1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Mr. Dennis Briner (hereinafter referred to as "Respondent"), who owns and operates a Confined Feeding Facility located in Wabash County, Indiana, which received approval as a Confined Feeding Operation on September 25, 1995.

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

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

Dennis Briner

Triple B Veal

R. R. 3 Box 122

North Manchester, Indiana 46962

5. IC 13-18-4-5 states, in substance, that a person may not:

(1) throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana, or

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 1 and 3 of this chapter.

6. IC 13-30-2-1 states, in substance, that no person may 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 or into any publicly owned treatment works in any form which causes or would cause pollution which violates or would violate rules, standards, or discharge of emission requirements adopted by the appropriate board pursuant to this article.

7. IC 13-18-10-2.1(e) states, "The department may amend an (confined feeding) approval or revoke an approval:

(1) for failure to comply with:

(A) this chapter;

(B) rules adopted under this chapter;

(C) the water pollution control laws; or

(D) rules adopted under the water pollution control laws; and

8. Rule 327 IAC 2-1-6(a)(1) states, in substance, that all 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:

(A) that will settle to form putrescent or otherwise objectionable deposits;

(B) that are in amounts sufficient to be unsightly or deleterious;

9. Rule 327 IAC 2-6-1 states, "This rule applies to the reporting and containment of, and the response to those spills of hazardous substances, extremely hazardous substances, petroleum and objectionable substances that are of a quantity, type, duration and in a location as to damage the waters of the state. Nothing in this rule is intended to affect reporting or cleanup requirements set forth by other federal, state, or local laws."

10. Rule 327 IAC 2-6.1-4(15) defines "spill" as any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss of petroleum, hazardous substances, extremely hazardous substances, or objectionable substances. The term does not include releases to impermeable surfaces when the substance does not migrate off the surface or penetrate the surface and enter the soil.

11. Rule 327 IAC 2-6.1-4(11) defines "objectionable substances" as substances that are:

(A) of a quantity, and a type: and

(B) present for a duration and in a location;

12. Rule 327 IAC 2-6.1-7 states, "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, do the following:

13. Rule 327 IAC 5-2-2 states, "Any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 32 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge."

14. On October 27, 1998, IDNR staff received a citizen complaint about possible stream pollution in Simonton Creek. The Simonton Creek is located in the Northeast corner of Wabash County. IDNR staff noted in the Report of Water Pollution, "I was told that the pollution was coming from the Briner Farm located on 700 East. Having been there on a past pollution report, I immediately drove to County Road 700 East and 1100 North. There, an unnamed ditch that drains into Simonton Creek passes beneath County Road 700 East. As I passed over, I noticed the creek to be a pinkish red color. This I have known to be associated with veal waste. I went North to the Dennis Briner Veal Barn, Eel River #4. I walked to the storage lagoon and noticed that the Northern 1/4 was running over the top of the pit. The surrounding area was spongy wet to walk on. From this point I walked Southeast 0.35 miles to where a drainage tile from the lagoon area was spilling a pinkish red liquid into the unnamed ditch. This was the same tile that delivered the waste from the last spill in 1995."

15. During the morning of October 27, 1998, IDNR staff examined the unnamed ditch downstream of the Respondent's confined feeding operation, and through visual inspection of the ditch, IDNR staff noted the red coloration of the water. Observations and photographs collected by IDNR staff indicate that the Respondent has violated 327 IAC 2-1-6(a)(1) concerning minimum water quality conditions by discharging manure into waters of the state that was in amounts sufficient to produce a noticeable color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance.

16. During the afternoon of October 27, 1998, IDNR staff and IDEM staff continued the investigation into the water quality of the unnamed ditch and the contents of the contaminants. In the IDEM, Initial Incident Report, IDEM staff documented a water quality violation using a LaMotte Ammonia Nitrogen test kit. A sample taken downstream from the Respondent's confined feeding operation indicated an ammonia nitrogen concentration of greater than 8 parts per million (ppm), an amount that was determined to be above the scale on the test kit, providing further evidence of violation of 327 IAC 2-1-6(a)(1).

17. Based on the above noted inspections and samples, Respondent has violated IC 13-18-4-5 by causing, permitting, or suffering to be run, drained, allowed to seep, or otherwise disposed into an unnamed ditch (a water of the state), organic matter (manure) from the Respondent's confined feeding facility that caused or contributed to a polluted condition of the unnamed ditch and Simonton Creek.

18. Respondent has also violated IC 13-30-2-1 by discharging, emitting, causing, or allowing a contaminant or waste (manure) into the environment which caused pollution that violates or would violate rules adopted by the appropriate board pursuant to this article, as evidenced by the above noted inspections.

(a water of the state) as a point source discharge. Such discharge is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge. The Respondent's confined feeding operation does not have an NPDES permit and pollutants were discharged to the unnamed ditch (a water of the state). Therefore the Respondent was in violation of 327 IAC 5-2-2.

1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. The Respondent shall immediately comply with all of the following statutes and rules as stated by Indiana Code and Indiana Administrative Code: IC 13-18-4-5, IC 13-30-2-1, 327 IAC 2-1-6(a), 327 IAC 2-6.1, 327 IAC 5-2-2.

3. The Respondent shall continually maintain two (2) feet of freeboard in the waste storage lagoon at the property located at 11695 North and County Road 700 East. Under no circumstances will the Respondent allow the freeboard of the waste storage lagoon to become less than two (2) feet at any time.

4. The Respondent shall immediately cease any and all types of land application of waste in the field adjacent to the waste storage lagoon containing the field tile where the unpermitted discharge of cattle waste occurred. The Respondent shall not apply any waste to that field until such time as the field tile is removed or repaired.

5. If the Respondent chooses to resume land application in the field where the unpermitted discharge occurred, then the Respondent shall submit photographic and written documentation of the elimination or repair of the field tile to IDEM and obtain written approval from IDEM, before land applying any waste in that field.

6. All submissions required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Chad A. Pigg, Case Manager, Water Enforcement

Office of Enforcement

Indiana Department of Enforcement Management

100 N. Senate Avenue

PO Box 6015

Indianapolis, Indiana 46206-6015

7. The Respondent is assessed a civil penalty of Nine Thousand, Two Hundred and Eighty Dollars ($9,280). Within thirty (30) days of the Effective Date of this Agreed Order, the Respondent shall pay an initial installment penalty payment of One Thousand Dollars ($1,000) to the Environmental Management Special Fund. Four (4) months after the Effective Date of this Order, and every three (3) months thereafter, the Respondent shall pay an installment penalty payment of One Thousand Thirty Five Dollars ($1035), for a total of nine (9) installment payments including the initial installment, until the balance of the Nine Thousand, Two Hundred and Eighty Dollars ($9,280) civil penalty is paid. All installments are to be sent to the address listed in Item 10.

8. In the event the Respondent violates the following terms and conditions, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

Violation Penalty

Failure to comply with:

9. Stipulated penalties shall be due and payable within 30 days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent's violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

10. 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:

11. In the event that the civil penalty required by Order paragraph 7 is not paid within 30 days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-101. The interest shall continue to accrue until the civil penalty is paid in full.

12. 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.

13. 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.

14. 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.

15. This Agreed Order shall remain in effect until Respondent has complied with the requirements of paragraphs 2, 3, 4, 5, and 7 of this Agreed Order.