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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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OF
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Complainant, |
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Case No. 2022-28629-C |
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2022-28630-C |
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GREEN COW
POWER, LLC AND, |
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ELISHA DAVID
YODER AND NAOMI YODER |
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Respondents. |
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AGREED ORDER
Complainant
and Respondents 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.
Respondents’ entry into this
Agreed Order shall not constitute a waiver of any defense, legal or equitable,
which Respondents 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, Green Cow Power, LLC (“Respondent GCP”),
owns and operates a Biomass Anaerobic Digester, located at 66569 County Road 13,
in Goshen, Elkhart County, Indiana (“Site 1”). The Digester authorization was
issued on October 1, 2020 with an expiration date of October
1, 2025. The Digester authorization is included in the Confined Feed Operation
Approval issued to Brent Martin. [VFC#8305216].
3.
Respondents, Elisha David
and Naomi Yoder (“Respondents Yoder”), own the property located on 6th
Road, Bremen, Marshall County, parcel # 50-43-24-000-018.000-005 (“Site 2”).
4. Respondent GCP was issued Hybrid
Industrial Waste Product Land Application Permit, No. IN LA 000853, on October
1, 2021 with an expiration date of September 30, 2031
(“IN LA 000853”). [VFC # 83223464].
Respondent
GCP is the “Permittee” for IN LA 000853.
5.
IDEM
has jurisdiction over the parties and the subject matter of this action.
6.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) via Certified Mail to:
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Brent
E. Martin, Manager |
Elisha
David Yoder and Naomi Yoder |
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Green
Cow Power, LLC |
63133
County Road 13 |
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66569
County Road 13 |
Goshen,
Indiana 46526 |
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Goshen,
Indiana 46526 |
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Loren
Sloat, Registered Agent for |
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Green
Cow Power, LLC |
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102
Heritage Parkway |
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Napanee, Indiana 46526 |
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7. Pursuant
to 327 Indiana Administrative Code (“IAC”) 6.1-2-55(3), "Storage" means
containment of biosolid, industrial waste product, or pollutant-bearing water
for a period of two (2) years or less at:
(1) a
treatment plant;
(2) a
generating facility; or
(3) an
approved storage structure.
8. Pursuant to 327 IAC 6.1-1-3(a), this
article applies to the following:
(1) Any
person who prepares biosolid, industrial waste product, or pollutant-bearing
water for land application or marketing and distribution in Indiana.
(2) Any
person who applies biosolid, industrial waste product, or pollutant-bearing
water to the land in Indiana.
(3) Biosolid,
industrial waste product, or pollutant-bearing water applied to the land in
Indiana.
(4) Biosolid
or industrial waste product that is marketed or distributed for use as soil or
soil amendment.
(5) Land
in Indiana where biosolid, industrial waste product, or pollutant-bearing water
is land applied.
(6) Storage
structures for any biosolid, industrial waste product, or pollutant-bearing
water regulated under this article.
9. During an investigation including an
inspection on March 25, 2022 and April 7, 2022,
conducted by a representative of IDEM, the following violations were found:
a. Pursuant to 327 IAC 6.1-8-1(c), lagoons
must not be constructed for the storage of biosolid, industrial waste product,
or pollutant-bearing water except in accordance with sections 2 and 6 of this rule.
Pursuant to IN LA 000853, Permit
Condition C.4., any structures constructed for the sole purpose of storing
industrial waste products prior to land application must be constructed and
maintained as required in 327 IAC 6.1-8 unless otherwise approved under a
confined feeding approval under 327 IAC 19, a solid waste processing facility
permit issued under 329 IAC 11, or a solid waste land disposal facility permit
issued under 329 IAC 10.
As noted during the inspections,
Respondents Yoder constructed an unpermitted 850,000-gallon clay lined earthen
lagoon, at Site 2, and received and stored forty (40) semi tank trailers of
industrial waste product from the biomass anaerobic digester owned/operated by
Respondent GCP, from March 25, 2022 to May 14, 2022.
Respondents Yoder did not construct the
850,000-gallon clay lined earthen lagoon in compliance with 327 IAC 6.1-8-1(c),
as is required for the storage of industrial waste products.
Respondent GCP transported industrial
waste product from its biomass anaerobic digester, Site 1, to the unpermitted
850,000-gallon clay lined earthen lagoon at Site 2, which had not been
constructed as required by 327 IAC 6.1-8-1(c) and IN LA 000853, Permit
Condition C.4.
b. Pursuant to 327 IAC 6.1-8-2(a),
requests for a permit for a lagoon must be submitted at least one hundred
eighty (180) days prior to the intended date of construction.
As noted during the April 7, 2022 inspection, Respondents Yoder constructed an
850,000-gallon clay lined earthen lagoon for the storage of industrial waste
product without submitting a request for a permit at least 180 days prior to
construction.
c. Pursuant to 327 IAC 6.1-8-3(b), lagoons
must not be constructed or maintained:
(1) within one thousand (1,000) feet of any:
(A) residence;
(B) public building; and
(C) property line;
(2) within six hundred (600) feet of any
surface waters or the surface conduit to a subsurface feature;
(3) within two hundred (200) feet of any well;
(4) in a flood plain; and
(5) in a manner that allows the biosolid,
industrial waste product, or pollutant-bearing water to enter surface waters or
ground water.
As noted during the April 7, 2022 inspection, Respondents Yoder constructed the
850,000-gallon clay lined earthen lagoon within:
a. 26 feet of a residence’s barn [lagoon
berm to barn],
b. 139 feet of the residence [lagoon berm
to residence], and
c. 149 feet of a residential well [lagoon
inner bank to well].
d. Pursuant to 327 IAC 6.1-3-7(a), a
person who prepares a biosolid, industrial waste product, or pollutant-bearing
water is legally responsible under this article for:
(1) the handling, transporting, storage,
marketing and distribution, and land application of the biosolid, industrial
waste product, or pollutant-bearing water; and
(2) compliance with the land application
permit issued under this article and all applicable provisions of this article.
Pursuant to IN LA 000853, Permit
Condition A.5., Respondent GCP may select and use nonsite-specific
land applications sites only in Elkhart County.
As noted during the inspections,
Respondent GCP prepared an industrial waste product and was legally responsible
for the:
a. transportation of the industrial waste
product to an unpermitted 850,000-gallon clay lined earthen lagoon, at Site 2,
which had not been constructed in compliance with 327 IAC 6.1-8-1(c),
b. storage of the industrial waste product
in an unpermitted 850,000-gallon clay lined earthen lagoon, at Site 2, which
had not been constructed in compliance with 327 IAC 6.1-8-1(c), and
c. land application of the industrial
waste product which occurred in Marshall County, a county not approved for land
application per IN LA 000853. Respondents Yoder land applied the industrial
waste product on May 14, 2022.
e. Pursuant to 327 IAC 6.1-3-7(d), if the
person who prepares a biosolid, industrial waste product, or pollutant-bearing
water provides a biosolid, industrial waste product, or pollutant-bearing water
to another person for final land application or for marketing and distribution
and that receiving person does not alter the characteristics of the biosolid,
industrial waste product, or pollutant-bearing water, then the person who
applies or markets and distributes the biosolid, industrial waste product, or
pollutant-bearing water is also responsible for complying with this article and
IC 13-30-2.
Pursuant to 327 IAC 6.1-1-3(b), a land
application permit is required for the disposal in Indiana of any biosolid,
industrial waste product, or pollutant-bearing water by application upon or
incorporation into soil.
As noted during the inspections,
Respondents Yoder received industrial waste product from Respondent GCP to
store in an unpermitted 850,000-gallon clay lined earthen lagoon, at Site 2.
Respondents Yoder did not alter the characteristics of the industrial waste
product. Respondents Yoder land applied the industrial waste product on May 14,
2022, without a land application permit.
f. Pursuant to 327 IAC 6.1-5-2, for an
industrial waste product to be eligible for a marketing and distribution
permit, the following criteria must be met:
(1) The pollutant concentrations are less
than the concentrations in Table 3 in 327 IAC 6.1-4-9(c).
(2) The industrial waste product must be
dewatered.
(3) The industrial waste product must not
contain a concentration of polychlorinated biphenyls (PCBs) of two (2)
milligrams per kilogram or greater on a dry weight basis.
As noted during the April 7, 2022 inspection, Respondent GCP without a market and
distribution permit, transported industrial waste product from Site 1 to Site
2. The industrial waste product transported did not meet the criteria for a marketing and
distribution permit because it had not been dewatered.
10. On May 14, 2022, Respondents Yoder land
applied the industrial waste product in Marshall County, Indiana.
11. 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.
Respondent GCP and Respondents Yoder
(collectively, “Respondents”) shall comply with the rules and permit conditions
listed in the findings of fact above.
3.
Immediately upon the
Effective Date, Respondents shall cease storing industrial waste product in the
unpermitted
850,000-gallon clay lined earthen lagoon, at Site 2.
4.
Respondents have agreed
to close the lagoon through IDEM’s Clean Closure method as outlined in IDEM’s
“Surface Impoundment Closure Guidance,” (Appendix A)
5.
Within
thirty (30) days of the Effective Date of this Agreed Order, Respondents shall
submit a Sampling and Analysis Plan
(SAP) and a laboratory Quality Assurance Project Plan (QAPP) for IDEM
approval. The purpose of the SAP and QAPP shall be to conduct sampling and
analysis to assess potential contamination of different media from use of the
unpermitted lagoon described in Findings of Fact # 9a. The phases of a clean closure
include, but are not limited to, establishment of background levels, removal
verification, waste characterization/classification, and proper disposal. The
SAP and QAPP shall also include a groundwater monitoring plan with the
following information:
a) A sampling program to include the
following constituents:
§
Field
pH,
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Field
specific conductance,
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Chloride,
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Fecal
coliform bacteria,
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Nitrate,
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Nitrite,
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Sulfate,
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Total
dissolved solids, and
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Total
ecoli,
b) Number
and type of samples.
c) Sampling protocol, giving
specific consideration to selection of sampling locations, sampling
methods and techniques, residue stratification, etc.
d) Analytical
methods and quality assurance/quality control protocol.
e) The analytical report must meet the
requirements specified in the “Solid Waste Program Analytical Data Deliverable
Requirements: A Guidance Document.”
6. Within fifteen (15) days of receiving
notice from IDEM of approval of the SAP and QAPP, Respondents shall implement
it as approved and in accordance with the time frames contained therein.
7. In the event IDEM determines that any
plan submitted by Respondents is deficient or otherwise unacceptable,
Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s
notice. After three (3) submissions of
such plan by Respondents, IDEM may modify and approve any such plan and
Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into
this Agreed Order and shall be deemed an enforceable part thereof.
8.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondents otherwise
in writing, shall be sent to:
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Linda
McClure, 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 |
9.
Pursuant to IC 13-30-4-1, Respondents are
assessed and agree to pay a civil penalty of Eighteen Thousand Dollars ($18,000),
for which Respondents are jointly and severally liable. Respondents shall pay by the due date printed
on the Invoice, as attached.
Civil and stipulated penalties are
payable to the “Environmental Management Special Fund” by:
Mail:
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 |
Online:
Accounts Receivable is accepting
payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM.
Under Online Services, click Online Payment options and follow the prompts. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
Phone:
You may also call us at 317-234-3099 and
follow the instructions for Master Card, Visa or Discover payments. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
10.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess
and Respondents shall pay
stipulated penalties in the following amounts:
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Paragraph |
Stipulated Penalty |
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Failure to
submit SAP and/or QAPP |
$500
per week |
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Failure to
implement SAP and/or QAPP |
$400
per week |
11.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondents receive written notice that Complainant has determined a
stipulated penalty is due; the thirtieth day being the “Due Date.” Complainant
may notify Respondents at any
time that a stipulated penalty is due. Failure to notify Respondents 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 Respondents for
violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondents 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. Respondents
are jointly and severally liable for all stipulated penalty assessments.
12.
In the event that the monies
due to IDEM pursuant to this Agreed Order are not paid on or before their Due
Date, Respondents shall pay an
additional penalty of 10 percent, payable to the “Environmental Management
Special Fund” and shall be payable to IDEM in the manner specified in Paragraph
9, above.
13.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
14.
This Agreed Order shall jointly and severally apply to and be binding upon Respondents and all successors and assigns. Respondents shall provide a copy of this Agreed
Order, if in force, to any subsequent owners, successors, or assigns before
ownership rights are transferred.
15.
No change in ownership, corporate, or
partnership status of Respondents
shall in any way alter the Respondents’ status or responsibilities under this
Agreed Order.
16.
Respondents shall ensure that all contractors, firms, and other persons
performing work under this Agreed Order comply with the terms of this Agreed
Order.
17.
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.
18.
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 Respondents pursuant to this Agreed Order, shall
not in any way relieve Respondents
of the obligation to comply with the requirements of any applicable permits or
any applicable Federal or State laws or regulations.
19.
Complainant does not, by its approval of this
Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents may incur as a result of Respondents’ efforts to comply
with this Agreed Order.
20.
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.
21.
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 Respondents may incur as a result of such
communications with the U.S. EPA or any other agency or entity.
22.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL
RECOMMENDATION: |
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Department
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Jennifer
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RESPONDENT: |
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RESPONDENT: |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For
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Signed
11/30/2022 |
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Peggy
Dorsey |
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Assistant
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Office
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