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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2020-27476-C |
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greenwillow, LLC, |
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Respondents. |
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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 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 Greenwillow, LLC which owns/operates the farm, with Confined Feeding
Operation ID No.7007, AW-6899, located at 7898 W 300 N, in Earl Park, Benton County,
Indiana (“Site”).
3.
Respondent
owns and operates a CFO approved for total capacity of 5,000 dairy cattle and
1,500 dairy calves. IDEM approved Respondent’s CFO Application with
Construction on July 23, 2020. The approval expires July 23, 2025.
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”) to:
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Benton
Dairy, LLC |
Craig
Achen, Registered Agent |
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Attn:
John Boerman, Member |
Benton
Dairy, LLC |
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Benton
Dairy, LLC & Greenwillow LLC |
Benton
Dairy, LLC & Greenwillow |
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dba
Greenwillow Dairy |
LLC
dba Greenwillow Dairy |
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5971
Hickory Dr. |
8444
S CR 900 W |
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Pine
Village, IN 47942 |
Ambia, IN 47917 |
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John
Boerman, Registered Agent |
John
Boerman |
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Greenwillow
LLC |
Greenwillow
LLC |
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Benton
Dairy, LLC & Greenwillow |
Benton
Dairy, LLC & Greenwillow |
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LLC
dba Greenwillow Dairy |
LLC
dba Greenwillow Dairy |
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9965
North 100 East |
500
Elm St., P.O. Box 922 |
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Otterbein,
IN 47970 |
Annandale,
MN 55302 |
6.
During
an investigation including an
inspection on October 28, 2020, conducted by a representative of IDEM,
the following violations were found:
a. Pursuant
to IC 13-18-4-5, a person may not: (1) throw, run, drain, or otherwise dispose
into any of the streams or waters of Indiana; or (2) cause, permit, or suffer
to be thrown, run, drained, allowed to seep, or otherwise disposed into 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 sections 1and
3 of this chapter.
On
October 6, 2020, an equipment failure (pumps in E6) resulted in the release of
approximately 10,000 gallons of manure. That manure reached a field tile that
led to Mud Creek. An unknown amount of that manure entered the creek, causing a
water quality violation and killing fish. Ammonia levels were recorded at 8+
ppm. The tile was cut and flushed with water until the manure was no longer
present. All the tile’s contents were pumped into Respondent’s lagoon E13. The
contaminated water in Mud Creek was pumped out and land applied directly to an
adjacent field with the landowner’s permission.
During
the October 28, 2020 inspection, a visual inspection
of the spill was conducted. The spill had been cleaned up and no visual signs
of a spill was present. Respondent capped the impacted field tile and installed
a gate valve at the tile’s outlet to Mud Creek in the event
that the tile is contaminated in the future. Respondent also regraded
the area South of E6 and E7 so that the stormwater flows back towards the sand
separation pad E7 and manure reception pit E6.
After
leaving the site, Mud Creek was sampled for ammonia/nitrogen in three (3)
locations: the bridge at the entrance to the facility, SR 71, and CR 100 W
which is located at the Indiana/Illinois state line. All three (3) locations
were 0 ppm or non-detect for ammonia/nitrogen.
b.
Pursuant
327 IAC 2-1-6, the following are minimum surface water quality conditions: (1)
All surface waters at all times and at all places, shall
meet the minimum conditions of being free from substances, attributable to
agricultural 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 (C) Produce color, odor, or other conditions in
such degree as to create a nuisance. (D) Are in concentrations or combination
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.
On
October 6, 2020, an equipment failure (pumps in E6) resulted in the release of
approximately 10,000 gallons of manure. That manure reached a field tile that
led to Mud Creek. An unknown amount of that manure entered the creek causing a
water quality violation and killing fish. Ammonia levels were recorded at 8+
ppm. The tile was cut and flushed with water until the manure was no longer
present. All the tile’s contents were pumped into the Respondent’s lagoon E13.
The contaminated water in Mud Creek was pumped out and land applied directly to
an adjacent field with the landowner’s permission.
During
the October 28, 2020 inspection, a visual inspection
of the spill was conducted. The spill had been cleaned up and no visual signs
of a spill was present. Respondents capped the impacted field tile and
installed a gate valve at the tile’s outlet to Mud Creek in
the event that the tile is contaminated in the future. Respondents also
regraded the area South of E6 and E7 so that the stormwater flows back towards
the sand separation pad E7 and manure reception pit E6.
After
leaving the site, Mud Creek was sampled for ammonia/nitrogen in three (3)
locations: the bridge at the entrance to the facility, SR 71, and CR 100 W
which is located at the Indiana/Illinois state line. All three (3) locations
were 0 ppm or non-detect for ammonia/nitrogen.
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.
On
October 6, 2020, Respondent reported a manure spill. Two (2) out of three (3)
pumps in manure reception pit E6 failed causing a spill that impacted a field
tile. The field tile's outlet was in Mud Creek, which was also impacted by the
spill and resulted in a fish kill.
During the October 28, 2020 inspection, it was observed that the failed pumps had
been repaired and re-installed in E6. In addition to the pumps, high level
floats have been installed that will shut off the pump for the manure flush
flume system so that the pump in E6 is not overwhelmed should there be a pump
failure in the future.
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, Respondents
acknowledge notice of this right and
waive 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 Respondents. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondents
shall comply with the statutes and rules
listed in the findings of fact above.
3.
Pursuant
to IC 13-30-4-1, Respondents are assessed and agree to pay a civil penalty of Eleven
Thousand Dollars ($11,000). 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.”
4.
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:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
5.
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 4, above.
6.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
7.
This Agreed Order shall jointly and severally 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.
8.
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.
9.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
10.
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.
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 the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
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 violations
specified in the NOV.
14.
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.
15.
This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondents.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
BENTON
DAIRY, LLC |
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By:
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By: _________________________ |
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Jennifer Reno, Section Chief |
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Land Enforcement Section |
Printed:
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Office of Land Quality |
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Title:
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Date:
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Date:
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COUNSEL
FOR RESPONDENT: |
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By:
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Date:
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RESPONDENT: |
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GREENWILLOW
LLC |
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By: _________________________ |
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Printed:
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Title:
________________________ |
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Date:
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COUNSEL
FOR RESPONDENT: |
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By:
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Date:
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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20__. |
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For
the Commissioner: |
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_ Signed 07/12/21 By __________ |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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