ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    June
    2,
    1983
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    Complainant,
    v.
    )
    PCB
    83—28
    TOP
    CHOP,
    INC.,
    )
    an
    Illinois
    corporation,
    Respondent.
    JAMES
    L.
    MORGAN,
    ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
    OF THE COMPLAINANT.
    NOEL
    F.
    HICKS, DARRELL COX, ROSS SIMS AND WAYNE
    I.
    OVERBEY
    APPEARED PRO SE.
    OPINION AND ORDER OF THE BOARD
    (by W.J. Nega):
    This matter comes before the Board on the March
    1,
    1983
    complaint brought by the Illinois Environmental Protection Aqency
    (Agency).
    Count
    I of the Complaint alleged that,
    from March 27,
    1982 until
    March
    1,
    1983
    (including, hut not limited to, March 27,
    1982,
    March 29,
    1982,
    May 13,
    1982,
    and December
    9,
    1982),
    Top Chop,
    Inc.
    (Top Chop)
    allowed the discharge of contaminants from its
    hog lot facility (facility)
    into an unnamed tributary of Goose
    Creek and into Goose Creek without an NPDES Permit
    in violation of
    35
    Ill.
    Adm. Code 309.102 and Section
    12(f)
    of the Illinois
    Environmental Protection Act (Act).
    Count
    II alleged
    that,
    from March
    29,
    1982 until March
    1,
    1983
    (including, but not limited to, March 29, 1982 and May
    13,
    1982), the Respondent allowed the discharge of effluent from
    its facility which has caused the unnamed tributary and Goose
    Creek to contain unnatural manure bottom deposits,
    an unnatural
    black color and manure odors
    in violation of 35
    Ill. Mm.
    Code
    302.203, 35 Ill.
    Adm.
    Code 304.105, and Section
    12(a)
    of the Act.
    Count III alleged that,
    from March
    29,
    1982 until March
    1,
    1983
    (including, but not limited
    to, March 29, 1982 and Ma~ 13, 1982),
    Top Chop allowed discharges
    from its facility containing ammonia
    nitrogen in concentrations above 4.0
    mgll,
    so as to cause the
    water quality
    in the unnamed tributary and Goose Creek
    to have
    concentrations of ammonia nitrogen above
    1.5 mg/l
    in violation of
    35
    Ill. Mm.
    Code 302.208,
    35
    Ill.
    Adm. Code 304.105,
    35 Ill.
    Mm.
    Code 304.301 and Section
    12(a)
    of the Act.
    52-285
    —2—
    Count
    IV
    alleged that,
    from May 13,
    1982 until March
    1,
    1983
    (including,
    but not limited to,
    May 13,
    1982),
    Top Chop allowed
    the discharge of effluent erom its facility which caused Goose
    Creek to contain less than 5.0 mg/I of dissolved oxygen and,
    from
    March 29,
    1982 to March
    1,
    1983
    (including, hut not limited to,
    March
    29,
    1982 and May 13,
    1982),
    caused the unnamed tributary to
    contain less than 5.0 mq/l of dissolved oxygen in violation of
    35
    Ill. Mm.
    Code 302.206,
    35
    111. Mm.
    Code 304.105,
    and Section
    12(a)
    of the Act.
    Count
    V
    alleged that,
    from March 27,
    1982 until March
    1,
    1983
    (including,
    but not limited to, March
    27,
    1982,
    March
    29,
    1982,
    May 13,
    1982,
    November
    8,
    1982,
    and December
    9, 1982),
    the Respondent
    did not maintain adequate storage facilities for liquid livestock
    waste
    to prevent an overflow except
    in the case of precipitation
    in excess of
    a 25-year 24-hour storm nor a minimum of 120—day
    storage
    in violation of Rule 104(d)(3)(c) and Rule 104(d)(3)tD)(ii)
    of Chapter
    5:
    Livestock Waste Regulations
    (Chapter
    5) and
    Section 12(a) of the
    Act.
    A hearing was held
    on April
    22,
    1983* at which no members of
    the
    public were present.
    The parties filed
    a Stipulation and Proposal
    for Settlement on April
    28,
    1983.
    The Respondent owns and operates a hog lot facility with a
    liquid waste lagoon located near the Village of Palmyra
    in
    Macoupin County,
    Illinois.
    The Agency has conducted various
    inspections of Top Chop’s site to insure that proper environmental
    standards were maintained.
    During the Agency’s inspection on February
    25,
    1981,
    it was
    found that the facility was
    in general compliance.
    The inspector
    observed that there was
    B to 10 feet of freeboard in the hog
    waste
    lagoon and that the Respondent’s operation was expanding.
    The Agency contacted an employee of Top Chop on March
    27,
    1982
    because the hog waste lagoon at the facility was overflowing and
    was told that the overflow would be stopped.
    However, when the
    Agency inspector arrived at the facility on March
    29, 1982,
    he
    observed that liquid hog manure was steadily flowing from the
    waste lagoon into the unnamed tributary to Goose Creek causing the
    tributary to be black and septic.
    Moreover, there were also
    dark pools
    in Goose
    Creek.
    Water samples taken by the Agency
    on March 29, 1982 show that violations of the ammonia nitrogen
    and dissolved oxygen standards occurred in both the unnamed
    tributary and in Goose Creek.
    (Stip.
    2—3).
    The Respondent’s
    employee stopped the overflow at the hog waste lagoon during
    the Agency’s inspection.
    ~The Stipulation was slightly modified, ~y agreement of the
    parties,
    at the hearing.
    On page
    2, paragraph 4 of the stipulation
    the word “employee”
    was substituted for the term “manager” and on
    page
    7,
    paragraph 6B,
    the following sentence was added:
    “The
    inspector will report to the Top Chop representative at the plant
    during
    this inspection.”
    (R.7—8).
    52-286
    —3—
    On
    May
    13,
    1982,
    another
    Agency
    inspection
    revealed
    that
    both
    Goose Creek and the unnamed tributary were black and septic in
    appearance.
    An extension line
    (suitable for a pump which was
    lying on the berm of the waste
    lagoon) was also found by the Agency
    inspector.
    (Stip.
    3).
    In a telephone conversation the next day (i.e.,
    May 14,
    1982),
    the Respondent’s manager admitted to the Agency that Top Chop had
    been pumping waste into the unnamed tributary whenever
    it looked
    like it was going to rain because
    it couldn’t arrange for cropland
    tn which to apply the waste.
    (Stip.
    3).
    Water samples taken by
    the Agency on May
    13,
    1982 indicate violations of the ammonia
    nitrogen and dissolved oxygen standards.
    To encourage the correction of these environmental problems,
    the Agency sent Top Chop a letter on May
    28,
    1982 which described
    the
    discharges observed on March 29,
    1982 and May
    13, 1982 and
    listed the violations that occurred.
    This letter instructed the
    Respondent to apply
    for an NPDES Permit and recommended a regular
    dewatering program to cropland.
    The Agency’s letter also suggested
    that the Respondent contact a consulting engineer,
    the Soil
    Conservation Service, or the County Extension Advisor for help
    in planning and developing an adequate waste disposal
    system.
    (Stip.
    3—4).
    A subsequent Agency inspection on June
    28,
    1982 indicated that
    Top Chop’s facility was in general compliance with applicable
    regulations.
    However, a later inspection on November
    8,
    1982 showed
    that there was only
    1 foot of freeboard in the waste
    lagoon.
    The Agency sent the Respondent
    a letter on November 18,
    1982
    which recommended that the lagoon be dewatered to allow
    2 to
    3 feet
    of
    freeboard so that there would be sufficient waste storage
    capacity to get through the winter months.
    On December
    9,
    1982,
    the facility’s waste lagoon overflowed during heavy rains.
    (Stip.
    4.)
    The proposed settlement agreement provides that the Respondent
    admits the violations alleged in the Complaint and agrees
    to:
    (1)
    follow a specified compliance program
    to correct all environmental
    problems;
    (2) cease and desist from further violations;
    and
    (3)
    pay a stipulated penalty of $1,500.00.
    (Stip.
    6—9).
    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
    generally acceptable under 35
    Ill.
    Adm. Code 103.180.
    However, the Board believes that the proposed $1,500.00
    penalty
    is far too
    low.
    Because of the extent and duration of
    the harm to the environment;
    the flagrant and deliberate nature oi~
    many of the water pollution violations
    (such as the Respondent’s
    admitted, and continuing,
    policy of pumping waste directly, and
    repeatedly,
    into the unnamed tributary); the undue delay in
    52-287
    —4—
    implementing corrective action;
    and the Respondent’s seemingly
    lackadaisical
    and cavalier attitude of dilatorily cooperating
    with the Agency,
    the Board believes that a $5,000.00 penalty
    is
    appropriate in this case.
    Accordingly, the Board will accept the proposed settlement
    agreement with the proviso that
    a $5,000.00 penalty he imposed.
    A certification of acceptance and agreement to he bound to all
    terms and conditions of the Board’s Order
    (including the increased
    penalty provision)
    has been included as paragraph
    8 of
    the Board’s
    Order.
    If the parties choose not to accept the modified settlement
    agreement,
    the Stipulation and Proposal
    for Settlement will he
    rejected in toto by the Board and the case will be remanded to
    the parties
    T6?
    appropriate action.
    The Board
    finds that the Respondent,
    Top Chop,
    Inc.,
    has
    violated 35
    Ill. Mm.
    Code 302.203,
    302.206,
    302.208,
    304.105,
    304.301 and 309.102; Rule 104(d)(3)(c)
    and Rule 104(d)(3)(D)(ii)
    of Chapter
    5:
    Livestock Waste Regulations;
    and Sections 12(a)
    and 12(f)
    of the Act.
    The Respondent will he ordered to cease
    and desist from further violations;
    follow the compliance plan
    set forth
    in the Stipulation; and to pay
    a penalty of $5000.00.
    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:
    1.
    The Respondent,
    Top
    Chop,
    Inc., has violated
    35
    111. Mm. Code 302.203,
    302.206,
    302.208,
    304.105,
    304.301,
    and 309.102; Rule 104(d)(3)(c) and Rule 104(d)(3)(D)(ii)
    of
    Chapter 5:
    Livestock Waste Regulations; and Sections 12(a)
    and 12(f)
    of the Act.
    2.
    The Respondent
    shall cease and desist from further violations.
    3.
    The Respondent
    shall take all necessary actions to
    obtain an NPDES Permit
    for waste discharges at its hog
    lot
    facility in accord with its NPDES Permit application which was
    filed on September 27,
    1982.
    4.
    The Respondent shall allow the Agency to inspect the
    exterior premises
    of its facility at any reasonable
    times without
    the Agency contacting management before the inspection.
    The
    inspector will report to the Top Chop representative at the
    plant during this inspection.
    5.
    Within
    30 days of
    the date of this Order,
    the Respondent
    shall meet with representatives
    of the Agency and representatives
    of either the Soil Conservation Service,
    the County Extension
    52-288
    —5—
    T~dvisor, or
    a consulting engineer
    to develop a plan of regular
    land application of waste and the amount of freeboard which must
    he maintained so as not to cause water pollution.
    This
    land
    application and freeboard maintenance plan shall
    be implemented
    as soon as practicable,
    and,
    in the
    interim period,
    the
    Respondent shall:
    (a)
    maintain at
    least
    2 feet of freeboard
    in the waste
    lagoon
    and shall
    not cause or allow discharges of waste
    from
    the facility except
    in the case of precipitation
    in
    excess of
    a 25—year 24—hour storm;
    (h)
    have available over 300 rotated acres of appropriate
    crop land
    for the application of waste;
    and
    (c)
    have available at all times
    3 liquid manure tanks with
    tractors and dewaterinq equipment for the application
    of waste to cropiand.
    6.
    Within 30 days of the date of this Order, the Respondent
    shall, by certified check or money order payable
    to the State
    of
    Illinois,
    pay a penalty of $5,000.00 which is to he sent
    to:
    Illinois Environmental Protection Agency
    Fiscal Services Division
    2200 Churchill Road
    Springfield, Illinois
    62706
    7.
    The Respondent shall comply with
    all the terms and conditions
    of the Stipulation and Proposal for Settlement filed on April
    28,
    1983,
    as modified, which
    is incorporated by reference as
    if fully set
    forth herein.
    8.
    Within 30 days
    of the date of this Order,
    Top Chop,
    Inc.
    and the Agency shall execute a Certification of Acceptance and
    Agreement to he bound to all terms and conditions of this Order.
    This Certification shall he
    submitted to the Agency at 2200
    Churchill Road,
    Springfield,
    Illinois
    62706.
    The 30—day
    period
    shall be held
    in abeyance during any period that this matter
    is being appealed.
    The form of said Certification shall he
    as
    follows:
    52-289
    —6—
    CERTIFICATION
    I,
    (We)___
    _‘___~______
    ___,
    hereby
    accept
    and
    agree
    to
    be
    bound
    by
    all
    terms
    and
    conditions
    of
    the
    Order
    of
    the Illinois Pollution Cont~olBoard in PCB 83-28, dated June
    2,
    1983.
    Top Chop,
    Inc.
    Illinois Environmental
    Protection Agency
    Authorized
    Agent
    Authorized
    Agent
    Date
    Date
    IT
    IS
    SO
    ORDERED.
    I,
    christan
    L.
    Moffett,
    Clerk
    of
    the
    Illinois
    Pollution
    Control
    Board, hereb~certify that the above Opinion and Order were adopted
    on the
    _________—
    day of
    ~
    1983
    byavoteof
    Christan
    L. Mof~)t, Clerk
    Illinois Pollut~th(Control Board
    52-290

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