ILLINOIS POLLUTION CONTROL BOARD
June
18
,
1976
ENVIRONMENTAL PREYI’ECTION AGENCY,
)
Complainant,
v.
)
PCB 75—56
R1~NDALLL. LOVELESS,
Respondent.
Ms.
Marilyn
B.
Resch,
Assistant Attorney General, appeared for the
Complainant;
Mr. Thomas
P.
Carinody, Attorney, appeared for the Respondent.
OPINION AND ORDER OF THE
BC~RD
(by Mr. Zeitlin):
This matter
is before the Board on a Complaint filed by the
Environmental Protection Agency on February
6, 1975, alleging that
Respondent
Loveless’
operation of a cattle feedlot in Macoupin
County,
Illinois caused violation of Sections 12(a)
and 12(d)
of
the Environmental Protection Act and Rules 203(a),
203(d) and 203(f)
of Chapter
3: Water Pollution, of the Board’s Rules and Regulations.
Ill.
Rev.
Stat.,
Ch.
111—1/2,
§S 12(a),
(d)
(1975); PCB Regs.~,Ch.
3,
Rules
203(a),
(d),
(f).
An Amended Complaint filed June 11,
1975
was withdrawn,
(R.9).
At a hearing held in Carlinville on June 19, 1975,
the parties
introduced
a Stipulation of Fact providing only the essentials
concerning Mr. Loveless’ ownership of the feedlot in question,
its
basic operations,
and the surrounding geography,
(Compi.
Ex.
1).
Additional evidence and exhibits were received at that hearing and
at additional hearings held on June 20, July 17 and December
30,
1975.
As discussed below,
the Board has previously dealt with this Record
when issuing an Interim Order, dated September 18,
1975,
overruling
the Hearing Officer on certain evidentiary matters.
At all times pertinent to this matter, Respondent Loveless
operated a feedlot facility located about
7 miles south of Carlin-
yule,
(R.
451).
Until late 1974, the feedlot was capable of
accommodating 4,000-5,000 head of cattle, with an average of 3,500
head actually on the lot,
(Compi.
Ex.
1).
In December,
1974 and
January,
1975,
Respondent abandoned approximately one half of this
capacity by abandoning eight of the individual cattle lots on the
site,
(R.
456).
The facility also has four pit silos
(R.
451),
two
of which were closed during the pendency of this case,
(R.
455).
22—99
—2—
An unnamed natural stream runs through Respondent’s property,
adjacent to the pit silos and certain of the individual cattle feeder
lots.
That unnamed natural stream discharges into Spanish Needle
Creek, which also runs through Respondent’s property, approximately
150 yards
south of the feedlot facility,
(Comp.
Ex.
1).
The Complaint alleges that Respondent’s operations have caused
contaminants to enter both the unnamed natural stream and Spanish
Needle Creek,
in violation of Section
12(a)
of the Act.
Those same
discharges are alleged to have caused the presence of unnatural
sludges and bottom deposits, unnatural color, turbidity and odors
in both the unnamed natural stream and Spanish Needle Creek, in
violation of Rule 203 (a), as well as dissolved oxygen and ammonia
nitrogen levels in violation of Rules
203(d)
and 203(f).
Finally,
Respondent is alleged to have caused the deposition on land of
contaminants
(manure, silage, etc.), so as to cause a water pollution
hazard with respect to both streams in violation of Section 12(d)
of the Act.
The violations are alleged to have continued from
April
16,
1972 through the filing of the Complaint;
in addition,
the Complaint notes specific dates of alleged violation during that
period for each of the above sections of the Act or our Rules.
For individual discussion,
the alleged violations can be broken
into three specific areas.
The first of those is the alleged viola-
tion of Rules 203(d) and 203(f) with regard to Spanish Needle Creek
(Count
I) and the unnamed natural stream
(Count
II).
The Agency’s
proof with regard to these allegations consisted of analytical test
reports showing the result of analysis performed by the Agency’s
laboratory on samples taken over a period of time from those streams.
Admission of those test results into the Record was the subject of
our earlier Interim Order, and the admission and use of those results
to show violation is still contested by Respondent on six distinct
grounds:
Hearsay:
Respondent argues that the test results
do no~fa11within the exceptions to the hearsay rule.
Best Evidence:
Respondent argues that
in three
of four instances for which the Agency has provided
test results,
the Record contains photostatic copies
of the test result forms rather than the original
forms themselves.
Due Process:
Respondent here argues that the
use of the analyses evidenced by the Agency test
result forms
is improper because of the destructive
analysis used by the Agency, and because representa-
tive samples were not available for independent
analysis by Respondent.
22— 1DO
—3—
Due Process:
Respondent argues that the Agency’s
use of the samples which were taken from Respondent’s
property without notification that they might be used,
or would be used,
in an enforcement action,
violates
Respondent
‘S
constitutional rights.
Relevancy and Competence:
Respondent argues that
the test results are nelther relevant nor competent
to show violation, because the Agency failed to show
adequately the weather and other conditions prevailing
at the time the samples were taken.
Affirmative Defense:
Respondent argues that
because the United States Environmental Protection
Agency issued an NPDES permit for Respondent’s
operation, which permit contained later compliance
dates than some of the dates for which violation
was alleged, and which contained exception provisions
for adverse weather conditions,
that permit
—-
in
whose issuance the Illinois Environmental Protection
Agency was involved
-—
provides an absolute defense.
We find none of these arguments convincing.
Witnesses and exhibits presented by the Agency make two essential
points clear:
1.
The quality of the unnamed natural stream
and Spanish Needle Creek was degraded, consistent
with the allegations
in the Complaint;
2.
Such degradation was the result of run—off
and other flows from Respondent’s feedlot operation.
Samples taken by Mr. Leinicke of the Environmental Protection Agency
on May 31,
1972, January
3,
1973, October
9,
1973, and July 30, 1974,
(Ex.
13-28)
indicate violations of the standards for dissolved oxygen
and anmionia nitrogen
in Rules 203 (d)
and 203 (f).
Testimony at the
December
30,
1975 hearing by Mr. Leinicke, Mr.
Totoraitis,
and
Mr.
Hutton,
for the Agency, established that the water samples were
taken and subsequently analyzed within the Agency’s normal routine.
They are convincing on the issue of violation.
Dealing with the last of Respondent’s objections first, we find
that the issuance of an NPDES permit is, prior to State assumption
of NPDES authority,
immaterial to the issues here.
Nor, second, do
we find the lack of extensive testimony concerning weather conditions
at
the time of sampling to be sufficient to require exclusion oi~the
samples and their subsequent analyses.
Even in instances where rain
was falling
(e.g.,
R.
64),
this
is immaterial on
the
issue of
violacions
such as those alleged here; whether Respondent caused such violation
in dry or wet weather is immaterial
——
the violations nonetheless
existed.
22—101
—4--
Respondent’s argument that the water quality samples were
improperly taken is without merit.
Sections
4(c) and 4(d)
of the
Act specifically authorize the testing conducted by the Agency
in
this instance.
Respondent’s claim that the destructive analysis performed by
the Agency, and the Agency’s subsequent failure to provide samples
of those analyses to Respondent, are similarly without merit.
This
issue was decided in part
in our Interim Order,
supra, and need not
be discussed at length here.
It is sufficient to note that the
Agency has shown that the samples taken for this type of analysis
are not amenable to preservation.
Finally, in this regard, we find neither Respondent’s best
evidence nor his hearsay arguments convincing.
The water quality
analyses samples
(Ex.
17-28),
are acceptable both as public records
and under the business records exception to the hearsay rule.
In
addition, the copies submitted by the Agency of those analyses were
accepted only after a showing that the originals were unavailable
after a reasonable search.
Turning next to the alleged violation of Rule 203 (a), we again
find that the Agency’s case has been made.
With respect to both
Spanish Needle Creek and the unnamed natural stream, testimony by
Mr. Leinicke, Mr. Hite
(e.g.,
R.
195-218), Mr. Tucker
(e.g.,
R. 234-
247), and Mr.
Frank
(e.g.,
R.
289—296), showed that Mr.
Loveless’
operations did indeed cause a violation of Rule 203 (a), in that
both waters contained unnatural sludge and bottom deposits, odor,
unnatural plant and algae growth, unnatural color and unnatural
turbidity.
That testimony is further buttressed by the photographs
submitted by the Agency, clearly showing violations
(Compl.
Ex. 3a-
30,
4a—4i, and 5a—5e).
Turning to the alleged violation of Section 12(d) of the Act,
we again have little difficulty finding a violation.
Respondent’s
deposition of silage in four pit silos,
along with the accumulated
manure associated with the various individual feedlots and the
existence of an underground spring, unquestionably caused the problems
described above.
That being the case,
there is no question that the
hazard prohibited
in Section 12(d)
existed during the period complained
of.
Although Mr.
Loveless did abandon two of the pit silos
CR.
455),
as of the time the complaint was filed, there were still considerable
deposits of manure on the hillside above the unnamed natural stream
and Spanish Needle Creek
(R.
407,
466).
Although, as will be noted
below,
this problem may now be remedied,
there is no question of the
fact that the violation did exist during the relevant period.
22— 102
—5-.
Having found that the Agency has made its case and shown all
the violations alleged, we must now turn to consideration of those
factors
in Section 33(c) of the Act, and the various matters pleaded
in mitigation by Respondent.
First,
considering the nature of the
injury caused by Mr. Loveless’ operations, we find that such injury
was significant, and resulted in degradation of the quality of the
unnamed natural stream and, more importantly, Spanish Needle Creek.
Agency testimony concerning biological surveys of Spanish Needle
Creek indicate that the degradation in the area immediately down--
stream of the confluence of the unnamed natural stream with Spanish
Needle Creek was serious
(e.g.,
P... 209).
Although Respondent
objected to the introduction of testimony concerning the biological
surveys conducted by the Agency, the surveys indicated that the
stream was polluted.
Using the Agency’s explanation of what the
survey classifications indicated to the individuals taking the
surveys
(R.
234), and what those classifications empirically indi-
cated, along with the testimony presented,
we have no difficulty
finding that the damage caused was severe.
The Agency’s brief does not question the social and economic
value of Mr. Loveless’ feedlot operations.
Nor, by virtue of its
rural setting, do we have any doubt regarding the suitability or
unsuitability of Mr.
Loveless’ operation for the area
in which it
is located.
While there may be some question regarding the location
of the feedlots adjacent to a stream, in such a manner as to allow
run-off to enter that stream, we find that proper controls can make
such a location entirely suitable.
It is evident, as will be dis-
cussed below, that Mr. Loveless has initiated such controls.
The technical practicability and economic reasonableness of
eliminating Mr. Loveless’ discharges has also been resolved.
Testimony
indicated that by approximately the same time that the Complaint in
this matter was filed,
Mr.
Loveless’ operation achieved compliance
with the applicable regulation
(e.g.,
R. 496,
504).
As early as
1968 or 1969,
Mr. Loveless constructed a small holding lagoon for
run-off from the feedlots
(R.
453).
Subsequently,
in his efforts
to achieve compliance,
Mr. Loveless has closed approximately one--
half of the individual feedlot areas on his property, constructed
an additional larger lagoon to hold run—off, and built and later
strengthened a berm separating a run-off interceptor ditch from the
unnamed natural stream.
Although testimony indicates that during the period alleged in
the Complaint there were breaches and overflow from the small lagoon
and the run-off interceptor ditch, it now appears that this is no
longer a problem.
Mr. Loveless has constructed a piping system to
remove run-off liquids from the smaller holding pond, and pumps
those liquids to the larger holding pond, which is estimated to have
two years holding capacity
(R.
455).
22—103
—6—
In addition, Mr. Loveless has closed two of his pit silos,
which discharged leachate into the unnamed natural stream, and has
installed equipment to pipe liquid discharges from the remaining
pit silos into the larger of his two holding ponds.
The sum of
these actions apparently serves to
--
for at least the present
--
alleviate all problems from the Loveless feedlot operation.
Although the Agency argues
in its brief that Mr. Loveless’
compliance plan is of a temporary nature, because the lagoons will
be at full capacity after approximately two years,
and presented
testimony concerning appropriate permanent control techniques
(e.g.,
R.
302), we do not find that the Record before us would justify
ordering the installation of any irrigation system such as
that
suggested by the Agency.
Mr. Loveless testified
(R.
474), that he
is currently investigating several methods of permanent compliance,
including those suggested by the Agency, and we feel that this matter
is best left for Mr.
Loveless.
His past actions have resulted in
compliance,
and should assure compliance for the immediate future
(i.e.,
approximately two years).
All of the above actions were taken by Mr. Loveless during
what seem to have been relatively constant,
if disorganized and
occasionally haphazard, good faith attempts to achieve compliance
with the applicable rules and regulations.
Mr. Loveless attended
conferences with the Agency
CR.
373)
and, although he did not
achieve compliance within the period envisioned by the Agency, he
apparently did offer considerable cooperation to the Agency.
These
facts, coupled with the Agency’s admission that it has allowed
longer periods for other feedlot operators to achieve compliance,
lead us to find that no penalty would be appropriate in this instance.
The Agency feels that a penalty would be appropriate only as
an example to the operators of other feedlots.
While a penalty
might have such a salutory effect, we do not feel that such a
rationale is appropriate here, where the Respondent has already
achieved compliance, and was subject to the first enforcement case
of this nature.
Respondent has expended considerable sums to
achieve compliance over the past several years.
The construction
of Respondent’s present control facilities
(the two lagoons, the
interceptor ditch,
the pipelines, the pumping system, etc.)
have
indicated an ongoing good faith effort to achieve compliance,
(e.g.,
R.
457-463).
Any additional expenditures by Mr. Loveless
would best be on upgrading the present facilities
to allow for
permanent compliance.
22
—
104
—7—
We shall,
therefore,
instead of imposing a penalty, order that
Respondent Loveless cease and desist all violations.
We shall also
require that he submit to the Agency, within one year,
a plan for
permanent compliance with the Regulations which this Record indicates
were violated.
We leave to Mr. Loveless the substance of such a plan.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in this matter.
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:
1.
Respondent Randall L.
Loveless
is found to have violated
Sections 12(a)
and 12(d) of the Environmental Protection Act, and
Rules 203(a),
(d)
and
(f)
of Chapter
3:
Water Pollution,
of the
Pollution Control Board Rules and Regulations in the operation of
a feedlot in Macoupin County, Illinois, from April
16,
1972 until
February
6,
1975.
2.
Respondent shall cease and desist the above violations.
3.
Respondent shall, within one year of the date of entry
of this Order,
submit to the Environmental Protection Agency a plan
for the permanent control of discharges from his feedlot operations.
Mr. James Young abstained.
I,
Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order we~-e
adopted on the
~
day of ~
,
1976,
by a vote of
_____
Chri.stan L. Mo
e
Illinois Pollution
trol Board
22— 105