09/16/09

CERTIFIED MAIL

Kenneth Moellers

11687 Yankee Avenue

Cresco, IA 52136

RE: NOTICE OF VIOLATION

567- 65.7(7) Permit prior to construction

567 IAC 64.3 Permit to operate

Dear Mr. Moellers:

On 09/09/09, Tom McCarthy and Amber Sauser of this office conducted a complaint investigation on your dairy operation.

The attached report of investigation should be self explanatory. Please note the requirements and time lines to correct the violations.

If you have any questions please call Tom McCarthy at 563-927-2640.

Sincerely,

ENVIRONMENTAL SERVICES DIVISION

Joe Sanfilippo

Environmental Program Supervisor

cc:

Efile- 45 AFO Cresco 66190 Moellers Kenneth 090909 nins tem

File- AFO/Howard County 66190 Moellers Dairy

Tim Benton, Attorney Generals Office

Randy Clark, DNR Legal Section

DNR-AFO- Gene Tinker (email)

Field Office 1, 909 West Main Suite 4, Manchester, IA 52057 563/927-2640 FAX 563/927-2075

IOWA DEPARTMENT OF NATURAL RESOURCES

ENVIRONMENTAL SERVICES DIVISION

Field Office 1

909 West Main - Suite 4, Manchester, Iowa 52057

Phone: (563) 927-2640 FAX: (563) 927-2075

REPORT OF INVESTIGATION

INVESTIGATION DATE CURRENT: 09/09/09

TO: Kenneth Moellers

11687 Yankee Avenue

Cresco, IA 52136

SUBJECT: Kenneth Moellers Dairy

PERSONS CONTACTED: Kenneth Moellers, Owner and Operator, ph: 563/547-2026

641/330-7977

AUTHENTICATION

INSPECTOR:	DATE:

Tom McCarthy, Environmental Specialist Senior

REVIEWER: DATE:

Clark Ott, Environmental Specialist Senior

File Name: 45 AFO Cresco 66190 Moellers Kenneth 090909 nroi tem

OBSERVATIONS/RECOMMENDATIONS:

On 09/08/09, this office received an anonymous complaint, which stated Moellers’ dairy was digging a large pit behind the dairy barn. Caller also stated that the excavation was very close to a natural gas line. Caller stated Iowa One-Call had not been notified. Caller stated excavated area had filled with ground water.

On 09/09/09, Amber Sauser and I met with Mr. Moellers at the 110th Street dairy operation. I informed Mr. Moellers of the complaint. Mr. Moellers stated that he had received permission from his engineer, Nick Rowe, to excavate the area where the future concrete basins would be built. He stated clay was being harvested for the future clay liner for the concrete pits and the base for sand lanes, photo 1. He stated extra fill was being utilized for a building, driveway and truck turn around at the Yankee Ave site, photos 2 and 3. Extra fill was also used to build a base for a round bale barn at the dairy. I noted the excavated area was at the location of the planned concrete basins. Mr. Moellers estimated the area excavated was 320 foot by 320 foot by 8 foot deep, photos 4, 5 and 6. He stated Iowa One-Call had been phoned. Mr. Moellers was asked if a DNR Storm Water permit had been received for the excavation. Mr. Moellers stated a permit was received. When asked if weekly storm water records had been kept, Mr. Moellers stated he had not kept records, but he would start. I informed Mr. Moellers I needed to double check with DNR management and Legal section to determine if the excavation was a violation. Mr. Moellers stated his engineer would phone me and explain why this was not a violation.

I asked to conduct an annual earthen basin inspection on site. Mr. Moellers stated he did not want the basin inspected until the legal proceedings were finished.

Later in the afternoon, via phone, Mr. Moellers stated I had observed the start of earth work at this location during the site survey this spring and had said nothing. I informed Mr. Moellers that I indeed did note the small amount of earth work and I informed him that further earth work, especially any excavation would be considered to be starting construction without a DNR construction permit. I clearly recall informing Mr. Moellers that further earth work would be a violation. At that time, Mr. Moellers stated he would immediately cease any further earth work.

Report of Investigation

Kenneth Moellers Animal Feeding Operations	Page 2/3

09/09/09

Photo 1. Photo 2.

Photo 3. Photo 4.

Photo 5. Photo 6.

Report of Investigation

Kenneth Moellers Animal Feeding Operations	Page 3/3

09/09/09

Conclusion-

Excavating an area where concrete basins are planned is considered to be starting construction of the basins per IAC 65.8(1) and is a violation of IAC 567- 65.7(7).

65.8(1)

Construction of an animal feeding operation structure begins or an animal feeding operation structure is constructed when any of the following occurs:

a Excavation for a proposed animal feeding operation structure, or excavation for footings for a proposed animal feeding operation structure.

65.7(7)

Permit prior to construction.

An applicant for a construction permit shall not begin construction at the location of a site planned for the construction of an animal feeding operation structure, including an aerobic structure, until the person has been granted a permit for the construction of the structure by the department.

The excavation area is greater than one acre. This department has no record of a Storm Water permit for this site. This is a violation of 567 IAC 64.3(1) Permit to operate.

64.3(1)

Except as otherwise provided in this subrule, in 567—Chapter 65, and in 567—Chapter 69, no person shall operate any wastewater disposal system or part thereof without, or contrary to any condition of, an operation permit issued by the director. An operation permit is not required for the following:

The matter of One-Call being notified will be turned over to the Attorney General’s office.

These violations are being turned over to the Attorney General’s office for further enforcement action.

Requirements-

Upon receipt of this letter Mr. Moellers must cease all earth work at this site until a DNR construction

permit is issued.

Within 10 days of receipt of this letter, Mr. Moellers must submit a Storm Water General Permit # 1 application, (enclosed) to the Des Moines office listed in the application.

Within 30 days of receipt of this letter, Mr. Moellers must have the pollution prevention plan (PPP) in place and take weekly required PPP checks.

Recommendations-

This office has many times recommended you please call this office at 563-927-2640 before any type of construction or modification occurs at any of your animal feeding operations.

We noted stockpiling some material in a grassed waterway west of the Hayek farm, but we did not investigate due to time constraints. Manure should not be stockpiled in a grassed waterway (Code of Iowa 459A.403 Solids Stockpiling, copy enclosed)

Open burning was been observed on site, but not investigated due to time constraints. It is recommended all wastes be placed into a dumpster and taken to the landfill. A brochure on open burning is enclosed.