ILLINOIS POLLUTION CONTROL BOARD

October

20,

1988

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v..

)

PCB 84—83

RUSSELL PERKINSON,

)

d/b/a

PORKVILLE,

Respondent..

MR.. JOSEPH ANNUNZIO, ESQ.,

ASSISTANT ATTORNEY GENERAL, APPEARED

ON BEHALF OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

MARK

J.

ANSEL,

ESQ.,, OF ERWIN, MARTINKUS,

COLE

AND

ANSEL APPEARED

ON BEHALF OF THE RESPONDENT,

RUSSELL PERKINSON

OPINION AND ORDER OF THE BOARD

(by

M.. Nardulli):

This matter comes before the Board upon

a June

28, 1984

complaint filed on behalf of the Illinois Environmental

Protection Agency (hereinafter “Agency”)

against Russell

Perkinson,

doing business as Porkville (hereinafter “Perkinson”

or

“Porkville”)..

The complaint,

as amended on October

10,

1984,

alleges nine counts against the Respondent, his operation of two

swine waste lagoons and the discharge from these lagoons to an

unnamed tributary of Spring Creek

(hereinafter “tributary”)..

Hearings were held on May 19,

1986 and on July 22,

1987

in

Watseka,

Iroquois County..

On May 26, 1987,

the parties

stipulated that

thirty—three documents relevant to

the hearing be

introduced as

evidence..

A second stipulation of facts was

entered on March

9,

1987..

The Complainant filed

a post—hearing

brief on September

28,

1987..

The Respondent filed

a post—hearing

brief on November

2,

1987 and the Complainants responded to the

Respondent’s post—hearing brief on December

9,

1987.

Based on the record,

the Board finds that Respondent has

violated Section 12(a)

of the Illinois Environmental Protection

Act

(hereinafter

“Act”)

as alleged

in Counts

I and II, has

violated

35

Ill..

Adm. Code

302..203 as alleged

in Count III,

has

violated 35

Ill..

Adm..

Code 302.212(a)

and 304.105 as alleged

in

Count IV, has violated 35

Ill..

Mm.. Code 302.212(b)

as alleged

in

Count V, has violated 35

Iii..

Mm.. Code 302.206 as alleged

in

Count VI, has violated

35

Ii. Mm.. Code 50L404(c)

and

(4)

as

alleged in Count VII, has violated 35

Iii.. Mm. Code

50l..404(c)(2)

as alleged in Count VIII and has violated Section

93—123

---

—2—

12(f)

of

the Act and 35

Ill.. Mm.. Code 309.102 as alleged

in

Count

IX.

The penalties imposed have been reduced from the

amounts

recommended by the Attorney General

in order

to have the

penalty more accurately reflect the evalution of

the events using

the factors listed

in Section 33(a)..

BACKGROUND

Russell Perkinson,

in partnership with his sons, owns and

operates

a swine farm known as Porkville,

located

in Iroquois

County near

the Village of Thawville.

The farm,

which produces

several thousand swine annually,

includes two lagoons

in which

swine waste,

resulting from the operation at the farm,

is

deposited.

Overflows,

spills and leaks from the lagoon travel

to

a low point,

enter

a perforated metal

riser pipe and are

transported by

a field tile which discharges

to the tributary.

The complaint alleges that since June

of 1979, the

Respondent has caused or allowed

the discharge of

a substantial

amount of swine waste into the

tributary..

The complaint centers

on two occurrences.

The first occurrence was on July

7 and

8 of

1983 when the Respondent allowed discharge of approximately

200,000 gallons of swine waste from its lagoons resulting

in the

death of over 100,000 fish in the tributary..

The second

occurrence was on or about July 16,

1984 when the Respondent

caused or allowed the discharge of swine waste into the tributary

killing approximately 4,206

fish.

Besides the killing of the

fish, both discharges altered the chemical and biological

properties of the waters.

The Respondent does not dispute that the discharges of July

8,

1983 and July 16,

1984 occurred..

Perkinson does,

however,

contest the assertion that his operation of the facility failed

to take reasonable precautions

to prevent discharges or

that he

should be held culpable for the damage due

to the discharges..

Perkinson notes his continued communication and cooperation with

the Agency and maintains that the discharge of July 8,

1983 was

the result of “malicious vandalism by a trespasser” and beyond

his control.

The threshhold

issue that must be resolved

in this case

is

the issue

of

liability..

The parties agree that the proper

standard

of liability for violations of the Act and environmental

law

is “malum prohibitum”..

Malum prohibitum does not require the

complainant

to prove that the liable party had

a culpable or

guilty mental state.

The Complainant only needs

to show that the

culpable party was

in the position

to control the wrongful

act..

In ~ieadowLake Farms,

Inc.

v

Illinois Pollution Control Board,

the Appellate Court upheld

the standard by stating:

Petitioner was not charged with creating the

refuse piles or with responsibility for the

operation of the Peabody 43 mine which

93—124

---

—3--

resulted

in the creation of the refuse pile.

The Pollution Control Board merely found that

the petitioner has ownership of the surface

rights of the property which was the source of

the violation, that the evidence showed that

the pollution had its source on that property

and that fish were killed,

and that the

petitioner had the capability of controlling

the pollutional discharge.

Therefore,

petitioner was found

to have violated section

12(a)

of the Act,

as well

as violating the

other

rules and regulations related to water

pollution.

The findings of the Board were

correct.

Meadow Lark Farms

v. Pollution Control Board,

308 N.E. 2nd

at 836.

However,

in his post—hearing brief,

Perkinson argues that

the Agency

is attempting

to impose

a liability standard

equivalent

to strict liability.

Perkinson maintains that the

discharge

into the tributary on July 8,

1983 resulted from an

independent, intervening cause

in the form of

a trespasser.

As a

result, Perkinson argues, he did not “cause or allow”

the

discharge and therefore,

should not be held liable

for the

results.

The meaning of the phrase “cause or allow”,

as used

in

Section 12(a)

of the Act, has been determined by the Illinois

Appellate Court, Third District,

in Freeman Coal Mining Corp..

v..

Illinois Pollution Control Board,

21 Ill.

App..

3d 157, 313 N.E.,

2d 616

(1974)..

In Freeman,

the petitioner was an owner of

a coal

mine that maintained a mine refuse pile.

Rainfall upon the pile

resulted

in an acidic contaminant which washed into an unnamed

waterway causing water pollution..

Id.

at

618..

The petitioner

argued that it could not be held liable

for “allowing such

discharges because the discharges were the result of a natural

force beyond the control of the petitioner”

Id.

at 619.

In its

decision

in Freeman,. the court restated that the Act

is malum

prohibitum and no proof of guilty knowledge or mens rea

is

necessary to

a finding of guilt.

The court went on

to

say,

that

the fact that the discharges were unintentional, or occurred

despite efforts

to prevent

them,

is not a defense.

The owner of

the property that creates the pollution has a duty,

imposed by

the legislation,

to take all prudent measures

to prevent the

pollution.

The efforts by the landowner to control or treat the

pollution go to the issue of mitigation,

not

to the primary issue

of

liability.

Id.

at

621..

In the present

case,

it has been stipulated that the

Respondent’s property was the source of the subject pollution.

The question of whether Perkinson fulfilled his duty

to take all

prudent measures to prevent pollution can be answered from the

93—125

---

*4—

facts

in the case.

At hearing,

Perkinsori emphasized

the extent

to which

it cooperated with the Agency

in trying to redesign the

lagoon system and

to operate the system in

a manner that would

not result

in discharges

(R at 50,

68,

116).

However,

Perkinson’s duty extended beyond

a requirement to follow

1~.gency

instructions.

Perkinson failed

to take obvious actions that

could have prevented the discharges into the tributary.

The

Board

is at

a loss to understand why the lagoons could not have

been designed in

a manner that would have guaranteed

that even if

they did overflow or leak the swine waste would not flow to the

drainage tile and into the tributary..

This could have been

accomplished by building

a retaining wall around the entire

lagoon area,

by digging

a drainage system away from the field

drainage tiles or by providing

a means of covering the inlet or

outlet

of the field tiles during discharges from the lagoon.

Further,

Perkinson’s failure to take immediate action when the

leak was discovered

(R..

at 92)

and failure to notify authorities

to mitigate the damages when they were aware that the swine waste

was entering the tributary

(R.

at 101)

also show

a failure to

take all prudent measures to prevent pollution.

Therefore,

Perkinsori may

be held liable on any count shown

to have

originated from his property and shown

to have violated

a

provision of the Act or Board regulations, or other environmental

law

*

COUNT

I

It

is alleged that Perkinsori violated Section 12(a)

of the

Act on or about July 7,

1983, by allowing the discharge of

approximately 200,000 gallons of swine waste from its lagoon to

the tributary and thereby caused the death of approximately

101,219

fish.

Section 12(a)

of the Act provides:

No person shall:

a)

Cause of 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, or

so as

to violate

regulations or

standards adopted by

the Pollution Control Board under

this

Act.

In the Stipulation of Facts filed on March 9,

1987,

the

Respondent admitted that the discharge resulted from

a man—made

channel cut through his swic~ewaste

lagoon on his property.

By

causing or

allowing this water pollution of the tributary,

Perkinson violated Section 12(a)

of the Act,

Ill.

Rev..

Stat.

c-~3—126

---

—5--

1985,

ch. 1111h~ par.

1012(a)..

COUNT

II

It

is alleged that Perkinson violated Section 12(a)

of the

Act on or about July 7, 1983 by causing or

allowing the discharge

of swine waste into the tributary and thereby causing the death

of 4,206

fish..

In the Stipulation of Facts filed with the Board on March 9,

1987,

the Respondent admitted that the discharge resulted from a

temporary obstruction

in the waste water alley which caused

the

system

to back up and drain out of the inlet holes and carried

swine waste

to the rainwater drainage system and subsequently to

the tributary..

By causing or allowing this discharge

to the

tributary,

Perkinson violated Section

12(a)

of the

Act..

COUNT

III

It

is alleged that Perkinson violated

35 Ill. Mm. Code

302.203 and 304.105 by causing

or allowing the discharge of swine

waste from Perkinson’s property on July 7,

1983 causing unnatural

bottom deposits, floating debris, odor, environmental color

and/or turbidity in the tributary..

35 Ill. Adm. Code 302.203

provides the following water quality standard:

Waters of the State shall be free from

unnatural sludge or bottom deposits,

floating debris, visible oil, odor,

unnatural plant or algal growth,

unnatural

color or turbidity, or matter of other

than natural origin in concentrations or

combinations harmful

to human,

animal,

plant or aquatic

life..

35

Ill..

Adin. Code 304.105 provides in pertinent part:

In addition to

the other requirements of

this Part,

no effluent shall, alone or

in

combination with other sources,

cause a

violation of any applicable water quality

standard.

On March

9,

1987,

the parties stipulated

that at the time of

the July 7,

1983 and July 16,

1984, fish kills,

it was found that

a discharge pipe located at the tributary which discharged

Respondent’s swine waste caused that tributary

to be contaminated

with unnatural brown algae growth,

a brown,

black or

reddish

93—127

---

—6--

color,

floating debris, turbidity, bottom deposits and swine

waste odor.

This

is

a violation of Section 12(a)

of the Act,

Ill. Rev.

Stat..

1985,

ch.

lll4’2,

par. 1012(a),

and

a violation of

35

Ill. Adm. Code 302.203.

COUNT

IV

It

is alleged that Perkinson violated 35

Ill. Mm. Code

302.212(a)

and 304.105 or or about July 8,

1983 by allowing or

causing the discharge of swine waste

so as to cause ammonia

nitrogen concentrations in the unnamed tributary to exceed

applicable water quality standards.

35 Ill. Mm. Code

302.212(a), effective since September 7,

1982, provides the

following water quality standard:

a)

Ammonia nitrogen

(as N:

Storet Number

31616)

shall

in no case exceed 15

mg/i.

In

a Stipulation of Facts filed with the Board on May 6,

1986,

the following ammonia nitrogen concentration measurements

were taken in the tributary:

Ammonia

Nitrogen

Sampling

Concentration

Date

Location

(mg/i)

July 8,

1983

Upstream of Outfall

2.4

July 8,

1983

Approx.

1 and 1/3 miles

41.

downstream of the outfall.

July

8, 1983

Approx.

2 miles downstream

36.

of the outfall.

July 8, 1983

Approx.

3 miles downstream

39.

of the outfall.

July 8,

1983

Approx.

4 miles downstream

44.

of the outfall.

July 8,

1983

Approx.

5 and 1/3 miles

35..

downstream of the outfall.

The data show that the outfall

from Porkville contributed to

the ammonia nitrogen concentration

in the tributary exceeding

15

mg/1.

By causing or allowing the outfall that resulted

in the

ammonia nitrogen levels stated above, Perkinson has violated

Section 12(a)

of the Act,

Ill.

Rev.. Stat.,

1985,

ch..

l11~,2, par.

93—128

---

—7—

1012(a)

and 35

Ill. Adm. Code 302.212(a)

and 305.105.

COUNT V

It

is alleged that Perkinson violated 35

Ill.. Mm. Code

302.212(b) by causing or allowing the discharge of swine waste

from Porkvilie on July 16,

1984 so

as

to cause concentration of

un—ionized ammonia

in the tributary to exceed applicable water

quality standards.

Section 302.212(b) provides the following

water quality standard:

b)

If ammonia nitrogen

is less than 15 mg/i

and greater than or equal

to 1.5 mg/i,

then un—ionized ammonia

(as N)

shall

exceed 0.04 mg/i.

In

a Stipulation of Facts

filed with the Board on May 6,

1986,

the parties entered information showing that the un—ionized

ammonia concentration in the tributary,

approximately forty yards

downstream from the Porkville discharge,

was 0.54 mg/i on July

17,

1984.

By causing or allowing this discharge,

Perkinson has

violated

35 Ill. Mm.. Code 302.212(b).

COUNT VI

It

is alleged

that on or about July 8,

1983, Respondent

caused or allowed the discharge of swine waste as described above

so as to cause the dissolved oxygen concentration in the

tributary

to exceed

the applicable water quality standards

established in

35

Ill. Mm. Code

302.206..

35 Iii. Mm. Code

302.206 provides the following water quality standard:

Dissolved oxygen (STORET number 00300)

shall not be less than 6.0 mg/i during at

least 16 hours

of any

24 hour period,

nor

less than 5.0 mg/i

at any time.

In

a Stipulation of Facts

filed with

the Board on May 6,

1986,

the following data on dissolved oxygen concentrations were

supplied..

93—129

---

—8—

Dissolved

Oxygen

Sampling

Concentration

Date

Location

(mg/i)

July 8,

1983

Upstream of Outfall.

13.8

July 8, 1983

Approx.

1 and 1/3 miles

0.2

downstream of the outfall

July 8,

1983

Approx.

2 miles downstream

2.5

of the outfall..

July 8, 1983

Approx..

3 and 1/3 miles

1.6

downstream of the outfall..

July 8,

1983

Approx.

4 miles downstream

2.0

of the outfall..

This data shows that the discharge from Porkville

contributed

to the violation of the dissolved oxygen

concentration standard.

By causing or allowing the discharge,

Perkinson has violated 35

Ill. Adm. Code 302.206.

COUNT VII

It

is alleged that the Respondent has failed to keep the

contents of the livestock waste—hauling facilities

(the lagoons)

at

levels to prevent an overflow when less precipitation than a

25—year, 24—hour storm event occurred and as so not

to cause

water pollution,

in violation of 35

Ill. Adm.

Code 50l.404(c)(3)

and (c)(4).

35

Ill.. Mm. Code 501..404(c)(3) provides:

The contents of livestock waste—hauling

facilities shall be kept at levels such

that there

is adequate storage capacity

so

that an overflow does not occur except

in

the case of precipitation

in excess of

a

25—year,

24—hour storm.

35 Iii Mm. Code 50l.404(c)(4) provides

in pertinent

part:

Existing livestock management facilities

which handle

the waste in

a liquid form

shall have adequate storage capacity

in a

liquid manure—holding tank,

lagoon,

holding pond,

or any combination thereof

so

as not to cause

air or water pollution

~3—13I)

---

—9—

as defined

in the Act or applicable

regulations.

The fact that the water pollution described above originated

from the Porkville lagoons shows

that the lagoons were

insufficient to hold the water and is sufficient evidence

to find

Perkinson

in violation of

35 Ill.

Adm. Code 50l..404(c)(4)

under

the malum prohibitum liability standard.

Perkinson has violated

35 Ill.

Adm.. Code 50l.404(c)(4) and is therefore liable under

Count VII without requiring

a determination of his liability

under

35 Ill.

Adm..

Code 50l..404(c)(3)..

COUNT VIII

It

it alleged that since on or about July 27, 1982,

Respondent’s lagoon has not been impermeable or sealed as

to

prevent groundwater

or surface water pollution and allowed

seepage of wastewater through the walls

of the lagoons, thereby

violating Section 12(a)

of the Act and 35

Ill. Mm. Code

50l.404(c)(2)..

35

Ill. Adm. Code 50l.404(c)(2) provides:

Holding ponds and

lagoons shall be

impermeable or so sealed as to prevent

groundwater

or surface water pollution.

Facts stipulated

to by the parties on March 9,

1987, as well

as

testimony by David Perkinson

(R.

at

96)

and Eric Ackerman

(R.

at 23),

indicate that there was seepage from the storage

lagoons.

This constitutes

a violation of 35

Iii. Mm. Code

501.404(c) (2).

COUNT

IX

It

is alleged that the Respondent violated Section 12(f) of

the Act by violating Attachment B, paragraphs 1(a),

2(c) and

(3)

conditions

of his NPDES permit, as well as 35 Ill.

Adm. Code

309.102, by allowing

the discharge that occurred on or about July

7,

1983.

Respondent was

issued NPDES Permit No.

IL006161l for

his swine farm on June

26,

1980..

An effective date of July 26,

1980 and an expiration date

of April

30, 1985 were included in

Respondent’s NPDES Permit.

Section 12(f)

of the Act provides

in

pertinent part:

No person shall:

f)

Cause,

threaten, or allow the discharge

of

any contaminant into

the waters of the

State, as defined herein,

including but

not limited

to, waters to any sewage

93—13 1

---

—10—

works,

or into any well or from any point

source within the State, without NPDES

permit

for point source discharges

issued

by the Agency under Section 39(b),

or

in

violation of any regulations adopted by

the Board with respect

to the NPDES

program.

35

Iii. Mm. Code 309.102 provides:

Except as in compliance with the

provisions of

the Act, Board regulations,

and the CWA (Clean Water

Act), and the

provisions and conditions of the NPDES

permit

issued to the discharger,

the

discharge of any contaminant or pollutant

by any person into the waters

of the State

from a point source or into

a well shall

be unlawful.

Attachment B, paragraph 1(a)

of Respondent’s

NPDES Permit provides the following discharge

limitation:

During the period beginning with the

effective date and lasting through the

expiration date,

the permittee shall not

discharge process wastewater pollutants

to

navigable waters except overflow from

facilities caused by either catastrophic

or chronic precipitation events.

Attachment

B, paragraph 2(c)

of Respondent’s

NPDES Permit provides

the following monitoring

requirements:

The permittee shall monitor and record

the

liquid level of retention facilities daily

when

the available storage

is for less

than

a 25 year,

24 hour precipitation

event.

Attachment B, paragraph

3 of

Respondent’s

NPDES Permit provides

as follows on reporting

of discharges:

When

a discharge occurs,

the permittee

shall notify the permit issuing authority

as follows:

a)

By telephone,

(309) 691—2000, within

24 hours of occurrence or during

the

first business day following

a

discharge that occurs on a weekend

or

93—132

---

—11—

holiday,

for discharges

resulting from

precipitation events..

b)

By telephone

(217) 782—3637,

and (309)

692—2000, immediately upon occurrence,

for discharge resulting from non—

precipitation events

(e.g., dike or

structural failure, equipment

breakdown, human error).

C)

In writing within

five

(5)

days of

occurrence, with the following

information:

1)

Cause or the discharge;

2)

Period of discharge;

including

exact dates and times;

3)

An estimate of the discharge

volume;

and

4)

Corrective

steps, taken if

appropriate.

d)

The completed report shall be mailed

to the IEPA at the following address.

Illinois Environmental Protection

Agency

Div. of Water Pollution Control

2200 Churchill Road

Springfield, IL

62706

It has been stipulated that the Respondent caused or allowed

the discharge of July 7,

1983,

therefore violating Attachment B,

paragraph 1(a) condition of NPDES Permit

No.. ILOO6l6ll..

Testimony at hearing also showed

that the Respondent failed

to

notify the Agency of the discharge

(R. at

101)

in violation of

Attachment B, paragraph

3 conditions of the NPDCS permit.

The

Board finds that the Respondent was not in violation of

Attachment B, paragraph 2(c)

of the permit.

The testimony of

David Perkinson

CR.

at

94)

and Ken Hanford

(R. at 83)

shows

there

was

a practice

to observe the lagoon on a daily basis.

It was

also shown that Mr.

Hanford kept

a record of the lagoon level

CR.

at 72).

The fact that the records were not discernible by Mr.

Perkinson or

Mr.. Ackerman does not necessarily mean they were not

accurately kept or could not be understood and explained by Mr.

Hanford.

However,

the violation of the NPDES permit show that the

Respondent violated 12(f)

of the Act and 35 Ill. Mm. Code

309.102..

The Respondent

is

therefore liable under Count

IX.

93—133

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—12—

PENALTY

To determine the applicable penalty that should

be assessed

for the violations committed by the Respondent, the Board will

review the factors listed in Section 33(c)

of the Act..

The first

criteria

is the character and degree of injury of the health and

general welfare of the people.

It

is unquestioned that the

pollution of

an Illinois waterway has an adverse effect on the

people of Illinois.

In the incident of July 8,

1983,

the

consequential damage

to the tributary and

to Spring Creek was

substantial.

The damage done to the biological and chemical

characteristics of the waterways could

take

a considerable amount

of time to correct..

The continuing problem with seepage and

events like the discharge of July 16,

1984 will prolong the

recovery period and make

it more difficult

to restore vegetation

and fish to the tributary and

to make the water useful

for other

purposes..

Further,

there

is

a foreseeable expense of treating

the water

to allow others

to use

it,

the loss of the game fish,

as well

as the unnecessary expense

in enforcing

the applicable

rules

and prosecuting the violators.

The second factor is the social and economic value of the

pollution source.

While the swine waste lagoon

is an essential

part of

an operation like Porkville, and while efficient farm

operations are an important contributor

to the economy of this

State,

its value

is outweighed by the unacceptable pollution

activity from the operation.

The third factor

is the suitability of the pollution source

to the area it

is located.

While

the swine waste lagoon

obviously needs

to be located

in close proximity to the Porkville

operation,

it should be designed and constructed to prevent

seepage and overflow from readily entering the tributary.

The

runoff should be directed to another lagoon or sump area where

it

can be reclaimed without polluting the tributary.

The fourth factor under Section 33(c)

is the technical

practicability and economic reasonableness of reducing or

eliminating

the deposits resulting from the pollution source.

It

is both technically feasible and economically reasonable

to

eliminate the discharge.

The Respondent could have avoided

pollution by taking reasonable precautions

to ensure that any

discharge from the lagoon would not flow

to the tributary.

It

also may have been possible

to mitigate the damage done by the

discharge if the Respondent had notified the proper authorities,

as required by the NPDES permit,

in

a timely manner.

The final

33(c)

factor

is the economic benefits accrued by

the noncomplying pollution source because of

its delay

in

compliance with pollution control requirements.

There

is no

indication

from the record

that the Petitioner was motivated by

potential economic benefits.

Instead, this situation appears

to

have resulted from

a lack of respect for the Act

arid

a lack of

93—134

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concern for the environment..

However,

there

is undeniably

a

benefit

to

a noncomplying party for the expense and effort he has

not expended

in coming into compliance and Perkinson realized

such a benefit

in this matter.

In the complaint,

the Attorney General recommended the

following penalties be invoked:

In accordance with Section 42(a)

of the

Act, Respondent to pay a monetary penalty

not to exceed $10,000 for each violation

under Counts

I through VIII

found herein,

and an additional penalty of not to exceed

$1,000

for each day during which said

violations shall have continued..

In accordance with Section 42(b)(l)

of the

Act, Respondent pay a monetary penalty not

to exceed $10,000 for each violation under

County IX found herein, and an additional

penalty of not

to exceed $10,000

for each

day during which said violations

shall

have continued.

In accordance with Section 42(c)

of the

Act, Respondent pay the sum of $10,376.48

to the Wildlife and Fish Fund

in the State

Treasury for the fish kill of July 7,

1983.

In accordance with Section 42(c)

of the

Act, Respondent pay the sum of $443.26 to~

the Wildlife and Fish Fund of the State

Treasury for the fish kill of July 16,

1984.

That the Board

order such additional final

relief as

it shall deem appropriate under

the circumstances..

The Board

feels that the Attorney’s General recommendation

may be appropriate

in light of the environmental damage that

resulted from the violation.

However, these penalties would

invoke a conceivably unmanageable burden on the Respondent.

The

Board’s intent in fashioning

a penalty

is

to use the factors from

Section

33(c)

of the Act to both compensate

for environmental

damage and

to deter

the violator

from allowing

further

violations..

The nine counts

in the Complaint center around two instances

on which

the Respondent clearly violated his NPDES permit and

consequently Section 12(a)

of the Act.

As

a result of this

violation of the permit,

the fish kills

in the tributary occurred

93—135

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—14—

and

the ammonia nitrogen concentration, the dissolved oxygen

concentration and the unionized ammonia concentrations in the

tributary were disrupted.

The remaining charges of discharging

swine waste because of improperly operating the lagoon and

allowing pollution by not containing seepage from the lagoon are

presented as continuing violations, but are only substantiated at

the time of

the discharges.

By eliminating the violations that

caused the pollution,

the resultant violation of pollution

standards would be avoided..

Therefore,

in formulating

its

penalty the Board will treat

the violations

as two individual

events

it

is trying

to deter.

The Board

imposes

a fine of $10,000 for the violations that

resulted from the discharge of July

7,

1983.

Based on the

factors

in Section 33(a),

this event had

a significant degree

of

injury

to the health,

general welfare and physical property of

the people, with very limited social value and could have been

easily avoided or mitigated.

Other factors besides those listed

in Section 33(c)

also were involved

in the determination of the

penalty..

One of these factors

is the less than commendable

effort put forth by the Petitioner

in avoiding or controlling the

discharges

and the apparent lack of regard

the Petitioner has

shown for preserving

the waterways of the state.

The Board

is

also disturbed by the Petitioner’s failure

to recognize his

responsibility for the problem.

The discharge of July 16, 1984 had a much less significant

degree

of injury to the health, general welfare and physical

property of the people although

it also could have been avoided

by redirecting

the flow.

Consequently,

the fine imposed for the

July 16, 1984 violations will be $1,000.00..

The Board further orders

the Respondent

to pay $10,376.84

for the fish kill of July 7, 1983 and $443.26 for the fish kill

of July 16,

1984

to the Wildlife and Fish Fund of the State

Treasury,

in accordance with Section 42(c)

of

the Act.

The Board also orders

the Petitioner

to cease and desist

from further violation of

its NPDES permit, the Act or Board

regulations..

Because

it has been

four years since

the events

in

this cause occurred,the Board has no way of knowing the present

conditions of

the Porkville operation.

However,

the Board

considers these

four years as

time that the Petitioner should

have used

to redesign his swine—waste system to assure no further

discharges occurred.

Therefore,

the Board will look disfavorably

upon any further enforcement actions brought against the

Petitioner.

This Opinion constitutes

the Board’s finding

of facts and

conclusions of law in this matter..

93—136

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—15—

ORDER

Russell Perkinson d/b/a Porkville is hereby found to be

in

violation of Sections 12(a)

and 12(f)

of the Act,

35 Ill.

Adm..

Code Sections 302.203, 302.212(a)

and

(b), 304.105(a), 302.206,

501.404(c)(2) and (4)

and 309.102 as well

as conditions in

paragraphs 1(a) and 3

of the NPDES permit no.

1L0061611..

1)

Within

45 days of the date of this

order, Perkinson shall pay a penalty

in the amount of $11,000.00 which is

to be sent to:

Environmental Protection Trust

P’und

Fiscal Service Division

Illinois Environmental Protection

Agency

2200 Churchill Road

Springfield,

IL

62706

In addition, Perkinson shall pay

a penalty of $10,820.10,

within 45 days of the order, which

is to be sent to:

Wildlife and Fish Fund

Fiscal Service Division

Illinois Environmental Protection

Agency

2200 Churchill Road

Springfield,

IL

62706

2.

Perkirison shall cease and desist

from operating

in violation of its

NPDES permit, and allowing

violation of the Act and Board

regulations.

Section 41

of the Environmental Protection Act,

Ill..

Rev.

Stat. 1985,

ch..

1l)~/2, par..

1041, provides for appeal of

final

Orders of the Board within 35 days.

The Rules of the Supreme

Court of Illinois establish filing requirements.

IT IS SO ORDERED.

93—137

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—16—

I, Dorothy M.

Gut-in, Clerk of

the Illinois Pollution Control

Board,

hereby certtfy that the above Opinion and Order was

adopted on the

~‘O~Z~

day of ______________________,

1988, by

a vote of

7—0

Dorothy M.,4~inn,Clerk

Illinois Pb~.1lutionControl Board

93—138