ILLINOIS POLLUTION CONTROL BOARD

February

4,

1982

COUNTY OF PEORIA,

)

A Body Politic and Corporate,

)

Complainant,

v.

BACON’S

FARM,

Ltd.,

)

and

PCB 80-38

JOELL ALLEN,

Manager, Second Chance,

and

STEVE CORICH,

Manager, Second Chance,

d/b/a “Second Chance,”

Respondents.

INTERIM ORDER OF THE BOARD

(by J.D. Dumelle):

On December 21,

1981 the County of Peoria filed a motion

to compel compliance with the Board’s February 19, 1981 Order

in this matter.

No response

to that motion was

filed until

January 20,

1982 and that response was not accompanied by a

motion to file instanter,

despite

its being

filed three weeks

late.

However, apparently due to inadvertence,

no proof of

service accompanied the County’s December 21 filing

(now cured),

and since the response was filed prior to the matter coming

before the Board for decision, the Board will consider

it.

The County alleges that Second Chance has failed to prepare

and file a sufficient noise study pursuant

to the February 19,

1981 Order in that the submitted report does not include recom-

mendations

for attaining compliance,

copies of test data referred

to in the report, or an abatement plan.

It further alleges that

this was despite repeated requests for additional materials, and

that such conduct shows that Second Chance has

riot acted in good

faith.

Finally,

the County alleges that Second Chance continues

to emit unlawful

levels

of sound.

It therefore requests that

Second Chance be compelled to supply further information and that

a penalty be imposed for its failure to comply

in a timely manner

and act

in good faith.

~c—9c~

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—2—

Second

Chance,

on

the

other

hand,

contends

that

it

did

in

fact

file

~i

timely

and

sufficient

report

and

that

it

has

already

p~3r~ormer~

all

of

the

work

recommended

by

the

consultant

to

att:~in

compliance.

If

all

had

proceeded

according

to

the

Board

Order

in

this

matter,

Second

Chance

would

have

hired

a

consultant

in

response

to

the

Order

and

submitted

a

detailed

study

of

the

noise

problem.

iuciuding

all

research,

recommendations

and

an

abatement

plan

to

the Illinois Environmental Protection agency (~gency),within 30

days of the February 19,

1981 Order

and the Agency would have

made recommendations

to the consultant and Second Chance within

20

days thereafter.

Finally,

Second Chance would have acted

upon

those

recommendations

in

good

faith.

That,

however,

was

not

the

course

of

events.

Instead,

of

hiring

a

consultant

in

response

to

the

Board Order,

Second

Chance

apparently

relied

upon

a

report

which

had

been

prepared

even

before

a

settlement

was

reached

in

this

matter.

It

then

did

file

a

timely

“Second

Chance

Agreed

Settlement

Report0

on

‘larch

11,

1981 which

is dated January 16,

1980

(though the T~oard

assumes that

it should be “1981”) which not only discusses

testi.ng and makes recommendations for compliance, but also

indicates

that all recommended repairs were

in fact completed

on July 22,

1980,

more than five months prior to the filing of

the Stipulation o~Facts and Agreed Settlement of this matter.

3.nd nearly

six months prior to the Board’s decision.

Second

Chance took nearly the full 30 days allowed for submittal of

this report to the Agency on March

18,

1981.

Next,

the Agency failed to respond

to anyone concerning

the sufficiency of that report.

The County apparently contacted

the Agency concerning this and discovered that due to budgetary

arid staffing cuts, the Agency would probably not be able

to

conduct further tests

(see Motion for Extension,

July

12,

1981).

Tiowever,

nothing was alleged concerning the Agency’s ability to

make recommendations as to the sufficiency of the report,

The

record. also gives

no indication of whether the noise tests

were

actually conducted by the County.

Second Chance, on the other hand, contends that due the

~\gency’sfailure

to respond “one must conclude that the

Illinois F~nvironmentalProtection Agency

is

satisfied that the

Consultant’s

report has met the requirements of this Board, and

further that the implementation of the consultant’s recommepd-

ations have eliminated any violation.”

‘Thy one “must conclude

that is puzzling

in light of the County’s July 12 allegation

that: several complaints had been received by the attorney for

the County and the County’s desire to conduct further tests.

A final complicating factor

in

this

matter

is that the

T~gency is not a party to this action and, therefore, cannot

be ordered to file any recommendation.

Rowever, the Board

45—256

---

—3—

accepted

the

agreed

settlement

on

the

basis

that

the

Agency

would

act

as a

neutral

overseer

of

the

compliance

process,

The

Agency

had

represented

its

willingness to do so.

Tha

present

state

of this proceeding appears

to be that

:ho County

is not satisfied that

it has enough information to

determine whether the submitted study is sufficient and, there-

fore,

desires

more

data.

Second

Chance

indicates

that

it

has

made good faith efforts at compliance,

thereby complying with

the February 19 Order.

The Agency has not participated and its

failure to do so has rendered

it impossible

for Second chance

to fully comply

with that Order.

It has, however, recently

indicated its willingness to participate.

The

Board’s intent in this proceeding has been to find a

method for insuring compliance as expeditiously as possible.

and

that remains its intent.

The

Board does not condone Second

Chance’s reliance

upon

unilateral actions taken prior to the

entry

of the Board’s Order as constituting compliance with that

Order or upon its after.the—fact conclusion that Agency inaction

serves as affirmance of its actions.

The Board also fails to

understand the County’s lengthy delay

in moving to compel

compliance.

Therefore,

the Board grants the County’s motion to

compel

in part,

to comply,

and hereby orders:

1.

That within 14 days of the date of this Order Second

Chance furnish the Board,

the Agency and the County

with all further information and data to which

it

has access and which has not been previously submitted

concerning noise testing before and after the abatement

measures were taken;

2.

That within 14 days of the date of this Order the

county furnish any and all information and data to

which

it has access, and which has not been previous’y

submitted,

to Second Chance,

the Agency,

and the

Board.

3.

That within 45 days o~the date of this Order the

Agency,

the County, and Second Chance submit to the

Board comments upon the present state of compliance

by Second Chance with applicable Board regulations

and any recommendations

as to further actions to be

pursued and any penalty to be assessed,

IT IS SO ORDERED.

I, ~hristan L.

Moffett,

Clerk of the Illinois Pollution

Control Board, hq~ebycerti~t at the above Interim Order was

on the

~

day of-i

____

,

1982 by a vote of

-

Christan L. Moffet

45 257

Illinots Pollutton

rd