ILLINOIS POLLUTION CONTROL BOARD
    February 26, 1986
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Complainant,
    )
    V.
    )
    PCLI u5-j..~j~
    )
    MICHAEL DELANEY,
    )
    Respondent.
    )
    MR. JOSEPH J. ANNUNZIO, ASSISTANT ATTORNEY GENERAL, APPEARE) ON
    BEHALF OF THE COMPLAINANT.
    MR. MICHAEL DELA.NEY APPEARED PRO SE.
    OPINION AND ORDER OF THE BOARD (by W.J. Nega):
    This matter comes before the Board on a seven-count
    Complaint filed on September 3, 1985 by the Illinois
    Env±rDnnlental Protection Agency (Agency).
    Count I of the Complaint alleged that, on July 5, 1983, the
    Respondent caused or allowed the discharge of contaminants into
    Illinois waters from a point source by pumping the contents of a
    holding pond via a point source (i.e., a hose) into a roadside
    ditch which was tributary to an unnamed tributary of the Mackinaw
    River in violation of 35 Iii. Adm. Code 309.102(a) and Section
    12(f) of the
    Illinois Environmental Protection Act (Act).
    Count II alleged that, on July
    ~,
    i~L, c~e
    ~espuu~i~nc
    caused or allowed the discharge of effluent
    into Illinois
    waters
    from a point source containing concentrations
    of five-day
    biochemical oxygen demand (BOD5) and total suspended solids (TSS)
    in excess of five times the numerical standard of 10 milligrams
    per liter (mg/i) BOD5 and 12 mg/i TSS in violation of 35 Ill.
    Adm. Code 304.120(c) and Section 12(a) of the Act.
    Count III alleged that, on July 5, 1983, the Respondent
    caused or allowed the discharge of effluent into Illinois waters
    having obvious color, turbidity, and odor in violation of 35 Ill.
    Adm. Code 304.106 and Section 12(a) of the Act.
    Count
    IV alleged that, on July 5, 1983, the Respondent
    caused or allowed the discharge of effluent into Illinois waters
    which resulted in, or contributed to, the presence of odor,

    —2-
    unnatural color and turbidity in the receiving waters (i.e., the
    roadside ditch and unnamed tributary) in violation of 35 Ill.
    Adm. Code 302.105 and Section 12(a) of the Act.
    Count V alleged that, on July 5, 1983, the Respondent caused
    or allowed the discharge of
    effluent into
    Illinois waters which
    resulted in, or contributed to, the receiving waters having an
    ammonia nitrogen concentration in excess of the numerical
    standard of 15 mg/i in violation of 35 Ill. Adm. Code 302.212(a)
    and Section 12(a) of the Act.
    Count VI alleged that, on July 5, 1983, the Respondent
    caused or allowed the discharge of effluent into Illinois water
    which resulted in, or contributed to, the unnamed tributary
    having a dissolved oxygen concentration of less than 5.0 mg/i in
    violation of 35 Ill. Adm. Code 302.206 and Section 12(a) of the
    Act.
    Count VII alleged that, on July 6, 1983, the contents of the
    Respondent s holding
    pond were pumped onto an adjacent
    cornfield,
    where
    the liquid was channelizing and flowing east across a
    soybean field and threatening to flow into a roadside ditch
    tributary
    to an unnamed tributary
    of the Mackinaw River, thereby
    threatening the discharge of contaminants into Illinois
    waters so
    as to cause, or tend to cause, a water pollution hazard in
    violation of Section 12(d) of the Act.
    A hearing was held on October 24, 1985, at which a member of
    the press was present. (R. 3). The parties filed a Stipulation
    and Proposal for Settlement at the hearing and on November 8,
    1985.
    The Respondent, Mr. Michael Delaney (Delaney), owns and
    operates a swine and cattle raising facility near Secor, Illinois
    in Woodford County. On a yearly basis, Delaney’s operations
    produce about 20 head of market weight cattle and about 1,000
    head of market weight swine. Delaney initially buys swine as
    feeder pigs and then brings them up to market weight. The
    Respondent’s livestock production takes place on open concrete
    feedlots. (Stip. 1; R 5). The Agency has characterized the
    Respondent’s operations as that of a small sole proprietorship.
    (R. 9).
    After runoff from the open concrete feedlots is directed to
    the southeast corner of the concrete lots, it is then drained
    into a settling basin. The resulting effluent from this settling
    basin subsequently flows into a holding pond. The contents of
    the holding pond were intended to be applied to cropland, since
    the Respondent had been instructed by the local Soil Conservation
    Service office (which designed the entire system in conjunction
    with personnel from the University of Illinois) to apply the
    liquid from the holding pond to nearby cropland. (Stip. 1).

    -3-
    An Agency inspector visited the Respondent’s site on July 5,
    1983 in response to an anonymous complaint. The inspector
    observed a black liquid being pumped out of the holding pond upon
    first arriving at Delaney’s facility. The inspector noted that
    the pumping unit consisted of a gasoline engine with about 10 to
    15 feet of hose on either end and that the liquid was discharged
    through the hose (i.e., a “point source”) into a roadside ditch
    which was tributary to an unnamed tributary of the Mackinaw
    River. (Stip. i). Other than the Respondent’s discharge of the
    black liquid from the holding pond, the Agency inspector saw no
    flows in the roadside ditch on July 5, 1983. (Stip. 1). It is
    undisputed that both the unnamed tributary of the Mackinaw River
    and the roadside ditch are Illinois waters to which the
    unauthorized discharge of contaminants from a point source is
    prohibited.
    The Agency has estimated that about 36,000 gallons of
    liquid were pumped from the Respondent’s holding pond into the
    roadside ditch. Because the holding pond was nearing its
    capacity, the Respondent deemed the pumping operation
    necessary. However, when directed to turn off the pumping unit
    by the Agency inspector,
    the Respondent promptly complied.
    (Stip. 2).
    Grab samples taken at the roadside ditch at a site
    wasdesignated3,420 mg/ias
    Stationand
    the
    B
    concentrationindicated
    thatof thetotalconcentrationsuspended
    solidsof
    BOD5
    was 250 mg/i, well in excess of five times the appropriate
    numerical standard set forth in 35 Ill. Adm. Code 304.120(c).
    Moreover, visual observation by the Agency inspector indicated
    that the contents of the roadside ditch contained foam, had a
    strong animal waste odor, and were black and turbid.
    (Stip. 2).
    Another grab sample was taken by the roadside ditch at a
    concrete dropbox near its confluence with the unnamed tributary
    at
    a location designated as Station B-i.
    Subsequent sampling
    indicated that, at Station B-i, the roadside ditch had an ammonia
    nitrogen concentration of 350 mg/i. The visual observations of
    the Agency inspector confirmed that the contents of the roadside
    ditch at the sampling point had a strong animal waste odor and
    were black and turbid.
    Similarly, another grab sample was taken at the unnamed
    tributary at a location about 200 feet south of its confluence
    with the roadside ditch at a location designated as Station C.
    Test sample results indicated that the unnamed tributary at
    Station C had an ammonia nitrogen concentration of 35 mg/i and a
    dissolved oxygen concentration of 3.8 mg/i. The Agency
    inspector’s visual observations indicated that the contents of
    the unnamed tributary at the sampling point contained foam, an
    animal waste odor, and were black and turbid. (Stip. 2).

    —4—
    An additional grab sample of the unnamed tributary which was
    taken at a location about 3/4 of a mile downstream of Station C
    and designated as Station C-i revealed that the unnamed tributary
    at that point contained an odor and was black and turbid.
    (Stip. 2).
    One day later, on July 6, 1983, the Agency inspector
    revisited the Delaney site and observed that liquid from the
    holding pond was being pumped onto an adjacent cornfield. This
    liquid was channelizing and flowing east to a nearby soybean
    field located to the east of the holding pond, thereby
    threatening to possibly flow into the roadside ditch.
    (Stip. 3)
    .
    The Agency has stipulated that the “Respondent
    believed in good faith that the discharge to the cornfield on
    July 6, 1983 was the proper measure to prevent further
    pollution”. (Stip. 4). The Agency inspector present at the
    scene observed that there was no adverse impact at Station C-i or
    further downstream in the unnamed tributary on July 6, 1983,
    although he did spot one dead minnow near Station C. (Stip. 4).
    The parties have stipulated that, beginning in i984, the
    Respondent bought 200 feet of fire hose and has pumped liquid
    from the holding pond south across a road and then onto a
    cornfield. (Stip. 4). The Agency has stated that “the liquid is
    distributed evenly in the cornfield by means of a perforated
    hose” and has concluded that “this cornfield is adequate in size
    and slope to prevent the entry of the liquid into waters of the
    State, and no further pollutional episodes have taken place”.
    (Stip. 4).
    At the hearing, Mr. Michael Delaney’s undisputed testimony
    indicated that he has been in compliance ever since the 1983
    incident. In reference to the improper discharge of contaminants
    resulting
    from the pumping of the contents of the holding pond on
    July 5, 1983, the Respondent testified
    that “we in no way thought
    it would ever cause harm the way we were disposing of it, and as
    soon as they told us it would, we changed”.
    (R. 13-15).
    The proposed settlement agreement provided that the
    Respondent admitted virtually all of the
    violations alleged in
    the Complaint and agreed to: (i)
    cease and desist from further
    violations; (2) follow an agreed upon compliance plan to take all
    necessary measures to prevent the entry of liquid from the
    holding pond, or other livestock waste material,
    into Illinois
    waters, and (3) pay a stipulated
    penalty of $500.00 into the
    Environmental Protection Trust Fund within 30 days of the date of
    the Board’s Order. (Stip. 3-6).
    Although the Respondent’s actions did not result in any
    significant fish kill, the Board believes that the character and
    degree of injury to the health, general welfare, and physical
    property of the People of Illinois was potentially significant

    —5—
    because the Respondent’s discharge was of a very high strength
    and adversely affected the roadside ditch and unnamed tributary
    for a distance of at least three-fourth of a mile downstream from
    the initial discharge. The Respondent’s facility is suitable to
    the area in which it is located providing that livestock waste is
    appropriately handled and the facility clearly has a social and
    economic value when properly operated.
    The Board believes that mitigating circumstances in this
    case include the facts that the Respondent: (1) is a small sole
    proprietorship which reasonably relied on the instructions of the
    local Soil Conservation Service office and University of Illinois
    personnel pertaining to its discharges; (2) acted in good faith
    at all times; (3) was cooperative with the Agency; (4)
    immediately followed the directives of the Agency inspector;
    (5) took prompt and specific actions to correct and eliminate the
    environmental problems and assure immediate compliance; and
    (6) has avoided any further pollution incidents since 1983.
    (Stip. 1—4).
    Additionally, the Board notes that the Agency has emphasized
    that the “Respondent in good faith did not believe that the
    discharge of liquid from the holding pond into the roadside ditch
    would result in effluent and water quality violations or other
    adverse impact to the receiving waters.” (Stip. 4). Moreover,
    the Agency has stressed that the “Respondent was cooperative with
    the Agency and responded to the directives of the Agency
    inspector” and “believed in good faith that the discharge to the
    cornfield on July 6, 1983 was the proper measure to prevent
    further pollution.” (Stip. 4).
    In evaluating this enforcement action and proposed
    settlement agreement, the Board has taken into consideration all
    the facts and circumstances in light of the specific criteria
    delineated in Section 33(c) of the Act and finds the settlement
    agreement acceptable under 35 Ill. Adm. Code 103.180.
    The Board finds that the Respondent, Mr. Michael Delaney,
    has violated 35 Ill. Adm. Code 302.203, 302.206, 302.212(a),
    304.106, 304.120(c), 309.102(a) and 501.404(c)(4)(A) and Sections
    12(a) and 12(f) of the Act. The Respondent will be ordered to
    cease and desist from further violations, to follow the agreed-
    upon compliance plan, and to pay a stipulated penalty of S500.00
    into the Environmental Protection Trust Fund.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    It is the Order of the Illinois Pollution Control Board
    that:

    -6-
    1. As admitted in the Stipulation, the Respondent, Mr.
    Michael Delaney, has violated 35 Ill. Adm. Code 302.203,
    302.206, 302.212(a), 304.106, 304.120(c), 309.102(a) and
    501.404(c)(4)(A) and Sections 12(a) and 12(f) of the
    Illinois Environmental Protection Act.
    2. The Respondent shall cease and desist from all further
    violations.
    3. The Respondent shall take all necessary measures to
    prevent the entry of liquid from the holding pond, or
    other livestock waste material, into waters of the State
    of Illinois.
    4. Within 30 days of the date of this Order, the Respondent
    shall, by certified check or money order payable to the
    State of Illinois and designated for deposit into the
    Environmental Protection Trust Fund, pay the stipulated
    penalty of $500.00 which is to be sent to:
    Illinois Environmental Protection Agency
    Fiscal Services Division
    2200 Churchill Road
    Springfield, Illinois 62706
    The Respondent has waived any right to have any unused
    portion of the stipulated penalty returned from the
    Environmental Protection Trust Fund.
    5. The Respondent shall comply with all the terms and
    conditions of the Stipulation and Proposal for
    Settlement filed on November 8, i985, which is
    incorporated by reference as if fully set forth.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Opinion and Order was
    adopted on the
    ~
    day of
    ___________________,
    1986 by a vote
    Dorothy M. ~unn,
    Clerk
    Illinois Pollution Control Board

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