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. 2021-27961-C
					)
rose acre farms, inc. – cort,					)
Acre egg farm					)
					)
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 Rose Acre Farms, Inc. – Cort Acre Egg Farm, which owns/operates the farm, with Farm ID No. 2725, located at 4887 East CR 800 North in Seymour, Jackson 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:

Tony Wesner, COO	Mark Whittington, Registered Agent
Rose Acre Farms, Inc.	Rose Acre Farms, Inc.
1657 West Tipton Street	1657 West Tipton Street
Seymour, Indiana 47274	Seymour, Indiana 47274

5. During an investigation including an inspection on May 6, 2021, May 11, 2021, May 21, 2021, and July 6, 2021, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to IC 13-30-2-1(1), no person shall 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 a rule adopted by the board under the environmental management laws.

As noted during the inspections, on May 5, 2021, Respondent allowed an unknown quantity of egg wash water from Lagoon Cell 6/E-44 to discharge into Beatty Walker Ditch. In addition, an erosion rill was identified that drains the area of the loading pad on the south end of the manure storage facility into Beatty Walker Ditch. Ammonia/Nitrogen field tests indicated readings of greater than eight (8) parts per million in Beatty Walker Ditch. No fish kill occurred.

b. Pursuant to 327 Indiana Administrative Code (“IAC”) 6.1-8-7(a)(2), storage structures must be maintained such that there is no discharge or seepage of biosolid, industrial waste product, or pollutant-bearing water from the storage structure other than controlled removal for final disposal or land application of the biosolid, industrial waste product, or pollutant-bearing water.

Pursuant to 327 IAC 6.1-8-7(b)(4), the lagoon must be maintained and operated in accordance with the following: The minimum freeboard must be eighteen (18) inches at all times.

As noted during the inspections, Respondent failed to maintain a storage structure, Lagoon Cell 6/E-44, in a manner to prevent a pollutant-bearing water discharge. Specifically, Respondent failed to maintain the required eighteen (18) inch freeboard. Farm self-inspection records indicate the freeboard level for Lagoon Cell 6/E-44 was “high” from April 25, 2021 to May 9, 2021.

c. Pursuant to 327 IAC 19-11-2(b)(1) and (3), the following storm water management practices must be implemented:

(1) Good housekeeping. All areas that may contribute pollutants to storm water discharges should be maintained in a clean, orderly manner.

(3) Sediment and erosion control. Identify areas that, due to topography, activities, or other factors, have a high potential for significant soil erosion and identify structural, vegetative, and initiate stabilization measures to limit erosion.

As noted during the inspections, Respondent allowed eggshells and waste outside of an approved manure storage structure which contributed pollutants to stormwater discharges. In addition, an erosion rill had developed that drained from the loading pad on the south end of the manure storage facility into Beatty Walker Ditch.

6. On or before July 6, 2021, Respondent corrected the violations as noted in Findings of Fact Paragraph #5. The emergency response incident was closed on May 11, 2021.

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 statute and rules listed in the findings of fact above.

3. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Seven Thousand Dollars ($7,000). 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:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

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 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 Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By:  _________________________
	Jennifer Reno, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	_______________, 20_____.
				For the Commissioner:
				Signed 11/4/2021
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality