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. 2019-26373-C

 

 

)

 

DAVID E. KNEPP & SONS, LLC,

 

)

 

 

 

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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. Respondentís 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 David E. Knep & Sons, LLC (Respondent), which owns/operates the confined feeding facility with Farm ID No. 4443, located at 6021 North 900 East, in Montgomery, Daviess, 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:

 

David E. Knepp & Sons, LLC

Stanley E. Knepp, Registered Agent

240 North 450 East

for David E. Knepp & Sons, LLC

Washington, IN 47501

6021 North 900 East

 

Montgomery, IN 47558

 

5.            Respondent owns a confined feeding operation with the capacity for 18,600 poults and 35,400 growout turkeys. The farm consists of eight buildings for livestock and manure storage.

 

6.            During an investigation, including a record review on March 20,2019 conducted by a representative of IDEM, the following violations were found:

 

a.            Pursuant to IC 13-18-10-1(a)(2)(B), a person may not start expansion of a confined feeding operation that increases the manure containment capacity without obtaining prior approval of the department.

 

Based on a review of the March 20, 2019 application and previous approvals, Respondent started expansion of a confined feeding operation (CFO) that increased the manure containment capacity without obtaining prior approval of the department. The 44 x 60 ft. addition to the E8 manure storage building was constructed in 2018 and was submitted for approval in the March 20, 2019 CFO application.

 

IDEM approved the March 20, 2019 CFO application in a Confined Feeding Operation Approval without Construction letter dated April 25, 2019. On May 15, 2019 Respondent submitted a Confined Feeding Operation Completed Construction Affidavit and stated that the P1 manure storage addition and P2 earthen berm constructed at building E8 were completed in accordance with the April 25, 2019 approval letter.

 

b.            Pursuant to 327 IAC 19-1-2(b)(2), a person may not start expansion of a CFO that increases animal capacity or manure containment capacity, or both without obtaining prior approval of the department.

 

Based on a review of the March 20, 2019 application and previous approvals, Respondent failed to obtain prior approval for expansion of a CFO that increased the manure containment capacity. The 44 x 60 ft. addition to the E8 manure storage building was constructed in 2018 and was submitted for approval in the March 20, 2019 CFO application.

 

IDEM approved the March 20, 2019 CFO application in a Confined Feeding Operation Approval without Construction letter dated April 25, 2019. On May 15, 2019 Respondent submitted a Confined Feeding Operation Completed Construction Affidavit and stated that the P1 manure storage addition and P2 earthen berm constructed at building E8 were completed in accordance with the April 25, 2019 approval letter.

 

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 Complainantís delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

 

2.            Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of nine hundred seventy-five dollars ($975.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the thirtieth day being the Due Date.

 

3.            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

 

4.            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 3, above.

 

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

 

6.            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.

 

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

 

8.            Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of 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.         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 IDEMís 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.

 

11.         Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondentís 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 Respondentís efforts to comply with this Agreed Order.

 

12.         Nothing in this Agreed Order shall prevent or limit IDEMís 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.

 

13.         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.

 

14.         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:_________________________

 

Linda L. McClure, Chief

 

 

Land 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 February 18, 2020

 

Peggy Dorsey, Assistant Commissioner

 

Office of Land Quality