ILLINOIS POLLUTION CONTROL BOARD
January
3,
1974
Environmental Protection Agency
V.
PCB 73—55
Peter Eckrich and Sons,
Inc.,
an
)
PCB 73-174
Indiana corporation qualified to
do business in Illinois; and
E.W.
Kneip,
Inc.,
an Illinois
corporation
Michael
A.
Benedetto,
Jr., Assistant Attorney General for the EPA.
Charles W.
Jirauch and Louis M.
Rundio,
Attorneys for Respondents
Eckrich and Kneip.
OPINION AND ORDER OF THE BOARD
(by Dr. Odell)
The Environmental Protection Agency (hereinafter called
EPA)
filed a Complaint on February
7,
1973, against Respondents,
Peter Eckrich and Sons,
Inc. and
E.W.
Kneip, alleging violations
of the Environmental Protection Act
(hereinafter called Act)
and
numerous violations of the Regulations:
(a)
Rules and Regulations SWB-l4 of the Illinois Sanitary
Water Board
(hereinafter called SWB-l4)
(b)
Rules and Regulations SWB-2 of the Illinois Sanitary
Water Board
(hereinafter called SWB-2),
(c)
Chapter Three: Water Pollution Regulations of Illinois
(hereinafter called Chapter Three)
(d)
Rules and Regulations for Refuse Disposal Sites and
Facilities
(hereinafter called Rules and Regulations).
Respondent E.W.
Kneip,
Inc.
is
a wholly owned subsidiary of
Respondent Peter Eckrich and Sons,
Inc.
Kneip owns and operates
a meat packing facility,
the Elburn Packing Company Division,
located at 404 West Nebraska in Elburn,
Kane County,
Illinois.
Eckrich was joined as co—respondent in that Eckrich was alleged to
have exercised full control and direction of the activities
of its
subsidiary E.W.
Kneip.
Count I of the Complaint charged that the Respondents caused
or allowed the discharge of inadequately treated waste into Welch
Creek
so as to cause or tend to cause water pollution, deposited
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505
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“paunch manure” upon the land in close proximity to an unnamed
stream running past Kneip~splant and eventually flowing into
Welch Creek creating a water hazard, and operated a certain
spray irrigation system without a permit,all
in violation of
Sections 12(a),
(d),
and
(c)
of the Act.
Section 12(a) was
alleged to have been violated on specific named dates from
February,
1971,
through December,
1972.
Section 12(d) was
allegedly violated on December 21,
1972;
the permit violation
was a continuing one dating from July
1,
1970.
Rules 1.03(a)
and
(d)
of SWB—l4 were said to be violated
from July
1,
1970,
through April
16,
1972,
in that Respondents
allowed substances which formed putrescent sludge and discharges
harmful
to human, animal, and plant life
to flow into Welch
Creek.
EPA complained that Rule
1.02 of SWB-2 was violated in
that Respondents allowed the treatment facility to be operated by
an individual not properly certified from July 1,
1970,
through
the date of the filing of this Complaint on February
7,
1973.
The EPA averred that Rules 203(a),
403,
404(b),
405,
903(a)
and 914 of Chapter Three were violated.
EPA stated that Rule
203(a) was violated from April
16,
1972,
through February 7,
1973,
in that Respondents allowed deposits harmful to aquatic life
to
enter the waters of Welch Creek.
During the same period, EPA
charged that the Respondents spray irrigation system caused odor
and turbid water in Welch Creek in violation of Rule 403 of
Chapter Three.
Rule 404(b) was allegedly violated from July
1,
1972,
through February
7,
1973,
and specifically on December 21,
1972,
in that Respondents caused the effluent from the spray
irrigation system to exceed 2Omg/l of BOD5.
Rule 405 of Chapter
Three was supposedly violated from July 31,
1972,
through
February 7,
1973,
and particularly on December 31,
1972,
in that
Respondents allowed more than 400 fecal colifarms per 100 ml of
effluent to be emitted from the spray irrigation system.
EPA
also said that Respondents violated Rules 903(a)
and 914 of
Chapter Three from December 31,
1972,
through February
7,
1973,
in that no permit application had been sought
f
or the use of the
winter spray irrigation system.
Count II alleged that Respondent Kneip owned property des-
cribed as the South half of Northwest fractional quarter of
Section
6, Township
39 North, Range
7 East of the Third Principal
Meridian in the Township of Blackberry, Kane County,
Illinois.
Respondents allegedly violated Section 21(b)
of the Act and Rule
3.04 of the Rules and Regulations on certain specified dates from
July
1,
1970, through October
17, 1972, by causing or allowing
the open dumping of refuse.
EPA charged that Respondent Kneip~s
property was inadequately fenced during this same period in
violation of Rule 4,03(a),
Rule
5.06 was allegedly violated by
Respondents during this same time because they failed to properly
spread and compact the refuse “paunch manure” deposited on the
property.
Finally, EPA averred that from July
1,
1970,
until
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—506
—3—
September
7,
1972,
Respondents violated Rule 5.07(a)
of the Rules
and Regulations by failing to satisfy the cover requirements de-
manded by that Rule.
On April
27,
1973,
Respondent sought a variance
(PCB 73-174)
from possible violations alleged in the EPA Complaint of February 7,
1973.
On May 18,
1973,
Respondent amended his variance petition
by the addition of four suggested treatment schemes outlining
alternate methods for compliance with the Act and Rules.
Sometime
during this month, the two cases were consolidated.
EPA filed a
Recommendation on May 31,
1973,
stating that
a variance should not
be granted during the interim period that a compliance program was
being carried out.
Several hearing continuances were granted
while EPA and Respondent Kneip attempted to work out a Settlement.
A hearing was held on Augu.st 7,
1973,
in which a Stipulation
of Facts and a proposed Settlement were made part of the record.
Mr. Jirauch and Mr. Rundio were counsel for Respondents.
Testimony
was given concerning the low profitability of the meat packing
business
(R-30) and the importance of keeping the business in
operation while a program of compliance was being carried out
(R—39).
The parties stipulated that:
1.
Kneip has operated a meat packing facility at the
Kane
County site February,
1971.
2.
“The meat packing facility has treated waste products
generated from its operation by means of a grease separation and
settling tank system and a spray irrigation system.
3.
The spray irrigation system was installed in 1964—65 and
has been in continuous use until the present on property belong-
ing the Kneip.
4.
The spray irrigation system consists of both
a summer and
a winter “ice pack” system.
5.
The spray irrigation system has on occasions discharged
directly or indirectly into surrounding drainage ditches and a
swamp, which eventually feed into the Welch Creek, a tributary
of the Big Rock Creek which flows into the Fox River.
6.
A system of underground field drainage tiles empties at
the headwall of Welch Creek.
The exact locations of all of the
branches of the system are unknown.
It is known that most branches
of the system extend through and beyond Kneip’s prop~rtyand thus
these branches are capable of draining areas on and carrying
emissions and discharges from property and sources other than Kneip’s,
the types and amounts of which are unknown.
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507
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7.
Wastewater treated by Kneip’s treatment facility on
occasion discharges, generally after percolation,
indirectly
into certain underground drainage tiles as shown in Exhibit
1.
8.
Kneip’s efforts to locate the tiles and dig them up or
block them has met with limited success.
Kneip is unable to dig
up or block portions of branches of the field drainage system
which extend beyond its property because this could cause water
to back up onto the property of others through which the tiles run,
although it has yet to be determined that this will in fact occur.
9.
At various times representatives of the EPA conducted
analyses of water samples taken near or around Kneip’s property
and waste water treatment facility.”
10.
Water samples were taken from various locations near or on
Kneip’s property on various dates from September,
1971,
through
December 21,
1972.
Analyses of
these samples establish violations
of Section 12(a)
of the Act, Rules 1.03(a) and
(d)
of
SWB—l4; and
violation of Rules 203(a),
403, 404(b), and 405 of Chapter Three.
“Total area affected by pollution is more than nine stream miles.
However, the proof is not conclusive that this pollution was
principally caused by Kneip since the underground tiles carry
emissions from beyond Kneip’s property line,
there are emissions
from the Village of Elburn’s municipal sewage treatment plant into
the Creek, and there is a strong likelihood that there are other
underground tiles and emission sources along this stretch of
Welch Creek which may discharge into the Creek, but there is no
evidence known to any party of the strength or duration of
the
(different) discharge(s)
.
Measurements
of the Agency’s representative
made on December 21,
1972,
show that on that date the amount of
pollutants increased at
a point downstream from the point of Kneip’s
alleged discharges.”
11.
“Paunch manure” was deposited within several feet of a
drainage ditch on December 21,
1972,
in violation of Section 12(d)
of the Act.
12.
“On August 13,
1971, Kneip was refused an operating permit
by the Agency for its wastewater treatment facilities and has never
been granted one.”
This continued operation violates Section 12(a)
of the Act and Rule 903(a)
and 914 of Chapter Three.
13.
“Kneip has failed to employ a certified operator for their
wastewater treatment facilities”
in violation of Rule
1.02 of SWB-2.
14.
“While Kneip admits for purposes of this settlement that
the effluent and emission measurements stated herein are accurate
as to the samples collected,
Kneip does not admit that these measure-
ments and samples necessarily prove that Kneip’s effluent discharges
materially and detrimentally affected Welch Creek.
10—508
—5—
15.
Kneip has been at all relevant times the owner of the
property described as the South half of the Northwest fractional
quarter of Section
6, Township 39 North, Range
7 East of the Third
Principal Meridian in the Township of Blackberry, Kane County,
Illinois.
16.
Kneip,
in the operating of the meat packing facility,
allowed to remain on property belonging to it
“paunch manure” on
or about June
2,
1971,
August 17,
1971,
August 19,
1971, January 7,
1972, February 17,
1972, May 26,
1972, August 7,
1972, August 8,
1972, September 20,
1972,
and October
17,
1972,
in violation of
Section 21(b)
of the Act and Rule 3.04 of the Rules and Regulations.
17.
Kneip,
on the dates indicated in
16 above, failed to spread,
compact,
and cover the “paunch manure”
in violation of Rule 5.06
of the Rules and Regulations.
18.
Kneip investigated and experimented with the possibility
of composting the “paunch manure”
for over a year in connection
with a permit issued to Kneip by the EPA in November of 1971. When
Kneip’s investigation and experiments revealed that composting was
not practicable,
Kneip arranged to have the “paunch manure” hauled
to an approved sanitary landfill and notified the EPA of the
decision in November of 1972.
19.
Kneip has not placed new deposits of
“paunch manure” on
its land since November
7,
1972,
and has as of on or about r4arch
1,
1973, completely removed the previously accumulated “paunch manure.”
The conditions and provisions of settlement included the following
important agreements:
1.
Immediate interim action by Respondent Kneip will be taken
to diminish pollutant discharge. This will include grading and con-
struction of dikes near
the irrigation fields; other immediate
action will include the planting of foliage, daily grease basin
skimming, and investigation of methods to solve the drainage—tile
problem.
2.
Kneip will undertake
a long-range program to bring the
Elburn packing plant into compliance with the Act and Rules.
The
program will include the implementation of
“scheme one”
as out-
lined in the amended petition for variance filed May 18,
1973.
The
final completion date
is September
1,
1975.
3.
Monthly progress reports will be supplied to EPA until
compliance
is achieved.
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508
—6—
4.
Eckrich
is dismissed from this action with prejudice.
“All violations alleged in the Complaint not expressly admitted
by stipulation are hereby dismissed with prejudice.
5.
Kneip will pay a fine of $9,000 as the full and only
penalty for any and all the admitted violations.
6.
This settlement proposal is expressly conditioned upon
complete approval by the Board of
all stipulations, conditions,
and provisions enumerated herein without change or modification
of any kind, degree or nature; rejection by the Board of any
stipulation, condition,
or provision or any change or modification
of any kind, degree or nature shall be rejection of the entire
settlement proposal.”
We hold that the settlement agreed to by the parties should
be carried out.
The violations are numerous and long—lasting so
that the imposition of a $9,000 penalty is reasonable and indeed
warranted.
Although the program of compliance will take twenty
months,
we believe that continued plant operation during this
period can be justified if Respondent acts with diligence and
good faith in satisfying the mandate of the Environmental Protection
Act.
Furthermore, the parties have bargained extensively and the
proposal will result in the abatement of future pollution problems.
For these reasons we accept the Settlement proposed and enter our
Order accordingly.
This Opinion constitutes the findings of fact and conclusions
of law of the Board.
ORDER
It is the Order of the Pollution Control Board that:
1.
Respondent Kneip cease and desist from violating the Act
and Regulations established in this Opinion in such manner as set
out in the Stipulation of Facts agreed to by the parties.
2.
Respondent Kneip implement fully and completely within
the prescribed time limits the program of compliance set out in the
Conditions and Provisions
of Settlement as agreed to among the
parties and incorporated into the July 24,
1973,
hearing.
3.
Respondent Kneip report monthly to the EPA its progress
under the compliance program.
A variance is granted for one year
from date of this Order contingent upon faithful performance of
its schedule of compliance set out in the Conditions and Provisions
of Settlement.
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4.
Respondent Kneip pay to the State of Illinois the
sum of $9,000 as
a penalty for violations as set out in the
proceeding.
Payment shall be by certified check or money order
addressed to the Fiscal Services Division,
Illinois Environmental
Protection Agency,
2200 Churchill Drive,
Springfield, Illinois
62706.
Payment shall be tendered within
35 days of the adoption
of
this Order.
5.
Respondent Eckrich is dismissed from this action to
the extent and in the manner agreed to among the parties.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, certify that the above Opinion and Order was adopted by
the Board on the
~
day of
________________,
1974, by
a vote
of
q
to
o
C4~A~/1~.
Christan L. Moff~tX/Cler~k
Illinois Pollutiofr~eontrolBoard
10—511