STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT
                )    SS:    OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
        Complainant,            )
                            )
            v.                )CAUSE NO. B-2359 or 1998-4671-W
                            )
ROSE ACRE FARMS, INC.            )
        Respondent                )
                            )

     Respondent is Rose Acre Farms, Inc. ("Respondent"), which owns and operates the Sand Acre facility, located at the intersection of County Road 750 North and 350 East near Cortland, Jackson County, Indiana.

     The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

     Pursuant to IC 13-30-3-3, on June 22, 1999, IDEM issued a Notice of Violation via Certified Mail to:
            
                Lois Rust, President and Registered Agent
                Rose Acre Farms, Inc.
                P.O. Box 1250
                Seymour, Indiana 47274

     Designated representatives of IDEM conducted inspections at the Sand Acre facility on February 10, 1998, and February 11, 1998. These inspections documented evidence that the Respondent was discharging contaminated runoff from a manure pile via a culvert to Walker Ditch. Samples of this runoff water were analyzed, showing that the discharge contained 11 mg/l ammonia nitrogen and 15 mg/l BOD5. This evidence shows that Respondent was in violation of the following statutes and rules:

    A.     Pursuant to IC 13-30-2-1, no person may discharge, emit, cause, allow...any contaminant or waste...into the environment...in any form which causes...pollution which violates rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant to this article. This discharge constitutes a release of a contaminant or waste into the environment causing pollution, in violation of IC 13-30-2-1.

    B.    Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of this state...any organic or inorganic matter that shall cause or contribute to a polluted condition of any waters, according to any rule of the board under section 7 of this chapter. The discharge of contaminated runoff from the Sand Acres facility constituted a disposal of a pollutant which caused a polluted condition, in violation of IC 13-18- 4-5.

    C.      Pursuant to 327 IAC 2-1-6(a)(1), all surface waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil or scum attributable to municipal, industrial, agricultural, and other land use practices or other discharges that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, odor or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other

animals, plants, or humans. The discharge of contaminated runoff containing ammonia nitrogen and BOD5 constituted a violation of 327 IAC 2-1-6(a)(1).

    D.    Pursuant to 327 IAC 2-6.1-7, any person who operates, controls or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state contain the spill, if possible, to prevent additional spilled material from entering the waters of the state; undertake or cause others to undertake activities needed to accomplish a spill response; and as soon as possible, but within two (2) hours of discovery, communicate a spill to the Department of Environmental Management, Emergency Response Section. Respondent did not report the release of contaminated runoff to IDEM, in violation of 327 IAC 2-6.1-7.

6.    The above listed violations are evidenced by the following facts:

    A.    On February 10, 1998, representatives from IDEM, Indiana Department of Natural Resources (IDNR), and the Jackson County Health Department (JCHD) conducted an inspection at the Sand Acres facility and discovered that a pool of black water had been discharged into Walker Ditch, located across the road from the Sand Acres facility. During this inspection, it was observed that Sand Acres had stockpiled a large amount of poultry waste which was exposed to recent precipitation events and surface water run-off. Because of the recent precipitation events, the stockpile became saturated and washed contaminants to a culvert that discharged to Walker Ditch. Walker Ditch is a tributary to the White River.

    B.    On February 11, 1998, IDEM's Emergency Response Section took water samples from Walker Ditch which were submitted to State Department of Health laboratory for analysis. The results of these samples showed ammonia nitrogen to be present in the discharge at a concentration of 11 mg/l and BOD5 to be present at a concentration of 15 mg/l. In addition to the water samples, a field ammonia nitrogen test was taken which tested positive for nitrogen ammonia and showed a level in excess of 8 ppm. Based on the samples collected on February 11, 1998, IDEM representatives determined that the poultry waste stockpile located at the Sand Acres facility had discharged contaminants to Walker Ditch, in violation of IC 13-18-4-5, IC 13-30-2-1, 327 IAC 2-1-6(a)(1), and 327 IAC 5-2-2.

7.     On June 22, 1998, IDEM issued a Warning Letter to the Respondent detailing the violations and outlining the steps necessary to return to compliance. These steps required the Respondent to submit a Manure Handling and Spill Prevention Plan to IDEM within sixty (60) days that address the following:
                

    a.    a description of the manure handling procedures and storage locations;

    b.    a description of control structures and procedures to prevent contaminated runoff from entering bodies of water; and

    c.    a spill response plan that included a description of available spill control equipment.

     On October 22, 1998, IDEM received the manure handling and spill prevention plan that had been requested in the Warning Letter.

     Subsequent to the 1998 events, Respondent's manure handling and spill prevention plan at the Sand Acres site was approved by IDEM. Respondent has implemented the plan and has made a number of physical changes at the facility to effectively manage manure in the future and to prevent the recurrence of discharges from this site.

     After receiving the Notice of Violation, a representative for the Respondent notified IDEM that they would like to separate the settlement discussions in this case from the other pending case which is proceeding concurrently (B-2419, Jenn Acres Facility). IDEM agreed to separate the cases.

     On March 1, 2000, a settlement conference was held at IDEM's offices regarding this case.

     In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

    Site preparation for planting            $650.00
    Fertilizer spreading                $150.00
    Fertilizer transportation            $180.00
    Soil Sampling                    $360.00
    Agronomy consultant                $250.00
    Fertilizer--Composted and granulated $6,000.00
     poultry fertilizer with Humate and
     sea weed added to stimulate root growth
     Application rate at two tons per acre
     3-4-3 analysis
    Clover                        $192.00
    Fescue                 $1552.50
    Rye                     $3,375.00
    Planting                    $450.00
    Lime pellets                 $1,230.00
    Lime spreading                $120.00

     Second year

    Four soil tests                    $240.00
    Agronomy consultant                 $50.00
    Organic granulated fertilizer         $3,000.00
     one ton per acre
    Spreading                     $75.00
    Transportation                 $90.00
    Lime                        $615.00
    Lime spreading                $120.00
    

     Third year

    Two soil tests                    $120.00
    Agronomy consultant                 $25.00
    Organic fertilizer                $750.00
     500 pounds per acre

    Spreading                     $18.75
    Transportation                 $45.00

    TOTAL                 $19,568.25
    Includes annual report of the site agronomy.

     Within thirty days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less than Eleven Thousand Two Hundred Dollars ($11,200) , Respondent shall pay fifty percent of the difference between the estimated cost of the SEP as described above and the actual cost of the SEP.

     Respondent shall complete the above described activities in a timely fashion, as allowed by the progress of the Jennings County Landfill reclamation project . Implementation of this SEP will benefit the citizens of Jennings County by assisting with the proper closure of the above closed landfill site.

     In the event that the Respondent does not complete the SEP as described in paragraphs 2 and 3 above, the full amount of the civil penalty as stated in paragraph 2 above, plus interest established by IC 24-4.6-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from receipt of IDEM's notice to pay. Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

     Civil penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:

                Cashier
                Indiana Department of Environmental Management
                100 N. Senate Avenue
                P. O. Box 7060
                Indianapolis, IN 46207-7060

     In the event that the civil penalty required by paragraph 2 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

     This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate,

or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

     In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

     The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

     This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.

By:     _________________________        By:     _________________________
    Mark Stanifer, Section Chief

COUNSEL FOR COMPLAINANT:        COUNSEL FOR RESPONDENT:
Department of Environmental Management

By: _________________________            By: ________________________
    Nancy Holloran                    Corinne R. Finnerty
    Office of Legal Counsel                
    Department of Environmental Management

Date: _______________                Date: _______________

    APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ___________ DAY OF ______________________, 2000.

                            FOR THE COMMISSIONER: