Do Not RenioW

ILLINOIS POLLUTION CONTROL BOARD

November

 17, 1988

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Complainant,

v.

)

 PCB 88—138

JERRY GOSS,

 Individually,

)

and JERRY GOSS D/B/A JERRY

)

GOSS SWINE FARM

)

Respondent.

MR. GERALD T.

 KARR, ASSISTANT ATTORNEY GENERAL, APPEARED ON

BEHALF OF COMPLAINANT;

MR. JERRY GOSS,

 APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD

 (by JD.

 Dumelle):

This matter comes before the Board upon Complainant’s August

29,

 1988, filing

 of an eight count Complaint and Stipulation And

Proposal For Settlement.

 The Complaint alleges

 that Respondent’s

facility caused water pollution resulting

in

the death

 of 21,470

fish; discharges without required NPDES permits; violations

of

water quality standards;

 and creation of a water pollution

hazard.

 In specific, the Complaint alleges violations

of

 Ill.

Rev.

 Stat.

 1986 ch.

 ill 1/2, pars 1012(a), 1012(f), 1033,

 1042(c)

and 35

 Ill.

 Adm.

 Code 302.203, 302.206, 302.212, 304.105,

304.106,

 304.120(c) and 501.404.

hearing was held

 on November

2,

1988

at the Galesburg

Municipal Airport; no members of the public were present.

At

hearing the parties introduced

 an executed Stipulation And

Proposal For Settlement.

The Stipulation And Proposal

 For Settlement

 sets forth

the

following pertinent

 facts:

1)

 On or about June

21,

 1987, Respondent caused or allowed

swine waste

 to enter Middle Creek resulting

in

 a fish

kill

of

approximately 21,470 fish.

2)

 On or

 about June

22,

 1987,

Respondent caused or allowed

the discharge

of swine waste into Middle Creek without

an NPDES permit.

93—447

—2—

3)

 On or about June

22,

 1987 Respondent caused

 or allowed

the discharge of swine waste

 into Middle Creek

in

violation of water quality standards.

4)

 On or about June 22,

 1987 Respondent maintained manure

stacks in such a manner

so

as

 to allow run—off

 to enter

Middle Creek.

The Stipulation contains an admission of the violations,

an

agreement to cease and desist from current and future violations

and an agreement

 to undertake a compliance plan which would

correct the problems set forth

 in the complaint.

 Additionally,

Respondent has agreed

 to pay $2,277.11 into the Wildlife and Fish

Fund;

 and has further agreed

 to pay a penalty of $1,000 to the

Environmental Protection Trust Fund.

In evaluating

 this action and proposed settlement

 agreement,

the Board has considered the facts

 and circumstances

 in light of

the criteria set forth at Ill.

 Rev.

 Stat.

 ch 111

 1/2, par.

1033(c)

 and finds the Stipulation And Proposal For Settlement

acceptable under

35

 Iii.

 Adm. Code 130.180.

 Accordingly,

the

Board orders Respondent to comply with the Order set forth below.

This Opinion and Order constitutes

 the Board’s findings of

fact and conclusions of law in this matter.

ORDER

It

 is hereby the Order of the Illinois Pollution Control

Board

 that:

1)

 The Board hereby accepts the Stipulation And Proposal

For Settlement executed by the parties and filed with

the Board on August

29,

 1988.

The

terms and conditions

of the Stipulation And Proposal For Settlement are

hereby incorporated and attached

 to this Order.

2)

 The Board makes the following findings of violations

against Respondent:

a)

 Violation of

 Ill.

 Rev.

 Stat.

ch.

 ill 1/2, pars.

1012(a), 1012(f),

 1033 and 1042(c).

b)

 Violations of

 35 Ill.

 Adm. Code 302.203,

 302.206,

302.212,

 304.105, 304.106,

 304.120(c) and 501.404.

3)

 Respondent shall,

 by certified check or money order, pay

the following:

a)

 Two thousand two hundred seventy—seven dollars and

eleven cents ($2,277.11)

 to the Wildlife And Fish

Fund.

93-448

—3—

b)

 One thousand dollars

 ($1,000)

 to the Environmental

Protection Trust Fund.

4)

 Respondent shall

 cease and desist from all current

violations of the Environmental Protection Act.

IT IS SO ORDERED.

J. Theodore Meyer dissented and R.C. Flemal concurred.

I,

 Dorothy M. Gunn, Clerk

 of the Illinois Pollution Control

Board,

 hereby certify that the above O~pinionand Order was

adopted on the

______________

 day of

 1988 by a vote

of

~ -/

Dorothy M,qGunn, Clerk

Illinois ~ollution

 Control Board

93—449

Iriginal

Not

RenioW

STATE OF ILLINOIS

)

AU629~88

 COUNTY OP K

)

BEFORE THE ILLINOIS POLLUTION CONTROL

ILLINOIS

ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Complainant,

)

VS.

)

 PCB88-~~~

)

JERRY

GOSS

individually

and

)

JERRY

GOSS

d/b/a

JERRY

GOSS

)

SWINE

 FARM,

)

Respondents.

NOTICE OF PILING

TO:

 Mr. Jerry Goss

Rural Route

5

Galesburg, Illinois 61401

PLEASE TAKE NOTICE

that I have on this 29th day of August,

1988,

 filed with the Clerk of the Pollution Control Board,

 Coin—

plaint and Stipulation and Proposal for Settlement,

 in the above-

captioned matter,

 a copy of which is hereto attached and served

U~OflYOU.

Illinois Environmental

Protection Agency

NEIL F.

HARTIGAN

Attorney General

State of Illinois

By:

Gerald T.

 Karr

Assistant Attorney General

Environmental Control Division

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312)

 917—5816

93—450

STATE OF ILLINOIS)

SS

COUNTY OF K N 0

X)

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Complainant,

-vs—

)

 PCB 88-

JERRY GOSS

 individually and

)

JERRY

 GOSS d/b/a JERRY GOSS

SWINE

FARM,

Respondents.

STIPULATION AND PROPOSAL FOR

SETTLEMENT

NOW CONES Complainant, Illinois Environmental Protec-

tion Agency, by its Attorney, Neil F. Hartigan, Attorney General

of the State of Illinois,

 and Respondents, Jerry Goss and Jerry

Goss doing business as Goss Swine Farm, and do hereby submit this

Stipulation and Proposal for Settlement.

 The parties agree that

the statement

 of facts contained herein represents a fair summary

of the evidence and testimony which would be introduced by the

parties if

 a full hearing were held.

 The parties further stipu-

late that this statement of facts is made an agreed upon for pur-

pose of settlement only and that neither the fact that a party

has entered into this Stipulation, nor any of the

 facts stipu-

lated herein,

 shall be introduced into evidence in this or any

other proceeding except to enforce the terms hereof by the

parties to this agreement.

 The agreement shall be null and void

unless the Illinois Pollution Control Board

 (hereinafter

93_J4

“Board”),

 approves and disposes of this matter on each and every

one of the terms and conditions of the settlement set forth

herein.

STATEMENT

PACTS

1.

 Complainant,

 Illinois Environmental Protection

Agency (hereinafter “Agency”),

 is an administrative agency es-

tablished in the executive branch of the State government by Sec-

tion

 4 of the Illinois Environmental Protection Act (hereinafter

“Act”),

 Ill.Rev.Stat.,

ch.

 111—1/2, par.

 1001 et

 (1987),

and charged,

 inter alia, with the duty of enforcing the Act, pur-

suant to Title VIII thereof and recovering civil penalties pur-

suant to Title XII thereof.

2.

 Respondents Jerry Goss and Jerry Goss doing busi-

ness as Jerry Goss Swine Farm,

 (hereinafter collectively “Goss”),

own and operate a swine farm, which is located near Galesburg,

I~noxCounty,

 Illinois.

3.

 Located at the facility are five swine confinement

buildings,

 a breeding,

 a farrowing,

 a nursery,

 a grower, and

a

finishing building.

4.

 The breeding, nursery, grower and finishing build-

ings have waste storage pits beneath slatted floors, the farrow-

ing building has a solid concrete floor.

5.

 On a regular basis the waste storage pits are

drained by pulling a plug on an outlet and the waste is allowed

to flow into Middle Creek.

—

2

—

 93—452

 The waste from the farrowing building is placed in

stacks outside the east end of the building, this waste is also

allowed to enter Middle Creek.

7.

 On or about June 21,

 1987, but not limited to that

day, Respondents caused or allowed swine waste to enter Middle

Creek

resulting

 fishkill of approximately 21,470 fish in

violation of Section 12(a)

 of the Act.

8.

 On or about June 22,

 1987,

 but not limited to that

date,

 Respondents caused or allowed the discharge of swine waste

from the outlets on the nursery and grower building waste storage

pits into Middle Creek without an NPDES Permit in violation of

Sections 12(a)

 and 12(f)

 of the Act.

9.

 On or about June 22,

 1987, but not limited to that

date, Respondents caused

or allowed the discharge of swine waste

into Middle Creek in violation of Section 12(a)

 of the Act and

Water Quality Standards 35

 Ill. Adm.

 Code 302.203, 302.206,

302.212(b)

and

 (e),

 304.105,

 304.106 and 304.120(c).

10.

 On or about June 22, 1987,

 but not limited to that

date, Respondents continued to maintain manure stacks outside in

a manner which allowed the run-off from the stacks to enter the

Middle Creek in violation of Sections 12(a)

and

 (d) of the Act

and Ill.

 Adm.

 Code Sections 501.404(b) (1),

 501.404(c) (3) and

501.404(c) (4) (A).

93—453

11.

 On four separate occasions Respondents were

notified by the Agency of either these apparent violations, or

the

 fishkill or both.

 Respondents failed to respond.

PROPOSAL FOR SETTLEMENT

As a result of settlement discussions between the

parties and of actions taken or to be taken by Respondents,

the

parties believe the public interest will be best served by

resolution of this enforcement action under the terms and condi-

tions provided herein.

 This proposal for settlement is expressly

conditioned upon and effective only with the approval thereof

in

all respects by the Board.

 All statements contained herein are

agreed to for the purposes of settling this action only and shall

be null and void and of no effect in any further proceeding or

cause of action if the Board does not approve this proposal for

settlement

 in its entirety.

TERMS OF SETTLEMENT

Respondents and the Agency have agreed to the following

Terms of Settlement.

 These terms shall be in full settlement of

the action filed herein by the Agency and Respondents’

 liability

for all violations alleged in the complaint.

1.

 The Agency contends and Respondents admit the

facts set out in the Complaint constitute the following viola-

tions of the Act and the Board Regulations:

Count

I:

 Section 12(a)

 of the Act.

—4—

93—454

Count II:

 Sections 12(a)

 and 12(f)

 of the Act.

Count III:

 Section 12(a)

 of the Act and 35

I11.Adm.Code Sections 302.203 and

304. 105.

Count IV:

 Section 12(a) of the Act and 35

I11.Adm.Code Sections 302.206. and

304. 105.

Count V:

 Section 12(a)

 of the Act and 35

Ill.Adm.Code Sections 302.212(b)

and

(e)

 and 304.105.

Count VI:

 Section 12(a) of the Act and 35

Ill.Adm.Code Sections 304.105 and

304

106.

Count VII:

 Section 12(a)

 of the Act and

35

Il1.Adm.Code Sections 304.105 and

304.120(c)

Count

VIII:

 Sections 12(a)

 and 12(d)

 of the Act

and 35 Ill.Adm.Code Sections

501.404(b) (1),

 501.404(c) (3)

and

501.404 (c) (4) (A).

2.

 Respondents agree to cease and desist from any and

all violations of the Illinois Environmental Protection Act and

Rules and Regulations of the Illinois Pollution Control Board.

3.

 Respondents agree to perform and complete the fol-

lowing compliance program by the dates noted:

a.

 Clean-up the manure solids located on the

east side of the confinement buildings by

August

1,

 1988;

b.

 Reseed the disturbed area where the manure

stacks were located by September

1,

 1988;

c.

 Construct an outside waste storage pit from

concrete, including backfilling around pit,

capable of containing waste from the farrow—

ing, nursery and grower buildings by

August

1,

 1988 and reseed backfilled area by

September

1,

 1988;

—

5

—

 93—455

ci.

 Install permanent piping to convey the swine

 waste from the confinement buildings to the

waste storage pit by August

1,

 1988;

e.

 Regrade property around new storage pit so as

to divert clean surface water away from

storage pit by August

1,

 1988;

f.

 Install a three

(3)

 foot high fence around

the storage pit by August

1,

 1988;

g.

 Backfill old earthen pit by August

1,

1988

and reseed area by September 1,

 1988.

4.

 Respondents agree to pay $2,277.11 into the

Wildlife and Fish Fund as the reasonable value of the fish

killed,

 included in this amount

 is the expenses in determining

the amount and value of the fish and aquatic life destroyed.

5.

 The parties enter into this Stipulation and Pro-

posal for Settlement and Respondents agree to pay a penalty

specified in this paragraph in order to avoid the substantial

costs,

 inconveniences,

 and uncertainties of further litigation.

In order to resolve this dispute and as a condition of settle-

ment, Respondents agree to pay a penalty of one thousand

($1,000.00)

 dollars payable to the “Environmental Protection

Trust Fund” within 30 days from the date on which the Board

adopts

 a final order approving,

 accepting and incorporating this

Stipulation and Proposal for Settlement.

 The Agency deems the

payment to be appropriate

 to aid in the enforcement of the Act

under the circumstances of this case.

—

 93-456

WHEREFORE,

 Complainant and Respondents jointly request

that the Board adopt and accept the foregoing Stipulation and

Proposal for Settlement as written.

For Complainant

Illinois Environmental

Protection Agency

By:

Dated:

gkstoh

For Respondents

Jerry Goss and

Jerry Goss Swine Farm

By:__________

~/-‘~,

ograms

—

7

—

 93—457

CERTIFICATE

SERVICE

I,

 GERALD T.

 KARR,

 an attorney, hereby certify that a true

and

accurate

copy

the

attached

Notice

Filing,

Complaint

and

Stipulation and Proposal for Settlement was served upon Mr. Jerry

Goss, Rural Route

 4~5, Galesburg,

 IL 61401, by placing same in an

envelope and depositing in the United States Mail,

 first-class

postage prepaid, from 100 West Randolph Street,

 Chicago, IL 60601

on this 29th day of August,

 1988.

GERALD T. KARR

 Assistant Attorney General

93—458