ILLINOIS POLLUTION CCNTPCL BCARD

December 5, 1986

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

)

PCB 86—122

ROGER BLUNIER, individually,

)

and ROGER ELUNIER, d/b/a

)

PORK CHOP RIDGE,

)

Respondents.

MR.

GERALD

T. KAPR, ASSISTANT ATTORNEY GENERAL, APPEARED ON

BEHALF OF THE COMPLAINANT.

MB. ROGER BLUNIER APPEARED PRO SE.

MR. THOMAS DAVIS AND MR. ERIC ACKERMAN (FROM THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY) WERE ALSO PRESENT AT THE

HEARING.

OPINION AND ORDER OF THE BOARD (by 3. D. Dumelle):

This matter ccmes before the Eoard on a four—count Complaint

filed on August 13, 1986 by the Illinois Environmental Protection

Agency (Agency).

Count I of the Complaint alleged that, on, or about,

September 12, 1984, the Respondents allowed the discharge of

livestock waste from a waste storage lagoon into Panther Creek,

an Illinois water, causing water pollution and a fish kill* in

violation of Section 12(a) of the Illinois Environmental

Protection Act (Act). Count I also alleged that, from February

20, 1974 and continuing intermittently until the filing of the

Complaint, the Respondents caused, threatened, or allowed

contaminants (i.e., livestock waste) to be discharged into

Panther Creek in Woodford County, Illinois, so as to cause, or

*The Agency conducted an investigation of the Respondents’

livestock waste discharge on September 19, 1984 which indicated

that a fish kill had taken place, but the Agency personnel were

not able to determine the number and value of the fish killed

because of the length of time (i.e., a 7—day time interval)

between the discharge and the discovery of the fish kill. (Stip.

3).

74-196

---

—2—

tend to cause, water pollution in violation of Section 12(a) of

the Act.

Count II alleged that, from February 20, 1974 until August

13, 1986 (including, but not limited to, the dates of April 27,

1978; September 6, 1979; November 27, 1979; March 24, 1980; June

16, 1980; September 19, 1984, and September 20, 1984), the

Respondents caused or allowed the discharge of livestock wastes

into Panther Creek which caused unnatural sludge, turbidity, odor

and unnatural color in violation of the requisite water quality

standards, thereby violating 35 Ill. Adm. Code 302.203, 304.105,

and 304.106 and Section 12(a) of the Act.

Count III alleged that, from February 20, 1974 until August

13, 1986 (including, but not limited to, the seven dates

previously specified in Count II of the Complaint), the

Respondents’ livestock waste storage lagoon had an inadequate

freeboard to prevent overflows (during periods that did not

include a 25 year/24 hour storm) and was not impermeable so as to

prevent water pollution, and by failing to maintain proper

livestock waste storage facilities, the Respondents thereby

violated 35 Ill. Adm. Code 50l.404(c)(2) and 50l.404(c)(3) and

Section 12(a) of the Act.

Count IV alleged that, on September 19, 1984 and September

20, 1984, there were discharges of livestock wastes into Panther

Creek from the Respondents’ lagcon due to overflows (that were

not the result of a 25 year/24 hour storm) and the Respondents

failed to notify the Agency of this discharge in violation of the

terms and cond’itions of their NPDES Permit No. IL 0062529,

thereby violating Section 12(f) of the Act.

The parties filed a Stipulation and Proposal for Settlement

on August 13, 1986 and a hearing was held on October 28, 1986 at

which no members of the public were present. (B. 4).

Respondent Roger Elunier is the sole proprietor of a swine

farm operation called Pork Chop Ridge, which is located near the

municipality of Secor (population: 488) in Woodford County,

Illinois. A lagoon, which was constructed to collect and store

livestock wastes from about 1,500 to 2,000 swine, is located on

the Respondents’ property. It is stipulated that the normal

drainage of the area around the livestock waste storage lagoon

travels about 100 feet to a metal culvert. (Stip. 2). The metal

culvert then empties into an unnamed tributary of Panther Creek,

an Illinois water which is located in Woodford County. The

Agency issued NPDES Permit No. IL 0062529 to the Respondents in

September of 1981. This NPDES Permit prohibits discharges from

the livestock waste storage lagoon except in the event of a 25

year/24 hour rainfall (i.e., 5.055 inches in 24 hours). (.Stip.

2).

74-197

---

—3—

On December 10, 1985, the Respondents received written

notice of the Agency’s intent to bring an enforcement action for

alleged violations and were offered an opportunity to meet with

Agency representatives pursuant to Section 31(d) of the Act.

On January 3, 1986, the Section 31(d) meeting was held, and

the formal Complaint was subsequently filed on August 13, 1986.

The proposed settlement agreement provides that the

Respondents admit all** of the violations alleged in the

Complaint and agree to (1) cease and desist from further

violations; (2) abide by all terms and conditions of all permits

issued by the Agency; (3) follow an agreed—upon livestock waste

lagoon compliance plan, and (4) pay a stipulated penalty of

$1,200.00 into the Illinois Environmental Protection Trust Fund

within 30 days of the date of the Board’s Order. (Stip. 5—8).

The Agency has agreed to delete the requirement of a liner for

the livestock waste storage lagoon from the Respondents’ NPDES

Permit. (Stip. 7).

In reference to the issues of the Respondents’ good faith

and environmental harm, the Agency has stipulated that:

“...Respondents, at all times pertinent to the

Complaint filed in this action, have made good

faith efforts to comply with the Act and Board

Regulations, as such any harm to the

environment or public due to the above

described violations was minimal.” (Stip. 5).

Additionally, at the hearing, Mr. Thomas Davis (an Agency

representative) stated:

“I would just like to say for the record and

to the Board that Mr. Elunier has been quite

cooperative during the enforcement action

**

Due to a typographical error in item #1 on page 6 of the

Stipulation and Proposal for Settlement, the admitted violation

of Count II of the Complaint does not specify or list violations

of 35 Ill Adm. Code 302.203, 304.105, and 304.106. Instead, it

inadvertently lists (and therefore repeats) the admitted

violations of Count III of the Complaint. The Board hereby takes

official notice of this typographical error, and therefore will

construe item 4~lon page 6 of the Stipulation so that it includes

the intended admissions of violations of 35 Ill. Adm. Code

302.203, 304.105, and 304.106, as well as the listed violation of

Section 12(a) of the Act, under the heading entitled “Count

II”. (See: item #8 on page 3 of the Stipulation which

constitutes an agreed statement of fact as to the aforementioned

violations).

74-198

---

—4—

against him and that we anticipate him

continuing his cooperation.” (FL 5).

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. Adin. Code 103.180.

Accordingly, the Board hereby finds that the Respondents have

violated 35 Ill. Adm. Code 302.203, 304.105, 304.106,

SOl.404(c)(2), and 50l.404(c)(3) and Sections 12(a) and 12(f) of

the Act. The Respondents will be ordered to: (1) cease and

desist from further violations; (2) follow the agreed—upon

compliance plan for the livestock waste lagoon, (3) abide by all

the terms and conditions of all permits issued by the Agency, and

(4) pay the stipulated penalty of $1,200.00 into the Illinois

Environmental Protection Trust Fund within 30 days of the date of

the Board’s Order.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

OR CE P

It is the Order of the Illinois Pollution Control Board

that:

1. The Respondents have violated 35 Ill. Adm. Code 302.203,

304.105, 304.106, 50l.404(c)(2), and 50l.404(c)(3) and

Sections l~(a) and 12(f) of the Illinois Environmental

Protection Act.

2. The Respondents shall cease and desist from all further

violations.

3. The Respondents shall abide by all the terms and conditions

of all permits issued by the Agency.

4. The Respondents shall follow the following compliance program

in reference to the livestock waste storage lagoon:

(a) A minimum freeboard of two (2) feet shall be maintained

at all times on the lagoon;

(b) An easily visible freeboard marker shall be installed in

the lagoon, with a mark designating the level at which

two (2) feet of freeboard remains;

(C)

A comprehensive waste management program shall be

submitted to the Agency by December 1, 1986;

74-199

---

—5—

(d) The lagoon shall be dewatered and 80—90 of the

accumulated solids (sludge) shall be removed. When

applying the sludge to cropland, the sludge shall be

injected beneath the surface, or, if applied to the

surface, it shall be incorporated into the soil that

day. All land applications shall be performed in

accordance with Subtitle E Agriculture—Related

Pollution Regulations;

(e) The Respondents shall maintain adequate pumps and piping

in operable condition to dewater the lagoon;

(f) Fallow land must always be available for dewatering of

the lagoon;

(g) The Respondents will control all weeds and vegetative

growth on, and around, the lagoon dikes;

(h) For the cropland that is irrigated, the crops should be

planted on the contour;

(i) The Respondents shall submit reports to the Agency on a

monthly basis which include the amount of freeboard

available and the records for land applications of the

wastes.

5. As per item #3 on page 7 of the Stipulation and Proposal for

Settlement, the Agency shall delete the requirement of a

liner for the livestock waste storage lagoon from the

Respondents’ NPDES Permit.

6. Within 30 days of the date of this Order, the Respondents

shall, by certified check or money order payable to the State

of Illinois and designated for deposit into the Environmental

Protection Trust Fund, jointly and severally pay the

stipulated penalty of $1,200.00 which is to be sent to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield, Illinois 62706

7. The Respondents shall comply with all the terms and

conditions of the Stipulation and Proposal for Settlement

filed on August 13, 1986, which is attached and incorporated

by reference as if fully set forth herein.

IT IS SO ORDERED.

Board Member 3. Theodore Meyer dissented.

74-200

---

—6—

I, Dorothy M. Gum-i, Clerk of the Illinois Pollution Control

Board, hereby certify that the above O;inion and Order was

adopted on the

_______________

day of

~

c—

,

1986 by a vote

of

_____________

Illino Pollution Control Board