VIA CERTIFIED MAIL:

TO:    Randie Kopkey, Owner
    Bearcat Veal, Inc.
    9669 West, 600 North    
    Huntington, Indiana 46750

On November 13, 1997, designated representatives of the Indiana Department of Environmental Management ("IDEM") conducted investigations regarding complaints of discharges of calf waste into a field tile that drains to Beargrass Creek. The field tile is located at County Road 800 North, one-half mile east of State Road 13 in Wabash County, Indiana (the "Site") which Randie Kopkey (the Respondent) owns. The Respondent also operates a confined feeding operation consisting of approximately 536 veal calves at the Site. These investigations indicate that activities conducted on the Site caused unpermitted discharges of calf waste into Beargrass Creek, therefore violating provisions of IC 13-30-2-1, IC 13-18-4-5, 327 IAC 5-2-2, 327 IAC 2- 1-6 (a) and 327 IAC 2-6.1. In addition, the Respondent has failed to meet the conditions of his confined feeding operations plans.

IC 13-18-10-2.1 (e) (2) states that the department may amend an [confined feeding] approval or revoke an approval as needed to prevent discharges of manure into the environment that pollute or threaten to pollute the waters of the state.

IC 13-30-2-1 (1) states that, a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contamination or waste, including any noxious odor, either alone or in combination with contaminants from other source into:
    (A)    the environment; or
    (B)    any publicly owned treatment works;
in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

IC 13-18-4-5 states that a person may not:
    (1)    throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or

327 IAC 2-1-6 (a) states, in part, "The following are minimum water quality conditions:
    (1)    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;
        (C)    that produce color, visible oil sheen, odor, or other conditions in such             degree as to create a nuisance;
        (D)    which are in amounts sufficient to be acutely toxic to, or to otherwise             severely injure or kill aquatic life, other animals, plants, or humans. . . .
        (E)    which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses."

327 IAC 2-6.1-5 (1) states that, the following spills from a facility must be reported:
    Spills that damage the waters of the state so as to cause death or acute injury or illness to humans or animals.
    
327 IAC 2-6.1-7 states that 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:
     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.
     As soon as possible but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response: Area code 1- 888-233-7745 for in state calls (toll free), (317) 233-7745 for out of state calls. If new or updated spill report information becomes known that indicates a significant increase in the likelihood of damage to the waters of the state, the responsible party shall notify the department as soon as possible but within two (2) hours of the time the new or updated information becomes known.
     Submit to the Department of Environmental Management, Office of Environmental Response, 2525 North Shadeland Avenue, P.O. Box 6015, Indianapolis, IN, 46206-6015, a written copy of the spill report if requested in writing by the department.
     Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:
         For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and
     For spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

327 IAC 2-6.1-4 (11) defines "objectionable substances" as substances that are:
     Of a quantity, and a type; and
     Present for a duration and in a location;
so as to damage waters of the state. This definition excludes hazardous substances, extremely hazardous substances, petroleum, and mixtures thereof.

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.

The violations of the above noted rules and statutes and the determination of failure to meet the conditions of plans are based on the following, noted in IDEM's Final Incident Report (Incident No. 9711062 ), the Indiana Department of Natural Resources'(IDNR) Report of Water Pollution (Case No.F97-85-010069) and other information sources:

At 3:00 p.m. on November 13, 1997, IDNR received a complaint of calf waste contaminating Beargrass Creek near the Site. IDNR Conservation Officer John Salb went to the Site and noticed a reddish tint to the water in Beargrass Creek south of the Site. Officer Salb followed Beargrass Creek north to the Site and found three (3) drain tiles with red liquid flowing in them. Officer Salb had IDEM's Office of Environmental Response notified of the incident. IDEM Emergency Response Section personnel responded to the notification and arrived at the Site at 6:30 p.m. on November 13, 1997. Upon arrival at the Site, Dave Daugherty, the responder, determined that the three (3) drain tiles at the Site had measurable amounts of Ammonia- Nitrogen. The tiles drain to ditches (including Staver Ditch) that drain into Beargrass Creek. The water in Staver Ditch and Beargrass Creek had a red color. Field sampling done of waters on and around the Site verified high levels ( from 4 ppm to greater than 8 ppm) of Ammonia-Nitrogen. High levels of Ammonia-Nitrogen are an indicator of excessive amounts of animal waste and violate minimum water quality conditions.
IDNR and IDEM staff investigations determined that Todd Hoffman was hired by the Respondent to land apply wastewater/manure from the waste lagoon at the Site to a field at the Site. Slight ponding of wastewater/manure was noted on that field. Mr. Hoffman indicated that he had pumped wastewater/manure from the waste lagoon from approximately 9:00 p.m. on November 12, 1997 to approximately 5:30 a.m. on November 13, 1997. Douglas Hathaway, an employee of Mr. Hoffman's, was made aware that there was a problem at the Site around 9:00 a.m. on November 13, 1997. Late in the afternoon on November 13, 1997, Mr. Hoffman began plugging the field tiles and damming and draining Staver ditch to help mitigate damage from the discharge. Mr. Hoffman indicated that he thought there was a broken field tile in the field from which he had pumped the waste. Investigations did not find a broken tile.

The Respondent has violated IC 13-30-2-1(1) in that the Respondent's agent discharged calf waste into the environment that caused pollution that violates rules, standards, and discharge requirements adopted by the Water Pollution Control Board.

The Respondent has violated IC 13-18-4-5 in that the Respondent caused, permitted, and suffered to be drained and disposed, calf waste that caused or contributed to a polluted condition of Beargrass Creek.

The Respondent has violated 327 IAC 5-2-2 in that the Respondent's agent discharged calf waste into waters of the state as a point source discharge without a valid NPDES permit obtained prior to the discharge.

The Respondent has violated 327 IAC 2-1-6 (a) in that the Respondent caused the violation of minimum water quality conditions.

The Respondent has violated 327 IAC 2-6.1, in that the Respondent's agent did not, within two hours, report the spill to IDEM, did not timely contain and clean up the spill, and did not timely notify the nearest downstream water user.

The Respondent has failed to meet the conditions of the Respondent's confined feeding operations plans, in that the Respondent and the Respondent's agent did not prevent ponding or runoff to Beargrass Creek.
    
In accordance with IC 13-30-3-3, the Commissioner is required to notify the Respondent in writing that the Commissioner believes a violation exists, and offer the Respondent an opportunity to enter into an Agreed Order providing for the actions required to correct the violations and for the payment of a civil penalty. The Commissioner is not required to extend this offer for more than sixty (60) days.

If settlement is not reached within sixty (60) days of the Respondent's receipt of this Notice, the Commissioner may issue an order, pursuant to IC 13-30-3-4, containing the actions the Respondent must take to achieve compliance, the required time frames, and an appropriate civil penalty. Pursuant to IC 13-30-4-1, the Commissioner may assess penalties of up to $25,000 per day of any violation.

The timely entry into an Agreed Order will prevent the necessity of an Order of the Commissioner being issued under IC 13-30-3-4, or the filing of a civil court action under IC 13- 14-10 or IC 13-14-2-6. Advantages of entering into an Agreed Order are:
    (1)    The Respondent is not required to admit the violations occurred.
    (2)    The civil penalty may be less than that imposed by a Commissioner's Order issued         under IC 13-30-4-1.

Please contact Martha E. Clark at 317/232-8434 within fifteen (15) days after receipt of this Notice regarding the Respondent's intent to settle this matter. If the Respondent is willing to resolve this matter as provided for in the Agreed Order, sign and return it to the Office of Enforcement at the above address within the 60-day settlement period.
    
                            For the Commissioner

Dated: ____________________             signed 2/27/98
                            David J. Hensel
                            Director
                            Office of Enforcement
Enclosure
cc:    U.S. EPA, Region 5, Office of Water
    Wabash County Health Department

Converted by Andrew Scriven