ILLINOIS POLLUTION CONTROL BOARD
February 26, 1986
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
V.
)
PCLI u5-j..~j~
)
MICHAEL DELANEY,
)
Respondent.
)
MR. JOSEPH J. ANNUNZIO, ASSISTANT ATTORNEY GENERAL, APPEARE) ON
BEHALF OF THE COMPLAINANT.
MR. MICHAEL DELA.NEY APPEARED PRO SE.
OPINION AND ORDER OF THE BOARD (by W.J. Nega):
This matter comes before the Board on a seven-count
Complaint filed on September 3, 1985 by the Illinois
Env±rDnnlental Protection Agency (Agency).
Count I of the Complaint alleged that, on July 5, 1983, the
Respondent caused or allowed the discharge of contaminants into
Illinois waters from a point source by pumping the contents of a
holding pond via a point source (i.e., a hose) into a roadside
ditch which was tributary to an unnamed tributary of the Mackinaw
River in violation of 35 Iii. Adm. Code 309.102(a) and Section
12(f) of the
Illinois Environmental Protection Act (Act).
Count II alleged that, on July
~,
i~L, c~e
~espuu~i~nc
caused or allowed the discharge of effluent
into Illinois
waters
from a point source containing concentrations
of five-day
biochemical oxygen demand (BOD5) and total suspended solids (TSS)
in excess of five times the numerical standard of 10 milligrams
per liter (mg/i) BOD5 and 12 mg/i TSS in violation of 35 Ill.
Adm. Code 304.120(c) and Section 12(a) of the Act.
Count III alleged that, on July 5, 1983, the Respondent
caused or allowed the discharge of effluent into Illinois waters
having obvious color, turbidity, and odor in violation of 35 Ill.
Adm. Code 304.106 and Section 12(a) of the Act.
Count
IV alleged that, on July 5, 1983, the Respondent
caused or allowed the discharge of effluent into Illinois waters
which resulted in, or contributed to, the presence of odor,
—2-
unnatural color and turbidity in the receiving waters (i.e., the
roadside ditch and unnamed tributary) in violation of 35 Ill.
Adm. Code 302.105 and Section 12(a) of the Act.
Count V alleged that, on July 5, 1983, the Respondent caused
or allowed the discharge of
effluent into
Illinois waters which
resulted in, or contributed to, the receiving waters having an
ammonia nitrogen concentration in excess of the numerical
standard of 15 mg/i in violation of 35 Ill. Adm. Code 302.212(a)
and Section 12(a) of the Act.
Count VI alleged that, on July 5, 1983, the Respondent
caused or allowed the discharge of effluent into Illinois water
which resulted in, or contributed to, the unnamed tributary
having a dissolved oxygen concentration of less than 5.0 mg/i in
violation of 35 Ill. Adm. Code 302.206 and Section 12(a) of the
Act.
Count VII alleged that, on July 6, 1983, the contents of the
Respondent s holding
pond were pumped onto an adjacent
cornfield,
where
the liquid was channelizing and flowing east across a
soybean field and threatening to flow into a roadside ditch
tributary
to an unnamed tributary
of the Mackinaw River, thereby
threatening the discharge of contaminants into Illinois
waters so
as to cause, or tend to cause, a water pollution hazard in
violation of Section 12(d) of the Act.
A hearing was held on October 24, 1985, at which a member of
the press was present. (R. 3). The parties filed a Stipulation
and Proposal for Settlement at the hearing and on November 8,
1985.
The Respondent, Mr. Michael Delaney (Delaney), owns and
operates a swine and cattle raising facility near Secor, Illinois
in Woodford County. On a yearly basis, Delaney’s operations
produce about 20 head of market weight cattle and about 1,000
head of market weight swine. Delaney initially buys swine as
feeder pigs and then brings them up to market weight. The
Respondent’s livestock production takes place on open concrete
feedlots. (Stip. 1; R 5). The Agency has characterized the
Respondent’s operations as that of a small sole proprietorship.
(R. 9).
After runoff from the open concrete feedlots is directed to
the southeast corner of the concrete lots, it is then drained
into a settling basin. The resulting effluent from this settling
basin subsequently flows into a holding pond. The contents of
the holding pond were intended to be applied to cropland, since
the Respondent had been instructed by the local Soil Conservation
Service office (which designed the entire system in conjunction
with personnel from the University of Illinois) to apply the
liquid from the holding pond to nearby cropland. (Stip. 1).
-3-
An Agency inspector visited the Respondent’s site on July 5,
1983 in response to an anonymous complaint. The inspector
observed a black liquid being pumped out of the holding pond upon
first arriving at Delaney’s facility. The inspector noted that
the pumping unit consisted of a gasoline engine with about 10 to
15 feet of hose on either end and that the liquid was discharged
through the hose (i.e., a “point source”) into a roadside ditch
which was tributary to an unnamed tributary of the Mackinaw
River. (Stip. i). Other than the Respondent’s discharge of the
black liquid from the holding pond, the Agency inspector saw no
flows in the roadside ditch on July 5, 1983. (Stip. 1). It is
undisputed that both the unnamed tributary of the Mackinaw River
and the roadside ditch are Illinois waters to which the
unauthorized discharge of contaminants from a point source is
prohibited.
The Agency has estimated that about 36,000 gallons of
liquid were pumped from the Respondent’s holding pond into the
roadside ditch. Because the holding pond was nearing its
capacity, the Respondent deemed the pumping operation
necessary. However, when directed to turn off the pumping unit
by the Agency inspector,
the Respondent promptly complied.
(Stip. 2).
Grab samples taken at the roadside ditch at a site
wasdesignated3,420 mg/ias
Stationand
the
B
concentrationindicated
thatof thetotalconcentrationsuspended
solidsof
BOD5
was 250 mg/i, well in excess of five times the appropriate
numerical standard set forth in 35 Ill. Adm. Code 304.120(c).
Moreover, visual observation by the Agency inspector indicated
that the contents of the roadside ditch contained foam, had a
strong animal waste odor, and were black and turbid.
(Stip. 2).
Another grab sample was taken by the roadside ditch at a
concrete dropbox near its confluence with the unnamed tributary
at
a location designated as Station B-i.
Subsequent sampling
indicated that, at Station B-i, the roadside ditch had an ammonia
nitrogen concentration of 350 mg/i. The visual observations of
the Agency inspector confirmed that the contents of the roadside
ditch at the sampling point had a strong animal waste odor and
were black and turbid.
Similarly, another grab sample was taken at the unnamed
tributary at a location about 200 feet south of its confluence
with the roadside ditch at a location designated as Station C.
Test sample results indicated that the unnamed tributary at
Station C had an ammonia nitrogen concentration of 35 mg/i and a
dissolved oxygen concentration of 3.8 mg/i. The Agency
inspector’s visual observations indicated that the contents of
the unnamed tributary at the sampling point contained foam, an
animal waste odor, and were black and turbid. (Stip. 2).
—4—
An additional grab sample of the unnamed tributary which was
taken at a location about 3/4 of a mile downstream of Station C
and designated as Station C-i revealed that the unnamed tributary
at that point contained an odor and was black and turbid.
(Stip. 2).
One day later, on July 6, 1983, the Agency inspector
revisited the Delaney site and observed that liquid from the
holding pond was being pumped onto an adjacent cornfield. This
liquid was channelizing and flowing east to a nearby soybean
field located to the east of the holding pond, thereby
threatening to possibly flow into the roadside ditch.
(Stip. 3)
.
The Agency has stipulated that the “Respondent
believed in good faith that the discharge to the cornfield on
July 6, 1983 was the proper measure to prevent further
pollution”. (Stip. 4). The Agency inspector present at the
scene observed that there was no adverse impact at Station C-i or
further downstream in the unnamed tributary on July 6, 1983,
although he did spot one dead minnow near Station C. (Stip. 4).
The parties have stipulated that, beginning in i984, the
Respondent bought 200 feet of fire hose and has pumped liquid
from the holding pond south across a road and then onto a
cornfield. (Stip. 4). The Agency has stated that “the liquid is
distributed evenly in the cornfield by means of a perforated
hose” and has concluded that “this cornfield is adequate in size
and slope to prevent the entry of the liquid into waters of the
State, and no further pollutional episodes have taken place”.
(Stip. 4).
At the hearing, Mr. Michael Delaney’s undisputed testimony
indicated that he has been in compliance ever since the 1983
incident. In reference to the improper discharge of contaminants
resulting
from the pumping of the contents of the holding pond on
July 5, 1983, the Respondent testified
that “we in no way thought
it would ever cause harm the way we were disposing of it, and as
soon as they told us it would, we changed”.
(R. 13-15).
The proposed settlement agreement provided that the
Respondent admitted virtually all of the
violations alleged in
the Complaint and agreed to: (i)
cease and desist from further
violations; (2) follow an agreed upon compliance plan to take all
necessary measures to prevent the entry of liquid from the
holding pond, or other livestock waste material,
into Illinois
waters, and (3) pay a stipulated
penalty of $500.00 into the
Environmental Protection Trust Fund within 30 days of the date of
the Board’s Order. (Stip. 3-6).
Although the Respondent’s actions did not result in any
significant fish kill, the Board believes that the character and
degree of injury to the health, general welfare, and physical
property of the People of Illinois was potentially significant
—5—
because the Respondent’s discharge was of a very high strength
and adversely affected the roadside ditch and unnamed tributary
for a distance of at least three-fourth of a mile downstream from
the initial discharge. The Respondent’s facility is suitable to
the area in which it is located providing that livestock waste is
appropriately handled and the facility clearly has a social and
economic value when properly operated.
The Board believes that mitigating circumstances in this
case include the facts that the Respondent: (1) is a small sole
proprietorship which reasonably relied on the instructions of the
local Soil Conservation Service office and University of Illinois
personnel pertaining to its discharges; (2) acted in good faith
at all times; (3) was cooperative with the Agency; (4)
immediately followed the directives of the Agency inspector;
(5) took prompt and specific actions to correct and eliminate the
environmental problems and assure immediate compliance; and
(6) has avoided any further pollution incidents since 1983.
(Stip. 1—4).
Additionally, the Board notes that the Agency has emphasized
that the “Respondent in good faith did not believe that the
discharge of liquid from the holding pond into the roadside ditch
would result in effluent and water quality violations or other
adverse impact to the receiving waters.” (Stip. 4). Moreover,
the Agency has stressed that the “Respondent was cooperative with
the Agency and responded to the directives of the Agency
inspector” and “believed in good faith that the discharge to the
cornfield on July 6, 1983 was the proper measure to prevent
further pollution.” (Stip. 4).
In evaluating this enforcement action and proposed
settlement agreement, the Board has taken into consideration all
the facts and circumstances in light of the specific criteria
delineated in Section 33(c) of the Act and finds the settlement
agreement acceptable under 35 Ill. Adm. Code 103.180.
The Board finds that the Respondent, Mr. Michael Delaney,
has violated 35 Ill. Adm. Code 302.203, 302.206, 302.212(a),
304.106, 304.120(c), 309.102(a) and 501.404(c)(4)(A) and Sections
12(a) and 12(f) of the Act. The Respondent will be ordered to
cease and desist from further violations, to follow the agreed-
upon compliance plan, and to pay a stipulated penalty of S500.00
into the Environmental Protection Trust Fund.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
It is the Order of the Illinois Pollution Control Board
that:
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1. As admitted in the Stipulation, the Respondent, Mr.
Michael Delaney, has violated 35 Ill. Adm. Code 302.203,
302.206, 302.212(a), 304.106, 304.120(c), 309.102(a) and
501.404(c)(4)(A) and Sections 12(a) and 12(f) of the
Illinois Environmental Protection Act.
2. The Respondent shall cease and desist from all further
violations.
3. The Respondent shall take all necessary measures to
prevent the entry of liquid from the holding pond, or
other livestock waste material, into waters of the State
of Illinois.
4. Within 30 days of the date of this Order, the Respondent
shall, by certified check or money order payable to the
State of Illinois and designated for deposit into the
Environmental Protection Trust Fund, pay the stipulated
penalty of $500.00 which is to be sent to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois 62706
The Respondent has waived any right to have any unused
portion of the stipulated penalty returned from the
Environmental Protection Trust Fund.
5. The Respondent shall comply with all the terms and
conditions of the Stipulation and Proposal for
Settlement filed on November 8, i985, which is
incorporated by reference as if fully set forth.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
~
day of
___________________,
1986 by a vote
Dorothy M. ~unn,
Clerk
Illinois Pollution Control Board