ILLINOIS POLLUTION CONTROL BOARD
October
8,
1981
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB
79—215
JOHN
POPP AND G.E.
LOGAN,
)
Respondents.
ALICE N. KOUN,
ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
C)F
COMPLAINANT;
ROBERT
A.
WILSON,
HAROLD
E.
KARP,
AND
CONSTANTINE
E.
DRANIUS,
IDARIUS, DRANIUS AND ASSOCIATES, APPEARED ON BEHALF
OF
RESPONDENT
POPP;
AND
JOHN G.
PLAIfl APPEARED ON BEHALF OF RESPONDENT LOGAN.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
On October 19, 1950 the Illinois Environmental Protection
Agency (Agency) filed a three-count complaint against John Popp
and G.E.
Logan alleging that actual or threatened water pollution
of the Little Rock Creek had occurred as a result of respondents’
operation of
a hog feedlot near the Village of Hinkley, DeKaib
County.
Hearing in this matter was held on February
9,
1981.
Pursuant to the Board’s Order of October 30,
1980,
for failure to
respond to discovery requests, Popp was debarred from presenting
evidence concerning 1) ownership of the feedlot, 2) provision of
diversion, dikes, etc.
to control runoff from the feedlot,
3)
provisions of protection against Little Rock Creek’s flooding the
feedlot, and 4) his financial ability to pay any penalty imposed.
Popp was not present at the hearing, but was represented by
counsel who were given leave by the Board to withdraw from the
case on April
16, 1981 because of Popp’s failure to contact and
to cooperate with counsel.
Service of subsequent filings was
ordered to be made to Popp himself.
The complaint concerns actions alleged to have occurred on
or about March
8,
1979 and continuing until on or about July 23,
1979.
Count
I of the complaint alleges that Popp as owner and/or
operator of the feedlot, and Logan as
lessee—operator violated
Section
12(a)
of the Act by causing, threatening, or allowing
discharge of contaminants into the environment through failure to
43—44 1
2
control surface runoff and to protect against creek flooding, and
through improper maintenance of
a manure stack located within 100
feet of Little Rock Creek.
Count II alleges that placement of
manure on the banks and in the flood plain area of the creek
created a water pollution hazard in violation of Section 12(d)
as well as Section 12(a) of the Act.
Count III alleges that
respondents’
manure pile placement caused or allowed a violation
of Rule 203(a)
of Chapter 3:
Water Pollution and of Section 12(a),
which provides in part that waters of the state shall be free from
unnatural sludge and bottom deposits, unnatural color and turbidity.
The testimony presented at hearing was that of Robert
C.
Taylor,
an Agency Environmental Protection Specialist,
respondent
Logan, and two of his occasional employees,
Tom and Ed Erhart.
In September,
1978, Popp and Logan became joint venturers in a
business named P & L Pork Company, which was begun to finish
(or
“fatten
up”) hogs for market.
The finishing facility,
located on
a portion of property owned by Popp, had been in operation prior
to the start of the Popp-Logan venture.
Beginning September
6,
1978 Logan became the manager of the facility, and continued
in
that position until the joint venture terminated on June
1,
1979
(R.
12—15,
21).
Shortly thereafter,
the facility was dismantled.
The finishing facility was located in an area approximately
600 yards wide bounded to the east by fences in close proximity
to East Sandwich Road and to the west by fences in close proximity
to Little Rock Creek.
The general drainage pattern in the area
is for run—off to flow west from the road into the creek.
The
creek’s
flood plain is located within the area
(Ex.
2)
The finishing facility, as based on a Cargill Company design,
was constructed
4½
feet higher at one end than the other
so as to
reduce the cleaning chores.
Hog pens were located on a rectangular
concrete pad measuring 150’
X 90’, approximately 200 feet west of
the creek.
The pad sloped into a driveway along its southern edge.
Runoff from the driveway and pad area was designed to flow through
a channel in the driveway into
a depressed area containing a lagoon
about 20 feet wide and eight feet deep
(R.
16,
30,
60—62,
167,
171).
The facility housed from 200 to 500 hogs at a time.
In the
regular course of business provision was not made for on-site
manure storage or for its transport off—site, as the facility
design contemplated that manure would dry on the concrete areas
and be blown away
(R.
23)
Cleaning was however required about
4 times yearly.
Logan
testified that when he became involved with the feedlot in
September,
1978,
he discovered that a stack of manure 3’—4’ high
and 5’—8’
in circumference had been placed on the east bank of
the creek,
in an area of the property susceptible to creek over-
flow and flooding.
No efforts were made to remove this stack
(R.
176).
43—442
3
The heavy snows of the winter of 1978 or 1979 interfered with
normal operations at the feedlot.
During one of his approximately
bi—weekly inspection visits to the business
in February,
1979,
Logan determined that the snow--admittedly admixed with manure--
would have to be removed from the concrete areas
(T.
24).
This
material was cleared from the areas and pile~ion the ground to
the southwest of the facility, although some was piled to the
east of the facility so trucks could enter
(T.
177,
Ex.
2,6).
On March
8,
1979, in response to
a complaint to the Agency
from “a neighbor in proximity to the feed lot”, Robert Taylor
attempted to inspect the feedlot hut was denied access
to
the
property by Mrs.
Popp.
Standing on East Sandwich Road, however,
he observed “a long pile of material” which appeared to be manure,
stacked southwest of the facility
(R.
46—50).
During the course
of
a March
27,
1979 joint inspection of the property made with
two representatives of the DeKalb County Health Department,
at
the Health Department’s own suggestion,
Taylor was able to make
close observation and to take photographs
(Ex.
3-10) of this and
other material piled in the
P
& L Pork feed lot.
Logan had testified that the cleared material was piled in
a mound
6’
high,
8’-lO’ wide and 50’-60’
long, which extended to
within 100’—150’
of the creek.
Mr. Logan estimated that 90—95
of the mounded material was snow, which “manure ended up on top
of” because of the removal of material from a flat surface
(T.
174, 181).
It was Taylor’s testimony that the mound was
6’—8’
high,
up to 10’ wide,
and 100’—120’
long,
extended to within 100
feet of the creek bank, and was more manure than snow.
Taylor
noted that the lagoon, which was designed to receive runoff from
the facility was nearly full.
(R.
63).
Taylor also testified that
flooding
a few days earlier had apparently washed residue froc~the
flat or surface areas of the property into bushes and shrubbery
to
the west which were in close proximity to the river
(T.
98,
99,
Ex.
8).
Neither Popp nor Logan were present during this inspection.
They were advised of the Agency’s findings by telephone, and by
letters of April
2 and 25,
1979.
Logan’s reply to the latter
letter stated by his belief that the inspection “was improperly
made during flood stage
and
that the Agency showed
an apparent
lack of understanding of winter snow conditions and wet field
conditions.., when and only when field conditions warrant, the
“contaminant” will be spread on adjacent fields...”
(Ex. 1).
During the last week of April, the melted remnants of the
formerly frozen large mound, then measuring 4’—6’ high and wide,
and 15’—20’
long and composed of “mainly manure”
(R.
216—217),
was removed from the area and spread on a cornfield, according to
the testimony of the Erharts.
The entire facility itself was
dismantled on or about June
1,
1979 at or under Popp’s direction.
Taylor’s June 5—6,
1979 inspection confirmed that the large mound
had been removed
(Ex.
11).
However,
Taylor found manure actually
43—443
4
stacked on the creek’s east bank, and observed manure deposits in
the creek as far as
100,—iso’
downstream of the facility
(T.
129—131, 140—142, Ex.
12—15).
On Taylor’s last inspection of the
facility July
23,
1979 the manure was still stacked on the creek
banks
(T.
147).
Logan denied that the facility itself had ever been flooded
or that the
lagoon had overflowed or that he had cut trenches to
drain the lagoon to the creek
(R.
177,
189).
He also testified
that he never saw and had no knowledge of anything to do with the
manure deposits on the Creek bank,
or whether the manure on the
property away from the facility was affected by flooding
(R.
194).
The Board finds that respondents Popp and Logan have
committed the violations alleged in the complaint occurring
between March and July 13,
1979.
The testimony,
as illustrated
by Taylor’s photographs, prove that manure
‘was piled in close
proximity to Little Rock Creek and that no provision was made to
prevent pollution of the creek, with the result that the creek
was contaminated by runoff and fecal material,
In considering penalties for this violation, the Board must
consider the factors set forth in Section 33(c) of the Act in
addition to other mitigating factors.
Location of the P
& L
feedlot in an area susceptible to flooding and in close proximity
to the creek without provisions for secure storage of manure
stacks seriously undercuts its social value.
The extensive
pollution of the Little Rock Creek could have been reasonably
avoided either by early removal
of manure from the site or by
use of dikes, walls, or the like.
Here, as in prior opinions,
the Board acknowledges that the
severe 1978—1979 winter disrupted normal operations and is pro-
perly argued as a mitigating factor, as are resulting wet field
conditions during the thaw period.
Balanced against this factor,
however,
is the failure to increase supervisory oversight and to
erect stack barriers to prevent manure runoff,
under these unusual
circumstances, and certainly to properly clean the
P
& L site
after its close.
While Logan argues that he has no responsibility
for events occurring after 3une 1, 1979, the ?oard finds that as
a joint venturer, he bore responsibility to see that the venture
was properly “wound down”.
However,
in view of the fact that
Logan was not the property’s owner, and
so could not exert control
after June
1, 1981,
a penalty of $150 is assessed against Logan.
As Popp himself had the ongoing responsibilities of a landowner
of all the property and also closed the facility,
a penalty of
$1500 is assessed against him.
This Opinion constitutes the Board’s
findings of fact and
conclusions of law in this matter.
43—444
5
ORDER
1.
Respondents John Popp and G.E. Logan are found
to have
violated Sections 12(a) and
(d)
of the Environmental Protection
Act, and Rule 203(a) of Chapter
3:
Water Pollution.
2.
A penalty of $1500 is hereby assessed against John Popp,
and a penalty of $150 is assessed against G.E. Logan.
3.
Within 30 days of the date of this Order, each Respondent
shall, by certified check or money order payable to the State of
Illinois,
pay the penalty assessed against him which
is to be sent
to:
Illinois Environmental Protection Agency
Fiscal
Services
Division
2200
Churchill
Road
Springfield,
IL
62706
IT
IS SO ORDERED.
I, Christan L.
Moffett, Clerk of the Illinois
Pollution
Control Board, herpby certify that the above Opinion and Order was
adopted on the
~
day of
~
___,
1981
by a vote of
Christan L. Moff~~Clerk
Illinois Pollution
Control Board
43—445