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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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Complainant, |
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Case No. 2020-27545-C |
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EGG
INNOVATIONS, LLC-ATWOOD FARM, |
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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 Indiana Code (“IC”)
13-30-3-3, entry into the terms of this Agreed Order does not constitute an
admission of any violations 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 Egg Innovations, LLC-Atwood Farm,
which owns and operates the farm, with Confined Feeding Operation ID No. 1089,
AW-6456, located at 4811 W CR 100 N in Warsaw, Kosciusko 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 United States Postal Service to:
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John
Hornbostel, Vice President Sustainability/Co-Manufacturing |
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Egg
Innovations, LLC |
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P.O.
Box 1275 |
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Warsaw,
Indiana 46580 |
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Cathy
Brunnquell, Registered Agent |
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Egg
Innovations, LLC |
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4799
W 100 N |
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Warsaw,
Indiana 46580 |
5.
Egg Innovations,
LLC is the largest originator of 100% free range and pasture raised eggs. Egg
Innovations, LLC-Atwood Farm holds an existing poultry Confined Feeding
Operation (CFO) permit, Farm ID #1089, renewed on February 7, 2020, effective March
2, 2020.
6.
During
an investigation including an
inspection on September 15, 2020, and a record review on December 14, 2020
conducted by a representative of IDEM, the following violations were found:
a. Pursuant
to 327 Indiana Administrative Code (“IAC”) 19-7-5(d), a manure test must be
obtained that provides sufficient information about the manure content to allow
for nutrient recommendations for existing or planned crops and to minimize
nutrient leaching. The frequency of this testing must be:
(1)
Specified in the manure management plan; and
(2)
Conducted
a minimum of once every year.
Respondent’s manure test result for the egg wash
water did not have an amount listed for nitrogen, and the results for the egg
wash water were noted in parts per million as opposed to parts per
thousand-gallon units.
On December 2,
2020, updated manure and soil test results were submitted. An average of two
separate egg wash water test results were used to calculate the amounts of
nitrogen and phosphorus applied.
b.
Pursuant to 327 IAC 19-14-3(d), as of the effective date of this article, the
following must comply with the phosphorus application rates in Table 1:
(1)
Large CAFOs, as defined in 40 CFR 122.23(b)
that were approved for initial construction after February 13, 2003,
(2)
CAFOs with a NPDES permit,
(3)
CFOs approved for initial construction after
the effective date of this article.
Respondent land
applied egg wash water to fields which have soil phosphorus levels greater than
400 ppm.
The egg wash
water is no longer being land applied, but is being
pumped into a tanker and land applied to acreage on Hoffman Farms, or
neighboring farms.
c.
Pursuant to 327 IAC 19-14-3(f), the following
information must be added to the operating record as needed in accordance with
required time frames established in this article and IC 13-18-10, and must be maintained
and updated in the operating record:
(1)
Expected crop yields,
(2)
The date or dates manure, litter, or process
wastewater is applied to each field,
(3)
Precipitation events at the time of application
and for twenty-four (24) hours prior to and following application,
(4)
Test methods used to sample and analyze manure,
litter, process wastewater, and soil,
(5)
Results from manure, litter, process
wastewater, and soil sampling,
(6)
An explanation of the basis for determining
manure, litter, and process wastewater application rates,
(7)
Calculations showing the manure nitrogen and
phosphorus to be applied to each field,
(8)
Total amount of nitrogen and phosphorus actually applied to each field, including documentation of
calculations for the total amount applied,
(9)
The method used to apply the manure, litter, or
process wastewater,
(10)
The date or dates of manure, litter, or process
wastewater application equipment inspection,
(11) USDA soil survey maps of currently
available land application sites,
(12) The type of manure applied,
(13) A written conservation plan with an
explanation of conservation practices used must be completed and implemented
prior to land application on highly erodible land, if required in section 4(j)
of this rule. CAFOs with a NPDES permit must have a nutrient management plan
prior to land application on highly erodible land.
On December
11, 2020, land application records were submitted showing the calculations for
amounts of nitrogen and phosphorus land applied.
Since
Respondent is no longer land applying, the amounts of nitrogen and phosphorus
will be maintained in the marketing and distribution records.
d.
Pursuant to 327 IAC 19-14-7(a), the
owner/operator of the CFO shall provide an information sheet to any person that
receives or purchases more than ten (10) cubic yards of dry manure or four
thousand (4,000) gallons of liquid manure in a year from the CFO unless the
owner/operator takes responsibility for applying the manure.
Respondent did not provide information
sheets to Harlon Slabough, who purchased 100% of the
solid poultry manure, or have a copy in the operating record.
Information sheets were provided to
Harlan Slabough, and also to
a new contractor who is licensed with the Office of State Chemist.
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 listed in the findings of fact
above.
3.
Effective immediately, Respondent shall not
land apply egg wash water to their fields until the phosphorus levels have
dropped under 200 ppm.
4.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise
in writing, shall be sent to:
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Jodi
Pisula, Enforcement Case Manager |
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Office
of Land Quality |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
5.
Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Fifteen Thousand Seven Hundred Fifty
Dollars ($15,750.00). 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.”
6.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess
and Respondent shall pay stipulated penalties in the following amounts:
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Paragraph |
Stipulated Penalty |
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Order
paragraph #3 |
$100.00
per week |
7.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondent receives written notice that Complainant has determined a stipulated
penalty is due; the thirtieth 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 a 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 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:
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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 |
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.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
11.
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.
12.
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.
13.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
Egg Innovations, LLC-Atwood Farm |
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By: _________ |
By:
_________________________ |
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Jennifer
Reno, Section Chief |
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Land Enforcement
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Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: ____ |
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
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For the Commissioner: |
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_Signed
5/4/2021_____ |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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