ILLINOIS POLLUTION CONTROL BOARD
April 16, 1998
DONETTA GOTT, LYNDELL CHAPLIN,
GARY WELLS, ERNEST L. ELLISON, and
MAXINE ELLISON,
Complainants,
v.
M'ORR PORK, INC., an Illinois corporation,
Respondent.
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PCB 96-68
(Enforcement - Air - Citizens)
DUNCAN B. COOPER, III OF HEYL, ROYSTER, VOELKER, & ALLEN
APPEARED ON BEHALF OF COMPLAINANTS; and
GEORGE J. LEWIS OF LEWIS, BLICKHAN, LONGLETT, & TIMMERWILKE
APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by K.M. Hennessey):
This is a citizens’ enforcement action concerning odors from a hog confinement
building and outdoor waste lagoon just north of the Village of Kinderhook, in Pike County,
Illinois. Respondent M’Orr Pork, Inc. (M’Orr Pork) operates the confinement and lagoon.
Complainants Donetta Gott, Lyndell Chaplin, Gary Wells, Ernest Ellison, and Maxine Ellison
live in Kinderhook.
In an interim opinion and order dated February 20, 1997, the Board found that odors
from the confinement and lagoon had caused air pollution in violation of the Environmental
Protection Act and the Board’s regulations. The Board required M’Orr Pork to evaluate
measures to abate the odors. In this final opinion and order, the Board requires M’Orr Pork to
perform certain odor abatement measures, to pay a civil penalty of $2,500, and to cease and
desist from further violations.
PROCEDURAL HISTORY
In its interim opinion and order of February 20, 1997, the Board found that odors from
M’Orr Pork’s hog confinement and lagoon unreasonably interfered with complainants’
enjoyment of their lives and property, which constitutes air pollution in violation of Section
9(a) of the Environmental Protection Act (Act), 415 ILCS 5/9(a) (1996). The Board also
found that M’Orr Pork violated 35 Ill. Adm. Code 501.402(c)(3), which requires certain
2
livestock facilities to practice adequate odor control methods and technology to prevent air
pollution.
After finding these violations, the Board found that the record contained insufficient
information for the Board to order M’Orr Pork to perform specific odor abatement measures.
Accordingly, the Board required M’Orr Pork to have a qualified, independent individual or
firm evaluate measures to abate odors from the hog confinement and lagoon and to submit a
report on those measures by May 20, 1997. In addition, the interim opinion and order
provided for a thirty-day period after the filing of the evaluation report for complainants to
respond to the report and for either party to request a hearing on odor abatement measures.
The Board stated that after the evaluation report is filed and any response is filed or hearing is
held, the Board would issue a final opinion and order, in which the Board would consider
whether to impose a civil penalty on M’Orr Pork and whether other relief would be
appropriate.
M’Orr Pork timely filed its evaluation report. Complainants filed no response to the
report. However, on June 17, 1997, complainants filed a motion to have a hearing on odor
abatement measures. Chief Hearing Officer Michael Wallace granted the motion and held the
hearing on September 30, 1997. M’Orr Pork filed a post-hearing brief on November 17,
1997. On January 2, 1998, complainants filed a motion for leave to file instanter their post-
hearing brief. Complainants explained that on the date their post-hearing brief was due,
December 23, 1997, they mailed the document to the hearing officer and opposing counsel,
but inadvertantly failed to file it with the Clerk’s office. The motion for leave to file instanter
is granted.
FINDINGS OF FACT
In its interim opinion, the Board made various findings of fact that are incorporated
herein by reference. Based on M’Orr Pork’s evaluation report and other evidence presented at
the September 30, 1997, hearing, the Board will now make additional findings of fact relevant
to the issues of remedy, including whether to impose a penalty.
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Odor Abatement Measures
Dr. Dwaine S. Bundy prepared M’Orr Pork’s evaluation report (M’Orr Pork Exh.
AH12) and testified on behalf of M’Orr Pork. Dr. Bundy is a professor in the agricultural
engineering department at Iowa State University and has extensive experience with livestock
odors. Tr. at 67-73; M’Orr Pork Exh. AH12, Att. Dr. Bundy visited the M’Orr Pork farm
five times and each time also visited the east-west street on the north side of Kinderhook where
complainants Ellison and Wells live. Dr. Bundy assessed air quality on each of these visits.
The visits took place on the following dates at the time of day indicated: March 19, 1997,
1
The transcript of the September 30, 1997, hearing is cited as “Tr. at _.” M’Orr Pork’s
exhibits are cited as “M’Orr Pork Exh. AH_” and complainants’ exhibits are cited as “Comp.
Exh. AH_.” Complainants’ post-hearing brief is cited as “Compl. Br. at _.”
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(midday); May 3, 1997, (midday); on or about August 1, 1997, (evening); on or about
September 1, 1997, (evening); and September 30, 1997, (morning). Tr. at 73-78, 116-117;
M’Orr Pork Exh. AH12 at 1, Fig. 1.
Manure Pits
Dr. Bundy recommends that M’Orr Pork empty the manure pits beneath the
confinement every 10 to 12 days. This measure is designed to minimize odors. After each
emptying, Dr. Bundy recommends that M’Orr Pork refill the pits with approximately four
inches of fresh water. The water will help clean the pits during emptying, thereby diminishing
building odors. M’Orr Pork presently implements these practices, but it is unclear from the
record when it began to do so. M’Orr Pork Exh. AH12 at 1, 3, 5.
Wash Confinement
Dr. Bundy recommends that M’Orr Pork wash the confinement building between
groups of pigs. It will “reduce the amount of dust and also the odor being exhausted from the
building.” M’Orr Pork Exh. AH12 at 3, 5. M’Orr Pork currently does this, but the record
does not disclose when it began this practice. M’Orr Pork Exh. AH12 at 3.
Additives in Hog Feed
M’Orr Pork started adding oil to its hog feed in early 1996. Dr. Bundy recommends
this practice. It will “reduce dust in the building up to 50%,” thereby decreasing odors
because approximately “50 to 60 percent of the odors from the exhaust air is carried on dust
particles.” Tr. at 87-89; M’Orr Pork Exh. AH12 at 3, 5. The oil is a pure vegetable oil. Tr.
at 31-32. It costs M’Orr Pork approximately $230 per month. Tr. 32-33.
M’Orr Pork also adds “Micro-Aid” to its hog feed “as per manufacturers
recommendations to reduce the ammonia and hydrogen sulfide levels in the building.” M’Orr
Pork Exh. AH12 at 3. Dr. Bundy recommends this practice. Tr. at 87; M’Orr Pork Exh.
AH12 at 5. Micro-Aid costs M’Orr Pork $120 per month. Tr. at 33. Dr. Bundy testified that
he has seen many studies showing that Micro-Aid as a feed additive reduces ammonia as much
as 70% and a few studies showing that it also reduces hydrogen sulfide. Tr. at 85-86. It is
unclear when M’Orr Pork began adding Micro-Aid to the hog feed.
Drainage Tube Extension
In the spring of 1996, M’Orr Pork added an extension to the drainage tube from the
confinement to the lagoon so that manure enters the lagoon below its liquid surface. The end
of the tube is approximately four to five feet below the lagoon’s surface. Before M’Orr Pork
extended the tube, fluid from the confinement was deposited on top of the lagoon surface. Dr.
Bundy recommends the practice of discharging beneath the lagoon surface and stated that it
will reduce odors when the pits are emptied. Tr. at 30, 89; M’Orr Pork Exh. AH12 at 4-5.
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Fast-Growing Trees
South of the lagoon and confinement building, M’Orr Pork planted 250 fast-growing
trees known as “Austrees.” M’Orr Pork Exh. AH12 at 2, 4, Fig. 1. The Board found in its
interim opinion that the Austrees were planted at the end of April 1996. The trees were two
feet tall when planted and approximately 11 feet tall as of the September 30, 1997, hearing.
Tr. at 13-15. The 250 Austrees cost M’Orr Pork $1,700. In addition, M’Orr Pork incurs
$120 annually to fertilize the trees. Tr. at 16-17.
Dr. Bundy recommends the Austrees. Tr. at 80-81; M’Orr Pork Exh. AH12 at 2, 4-
5. He stated that the trees are sturdy, that they grow approximately 6 to 8 feet in height
annually, and that they will reach a height of approximately 40 to 50 feet. Tr. at 80-81;
M’Orr Pork Exh. AH12 at 2. Austrees are commonly planted around livestock operations “to
filter dust and aerosol particles;” they “serve the purpose of diverting the air flow and
increasing air mixing.” Tr. at 81-82; M’Orr Pork Exh. AH12 at 2, 4. Dr. Bundy also
testified that the few studies that have been done indicate that “there is some absorption [of
odors by leaves] taking place.” Tr. at 81-82.
Dr. Bundy would not have M’Orr Pork supplement the Austrees with slower-growing
trees because they would “not add much to short term dispersing of odors” and because the
Austrees “will be tall enough within a few years to help in the dispersion of odors.” M’Orr
Pork Exh. AH12 at 4.
Corn
M’Orr Pork plants 35 acres of corn in the field to the south of the lagoon and
confinement and north of Kinderhook. The planting extends approximately 400 yards from
north to south and approximately 800 yards from east to west. Tr. at 18-19; M’Orr Pork Exh.
AH12 at 4-5, Fig. 1. Dr. Bundy recommends this practice. M’Orr Pork Exh. AH12 at 4-5.
He explained that the corn field “acts as a vegetative buffer[,] thus[] absorbing some of the
odors and helping to divert the air stream.” M’Orr Pork Exh. AH12 at 4. Dr. Bundy testified
that his research shows that vegetation reduces odor downwind of livestock units. He also
testified that M’Orr Pork plants its corn in the proper amount and location. Tr. 82-83. It is
unclear from the record when M’Orr Pork began this practice.
Spray System
M’Orr Pork installed an “Ecolo Odor Control System” on April 21, 1997. The system
includes 25 vertical steel pipes, each with a spray nozzle on top at a height of approximately
15 feet. The spray nozzles emit the Ecolo solution, discussed below. Twenty nozzles are
located around the southern edge of the lagoon and five are located directly south of the
confinement’s exhaust fans (the fans are on the south side of the building). M’Orr Pork spent
$4,800 for the Ecolo system, which includes a tank to hold the Ecolo solution and a
computerized pump. The Ecolo solution costs M’Orr Pork approximately $700 per month.
Tr. at 24-28, 58; M’Orr Pork Exh. AH12 at 4, Fig. 1. The nozzles spray for 30 seconds
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every five minutes from 6:30 p.m. to 11:00 p.m. and from 4:00 a.m. to 8:00 a.m. For the
rest of the day, the nozzles spray for 20 seconds every hour. David Orr explained that the
system sprays more frequently in the morning and evening hours because that is when most
people are outside. Tr. at 28-29; M’Orr Pork Exh. AH12 at 4.
Dr. Bundy recommends that M’Orr Pork use the Ecolo system and he testified that it is
an effective practice. Tr. at 105; M’Orr Pork Exh. AH12 at 4-5. He explained that the spray
nozzles emit a “formulation of oils from plant extracts blended to neutralize specific types of
odors.” M’Orr Pork Exh. AH12 at 4. He also noted that research at Iowa State University
“shows that the use of additives can be an effective way to reduce odors from manure
surfaces.” M’Orr Pork Exh. AH12 at 4.
James Gessner of New Recycling Technology, Inc., the midwest distributor for Ecolo
Odor Control Sysyems, testified that the Ecolo solution is a “natural blend of essential oils and
plant extracts.” Tr. at 53, 64-65. He described it as an “odor neutralizer as opposed to a
masking agent or cover-up.” Tr. at 57. He also testified that he has been to M’Orr Pork’s
farm several times since the system was installed and M’Orr Pork is managing and operating
the system according to recommended procedures. Tr. at 59.
Water to Dilute Lagoon
Dr. Bundy noted that M’Orr Pork’s lagoon was adequately designed. The lagoon is
100 feet by 150 feet at the top and 16 feet deep from the top of the berm to the bottom. Its
capacity is approximately one million gallons. M’Orr Pork Exh. AH12 at 2.
Dr. Bundy described M’Orr Pork’s lagoon as an anaerobic lagoon. He explained that
an anaerobic lagoon treats manure through bacterial action and that this process of anaerobic
digestion reduces odors. Tr. at 90-91; M’Orr Pork Exh. AH12 at 2-3. He noted that
anaerobic lagoons are a source of odors, “especially during initial startup.” M’Orr Pork Exh.
AH12 at 2-3. He stated that odors during startup can be reduced by filling at least one-third of
the lagoon with fresh water before manure is added, thereby allowing anaerobic digestion to
take place. Tr. at 90; M’Orr Pork Exh. AH12 at 3. David Orr testified that before any
effluent from the confinement building entered the lagoon, M’Orr Pork filled the lagoon one-
third full with water. He said that this was recommended to M’Orr Pork at the time. Tr. at
36-37.
Dr. Bundy noted that often it takes two to three years for the “microbial population in a
lagoon to increase to a level for good microbial activity.” M’Orr Pork Exh. AH12 at 3. To
find out whether microbial activity in M’Orr Pork’s lagoon may be inhibited, Dr. Bundy
chemically analyzed the lagoon effluent for electrical conductivity. The analysis showed an
electrical conductivity of approximately 7,610 parts per million (ppm), which Dr. Bundy said
is considered high. Dr. Bundy stated that bacterial action is inhibited when the lagoon’s
electrical conductivity exceeds 5,000 ppm. Tr. at 91-92; M’Orr Pork Exh. AH12 at 2-3.
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Dr. Bundy recommends that M’Orr Pork dilute the lagoon with water to reduce the
electrical conductivity to below 5,000 ppm. Tr. at 91-92; M’Orr Pork Exh. AH12 at 5. At
Dr. Bundy’s recommendation, M’Orr Pork has added approximately 150,000 gallons of water
to the lagoon at a cost of $200. M’Orr Pork began adding fresh water to the lagoon in early
May 1997. Tr. at 37-39, 92; M’Orr Pork Exh. AH12 at 3. Dr. Bundy also recommends that
M’Orr Pork have a laboratory test the lagoon’s electrical conductivity twice per year to ensure
that it stays below 5,000 ppm. He said the test is fairly inexpensive. Tr. at 91-93.
Dr. Bundy testified that the surface of an anaerobic lagoon will become pink under
good operating conditions. “Whenever it becomes pink, the odors reduce drastically, and it
becomes a well-working anaerobic system.” Tr. at 90-91. He explained that M’Orr Pork’s
lagoon is starting to show some pink coloration, indicating that the lagoon is maturing,
i.e.
,
that the lagoon’s microbial population is starting to increase. Tr. at 92; M’Orr Pork Exh.
AH12 at 3.
Moving Exhaust Fans
Dr. Bundy would not have M’Orr Pork move the exhaust fans to another side of the
building because it “would require major costly changes” and it is unnecessary due to the use
of the Ecolo Odor Control System, described above. M’Orr Pork Exh. AH12 at 4.
Aeration
Dr. Bundy stated that the lagoon can be aerated as is done at waste sewage plants. But
he would not have M’Orr Pork do this because “it is not an affordable technology for livestock
producers” and because he believes it is not warranted at this lagoon. M’Orr Pork Exh. AH12
at 5.
Lagoon Cover
Dr. Bundy stated that covering lagoons with an impermeable membrane is another
method to reduce odors. However, he said that while this technology has been feasible for
municipal sewage plants, it is “too expensive to use on swine lagoons.” M’Orr Pork Exh.
AH12 at 5.
Filters
The south side of the confinement has six pit fans. Tr. at 21-22. In front of each pit
fan, M’Orr Pork installed a filter, some time after the Ecolo Odor Control System was
installed. Each filter has a nozzle behind it from which Ecolo is sprayed onto the filters. Tr.
at 21-23, 60-61. Dr. Bundy testified that this is a good practice and he recommends that it be
continued. He explained that odors attach to dust particles and that the filters will absorb dust
particles, thereby diminishing odors. Tr. at 83-84. Dr. Bundy also recommended that the
filters continue to be moisturized, which increases their efficiency. Tr. at 84-85.
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Relocating the Confinement and Lagoon
M’Orr Pork spent $250,000 to build the confinement and lagoon. Tr. at 45. David
Orr testified that the cost of moving them would be totally prohibitive. Tr. at 46.
Cost and Management Overview
M’Orr Pork’s cost of initially implementing the recommended odor abatement
measures was $7,172. Its on-going monthly costs for these measures are $1,055 per month.
Tr. at 39. Dr. Bundy testified that M’Orr Pork’s management of the various abatement
procedures has been good. Tr. at 107-108.
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Effectiveness of Odor Abatement Measures
On his visits to the street where complainants Ellison and Wells live, Dr. Bundy used a
device called a “scentometer” to measure odor threshold levels. Tr. at 74-75. The
scentometer captures odorous air and allows the person conducting the test to smell it after
each of several stages of dilution. The more dilution required to eliminate the odor, the
stronger the odor, according to Dr. Bundy. Tr. at 98-100, 129. To properly use this
instrument, a person’s sense of smell should be validated as within a normal range by means of
an American Society for Testing and Materials (ASTM) standard. Dr. Bundy testified that his
sense of smell fell within a normal range when tested pursuant to the ASTM standard. Tr. at
129-130, 133-134.
On his five visits to the Ellison and Wells street, the wind was calm once, from the
north once, and from the west three times. Tr. at 75, 78. If Dr. Bundy smelled a hog odor,
he would assess it with the scentometer. Tr. at 75-76. Dr. Bundy smelled a “very slight” hog
odor on one occasion. Tr. at 76. He testified that his scentometer test result of the odor
showed that it was well below what is considered objectionable. Tr. at 76-77.
On the morning of the September 30, 1997, hearing, with the wind from the west, Dr.
Bundy conducted a scentometer test downwind approximately 300 feet east of the lagoon. Tr.
at 78, 97-98, 104, 131-132. His test result was “in the range of not being offensive odor.”
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Dr. Bundy recommends that M’Orr Pork move its sow lot to another site to reduce odors for
residents to the south. Tr. at 96-97; M’Orr Pork Exh. AH12 at 5. Dr. Bundy also
recommends that M’Orr Pork inject effluent from the lagoon to minimize odors when the time
comes for M’Orr Pork to field apply the lagoon effluent. Tr. at 96; M’Orr Pork Exh. AH12
at 5. David Orr testified that M’Orr Pork is committed to following these recommendations.
Tr. at 35-40. In addition, M’Orr Pork has been scraping the manure off the sow lot each
spring and fall and it plans on continuing that practice until the sow lot is moved. Tr. at 35-
36. The Board notes these matters, but will not discuss them further as they do not relate to
abatement of the odors that caused unreasonable interference,
i.e.
, odors from the confinement
and lagoon.
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Tr. at 104. Dr. Bundy testified that this indicates that the abatement procedures in place at
M’Orr Pork are working. Tr. at 105.
The other type of test Dr. Bundy conducted was for hydrogen sulfide. On the morning
of the hearing, Dr. Bundy took several readings with a portable hydrogen sulfide meter
approximately 300 feet east of the lagoon. Tr. at 97, 102, 129. He said that at that location
he was in the middle of the plume and could smell an odor. Tr. at 102. His average result
was two parts per billion (ppb) for hydrogen sulfide, which he described as very low. Tr. at
102, 130. He also took readings on top of the eastern or downwind side of the lagoon bank.
The results were 15 ppb and 16 ppb, which he also described as very low. Tr. at 102-103,
130-131. Dr. Bundy testified that these test results indicate that the present odor abatement
measures are working. Tr. at 104.
Dr. Bundy also testified that a properly functioning anaerobic lagoon will have a pink
surface color, which indicates that its odors are being significantly reduced. Tr. at 90-91. He
stated that M’Orr Pork’s lagoon is maturing and that it is becoming pink. Tr. at 92.
David Orr testified that adding vegetable oil to the hog feed has led to approximately
50% less dust inside the confinement than before M’Orr Pork added the oil. Tr. at 32. He
also testified that there is a lot less ammonia smell inside the confinement since M’Orr Pork
began using Micro-Aid in the hog feed. Tr. at 33.
James Gessner, an employee of a distributor for Ecolo Odor Control Systems, testified
that when he was at the Orr farm, the odor seemed to be totally under control. He added that
during the daytime on one of his visits to the M’Orr Pork farm he went into town and smelled
“a hint of the Ecolo fragrance as opposed to the hog odors.” Tr. at 63. He suggested that the
Ecolo scent smells like Dial soap. Tr. at 63.
Complainants Donetta Gott and Gary Wells testified that the hog odor problems persist.
Tr. at 144-146, 176-180. Ms. Gott stated that she kept a diary over an approximately eight
and one-half month period (in 1996 and 1997) and that she documented approximately 218
days on which she believed there were hog odor problems. Tr. at 174-176; Comp. Exh. AH6.
Mr. Wells testified that he kept a diary over an approximately six month period (March-
August 1997) and that he documented 70 days on which there were hog odor problems. Tr. at
140, 143-145; Comp. Exh. AH1. Mr. Wells admitted that the odors are not as frequent as
before and that M’Orr Pork’s odor abatement measures have “had a lot of success.” Tr. at
140, 144.
Both sides presented conflicting testimony over whether the persisting hog odors about
which Ms. Gott and Mr. Wells testified actually come from another, much larger hog facility
that began operation in the fall of 1995 or the spring of 1996 and is located approximately two
to two and one-half miles south of Kinderhook. Tr. at 47-48, 141-143, 180, 219-222, 237.
The Board finds that the record is insufficient to establish that this other hog facility is a source
of odors in Kinderhook.
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The Board further finds that the measures that M’Orr Pork has employed have
mitigated the odors from the confinement and lagoon. Although Ms. Gott and Mr. Wells
claim that the odors persist, complainants presented no other witnesses to corroborate their
observations. Moreover, Mr. Wells admitted that M’Orr Pork’s odor abatement measures
have had considerable success. In addition, Dr. Bundy testified that the measures are working
and that his conclusion is supported by air test results. He testified that M’Orr Pork is
properly implementing the odor abatement measures. He also indicated that some of the
measures will become more effective over time,
i.e.
, as the Austrees grow taller and as the
lagoon’s electrical conductivity decreases so as not to inhibit microbial activity. Finally, Dr.
Bundy visited the north side of Kinderhook five times, under varying wind conditions and at
different times of the day, including twice in the evening. Dr. Bundy testified that on one
occasion he smelled a very slight hog odor, which his scentometer categorized as well below
what is considered objectionable. The preponderance of the evidence therefore shows that
M’Orr Pork’s odor abatement measures have mitigated the odors from the confinement and
lagoon.
DISCUSSION
The Board will first discuss odor abatement measures to address air pollution from
M’Orr Pork’s confinement and lagoon. The Board will then address whether to impose a civil
penalty on M’Orr Pork for causing air pollution in violation of the Act and Board regulations,
and if so, in what amount.
Odor Abatement Measures
The Board considers the factors set forth in Section 33(c) of the Act in determining the
appropriate remedy. Section 33(c) reads as follows:
In making its orders and determinations, the Board shall take into
consideration all the facts and circumstances bearing upon the
reasonableness of the emissions, discharges, or deposits involved
including, but not limited to:
i. the character and degree of injury to, or interference with the
protection of the health, general welfare and physical property
of the people;
ii. the social and economic value of the pollution source;
iii. the suitability or unsuitability of the pollution source to the
area in which it is located, including the question of priority
of location in the area involved;
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iv. the technical practicability and economic reasonableness of
reducing or eliminating the emissions, discharges or deposits
resulting from such pollution source; and
v. any subsequent compliance. 415 ILCS 5/33(c) (1996).
The Board’s findings on the Section 33(c) factors from the interim opinion are
incorporated herein by reference, with the exception of the fourth factor. As the Board stated
at page 20 of its interim opinion:
As for technical practicability and economic reasonableness of
reducing or eliminating emissions, the question in fashioning a
remedy, in contrast to determining a violation, is not what could
M’Orr Pork have reasonably done to reduce emissions, but rather
“what is reasonable to require [M’Orr Pork] to do now” to
reduce its odorous emissions so as to stop the unreasonable
interference. (Forty-Eight Insulations, Inc., PCB 74-480, slip
op. 10 (emphasis in original).)
Dr. Bundy recommended a number of odor abatement measures for the confinement
and lagoon, described above in the Board’s findings of fact. M’Orr Pork is already
implementing these measures, with the exception of testing the lagoon’s electrical conductivity
twice per year. Dr. Bundy testified that the test is fairly inexpensive. The Board finds all of
these measures technically practicable and economically reasonable.
In light of these available measures, the Board declines to grant complainants’ request
that M’Orr Pork relocate its confinement and lagoon. Complaint at 4. M’Orr Pork spent
$250,000 to build these facilities. Any construction of a new lagoon and confinement at
another property could presumably cost M’Orr Pork approximately this much. Complainants
introduced no contrary evidence. The Board finds that it is economically unreasonable to
order M’Orr Pork to relocate these facilities in light of the alternative odor abatement
measures discussed below. See Dorothy L. Hoffman v. City of Columbia (October 17, 1996),
PCB 94-146, slip op. at 19 (Board refused to order city to relocate its maintenance facility,
finding the $150,000 cost associated with relocation to be economically unreasonable in light
of the availability of reasonable alternative options for controlling the facility’s noises that
were causing unreasonable interference).
However, the Board does order M’Orr Pork to perform all of the odor abatement
measures recommended by Dr. Bundy. The Board further grants complainants’ request that
the Board order M’Orr Pork to cease and desist from further violations. Complaint at 4. The
Board often has ordered specific controls to address sources of unreasonable interference and
included an order to cease and desist from further violations. See,
e.g.
, Scott and Karen
Thomas v. Carry Companies of Illinois (May 19, 1994), PCB 91-195, slip op. at 3; Peter
Arendovich v. Koppers Company (Sept. 13, 1990), PCB 88-127, slip op. at 2. The Board
does so here as well.
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The Board emphasizes that it orders M’Orr Pork to undertake these specific odor
control measures based on the record of this proceeding. This is not to say that there are not
or will not be other or better odor control measures available or that these measures are or will
be appropriate for every hog confinement and lagoon. Further, the Board emphasizes that
nothing in the order below prevents M’Orr Pork from improving the ordered odor control
measures or supplementing them with additional odor controls.
Penalty
Complainants requested that a fine be imposed on M’Orr Pork. Complaint at 4. The
maximum penalties the Board can assess are established in Section 42(a) of the Act, which
provides in pertinent part:
[A]ny person that violates any provision of this Act or any
regulation adopted by the Board . . . shall be liable to a civil
penalty not to exceed $50,000 for the violation and an additional
civil penalty of not to exceed $10,000 for each day during which
the violation continues . . . . 415 ILCS 5/42(a) (1996).
In its interim opinion and order, the Board found that M’Orr Pork allowed odors from
its hog confinement and lagoon to result in unreasonable interference with the enjoyment of
life and property, thereby causing air pollution in violation of Section 9(a) of the Act and the
Board’s regulations at 35 Ill. Adm. Code 501.402(c)(3). Pursuant to Section 42(a) of the Act,
the Board could impose a civil penalty of $50,000 for each of these two violations. In
addition, for each of these two violations, Section 42(a) permits the Board to impose a civil
penalty of $10,000 for each day the violation continues. The Board found in its interim
opinion that the offensive odors from the confinement and lagoon began in the spring of 1995
and continued intermittently until the time of the first hearing, which took place on May 30,
1996.
For its penalty determination, the Board again considers the Section 33(c) factors,
which are set forth above at pages 9 and 10. The Board incorporates by reference its findings
on these factors from its interim opinion. They are summarized below:
1. Character and Degree of Injury to, or Interference with the Protection of the
Health, General Welfare and Physical Property of the People. Odors from
the confinement and lagoon caused substantial interference and not merely
petty annoyance. The Board weighs this factor against M’Orr Pork.
2. Social and Economic Value of the Pollution Source. The economic and
social value of the livestock industry to the State of Illinois is well
recognized. But M’Orr Pork submitted very little evidence on the value of
its facilities. The Board weighs this factor only slightly in M’Orr Pork’s
favor.
12
3. Suitability or Unsuitability of the Pollution Source to the Area, including
Priority of Location. The confinement and lagoon are properly zoned and
have not negatively impacted property values, sales, or new construction.
This is counter-balanced, however, by M’Orr Pork’s failure to be sufficiently
mindful of the nearby residents in Kinderhook. In addition, the confinement
and lagoon do not have priority of location. The Board weighs this factor
neither in favor of nor against M’Orr Pork.
4. Technical Practicability and Economic Reasonableness of Reducing or
Eliminating the Emissions Resulting from the Pollution Source. There were
a number of technically practicable and economically reasonable odor control
measures that M’Orr Pork reasonably could have implemented sooner. The
Board weighs this factor against M’Orr Pork.
5. Subsequent Compliance. The evidence shows that the hog odor problem
persisted in Kinderhook as of the May 30, 1996, hearing. The Board weighs
this factor against M’Orr Pork.
Section 42(h) of the Act authorizes the Board to consider the impact of any
matter of record in determining the appropriate civil penalty. Section 42(h) reads in
pertinent part as follows:
In determining the appropriate civil penalty to be imposed . . .
the Board is authorized to consider any matters of record in
mitigation or aggravation of penalty, including but not limited to
the following factors:
1. the duration and gravity of the violation;
2. the presence or absence of due diligence on the part of the
violator in attempting to comply with the requirements of this
Act and regulations thereunder or to secure relief therefrom
as provided by this Act;
3. any economic benefits accrued by the violator because of
delay in compliance with requirements;
4. the amount of monetary penalty which will serve to deter
future violations by the violator and to otherwise aid in
enhancing voluntary compliance with this Act by the violator
and other persons similarly subject to the Act; and
5. the number, proximity in time, and gravity of previously
adjudicated violations of this Act by the violator. 415 ILCS
5/42(h) (1996).
13
As authorized by Section 42(h), the Board will consider each of the enumerated
factors in turn.
1. Duration and Gravity of Violation. Based on the record, the offensive odors
emitted by the confinement and lagoon continued intermittently for
approximately one year and caused substantial interference with
complainants’ enjoyment of their lives and property. The Board weighs this
factor against M’Orr Pork.
2. Diligence in Attempting to Comply. Construction of the confinement and
lagoon was completed in June or July of 1994 and the offensive odors began
in the spring of 1995. The record does not reveal the dates when M’Orr
Pork commenced a number of its odor control measures (emptying the
manure pits every 10 to 12 days and thereafter adding fresh water to the pits;
washing the confinement between groups of pigs; adding Micro-Aid to the
hog feed; planting corn). Other measures we know were not undertaken
until well after the confinement and lagoon had been built and the offensive
odors had begun: adding oil to the hog feed (early 1996); planting Austrees
(end of April 1996); extending drainage tube (spring 1996); installing Ecolo
Odor Control System (April 21, 1997); adding water to dilute the lagoon
(early May 1997); and adding filters to pit fans (between April 21, 1997, and
September 30, 1997). There is no indication in the record that these
measures could not reasonably have been implemented earlier.
Nevertheless, David Orr testified that M’Orr Pork filled the lagoon to
one-third full with water prior to allowing any effluent from the confinment
to enter the lagoon. He testified that this was recommended to M’Orr Pork
at the time. In the evaluation report, Dr. Bundy notes that the practice of
filling a lagoon at least one-third full with fresh water before adding manure
can reduce odors during startup. In addition, as is evident from the Board’s
findings of fact, M’Orr Pork has voluntarily undertaken numerous
recommended odor abatement measures. Accordingly, the Board weighs
this factor in M’Orr Pork’s favor.
3. Economic Benefits Accrued. The Board assumes that M’Orr Pork gained
some economic benefit by not implementing earlier its various odor control
measures. See,
e.g.
, IEPA v. Allen Barry, individually and Allen Barry,
d/b/a Allen Barry Livestock (May 10, 1990), PCB 88-71, slip op. at 77
(discussing the cost savings of delayed compliance based on the time-value of
money). But there is insufficient evidence in the record on this factor for a
specific calculation of this economic benefit. The Board weighs this factor
against M’Orr Pork.
4. Penalty Amount That Will Deter Further Violations and Aid in Enhancing
Voluntary Compliance. In light of M’Orr Pork’s voluntary efforts to
14
comply, the Board cannot find that a large penalty is necessary to deter
further violations by M’Orr Pork. As for enhancing voluntary compliance
by M’Orr Pork and others, the Board notes that its decision not to impose a
large penalty here is influenced by M’Orr Pork’s voluntary implementation
of numerous odor control measures. In addition, M’Orr Pork spent $7,172
to initially implement the recommended odor control measures and will
continue to spend $1,055 per month, or $12,660 per year, to continue these
efforts.
5. Previously Adjudicated Violations. The record contains no evidence of
previously adjudicated violations of the Act by M’Orr Pork. The Board
weighs this factor in M’Orr Pork’s favor.
Considering all of the above factors, including the nature and duration of the
interference and M’Orr Pork’s failure to implement its odor control measures sooner, the
Board finds that some penalty is warranted. See,
e.g.
, Processing and Books, Inc. v.
Pollution Control Board, 64 Ill. 2d 68, 77, 351 N.E.2d 865, 870 (1976) (Illinois Supreme
Court upheld Board penalty for odors from chicken farm’s manure and incineration of dead
chickens, noting that “the respondents seriously interfered with the enjoyment of life and
property in ways that could reasonably have been prevented.”). The Board finds, however,
that in light of all of these factors, including M’Orr Pork’s voluntary efforts to comply, a large
penalty is not warranted. See,
e.g.
, Allen Barry, PCB 88-71, slip op. at 35-36 (discussing
significance of diligence toward compliance for penalty determinations).
The Board will impose on M’Orr Pork a $2,500 penalty for violating the Act and the
Board’s regulations. The Board recognizes that hog odor control technologies for the recent
trend of more concentrated hog production are still developing and may undergo substantial
changes in the upcoming years. The Board notes, however, that nothing in the record
indicates that odor control measures could not reasonably have been implemented sooner. A
number of the odor control measures in this case were not implemented until well after M’Orr
Pork modified its hog operations. These measures should have been implemented earlier.
CONCLUSION
As discussed above, the Board will order M’Orr Pork to cease and desist from further
violations, to perform numerous recommended odor abatement measures, and to pay a civil
penalty of $2,500. The Board again emphasizes that its decision to order these particular odor
control measures is based only on the evidence before it in this case. As stated above, this
does not mean that there are not or will not be other or better odor control measures available
or that these measures are or will be appropriate for every hog confinement building and
lagoon. Additionally, nothing in this order prevents M’Orr Pork from enhancing the ordered
odor control measures or supplementing them with additional odor controls.
Again, the Board recognizes that technologies for controlling hog odor in this new era
of more concentrated hog production are still developing and may undergo significant changes
15
in the upcoming years. The Board notes, however, that the record of this case indicates that
M’Orr Pork reasonably could have implemented odor control measures sooner. M’Orr Pork
did not implement a number of its odor control measures until long after it modified its hog
operations. These measures should have been implemented sooner rather than later.
The Board incorporates by reference its findings of fact and conclusions of law from its
interim opinion.
3
This final opinion constitutes the Board’s findings of fact and conclusions of
law in this matter.
ORDER
1.
The Board finds that M’Orr Pork, by allowing the emission of odor from
its hog confinement and lagoon resulting in unreasonable interference
with the enjoyment of life and property, has caused air pollution in
violation of Section 9(a) of the Act (415 ILCS 5/9(a) (1996)) and 35 Ill.
Adm. Code 501.402(c)(3).
2.
M’Orr Pork must cease and desist from any further violations of Section
9(a) of the Act (415 ILCS 5/9(a) (1996)) and 35 Ill. Adm. Code
501.402(c)(3).
3.
M’Orr Pork must perform the following in accordance with the
recommendations of Dr. Dwaine S. Bundy as found by the Board in the
above opinion:
a. empty the manure pits located beneath the confinement building
every 10 to 12 days;
b.
after each emptying of the manure pits located beneath the
confinement building, refill the manure pits with approximately
four inches of fresh water;
c.
wash the interior of the confinement building between each group
of pigs;
d.
add vegetable oil or an equivalent product to the hog feed;
e.
add Micro-Aid or an equivalent product to the hog feed;
f.
maintain the end of the confinement building’s drainage tube
beneath the lagoon surface;
3
Complainants raise an argument in their post-hearing brief regarding local zoning,
presumably as it relates to Board setback requirements. Compl. Br. at 1-2. The Board
believes this matter was adequately addressed at page nine of its interim opinion.
16
g.
maintain the Austrees located south of the confinement building
and lagoon;
h.
plant corn throughout the 35 acre field located south of the
confinement building and lagoon;
i.
use the Ecolo Odor Control System or an equivalent system,
including spraying the Ecolo solution or an equivalent product
out of the 25 nozzles located south of the confinement building
and lagoon each day for 30 seconds every five minutes from 6:30
p.m. to 11:00 p.m. and from 4:00 a.m. to 8:00 a.m. and for the
rest of each day for 20 seconds every hour.
j.
add fresh water to the lagoon as necessary to ensure that the
lagoon’s electrical conductivity is below 5,000 parts per million
(ppm);
k.
have the lagoon’s electrical conductivity tested twice per year by
a qualified laboratory to ensure that it is below 5,000 ppm; and
l.
use the filters with the Ecolo solution or an equivalent product for
the pit fans on the south side of the confinement building and
keep the filters sufficiently moist.
4.
Nothing in this order prevents M’Orr Pork from improving the odor
control measures set forth in paragraph 3 above or supplementing these
measures with additional odor control measures.
5.
M’Orr Pork must pay a civil penalty of $2,500 for violating Section 9(a)
of the Act (415 ILCS 5/9(a) (1996)) and 35 Ill. Adm. Code
501.402(c)(3). M’Orr Pork must pay this penalty within 30 days of the
date of this order. Such payment must be made by certified check or
money order payable to the Treasurer of the State of Illinois, designated
to the Illinois Environmental Protection Trust Fund, and must be sent by
17
First Class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
The certified check must clearly indicate on its face this case name and
docket number, along with M’Orr Pork’s Federal Employer
Identification Number. Any such penalty not paid within the time
prescribed will accrue interest at the rate set forth in subsection (a) of
Section 1003 of the Illinois Income Tax Act (35 ILCS 5/1003(a)
(1996)), as now or hereafter amended, from the date payment is due
until the date payment is received. If the time for payment is stayed
during the pendency of an appeal, interest will not accrue during such
stay.
IT IS SO ORDERED.
Board Member R.C. Flemal dissented.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 16th day of April 1998 by a vote of 6-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
