of the Effective Date, Respondent shall submit to IDEM a best management practices plan that describes processes for preventing and responding to a spill, including the procedure that was implemented after the incident occurred.

4. Respondent shall ensure that within two (2) hours of discovery of a spill it is communicated to the Department of Environmental Management.

5. Within thirty five (35) days of the Effective Date, Respondent shall submit to IDEM the following for review and approval:

a. a plan to manage the manure waste from the lagoon system; and

b. a plan to manage the contaminated runoff from the uncovered pile of bedding.

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

Idelia Walker-Glover, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

7. Respondent is assessed a civil penalty of Seven Thousand Dollars ($7,000.00). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of One Thousand Four Hundred Dollars ($1,400.00) Said penalty amount 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 that this SEP will cost Eleven Thousand Two Hundred Eighty Four and Fifty cent ($11,284.50). Within fifteen (15) days of completing this 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 Eleven Thousand Two Hundred Dollars ($11,200.00), Respondent shall pay 50% of the difference between the proposed cost of the SEP Eleven Thousand Two Hundred Dollars ($11,200.00) and the actual cost of the SEP.

8. As a Supplemental Environmental Project (Attachment A), Respondent shall provide a vegetative buffer/infiltration area along the south, west and east sides of the three stage treatment system constructed to reduce sediment, nutrients, pesticides and other potential contaminants in storm water runoff from leaving the truck wash facilities and to improve surface water quality. The field will receive applications of wash water at agronomic rates from the three stage treatment pond system.

9. Within fifteen (15) days of completing the SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and the cost incurred with the SEP. In the event that Respondent does not complete the SEP by December 1, 2018, the full amount of the civil penalty as stated in paragraph 7 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM’s notice to pay. Interest, at the 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.

10. 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	$500 per week or part thereof
Order Paragraph #5	$500 per week or part thereof

11. 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.

12. 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:

Indiana Department of Environmental Management

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

13. 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 12, above.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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 January 31, 2018
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality