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. 2019-26048-C
					)
WILLEMSEN DAIRY, LLC,					)
					)
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 Indiana Code (“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 IC 13-13-1-1.

2. Respondent is Willemsen Dairy, LLC (“Respondent”), which owns/operates the farm with ID No. 6199, located at 6615 West County Road 500 North, in Frankton, Madison County, Indiana (“Site”).

3. Respondent owns and/or operates a confined feeding operation with the capacity for 1,910 dairy cows.

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

5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to Teunis J. Willemsen, President and Registered Agent for Willemsen Dairy, LLC and Terry Hall, Registered Agent for Willemsen Dairy Leasing, LLC.

6. During an investigation, including an inspection on February 18, 2019 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to Indiana Code (“IC”) 13-30-2-1, a person may not do any of the following: (1) 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: (A) the environment; in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the board under the environmental management laws.

Based on an inspection conducted on February 18, 2019, Respondent failed to prevent a discharge of waste to the environment. The E-2 sand settling pit showed evidence of manure migration outside of the storage system. In addition, manure was observed in the storm water trench near the lagoon E-12. Although the inspector theorized that the lagoon E-12 was “seeping”, the source of the manure observed in the storm water trench was unclear. Manure was migrating to a borrow pit located in a farm field owned by Willemsen Dairy Leasing, LLC. A sample was collected near the suspected seep and borrow pit and resulted in ammonia/nitrogen levels of 8 ppm and 5 ppm, respectively.

On October 28, 2020, a follow up inspection was conducted and confirmed that all manure outside of approved manure storage structures had been removed and the discharge(s) had ceased.

b. Pursuant to 327 Indiana Administrative Code (“IAC”) 19-13-1(a), all waste management systems and application equipment must be maintained and operated to meet the approval conditions.

Based on an inspection conducted on February 18, 2019, Respondent failed to properly maintain and operate waste management systems. Manure was observed outside of waste management systems E-2 and E-12. Recent inspections conducted on May 30, 2018 and March 26, 2018, documented concerns regarding a potential seep from the E-12 lagoon.

On October 28, 2020 a follow up inspection was conducted. The inspection report confirmed that all manure outside of approved manure storage structures had been removed. There was no indication of a potential seep from E-12 lagoon, other sources were identified and addressed.

c. Pursuant to 327 IAC 19-13-1(d), if uncovered, liquid manure storage structures must be maintained with a minimum freeboard of two (2) feet or as specified in the approval conditions.

Based on an inspection conducted on February 18, 2019, Respondent failed to maintain the required two (2) feet of freeboard. All lagoons were reported to be at capacity.

On October 28, 2020, a follow up inspection was conducted and confirmed that all lagoons had adequate freeboard.

d. Pursuant to 327 IAC 19-13-1(j), provisions shall be made for periodic removal of accumulated solids to preserve storage capacity. The anticipated method for doing this must be considered in planning, particularly in determining the configuration of ponds and type of liner, if any.

Based on an inspection conducted on February 18, 2019, Respondent failed to remove accumulated solids from lagoon E-7. The solid material is reducing the storage capacity of the lagoon and must be removed in accordance with the rule. Recent inspections conducted on May 30, 2018 and March 26, 2018, also documented concerns regarding accumulated solids in the E-7 lagoon.

On October 28, 2020, a follow up inspection was conducted and confirmed that the accumulated solids had been removed.

e. 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.

Based on an inspection conducted on February 18, 2019, Respondent failed to maintain waste management systems to prevent manure releases. Manure was observed migrating outside of the E-2 sand settling pit and E-12 lagoon waste management systems. Recent inspections conducted on May 30, 2018 and March 26, 2018, also documented concerns regarding a potential seep from the E-12 lagoon.

On October 28, 2020, a follow up inspection was conducted. The inspection report confirmed that all manure storage structures are now maintained to minimize leaks and seepage. There was no indication of a potential seep from E-12 lagoon, other sources were identified and addressed.

f. Pursuant to 327 IAC 19-12-3(2)(B), waste management systems must be located to maintain the minimum setback distances from the following features that are known and identifiable at the time an application is submitted for approval: (2) Except for subsection (c), three hundred (300) feet from the following: (B) drainage inlets, including water and sediment control basins.

Based on an inspection conducted on February 18, 2019, a storm water drain in close proximity to sand-settling pit E-6 did not meet the minimum setback distance of three hundred (300) feet from a waste management system.

On October 28, 2020, a follow up inspection was conducted and confirmed that the stormwater drain was removed.

7. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 rules and permit conditions listed in the findings of fact above.

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

Chike Okeke, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

5. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of twenty-three thousand dollars ($23,000.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund in four (4) bi-monthly installments. The first installment of five thousand seven hundred fifty Dollars ($5,750.00) shall be paid within thirty (30) days of the Effective Date; the 30th day being the "Due Date", and the remaining installment payments shall be made every sixty (60) days thereafter.

6. 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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

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 11, above.

8. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

9. This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

10. No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

11. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms specified in this document.

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. 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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

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 violations specified in the NOV.

16. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 U.S. 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				Willemsen Dairy, LLC
By: _________________________				By: _________________________
	Jennifer Reno, Chief
	Land Enforcement Section			Printed: ______________________
Compliance Branch				Title: ________________________
Office of Land Quality
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 1/12/2021
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality