ILLINOIS POLLUTION CONTROL BOARD
July 22, 1999
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
VICTOR CORY,
Respondent.
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PCB 98-171
(Enforcement - Water)
DESIREE D. PERI, ASSISTANT ATTORNEY GENERAL, ATTORNEY GENERAL’S OFFICE, APPEARED ON BEHALF
OF THE COMPLAINANT; and
VICTOR CORY APPEARED
PRO SE
.
OPINION AND ORDER OF THE BOARD (by C.A. Manning):
This matter is before the Board on a complaint filed by the Illinois Attorney General’s Office on behalf of
the People of the State of Illinois (complainant) against Victor Cory (respondent) on June 19, 1998, pursuant to the
Illinois Environmental Protection Act (Act), 415 ILCS 5/1
et seq.
(1998). Complainant alleges that respondent has
tended to cause water pollution in violation of Sections 12(a) and 12(f) of the Act by discharging and threatening
further discharge of contaminants into a water of the State without a National Pollutant Discharge Elimination
System (NPDES) permit. 415 ILCS 5/12(a), (f) (1998). Complainant also alleges that respondent has violated
Section 501.404(c) of the Board’s rules pertaining to the handling and storage of livestock waste. 35 Ill. Adm. Code
501.404(c).
BACKGROUND
A hearing was held in this matter before the Boar d’s hearing officer, Amy L. Jackson, on January 26, 1999,
in Springfield, Illinois. Complainant called three engineers from the Illinois Environmental Protection Agency
(Agency), and an administrator of livestock waste from the Department of Agriculture (Department) as witnesses.
Respondent testified on his own behalf. Based upon the testimony at hearing, complainant filed a motion to
conform pleadings to proof on February 11, 1999. Complainant filed a posthearing brief on
February 26, 1999, and respondent filed a posthearing brief on March 9, 1999. Complainant filed a reply brief on
March 31, 1999, and respondent filed a reply brief on April 6, 1999.
On April 12, 1999, complainant filed a motion to strike respondent’s reply brief on the grounds that the
Board’s enforcement proceeding rules do not provide for the filing of briefs beyond those expressly required by
the hearing officer. 35 Ill. Adm. Code 103.101
et seq.
Complainant asserts that Hearing Officer Jackson limited the
briefing schedule to complainant’s brief, respondent’s brief, and complainant’s reply brief. Furthermore, the
deadline for respondent’s brief had lapsed by the time he submitted his second brief. Complainant argues that the
Board’s acceptance of respondent’s reply would deny complainant an opportunity to respond to the arguments
contained therein. The record confirms complainant’s assertion
that
Hearing Officer Jackson did not request a
reply brief from respondent, and the deadline for respondent’s brief was March 19, 1999. Tr. at 226. Respondent
did not file a motion
instanter
to file a reply brief after complainant’s reply. The Board grants complainant’s
motion, and strikes respondent’s April 6, 1999 reply brief from the record.
For the reasons stated below, the Board finds that respondent has tended to cause water pollution by the
actual discharge, and continued threat of discharge, of livestock waste contaminants into a water of the State
without an NPDES permit in violation of Sections 12(a) and 12(f) of the Act. 415 ILCS 5/12(a), (f) (1998).
2
Furthermore, the Board finds that respondent has failed to maintain the livestock waste lagoons in such a manner
as to ensure adequate storage capacity in violation of Section 501.404(c) of the Board’s rules. 35 Ill. Adm. Code
501.404(c) (1998). The Board orders respondent to close the livestock waste lagoons, and pay a penalty in the
amount of $22,000 as requested by complainant.
FINDINGS OF FACT
Cory Site
Respondent owns a parcel of land located in eastern Adams County (Cory site), approximately 15 miles
east of Quincy, Illinois that was used to operate a swine production facility intermittently between 1980 and 1985.
Tr. at 12, 13, 149, 174.
1
During this time period, the liquid livestock waste was disposed of in two earthen livestock
waste lagoons. Tr. at 13.
The Cory site consists of three buildings arranged in a horseshoe manner facing east. Tr. at 26, 30. Behind
the buildings is a hill, and approximately 500 feet down the hill are two lagoons - referred to as the north and
south lagoons.
Id.
Each lagoon is circular and approximately 250 feet in diameter. Tr. at 44. The north and west
sides of the lagoons are bordered by berms. Tr. at 113. The south and east sides of both lagoons back into the
hillside.
Id.
West of the lagoons, at the bottom of a 70 foot hill, is a natural waterway which is an unnamed tributary
of the McKee Creek. Tr. at 26, 30.
The hill is roughly a 10% slope from the buildings to the lagoons, and about a 15% to 20% slope from the
lagoons to the tributary. Tr. at 30-31. Water flows in the direction of the slope, towards the tributary. Tr. at 33.
Respondent disputes the State’s topographical analysis of the site, but he admits that he has no specialized training
in surveying. Resp. Br. at 8-9, 17; Tr. at 208-09. Neither party provided a contour survey to show the actual
topography of the Cory site to determine the drainage pattern in the vicinity of the lagoons.
Respondent was issued NPDES Permit Number IL0065064 on November 6, 1987. An NPDES permit
governs when and how a livestock facility can discharge livestock waste. Tr. at 98. The purpose of the permit is to
limit discharges, such as in the event of a catastrophic storm event. Tr. at 149. Respondent’s permit only allowed
the discharge of waste from the lagoon in the event of a catastrophic or chronic rainfall;
i.e.,
rainfall in excess of a
25-year, 24-hour storm (5.5 inches in 24 hours). Tr. at 152. The permit expired on October 1, 1991. (Tr. at 150.)
Respondent asserts that he came to the Agency’s Springfield office to discuss the renewal of his NPDES permit, and
was told that renewal was not necessary because no hogs were on the premises. Tr. at 126, Resp. Br. at 8.
2
The Board finds that respondent has not had an NPDES permit since October 1991, and that the permit held
prior to expiration did not allow the discharge of livestock waste absent exigent circumstances.
Agency Inspections
Three Agency employees inspected the Cory site over a period of several years: Dale
Brockamp, then an
environmental protection engineer with the Agency; John Wells, an agricultural engineer with the Agency’s
Bureau of Water; and David Ginder, an environmental protection engineer for the Agency’s Bureau of Water. Tr. at
18-21, 94-96, 146-147.
1
Citations to the January 26, 1999 hearing transcript will hereinafter be referred to as: “Tr. at ___.”
2
Citations to Respondent’s brief will hereinafter be referred to as: “
Resp. Br. at ___.”
3
On November 8, 1995, Brockamp and Ginder visited the facility. They found the buildings empty, and the
facility abandoned. Tr. at 34-35. Brockamp discovered an eroded area of the west berm of the south lagoon that
had been sloughing down the embankment towards the tributary. Tr. at 36. At this area, the width of the
berm
was two to three feet wide. Tr. at 36. The remainder of the west side berm was six to eight feet wide.
Id
. In Wells’
opinion, a six to eight foot width is the minimum reasonable amount. Tr. at 106.
In Brockamp’s opinion, unless the berm is stabilized, it will continue to erode from precipitation and
wildlife. Tr. at 38. Brockamp testified that if no dewatering occurs, the amount of precipitation that falls both on
top of the lagoons, and runoff from the hillside which drains into the lagoons, will cause the lagoons to overflow.
Tr. at 56, 89. Brockamp believes that the entire berm will fail eventually and that the lagoon contents will drain
into the tributary. Tr. at 38-39, 78.
In his report of the November 8, 1995 inspection, Brockamp indicated that he would be contacting
respondent about repairing the berm. Comp. Exh. 5.
3
While the record refers to a compliance inquiry letter
Brockamp sent to respondent on March 12, 1996, advising respondent of the threat of overflow, this letter is not
part of the record. Comp. Exh. 6. The record does, however, include a reply letter from respondent dated March
21, 1996, which disputes the Agency’s remarks, and asserts that the lagoons are not contaminated, but support
aquatic life. Comp. Exh. 6.
Ginder’s report of the same inspection noted that the south lagoon discharges into the north
lagoon via a connecting pipe, and both lagoons had over two feet of freeboard (the distance between the
surface of the water and the top of the berm). Tr. at 77, Comp. Exh. 17. Ginder also commented that
rainfall had been minimal for three to four months prior to the inspection. Comp. Exh. 17.
On April 17, 1996, this time in respondent’s presence,
Brockamp and Ginder again inspected the site, and
found the erosion at the south lagoon was slightly worse. Tr. at 41-42. Respondent had made no repair efforts. Tr.
at 41. Brockamp advised respondent to repair the berm as soon as possible by a mechanical device,
e.g.,
a
bulldozer, or manually by carrying in soil and packing it into the
berm. Tr. at 42-43. Brockamp also advised
respondent to dewater the lagoons and apply the waste to farm ground at agronomic rates. Tr. at 45. Agronomic
rates depend on the crop to be grown, the anticipated yield, the area soil, and how much nitrogen the yield will
uptake. Tr. at 82.
Respondent concedes damage to the south lagoon’s berm, but argues that the pipe between the two
lagoons effectively prevents overflow. Tr. at 179-82.
A year later, on April 17, 1997, when Brockamp again visited the facility, he found no significant change to
the eroded area of the south lagoon. Tr. at 50. However, Brockamp did witness two pipes in the north lagoon
siphoning water toward the tributary. Tr. at 46. The total flow from the siphoning pipes was about 40 gallons per
minute. Tr. at 47. Brockamp’s report of this inspection states that the water level of the north lagoon had dropped
about three feet, and he estimated that approximately 900,000 gallons of water had been siphoned out of the
lagoon. Comp. Exh. 11. The wastes were not applied agronomically, but were discharged in concentrated forms.
Tr. at 84-85. Respondent admits that Brockamp told him at this inspection that he should not siphon the lagoon
contents to the unnamed tributary. Tr. at 210-11.
Brockamp testified that, since the wastes were never land applied, it is unusual that
Brockamp never
observed a discharge from either lagoon and that the lagoons always have at least two feet of freeboard. Tr. at 50;
Comp. Exh. 11. Wells testified that respondent’s lagoons hold water well and do not seep at the bottom, thereby
increasing the threat of overflow. Tr. at 117. If there had been no siphoning, the lagoons would have overflowed
by now. Tr. at 118.
3
Citations to the Complainant’s exhibits will hereinafter be referred to as: “Comp.
Exh. at ___.”
4
Respondent admits siphoning on April 17, 1997, and one other time approximately six to eight months
earlier. Tr. at 210. He admits that the lagoons might have overflowed if he had not siphoned, and also admits that
Brockamp told him a year earlier that he should not siphon to the tributary. Tr. at 210-11.
A few days later, on April 22, 1997, Brockamp returned to the site to collect samples of the liquid and
sediment from each lagoon. Tr. at 52; Comp. Exh. 11. He could see and smell livestock waste, and the test results
confirmed the presence of livestock waste. Tr. at 40; 109-10. At that time, he noticed that the siphon pipes had been
removed from the north lagoon. Comp. Exh. 11.
On April 2, 1998, respondent requested an alternate use permit from the Department of Agriculture to
stock fish in the two lagoons (which respondent refers to as “ponds”) (Tr. at 161-63; Comp. Exh. 18). The letter
requests a waiver of any and all lagoon closure requirements. Comp. Exh. 18.
On May 7, 1998, Brad Beaver, livestock waste coordinator for the Department of Agriculture Bureau of
Environmental Programs (Department), sent a letter to respondent advising him that the Department would grant
him an alternate use waiver to use the lagoons as ponds, provided that he follow proper lagoon closure
requirements. Comp. Exh. 19.
Beaver testified that 35 Ill. Adm. Code 506.209 prescribes the requirements for lagoon closure. Tr. at 158,
160. To close a lagoon, one must submit a plan to the Department to empty the contents, including remaining
waste sludge plus six inches of soil, fill the hole, and return the landscape to normal. Tr. at 160-161; Comp. Exh. 19.
Respondent has not submitted such a plan.
The next year, on May 20, 1998, Wells observed that the lagoons were not discharging, and the area of
erosion was about the same. Tr. at 98-99, 104. Wells also observed approximately two feet of freeboard in the
north lagoon. Comp. Exh. 14. It did not appear as if any maintenance had been performed on the lagoons or
berms.
Id.
Wells’ report from the inspection states that erosion still appears to pose a serious threat to the
integrity of the berm, and that the steep slope of the berms on both lagoons increases the chance of erosion. Tr. at
105; Comp. Exh. 14. On January 25, 1999, Wells saw only about 15 inches of freeboard in the north lagoon, and a
little more erosion to the south lagoon’s west
berm. Tr. at 121-22.
On September 1, 1998, Wells measured the oxygen content of the lagoons. Tr. at 119. At a depth of
approximately one foot, the oxygen count measured less than two parts per million (
ppm) in the north lagoon, and
less than one-half ppm in the south lagoon. Tr. at 119. Wells’ report from that inspection states that he and
respondent discussed treating and discharging the lagoon contents which would require, among other things, an
NPDES permit. Comp. Exh. 15.
Contents of Lagoon
Complainant alleges that both the north and south lagoons are livestock waste lagoons which presently
contain swine waste contaminants. Comp. Br. at 4.
4
In support of its assertions, complainant provided expert
testimony and submitted lagoon sampling results.
Brockamp testified that the lagoons contain livestock waste
manure constituents. Specifically, he stated that the odor, color, and the constituent analysis results support the
presence of swine waste contaminant in both north and south lagoons. Tr. at 39-40. Regarding the sampling
results, Wells stated that the presence of nitrogen, phosphorus, and potassium are generally associated with
livestock waste. Tr. at 108. Wells testified that the April 22, 1997 sampling results indicated the continuing effect of
livestock waste on the lagoons’ contents. Tr. at 109. In particular, he noted that the sediment phosphorus levels in
both lagoons were in the range of approximately 4,000 to 5,000 mg/kg. Tr. at 110. Further, Wells noted that the
Agency’s Water Planning Section considers that some source of contamination exists if the phosphorus level is 300
4
Citations to the Complainant’s brief will hereinafter be referred to as “Comp. Br. at ___.”
5
mg/kg or more.
Id.
Wells concluded that the presence of phosphorus in the lagoon sediment in the range of 4,000
to 5,000 mg/kg is consistent with the use of lagoons for livestock waste storage. Tr. at 111.
In addition, Wells stated that on September 1, 1998, he measured dissolved oxygen (DO) levels in both
lagoons at a depth of approximately one foot. Tr. at 119. He testified that the DO level in the north lagoon was less
than 2.0 ppm and the DO level in the south lagoon was less than 0.5
ppm.
Id
. Wells concluded that the low DO
levels in the lagoons are consistent with the presence of livestock waste constituents in the lagoons.
Id.
Wells
compared the lagoons to a pond in poor condition which would be expected to contain concentrations of DO at
eight to ten ppm. Tr. at 128.
Regarding the threat of water pollution, Wells stated that a
berm failure would have environmental
consequences. Tr. at 106-07. He said that a berm failure could result in the release of the entire contents of the
lagoon, including the sludge and bottom sediments, which have a high nutrient content and oxygen demand. Tr. at
107. Wells stated that the oxygen demand of the waste, under certain flow conditions, could use up enough oxygen
in the tributary to McKee Creek to kill off any oxygen breathing organisms.
Id.
He also noted that ammonia
nitrogen and other constituents in the sludge could be toxic to aquatic life. Tr. at 107-08. Damages may include a
loss of fish and other aquatic life, contamination of groundwater, and harm to wildlife and domestic cattle. Tr. at
49.
While respondent believes that the lagoon water is not a contaminant, he has not provided any sampling
data or expert testimony to refute the complainant’s charges regarding the nature of the lagoons’ contents.
5
It is evident from the sampling results presented by the complainant that both the lagoons still contain
livestock waste constituents. While the sampling results indicate low nutrient levels in the lagoon wastewater, the
nutrient levels in the sediment samples are in the typical range of nutrients present in livestock waste lagoons.
Further, the low DO levels in the lagoon wastewater also indicate the presence of livestock waste constituents.
With regard to the threat of water pollution, the discharge of the lagoon contents into the unnamed
tributary due to berm failure or overflow would have a significant impact on the receiving stream. Particularly, a
failure of the west side berm of the south lagoon could result in a release of approximately 1.5 million gallons
(based on lagoon surface area of 0.75 acres and a depth of 6 feet) of low DO livestock waste into the unnamed
tributary. Such a large discharge of low oxygen content waste would have severe impact on the oxygen dependent
aquatic life in the unnamed tributary, and may also have an impact on
McKee Creek into which the unnamed
tributary discharges. In addition, the high nutrient loading from the sediments in the lagoon may also have a toxic
effect on aquatic life.
The Board finds that complainant’s testimony and the lagoon sampling results show that both the lagoons
contain livestock waste constituents. Further, the Board also finds that a discharge of the lagoon contents into the
unnamed tributary could have a significant adverse impact on the aquatic life in the stream, and also in
McKee
Creek into which the tributary flows.
COMPLAINT AND VIOLATIONS
Complainant initially charged respondent with three counts of violations under the Act: count I
(violations of Section 12(a)); count II (violations of Section 12(f)); and count III (violations of the Board’s rules found
at 35 Ill. Adm. Code 501.404 (c)(4)(A)). Comp. at 4-7. After the hearing, complainant filed a “Motion to Conform
5
Respondent offered no evidence in support of his position except to explain that he believed that a test conducted
by the “State Department of Health” (sic) demonstrated a low parameter for nitrogen. Tr. at 183. Respondent
believes that nitrogen is the only nutrient relevant to discharging at an agronomic rate. Tr. at 190. Respondent
admits that he has no specialized training in water quality, but argues that the lagoons can (and have, for a period
of several hours in 1996 to 1998) supported aquatic life. Tr. at 190, 208; Comp.
Exh. 6.
6
Pleadings to Proof” wherein complainant seeks to add count IV, entitled “Actual Discharge Without NPDES
Permit.” In count IV, complainant argues that the evidence adduced at hearing demonstrates further that
respondent, on April 17, 1997, actually discharged contaminants into the waterway by the siphoning of waste
through PVC pipes without an NPDES permit. The Board will allow complainant’s motion to conform the
pleadings to proof, adding count IV to the original complaint.
Count I: Water Pollution in Violation of Section 12(a) of the Act
Complainant alleges that respondent’s actions violated Section 12(a) of the Act which prohibits any person
from causing or threatening to pollute Illinois waters. 415 ILCS 5/12(a) (1998). In relevant part, Section 12(a) states
that: “[n]o person shall . . . cause or threaten or allow the discharge of any contaminants into the environment in
any state so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from
other sources . . . .”
Id.
Complainant argues that respondent’s failure to maintain the earthen
berms around his livestock waste
lagoons has threatened the discharge of contaminants into McKee Creek and that, by threatening the discharge of
contaminants into McKee Creek, respondent has threatened to cause water pollution in violation of Section 12(a).
Comp. Br. at 3.
As relief for this violation, and as discussed below, complainant seeks an order requiring respondent to
completely dewater the lagoons and to remove all swine waste sludge to agricultural land in accordance with
relevant agronomic rates. Complainant also seeks an order requiring respondent to cease and desist from any
further violations of the Act. Additionally, complainant requests that the Board order a monetary penalty as
allowed by Section 42(a) of the Act, and an award of attorney fees and costs as allowed by Section 42(f) of the Act.
415 ILCS 5/42(a), (f) (1998).
Respondent argues that the expense of dewatering lagoons and cleaning out sludge is $260,000. Tr. at 204.
Respondent requests that the Board grant him approval to “ dewater both lagoons at an agronomic rate on grass
land the EPA currently mis-identifies,” (as a water of the State) and bulldoze dirt over the bottom residue. Tr. at
202, 205; Resp. Br. at 3.
Complainant argues that the eroded and unrepaired area of the south lagoon’s west berm threatens the
overflow of livestock waste contaminants into an unnamed tributary leading to
McKee Creek. Comp. Br. at 3, 6.
The maintenance of the lagoon berm is a very important factor influencing the continued use of the lagoon, since it
affects the structural integrity of the lagoon. The issue of
berm deterioration becomes even more significant when
the lagoon is located within close proximity to waters of the State.
In the present context, the testimony of the Agency engineers and the photographs of the south lagoon
clearly show that a certain section of the west-side
berm has deteriorated over time as a result of erosion and
disrepair. Comp. Exh. 3, 4, 9, and 10. The photographs of the berm indicate substantial damage, which may cause
the berm to fail. As noted by complainant, there is no way of predicting when the
berm will break, but the present
condition of the berm and continued erosion significantly increases the threat of failure. A break in the west-side
berm of the south lagoon would result in a large volume (approximately 1.5 million gallons based on a lagoon
area of 0.75 acres with a depth of 6 feet) of livestock waste being discharged into the unnamed tributary, which is a
water of the State.
Complainant further asserts that the threat of overflow is compounded by the Cory site’s topography
which causes precipitation to drain down slope to the lagoons, thereby increasing the water level. Comp. Br. at 8.
With regard to potential lagoon overflow caused by rainfall runoff, the record contains contradicting statements
concerning the runoff flowing into the lagoons. While the respondent states that runoff flow is very limited,
complainant contends that runoff flow to the lagoons is substantial. Photographs submitted by complainant of the
north lagoon being dewatered by siphoning suggest that rainfall runoff does affect the waste level in the lagoons.
7
Comp. Exh. 8. Furthermore, respondent admitted to siphoning the lagoons’ contents on two occasions in order to
avoid overflows. Tr. at 181, 210.
Respondent first argues that there has been no water pollution in violation of the Act. He makes several
claims in support of this argument.
6
First, respondent argues that any overflow from the lagoons does not
discharge into a water of the State or a tributary leading to a water to the State, but rather to a grass-land pasture
area, which he claims experts have referred to as a “grass filter strip.”
7
Respondent believes that the tributary is a
vegetative filter strip between the lagoons and
McKee Creek, and that the quality of the lagoon contents is safe to
be applied directly to the grassland. Resp. Br. at 3, 7-8.
Although the tributary would filter some nutrients, it would not meet design criteria as a vegetative filter
strip for three reasons. First, a vegetative filter strip would need to be
bermed off to prevent outside water from
over-saturating the filter. Tr. at 216. In the present case, water flows through the water way.
Id.
Second, the area
is steeper than is recommended for a vegetative filter strip. Design criteria for vegetative filter strips require not
more than a two-hour contact time for water absorption by the soil. Tr. at 217-218. The 40-gallon per minute
discharge witnessed on April 17, 1997 (see
infra
p
.
5), would exceed the recommended contact time. Tr. at 210, 218.
The unnamed tributary cannot serve as a vegetative filter because it is not designed to absorb that much material.
Tr. at 218. Third, land application design criteria for applying livestock waste do not allow waste to be applied
within 200 feet of surface water. Tr. at 217. Since water flows through the drainage way, it is within 200 feet of
surface water.
Id.
As a result, the presence of surface water in the drainage way prevents that area from being
used as a vegetative filter strip for the application of livestock waste.
The Board is not persuaded by respondent’s argument that there was no discharge into a water of the
State. The Act defines “waters” as any and “all accumulations of water, surface and underground, natural, and
artificial, public and private, or parts thereof, which are wholly or partially within, flow through, or border upon
this State.” 415 ILCS 5/3.56 (1998). Although there was no evidence of a direct pipe-to-creek discharge into
McKee
Creek, the evidence is clear that the material from the lagoon was siphoned to an area appropriately designated a
water of the State. The siphoning of the lagoons occurred in such a manner that material flowed into a tributary of
McKee Creek. Respondent has presented no convincing evidence that this area has the capacity to hold and receive
40 gallons per minute, or the approximately 900,000 gallons drained from the lagoons. Rather, respondent’s
actions in siphoning in this manner, against the admonitions of the Agency’s engineers, created a situation where
liquid from the lagoon became, in essence, artificial surface water which discharged into
McKee Creek.
Accordingly, the Board finds that the lagoon contents were discharged into a water of the State, and that the
tributary is not a vegetative filter strip.
Respondent further argues that the contents of the lagoon are not contaminants, and that the lagoons
support aquatic life. More specifically, he argues that regardless of the State’s lagoon effluent analyses, lagoon
contents may be applied to crop land at the agronomic rate for nitrogen. Respondent suggests that, because the
nitrogen content of the lagoons is allegedly low, an unlimited amount per acre may be applied.
The Board is not persuaded by respondent’s argument that the waste material in the lagoon is not a
contaminant. The Act defines contaminant as “any solid, liquid, or gaseous matter, any odor, or any form of
energy, from whatever source.” 415 ILCS 5/3.06 (1998). The liquid material in the lagoon need not exceed any
particular established standards to be considered a “contaminant.” Rather, the question is whether the
contaminant is discharged into waters of the State in such a manner as to cause or tend to cause water pollution.
6
Respondent did not present evidence at hearing in support of these claims.
7
Respondent’s testimony refers to a draft stipulation proposal prepared by the Agency in 1986 which is not signed
or file stamped. The draft proposal was not admitted into the record at hearing. Tr. 184-186. Respondent also
argues that the Adams County ASCS State Engineer, the University of Illinois and the Extension Field Engineer of
Western Illinois approved plans which classified the grass land as agricultural crop land, but no evidence supports
this claim. Resp. Br. at 21.
8
The evidence is clear that respondent caused a discharge of contaminants into a water of the State.
Whether such actions constituted water pollution in violation of the Act requires the Board to consider the Act’s
definition of water pollution, which provides the “discharge of any contaminant into any waters of the State,
as
will or is likely to create a nuisance or render such waters harmful or detrimental or injurious to public
health, safety or welfare, or to domestic . . . agricultural, recreational, or other legitimate uses, or to
livestock, wild animals, birds, fish, or
other aquatic life.”
(Emphasis added.) 415 ILCS 5/3.55 (1998). The
evidence demonstrates that the contaminants present in livestock waste are likely to harm aquatic life.
Less specifically, and citing no authority or evidence for this proposition, respondent argues that the
Agency has no jurisdiction over his lagoon, and that it is simply using this case to gain control over an estimated
50,000 abandoned lagoons in Illinois to establish a lucrative source of fines and penalties. Resp. Br. at 3, 12, 21.
Despite respondent’s frustrations and protestations, the law is clear that the Agency has authority over
any person who pollutes or threatens to pollute the waters of Illinois. Recent legislation concerning the specific
treatment of livestock management facilities has not disturbed that basic and well-established proposition
.
8
It is
the Agency’s duty to seek compliance with the Act and, when such compliance is not forthcoming, it is the
Agency’s responsibility to request that the Office of the Attorney General seek an order of enforcement from this
Board or a court of competent jurisdiction. Once the enforcement action has been filed with the Board, it is this
Board’s function to ascertain whether a violation in fact and in law occurred and, if so, how that violation should be
remedied and what, if any, penalty should be imposed.
To establish a violation of Section 12(a), the State must show that a person caused or threatened to cause a
discharge of contaminants into waters of the State so as to cause or tend to cause water pollution. In this case, the
State has done so. The evidence from the Agency’s annual inspections of the site on November 8, 1995, April 17,
1996, April 17, 1997, May 20, 1998, and January 25, 1999, clearly shows that respondent has not maintained the west-
side berm of the south lagoon in good condition in order to minimize any threat of
berm failure due to erosion. If
no action is taken, the berm will inevitably fail, releasing a significant amount of livestock waste into waters of the
State. Evidence of the topography of the site further establishes that this water will drain down the slope to the
unnamed tributary to McKee Creek, a water of the State. Therefore, inadequate maintenance of the lagoon berm
poses an imminent threat of water pollution.
Based on the above, the Board finds that respondent has violated Section 12(a) of the Act (415 ILCS 5/12(a)
(1998)).
Counts II and IV: Threatened and Actual Discharge Without an NPDES Permit in Violation of Section 12(f)
of the Act
Section 12(f) of the Act prohibits any person from causing or threatening to discharge any contaminant
into Illinois waters without an NPDES permit. 415 ILCS 5/12(f) (1998). Specifically, Section 12(f) states that no
person shall “cause, threaten or allow the discharge of any contaminant into the waters of the State . . . from any
point source within the State, without an NPDES permit for point source discharges issued by the Agency under
Section 39(b) of this Act, or in violation of any term or condition imposed by such permit . . . or in violation of any
regulations adopted by the Board.”
Id.
Complainant argues that respondent’s NPDES permit expired in 1991 and was not renewed. Complainant
argues further that respondent has both threatened and actually allowed the discharge of swine waste
contaminants from the lagoons to McKee Creek without an NPDES permit authorizing the discharge, thus
violating Section 12(f) of the Act.
8
See Section 100 of the Livestock Management Facilities Act (510 ILCS 77/100 (1998)).
9
As relief for this violation, complainant seeks similar relief to that requested in count I above: a Board
order requiring respondent to completely dewater the lagoons and remove all swine waste sludge to agricultural
land in accordance with agronomic rates. Comp. at 6.
9
Complainant also seeks an order requiring respondent to
cease and desist from any further violations of the Act. Additionally, the complainant requests that the Board
order a monetary penalty as allowed by Section 42(a) of the Act and an award of attorney fees and costs as allowed
by Section 42(f) of the Act.
Id.
As set forth above, respondent argues that there was no discharge of contaminants into a water of the State
because the tributary is a grassland which acts as a vegetative filter. Tr. at 181-185. Additionally, the respondent
claims that when his NPDES permit expired, he was told by someone at the Agency that he did not need another
permit. Tr. at 126.
The Board has already made a finding of fact that the unnamed tributary qualifies as a water of the State.
In addition, respondent’s NPDES permit for both the north and south lagoons identifies the unnamed tributary as
the receiving waters for any discharge from the north or south lagoon. Comp. Exh. 16. As a water of the State, any
discharge or threatened discharge of livestock waste contaminants to the tributary without a valid NPDES permit
would constitute a violation of Section 12(f) of the Act.
The remaining questions are whether the lagoons qualify as a point source (a requirement for finding a
violation under Section 12(f)), and if so, whether respondent’s actions threatened to discharge, or actually
discharged, livestock waste from that point source.
Ginder testified that a point source discharge is a location where a discharge is occurring, such as a pipe,
or an overflow point. Tr. at 155. On count II, complainant argues that an overflow from a livestock waste lagoon
constitutes a point source discharge because an overflow of the lagoon
berm constitutes a point of discharge.
Comp. Br. at 10. With respect to count IV, the siphon pipes qualify as a point source.
Id.
With respect to count II, the Board has already determined in its analysis of count I that respo
ndent
threatened to discharge contaminants into a water of the State. The Board hereby finds that this threat of discharge
occurred from a point source (the lagoon berm), and without an NPDES permit.
With respect to count IV, the record provides eye-witness testimony to one incident of actual discharge
from a point source (siphon pipes), and respondent admits to one additional discharge event after the expiration of
his NPDES permit.
Accordingly, the Board finds that respondent has violated Section 12(f) of the Act (415 ILCS 5/12(f) (1998))
by both threatening to, and actually discharging contaminants into a water of the State without a valid
NPDES permit allowing him to do so.
9
Citations to the Complaint will hereinafter be referred to as: “Comp. at ___.”
10
Count III: Violations of Livestock Waste-Handling Facility Standards
35 Ill. Adm. Code 501.404(c)
Section 501.404(c) of the Board’s Agriculture Related Water Pollution Regulations (the “Subtitle E”
regulations) requires livestock management facilities which handle liquid waste to have adequate storage capacity.
35 Ill. Adm. Code 501.404(c)(4)(A). Specifically, Section 501.404(c)(4)(A) provides that: “[e]
xisting livestock
management facilities which handle the waste in a liquid form shall have adequate storage capacity in a . . . lagoon
. . . so as not to cause . . . water pollution as defined in the Act or applicable regulations.”
Id.
These regulations
have not been superseded by the regulations promulgated pursuant to the newer Livestock Management Facilities
Act (510 ILCS 77/100 (1998)), but will be the subject of a Board rulemaking to coordinate these older livestock rules
derived from the Environmental Protection Act with the newer rules derived from the Livestock Management
Facilities Act. See Board Docket Number R98-26. Meanwhile, the Subtitle E regulations remain in full force and
effect.
Complainant argues that respondent has violated Section 501.404(c)(4) by failing to manage the lagoon
berms in a manner which ensures adequate storage capacity and prevents overflows, thereby causing water
pollution. Comp. at 7. As relief for this violation, complainant again seeks an order requiring respondent to
completely dewater the lagoons and remove all swine waste sludge to agricultural land in accordance with
agronomic rates.
Id
. Complainant also seeks an order requiring respondent to cease and desist from any further
violations of the Act. Comp. at 8. Additionally, complainant requests that the Board order a monetary penalty as
allowed by Section 42(a) of the Act and an award of attorney fees and costs as allowed by Section 42(f) of the Act.
415 ILCS 5/42(a), (f) (1998).
The storage capacity of a lagoon includes storage volume for livestock waste generated by the facility on
an annual basis, storage volume to handle runoff from a 25-year/24-hour storm, and sludge buildup. In order to
maintain adequate capacity, the treated waste would be land applied on an ongoing basis. In the present case, since
there is no livestock waste being added to the lagoons, the components that affect the storage capacity are the
rainfall runoff entering the lagoons and the amount of waste being removed. Since respondent has not properly
dewatered the lagoons for an extended period of time, the lagoons may not have adequate storage capacity to
handle rainfall runoff. Complainant has shown that, as a result of respondent’s failure to properly
dewater the
lagoons, the lagoons have inadequate storage capacity.
The Board agrees that respondent’s lagoons, while not currently accepting waste, constitute an existing
livestock management facility due to the presence of livestock waste. Thus, Section 501.404(c) of the Board’s
regulations applies. While respondent argues that the
berms are safely holding water (Resp. Br. at 3), the evidence
in the record shows the opposite. The increasing water levels in both lagoons demonstrate the inadequate storage
capacity. While the lagoons’ freeboard levels were about two feet during the inspection on May 28, 1998, they had
decreased to about 15 inches at the inspection on January 25, 1999.
The Board finds that the nine-inch increase in water levels over an eight-month period, combined with the
berm erosion indicates an inadequate storage capacity for the lagoons, which threatens to cause water pollution in
violation of 35 Ill. Adm. Code 501.404(c)(4)(A).
Thus, the Board finds that respondent has violated Section 501.404 (c) of the Board’s regulations concerning
livestock waste.
REMEDY
Closure of Lagoons
11
Having found that respondent has caused or allowed the threat of water pollution to
McKee Creek in
violation of Sections 12(a) and 12(f) of the Act (415 ILCS 5/12(a),(f) (1998)) and 35 Ill. Adm. Code 501.404(c), the
Board must now consider the appropriate remedy.
To ensure long term compliance with the Act, complainant requests that the Board order respondent to
properly close the lagoons in accordance with the Livestock Management Facilities Act (LMFA) (510 ILCS 77/1
et
seq.
(1998) and the rules promulgated by the Board pursuant thereto (Board’s LMFA rules) (35 Ill. Adm. Code
506.209). Comp. Br. at 12.
10
Respondent’s failure to repair the berm erosion, and his desire to continue to dewater
the north lagoon to the unnamed tributary indicates his lack of appreciation for the threat of water pollution.
Id
.
Complainant argues that in order to eliminate the question of future compliance, the Board should require
immediate closure of the lagoons in accordance with the lagoon closure rules at 35 Ill. Adm. Code 506.209.
Compliance with the rules would require respondent to completely remove the lagoon contents, sludge, and an
additional six inches of soil from the lagoon bottom, and then apply the contents to crop fields at an agronomic
rate. Comp. Br. at 12-13.
At hearing, respondent asserted that closing the lagoons would cause a financial hardship, but he did not
present any documentary evidence to support this claim. Respondent stated that he did not realize that he needed
to present documentation to the Board because he had already submitted tax returns, and other financial
information pursuant to complainant’s discovery request. Resp. Br. at 10. Complainant presented evidence that
respondent may be able to trade the north confinement building for some repair work to the
berm. Comp. Exh. 15.
Complainant argues that Illinois courts do not recognize financial hardship as a legal defense to
compliance with the Act. Chicago Magnesium Casting Co. v. Illinois Pollution Control Board
, 22 Ill. App. 3d 489,
317 N.E.2d 689 (1st Dist. 1974). Comp. Br. at 13. At a minimum, complainant argues that respondent should be
required to repair all berm erosion; perform routine maintenance on the berms; routinely dewater the lagoon
contents to crop fields at agronomic rates so that at least two feet of freeboard is maintained in each lagoon; report
the freeboard levels to the Agency on a monthly basis; and construct and maintain storm water diversions to
minimize run off flow to the lagoons. Comp. Br. at 13-14.
Section 15(e) of the LMFA (510 ILCS 77/15(e)(1998)) provides that “[w]hen any earthen livestock waste
lagoon is removed from service, it shall be completely emptied. Appropriate closure procedures shall be followed
as determined by rule.” Although Part 506 of the Board’s LMFA rules (35 Ill. Adm. Code 506) does not specifically
apply to respondent, the rules set forth reasonable and environmentally appropriate procedures for closure.
Section 506.209(a) provides that “[w]hen any earthen livestock waste lagoon is removed from service, it shall be
completely emptied, and appropriate closure procedures shall be followed.”
Id.
Once a lagoon is removed from service, Section 506.209 requires the implementation of appropriate
closure procedures. Specifically, the rules require the owner or operator to submit closure plan to the Department
for review and approval. Again, although the rule is not directly applicable to respondent, the LMFA requires
closure, and the Board finds that procedures set forth in Section 506.209 are reasonable and fitting in this case. The
closure plan should include:
(A)
The sampling, analy sis, and reporting of results of all remaining livestock waste, sludge
and minimum six-inch thickness of soil from throughout the lagoon interior;
(B)
The removal of all remaining livestock waste including sludge, the removal of a
minimum six-inch thickness of soil from throughout the lagoon interior, and the
application of these materials to crop land at agronomic rates consistent with the
10
The Board notes that Part 506 (35 Ill. Adm. Code 506) was promulgated by the Board, not the Department, as
stated in complainant’s brief.
12
provision of the site livestock waste management plan or their otherwise proper
disposal;
(C)
The removal of all assoc iated appurtenances, including but not limited to transfer lines,
ramps, pumping ports and other waste conveyance structures;
(D)
The proper management of any impounded precipitation in the remaining excavation if
it is not immediately filled and the area immediately returned to its pre-construction
condition; and
(E)
The proper abandonment of any monitoring wells installed which shall be conducted
pursuant to the Illinois Water Well Construction Code at 77 Ill. Adm. Code 920.120.
Respondent alleges that he received an estimate of $260,000 for this manner of lagoon closure. Tr. at 204.
Respondent requests that the Board allow him to dewater the liquid lagoon contents in concentrated form to the
“grassland” west of the lagoons (
i.e.,
the unnamed tributary), and bulldoze dirt over the sediment remaining in
the lagoons. Tr. at 202, 205; Resp. Br. at 3. The Board denies respondent’s suggested remedy.
The Board’s LMFA rules prescribe the closure procedures with which respondent must comply. Therefore,
the Board orders respondent to, within 60 days of this order, submit to the Department and to the Agency a closure
plan which is consistent with Section 506.209 of the Board’s LMFA rules (35 Ill. Adm. Code 506.209). Further, the
Board orders closure to be completed by April 1, 2000.
Civil Penalty and Costs
In determining whether a penalty should be ordered against respondent, the Board must consider the
factors set forth in Section 33(c) of the Act (415 ILCS 5/33(c) (1998)):
i.
the character and degree of injury to, or interference with the protection of the health,
general welfare and physical property of the people;
ii.
the social and economic value of the pollution source;
iii.
the suitability or unsuitability of the pollution source to the area in which it is located,
including the question of priority of location in the area involved;
iv.
the technical practicability and economic reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from such pollution source; and
v.
any subsequent compliance. 415 ILCS 5/33(c) (1998).
The following is a discussion of each of the Section 33(c) factors as applied to the facts and circumstances in
this matter.
Character and Degree of Injury to or Interference with the Protection of the Health, General Welfare, and Physical
Property of the People
The complainant’s evidence convinces the Board that the respondent’s failure to properly maintain the
lagoons and respondent’s siphoning of lagoon water toward the unnamed tributary of the
McKee Creek has
created a real threat of water pollution. Complainant offered evidence that the discharge of the lagoon contents
into the unnamed tributary of McKee Creek could consume the oxygen necessary to support aquatic life. The
contamination may also harm indigenous wildlife. The Board also finds that the character and degree of
interference with the protection of health, general welfare, and physical property of the people is a factor in
13
aggravation of the penalty to be imposed.
14
The Social and Economic Value of the Pollution Source
Typically, a pollution source has a social and economic value that must be weighed against the source’s
potential effect on the environment. Here, however, the value of this pollution source is no longer at issue since
the respondent disbanded the hog farming business in 1985. Since then, the farm has not produced any agricultural
product.
Furthermore, any social or economic value the facility may have had in the past is undermined by
respondent’s continued failure to maintain the lagoon
berms and properly dispose of the lagoon contents. The
continuing threat of discharge of contaminants to a water of the State makes the facility a social and economic
liability rather than an asset.
Accordingly, the Board concludes that this factor weighs in aggravation of any penalty to be imposed.
The Suitability or Unsuitability of the Pollution Source to the Area
This factor requires the Board to look at the location of the Cory site, particularly the lagoons, and
determine its suitability to the area.
The Cory site is situated on a hill which slopes down toward a tributary to the
McKee Creek.
Complainant offered evidence that precipitation, as well as run-off from surrounding land, can raise the lagoon
water level. Without stringent berm maintenance and proper dewatering, the lagoons may overflow. Due to the
topography of the site, any overflows would drain into the unnamed tributary. Respondent disputes the Agency’s
topographical analysis, but concedes that he has no specialized training in this field.
Due to the Cory site’s topography, the present condition of the lagoons is not suitable to the location. For
this reason, the Board finds that the location of the lagoons is unsuitable and that this factor weighs in aggravation
of any penalty to be imposed.
Technical Practicability and Economic Reasonableness of Reducing or Eliminating Pollution
Complainant asserts that respondent should be ordered to close the lagoons in accordance with the lagoon
closure rules (35 Ill. Adm. Code 506.209). Respondent’s failure to appreciate the threat of water pollution is clear
by his repeated denials regarding lagoon contamination, regarding the status of the unnamed tributary as a water
of the State, and regarding his admission to siphoning the lagoons. Complainant argues that lagoon closure would
assure long term compliance with the Act. Comp. Br. at 13.
At a minimum, complainant argues that the berms should be repaired and maintained, and the lagoon
contents should be routinely dewatered to ensure at least two feet of freeboard is maintained in each lagoon.
Comp. Br. at 13-14. Complainant also argues that respondent should report the freeboard levels to the Agency on a
monthly basis and construct and maintain storm water diversions to minimize run-off flow to the lagoons.
Id.
There is no evidence regarding the cost of berm repair and maintenance, or the cost of installing storm
water diversions. At one time, respondent believed that he might be able to trade a farm building for
berm repair,
but there is no further evidence in support of this claim. With respect to lagoon closure, respondent testified that
he obtained an estimate for $260,000. Tr. at 204.
Due to the potentially high cost of lagoon closure, the Board neither weighs this factor for, nor against, the
imposition of a penalty.
Subsequent Compliance
15
The record shows that respondent has done nothing to eliminate the threat of lagoon overflow despite
repeated warnings by the Agency to repair the berm erosion. In fact, respondent siphoned the lagoons directly
toward the tributary, in defiance of Agency instructions. The Board accordingly finds that this factor weighs in
aggravation of any penalty to be imposed.
Determination of Penalty Amount
Having considered the Section 33(c) factors with the evidence of the case, the Board finds that a penalty is
appropriate in this matter. Complainant requested a civil penalty of $22,000. See
infra
p. 20. Comp. Br. at 17.
In determining an appropriate penalty amount, the Board must consider wha
t type of amount is likely to
ensure that respondent achieves compliance with the Act and Board regulations.
The Board now considers the factors found at Section 42(h) of the Act as they relate to the $22,000 penalty
requested by the complainant. Section 42(h) provides:
[T]he Board is authorized to consider any matters of record in mitigation or aggravation
of penalty, including but not limited to the following factors:
1.
the duration and gravity of the violation;
2.
the presence or absence of due dilig ence on the part of the violator in
attempting to comply with the requirements of this Act and regulations
thereunder or to secure relief therefrom as provided by this Act;
3.
any economic benefits accrued by the violator because of delay in compliance
with requirements;
4.
the amount of monetary penalty which will serve to deter further violations by
the violator and to otherwise aid in enhancing voluntary compliance with this
Act by the violator and other persons similarly subject to the Act; and
5.
the number, proximity in time, and gravity of previously adjudicated
violations of this Act by the violator. 415 ILCS 5/42(h) (1998).
The Duration and Gravity of the Violations
Based on the evidence before the Board, the violations have been ongoing since at least November 1985,
the date of the first Agency inspection described in the record. Additionally, there is evidence of at least two
siphoning events, which resulted in the discharge of more than 900,000 gallons of water from the livestock
lagoons.
Regarding the gravity of the violations, the quality of the violations is serious. The gravity of the
violations is enhanced by respondent’s failure to appreciate or acknowledge the environmental harm threatened
by the current condition of the livestock waste lagoons.
The Board concludes that this factor weighs in aggravation of the penalty to be imposed.
Due Diligence on the Part of the Violator
The Board believes that respondent has not exercised due diligence. Specifically troubling is respondent’s
refusal to repair and maintain the lagoon
berms despite Agency warnings. Respondent continues to insist that the
best solution is for him to do nothing, and let the
berms erode naturally. Respondent has not shown any due
16
diligence in attempting to resolve the problems continuously cited by the Agency over the years, nor has he
expressed a willingness to assume the long-term commitment necessary to solve the problems at the site.
The Board finds that this factor weighs in aggravation of the penalty to be asses
sed.
Economic Benefit
This factor requires that the Board consider any economic benefits accrued by the violator because of a
delay in compliance with the requirements. Respondent has undoubtedly saved an indeterminate amount of
money by not complying with the Act and Board rules by undertaking any regular maintenance or repair work on
the berms. Respondent has certainly accrued economic benefits by failing to take any action. In this context, the
Board finds that this factor weighs in aggravation of the penalty to be assessed.
Monetary Penalty Which Will Serve to Deter Further Violations
The Act requires that adverse effects upon the environment must be “fully considered and borne by those
who cause them” (415 ILCS 5/2(b) (1998)). In this matter, aside from ordering respondent to close the lagoons, the
other type of remedy which the Board will impose is a monetary penalty. The penalty amount should be sufficient
to serve as a deterrent for respondent. Considering that the respondent has thus far repeatedly chosen to ignore
requests for compliance, the seriousness of the violations and the potential for harm to the environment require
that a penalty be imposed. Accordingly, the Board concludes that this factor weighs in aggravation of the penalty
we would normally assess.
Number, Proximity in Time, and Gravity of Previously Adjudicated Violations by the Violator
Complainant does not allege any prior adjudicated violations involving respondent. The Board weighs
this factor in mitigation of the penalty to be assessed.
Total Penalty
The statutory maximum as set forth in Section 42(a) of the Act is $50,000 for any violation of the Act or the
Board’s rules and an additional $10,000 for each day during which the violation continues. See 415 ILCS 5/42(a)
(1998). Based upon the statutory maximum, the penalty amount in this matter could be quite substantial. In its
prosecution of this case, however, the complainant has not requested the maximum penalty. Rather, complainant
requests a penalty in the amount of $22,000.
The complainant arrives at this $22,000 figure by calculating the penalty amount as follows:
Four thousand five hundred dollars ($1,500/year since at least 1995) for the water pollution threat from
improper maintenance of the north and south livestock waste lagoons; $3,000 ($1,000/year since at least 1995) for
the threatened discharge of contaminants into the waters of the State without an NPDES permit; $4,500 ($1,500/year
since at least 1995) for violations of livestock waste handling facility standards; and $10,000 ($5,000 for each of the
two siphoning incidents admitted by respondent) for the discharge of livestock waste contaminants into waters of
the State without an NPDES permit. Comp. Br. at 16-17.
Count I
With regard to the water pollution threat due to improper maintenance of the north and south lagoons,
the Board determines that respondent has been aware of this situation since at least 1995. The Board further finds
that the failure to maintain the berms poses a substantial threat to the surrounding environment. Despite
respondent’s assertion that he cannot afford to close the lagoons or repair the berms, the Board finds that economic
hardship should not deter compliance with the Act. Respondent economically benefited from failing to maintain
17
the berms, and denied that this action threatened water pollution. Complainant requests that the Board impose a
penalty in the amount of $4,500 ($1,500/year) for violations since 1995.
In this case, the Board finds that complainant’s request is reasonable and consistent with prior Board
decisions (
e.g.,
People of the State of Illinois v.
Johnnie Mae Hendricks (June 17, 1998), PCB 97-31 and People of the
State of Illinois v. Wayne Berger and Berger Waste Management (May 6, 1999.), PCB 94-373.)
11
Thus, the Board imposes a penalty of $4,500 for respondent’s failure to properly maintain the lagoon
berms, which has created the threat of pollution to a water of the State.
Count II
With regard to the threatened discharge of contaminants into a water of the State without an NPDES
permit, the Board determines that respondent has been aware of this since at least 1995. Based on the record before
us, complainant requests that the Board impose a penalty of $3,000 ($1,000/year) for the threatened discharge of
contaminants into a water of the State without an NPDES permit. The Board agrees that $3,000 is a reasonable
penalty for this violation.
Count III
With regard to the violations of the Board’s rules pertaining to the adequate storage capacity in the
livestock waste lagoons (35 Ill. Adm. Code 501.404(c)), complainant requests that the Board impose a penalty in the
amount of $4,500 ($1,500/year) for violations since 1995. The Board agrees that $4,500 is a reasonable penalty for
this violation.
Count IV
Finally, with regard to the actual discharge of livestock waste contaminants into a water of the State
without an NPDES permit, complainant requests that the Board impose a penalty of $10,000 ($5,000 for each of the
two siphoning incidents admitted by respondent).
Ten years ago, the court upheld a penalty of $10,000 for swine waste discharged into a stream and the
violation of an NPDES permit, and imposed an additional $10,376 for the value of 101,219 fish killed.
Russel
Perkinson, d/b/a Porkville v. PCB , 135 Ill.Dec. 333, 543 N.E.2d 901 (1989). In 1990, the Board imposed a $10,000
penalty on an individual who had discharged livestock waste to an unnamed tributary to Mill Creek between 1982-
1988. IEPA v. Allen Barry d/b/a Allen Barry Livestock
(May 10, 1990), PCB 88-71.
The Board finds that a fine of $10,000 is appropriate for the actual discharge of swine waste due to
respondent’s flagrant disregard of Agency warnings not to siphon the waste.
As a result of the discussion above, and respondent’s refusal to cooperate with the Agency despite
repeated warnings, the Board imposes a total penalty amount of $22,000. In addition to the monetary penalty, the
Board orders respondent to cease and desist from further violations of the Act and corresponding regulations, and
to close the lagoons pursuant to an approved plan under 35 Ill. Adm. Code 506.209.
Attorney Fees/Costs
The complaint requests reasonable attorney and expert witness fees pursuant to Section 42(f) of the Act.
That Section permits the Board to assess attorney fees in enforcement actions where the complainant has
prevailed
11
This case is currently on appeal.
18
against a person who has committed a willful, knowing or repeated violation of the Act.
(Emphasis added.)
Id.
While the Board finds that many of the violations in this matter were willful, the Board declines to award
attorney fees in this matter. Given the nature of this case, the remedy ordered and the penalty assessed, the Board
believes that a further award of attorney fees will not aid in compliance with the Act. Accordingly, the Board will
not require the respondent to pay the complainant’s attorney fees in this matter.
CONCLUSION
As discussed above, the Board finds respondent in violation of Sections 12(a) and 12(f) of the Act (415 ILCS
5/12(a), (f) (1998)) and corresponding regulations pertaining to the threatened and actual discharge of livestock
waste contaminants into a water of the State without an NPDES permit (35 Ill. Adm. Code 501.404(c)). Accordingly,
respondent must pay a penalty in the amount of $22,000.
This opinion constitutes the Board’s findings of fact and conclusions of law in this matter.
ORDER
1.
The Board finds that respondent violated Section 12(a) of the Illinois Environmental Protection Act (415
ILCS 5/12(a) (1998)) by failing to maintain his lagoon
berms in such a manner as to prevent the threat of
pollution to a water of the State.
2.
The Board finds that respondent violated Section 12(f) of the Illinois Environmental Protection Act (415
ILCS 5/12(f) (1998)) by both threatening to, and actually discharging contaminants into a water of the State
without an NPDES permit.
3.
The Board finds that respondent has violated Section 501.404(c) of the Board’s livestock waste rules (35 Ill.
Adm. Code 501.404(c)) due to the inadequate storage capacity of the lagoons.
4.
The Board orders respondent to, within 60 days of this order, submit to the Department of Agriculture and
the Illinois Environmental Protection Agency a closure plan for the north and south lagoons at the site
which is consistent with Section 506.209 of the Board’s LMFA rules (35 Ill. Adm. Code 506.209). The Board
further orders closure to be completed by April 1, 2000. The closure plan should include:
a.
The sampling, analysis, and reporting of results of all remaining livestock waste, s
ludge,
and minimum six-inch thickness of soil from throughout the lagoon interior;
b.
The removal of all remaining livestock waste including sludge, the removal of a
minimum six-inch thickness of soil from throughout the lagoon interior, and the
application of these materials to crop land at agronomic rates consistent with the
provision of the site livestock waste management plan or their otherwise proper
disposal;
c.
The removal of all associated appurtenances, including but not limited to transfer lines,
ramps, pumping ports, and other waste conveyance structures;
d.
The proper management of any impounded precipitation in the remaining excavation if
it is not immediately filled and the area immediately returned to its
preconstruction
condition; and
e.
The proper abandonment of any monitoring wells installed, which shall be conducted pursuant
to the Illinois Water Well Construction Code at 77 Ill. Adm. Code 920.120.
19
5.
The Board orders respondent to pay a civil penalty in the amount of $22,000 by certified c
heck or money
order made payable to the Environmental Protection Trust Fund. Respondent shall send the payment no
later than August 22, 1999, at 4:30 p.m. by first class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Respondent shall write the case name and number ( People of the State of Illinois v. Victor Cory
, PCB 98-
171), and his social security number on the certified check or money order.
If the penalty is not paid within the time prescribed, it shall incur interest at the rate set forth in subsection
(a) of Section 1003 of the Illinois Income Tax Act (35 ILCS 5/1003 (1998)) as now or hereafter amended,
from the date payment is due until the date payment is received. Interest shall not accrue during the
pendency of an appeal during which payment of the penalty has been stayed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for the appeal of final
Board orders to the Illinois Appellate Court within 35 days of service of this order. Illinois Supreme Court Rule
335 establishes such filing requirements. See 172 Ill. 2d R. 335; see also 35 Ill. Adm. Code 101.246, Motions for
Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above opinion
and order was adopted on the 22nd day of July 1999 by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
