Lisa Madigan
A'I"I'ORNEYGENERAL
The Honorable Dorothy Gunn
Illinois Pollution Control Board
James R . Thompson Center, Ste . 11-500
100 West Randolph
Chicago, Illinois 60601
Dear Clerk Gunn :
Enclosed for filing please find the original and ten copies of a Notice of Filing, Complaint,
Motion for Relief from Hearing Requirement and Stipulation and Proposal for Settlement in regard
to the above-captioned matter . Please file the originals and return file-stamped copies to me in the
enclosed, self-addressed envelope .
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
November 8, 2006
Re :
People v. Bradshaw Enterprises, LLC, et al.
Thank you for your cooperation and consideration.
Very truly yours,
Jane E . McBride
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
1001 East Main, Carbondale, Illinois 6290!
• (618) 529-6400 • TTY: (618) 529-6403 • Fax : (618) 529-6416
RER
E
ERJED
OFFICE
NOV 1 i 2CCS
Pollution
CoILLINOIS
nt o
Boad
JEM/pp
Enclosures
500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 •
TTY: (217) 785-2771 •
Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 •
TTY: (312) 814-3374 •
Fax : (312) 814-3806
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF
)
ILLINOIS,
)
Complainant,
)
vs.
)
PCB No .
('' ~~
(Enforcement)
BRADSHAW ENTERPRISES, LLC
)
an Illinois limited liability corporation,
)
and BRIAN BRADSHAW, individually,
)
Respondents .
)
1
RECEIVED
NOV t 1
2006
STATE OF ILLINOIS
Pollution Control Board
NOTICE OF FILING
To :
Jason P . Stone
Lewis and Longlett
435 Hampshire Street
Quincy, IL 62301
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois, a COMPLAINT, MOTION FOR RELIEF FROM HEARING
REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT, copies of which are
attached hereto and herewith served upon you .
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J . DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY.`---
j-~)-u
QTf'
JANE E . McBRIDE
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated
: November 8, 2006
CERTIFICATE OF SERVICE
I hereby certify that I did on November 8, 2006, send by First Class Mail, with postage
thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy
of the following instruments entitled NOTICE OF FILING, MOTION FOR RELIEF FROM
HEARING REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT
:
To:
Jason P. Stone
Lewis and Longlett
435 Hampshire Street
Quincy, IL 62301
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s) :
To :
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R . Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
L /
F
ne E . McBride
Assistant Attorney General
This filing is submitted on recycled paper
.
RECEIVEDCLERK'S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOV 1 4 2006
STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
)
Pollution Control Board
Complainant,
)
>
vs.
)
PCB No.
01,-i
~
(Enforcement)
BRADSHAW ENTERPRISES, LLC
)
an Illinois limited liability corporation,
)
and BRIAN BRADSHAW, individually,
)
Respondent .
)
MOTION FOR RELIEF FROM HEARING REQUIREMENT
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, and pursuant to Section 31(c)(2) of the
Illinois Environmental Protection Act
("Act"), 415 ILCS 5/31(c)(2) (2004), moves that the Illinois
Pollution Control Board grant the parties in the above-captioned matter relief from the hearing
requirement imposed by Section 31(c)(1) of the Act, 415 ILCS 5/31
(c)(1)
(2004) . In support of
this motion, Complainant states as follows :
1 .
The parties have reached agreement on all outstanding issues in this matter .
2.
This agreement is presented to the Board in a Stipulation and Proposal for
Settlement, filed contemporaneously with this motion .
3.
All parties agree that a hearing on the Stipulation and Proposal for Settlement is
not necessary, and respectfully request relief from such a hearing as allowed by Section
31(c)(2) of the Act, 415 ILCS 5/31(c)(2) (2004)
.
1
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, hereby requests
that the Board grant this motion for relief from the hearing requirement set forth in Section
31 (c)(1)
of the Act, 415 ILCS 5/31 (c)(1) (2004).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW J . DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY: ~~---t
<r
1.c r `
1
JANE E . McBRIDE
Environmental Bureau
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : November 8, 2006
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V .
BRADSHAW ENTERPRISES, LLC
an
Illinois limited liability corporation, and
BRIAN BRADSHAW, individually
Respondents .
PCB No.
G7
.j,
(Water-Enforcement)
IRER EIVED
NOV 1 4 2006
Pollution
Control
Board
COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General of the State of Illinois, complains of Respondents, BRADSHAW ENTERPRISES, LLC
.
and BRIAN BRADSHAW, individually, :
COUNT I
WATER POLLUTION
1 .
This Complaint is brought by the Attorney General on her own motion and at the
request of the Illinois Environmental Protection Agency ("Illinois EPA"), pursuant to the terms
and provisions of Section 31 of the Illinois Environmental Protection Act
("Act"), 415 ILCS 5/31
(2002) .
2.
The Illinois EPA is an agency of the State of Illinois created by Illinois General
Assembly in Section 4 of the Act, 415 ILCS 5/4 (2002), and charged, inter a/ia,
with the duty of
enforcing the Act .
3.
This Complaint is brought pursuant to Section 31 of the Act, 415 ILCS 5/31 (2002),
after providing the Respondents with notice and the opportunity for a meeting with the Illinois
EPA.
4.
Bradshaw Enterprises, LLC ("Bradshaw Enterprises"), is listed with the Illinois
Secretary of State's offices as an Illinois limited liability corporation subject to involuntary
dissolution, effective May 29, 2004 . Brian Bradshaw is the registered
agent . Brian Bradshaw's
address is RR 1, Box 3, New Salem, Illinois 62357
. Brian Bradshaw has indicated to the
Illinois EPA that Bradshaw Enterprises LLC is active and properly the subject of this
enforcement action . According to the Illinois Secretary
of State's business records, Bradshaw
Enterprise, LLC was reinstated as of August 27, 2004
.
5.
Brian Bradshaw ("Bradshaw") has identified himself to the Illinois EPA as the
owner of the facility that is the subject of this complaint . At all times relevant to this complaint,
Respondent Brian Bradshaw personally directed and
has been in control of the day-to-day
operations of the subject facility .
6 .
The Respondents' swine production facility is a farrow to
wean hog operation
with a capacity of approximately 1,000 sows located
in the southwest quarter of Section 15,
Township 9 North, Range 14 West, Clark County (the "facility")
. All livestock waste is directed
to the facility's primary lagoon . An overflow pipe in the berm of the primary lagoon allows
livestock waste to flow into the facility's secondary lagoon .
7.
Section 3 .165 of the Act, 415 ILCS 5/3
.165 (2002) provides :
"Contaminant" is any solid, liquid, or gaseous matter, any odor, or any form of
energy, from whatever source .
8.
Section 3 .395 of the Act, 415 ILCS 5/3 .395 (2002) provides
in pertinent part :
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying,
discharging, injecting, escaping, leaching, dumping,
or disposing into the
environment . . . .
9.
Section 3 .545 of the Act, 415 ILCS 5/3 .545 (2002) provides :
"Water pollution" is such alteration of the physical,
thermal, chemical, biological
or radioactive properties of any waters of the State,
or such discharge of any
contaminant into any waters of the State, as will or is
likely to create a nuisance
or render such waters harmful or detrimental or injurious
to public health, safety
or welfare, or to domestic, commercial, industrial,
agricultural, recreational, or
other legitimate uses, or to livestock, wild animals,
birds, fish, or other aquatic
life .
2
10
.
Section 3 .550 of the Act, 415 ILCS 3 .550 (2002) provides :
"Waters" means all accumulations of water, surface and underground, natural,
and artificial, public and private, or parts thereof, which are wholly or partially
within, flow through, or border upon this State .
11 .
Section 12 of the Act, 415 ILCS 5/12 (2002), provides in pertinent part that :
No person shall :
a.
Cause or threaten or allow the discharge of any contaminants into the
environment in any State so as to cause or tend to cause water pollution
in Illinois, either alone or in combination with matter from other sources,
or so as to violate regulations or standards adopted by the Pollution
Control Board under this Act
;
d .
Deposit any contaminants upon the land in such place and manner as to
create a water pollution hazard ;
12 .
Section 501
.405 of the Board's Agriculture Related Pollution Regulations, 35 III .
Adm . Code 501 .405, provide, in pertinent part
:
Field Application of Livestock Waste
a)
The quantity of livestock waste applied on soils shall not exceed a
practical limit as determined by soil type, especially its permeability, the
condition (frozen or unfrozen) of the soil, the percent slope of the land,
cover mulch, proximity to surface waters and likelihood of reaching
groundwater, and other relevant considerations .
13.
On December 16, 2003, the Illinois EPA received a complaint from Clark County
Highway Engineer Jack Ward that the facility had allowed livestock waste to flow into an
unnamed tributary of Mount Branch, which is tributary to the North Fork of the Embarrass River
.
14.
On December 17, 2003, an Illinois EPA inspector conducted an investigation of
the complaint
. The inspector observed discoloration, turbidity, odor and dead fish in the
unnamed tributary of Mount Branch
. The discharge was an obvious red color in the stream .
3
15.
At the time of the Illinois EPA's investigation, the inspector interviewed
Respondent Bradshaw . Respondent Bradshaw indicated to the inspector that the facility had
been unaware of waste flowing in to the stream until the facility was contacted by the Clark
County Highway Department in the afternoon of December 16, 2003
. According to Respondent
Bradshaw, the over-application of waste resulted when a large irrigation system supply hose
became disconnected, allowing the direct discharge of liquid waste onto crop land
.
At the time
of the interview, Respondent Bradshaw admitted that it is the facility's practice to check the
waste application system only once every two hours or so, and that the worker assigned to
check the system on December 16, 2003 was inexperienced
.
16 .
At the time of the December 17, 2003 inspection, the Illinois EPA inspector
observed that the waste that had been discharged from the supply hose had flowed off of the
crop land in at least three locations into the nearby stream
. The inspector observed that the
quantity of waste released onto the land was excessive, and thus resulted in the runoff to the
stream .
17. Two small streams converge to form the unnamed tributary that was the stream
that received the waste . The stream from the north east was clear and contained live fish . At
the time of the December 17, 2003 inspection, the stream from the northwest was red colored
and somewhat turbid with a slight livestock waste odor . Several dead fish were observed in the
northwest stream
. The northwest stream drains the area surrounding the facility .
18. At the time of the December 17, 2003 inspection of the facility, the Illinois EPA
inspector collected a water sample from the receiving stream . The sample indicated levels of
ammonia nitrogen of 43 mg/I .
19.
On December 17, 2003, the Illinois Department of Natural Resources ("Illinois
DNR") conducted an investigation of the fish kill that resulted from the facility's release of waste
4
on December 16, 2003. The Illinois DNR investigators categorized the fish kill as "heavy",
extending for more than four miles and resulting in the loss of an estimated 924 small fish .
20.
On March 5, 2004, the Illinois EPA issued a Violation Notice ("VN") concerning
the December 16, 2003 release, to Brian Bradshaw and Bradshaw Enterprises . On April 20,
2004, Respondents Bradshaw and Bradshaw Enterprises responded to the VN by submitting a
check in the amount of the fish kill assessment
. On May 4, 2004, the Illinois EPA issued a
Compliance Commitment Agreement ("CCA") rejection letter to the Respondents in response,
based upon the nature and seriousness of the violations coupled with the Respondents' failure
to outline corrective measures implemented or planned at the facility to avoid a reoccurrence .
21 .
On May 28, 2004, the Illinois EPA received a letter from the Respondents in
response to the Illinois EPA's May 4, 2004 rejection . The May 28, 2004 letter, the Respondents
included an explanation of the cause of the spill and described steps taken to prevent a
reoccurrence .
22 .
On June 4, 2004, the Illinois EPA sent the Respondents a Notice of Intent to
Pursue Legal Action ("NITPLA") notification regarding the December 16, 2003 release .
Respondent Bradshaw contacted the Illinois EPA to schedule a meeting pursuant to the
NITPLA letter. On July 1, 2004, the requested meeting was held . At the time of the meeting,
Respondent Bradshaw indicated he had implemented the following measures at the facility to
avoid a future release : he replaced the supply .hose clamp and enhanced the security of the
connection by adding a retaining wire . Further, he indicated that the pumping system is now
monitored during operation by trained staff
.
23.
By causing or allowing the release of livestock waste so that it discharged
directly off crop land into a stream, thereby causing a fish kill four miles in length in "waters" of
5
the State, the Respondents have caused water pollution in the State of Illinois, and thereby
violated Section 12(a) of the Act, 415 ILCS 5/12(a) (2002) .
24.
By causing or allowing the deposit of livestock waste in a manner and quantity
that exceeded a practical limit and created a water pollution hazard, Respondents have violated
Section 12(d) of the Act, 415 ILCS 5/12(d) (2002), and 35 III . Adm . Code 501 .405 .
PRAYER FOR RELIEF
WHEREFORE, Complainant, the PEOPLE OF THE STATE OF ILLINOIS, respectfully
request that the Board enter an order against the Respondents Brian Bradshaw and Bradshaw
Enterprises LLC :
A.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein ;
B.
Finding that Respondents have violated the Act and regulations as alleged
herein ;
C .
Ordering Respondents to cease and desist from any further violations of the Act
and associated regulations ;
D .
Assessing against Respondent a civil penalty of fifty thousand dollars ($50,000)
for each violation of the Act, and an additional penalty of ten thousand dollars ($10,000) for
each day during which each violation has continued thereafter ; and
E .
Granting such other relief as the Board may deem appropriate .
COUNTII
VIOLATION OF WATERQUALITY
STANDARDS
1-22 .
Complainant realleges and incorporates herein by reference paragraphs 1
through 22 of Count I as paragraphs 1 through 22 of this Count II .
6
23.
Section 302 .203 of the Board's Water Pollution Regulations, 35 III . Adm . Code
302.203, provides, in pertinent part :
Offensive Conditions
Waters of the State shall be free from sludge or other bottom deposits, floating
debris, visible oil, odor, plant or algal growth, color or turbidity of other than
natural origin .
24 .
Section 302 .212(a) of the Board's Water Pollution Regulations, 35 III
. Adm . Code
302.212(a), provides, in pertinent part :
Total Ammonia Nitrogen
a)
Total ammonia nitrogen (as N : STORET Number 00610) must in no case
exceed 15 mg/I.
25 .
On December 16, 2004, liquid livestock waste discharged from the facility flowed
into a nearby stream, causing unnatural coloration, turbidity and odor .
26 .
The facility's discharge of liquid livestock waste cause ammonia nitrogen levels
in the receiving stream to reach 43 mg/I .
27.
By causing or allowing a discharge to waters of the State that resulted in
unnatural coloration, turbidity and odor, Respondents have violated Section 12(a) of the Act,
415 ILCS 5/12(a) (2002) and 35 III . Adm . Code 302 .203 .
28 .
By causing or allowing a discharge of livestock waste to waters of the State that
resulted in levels of ammonia nitrogen that exceeded 15 mg/I, Respondents have violated
Section 12(a) of the Act, 415 ILCS 5/12(a) and 35 III. Adm . Code 302 .212(a) .
PRAYER FOR RELIEF
WHEREFORE, Complainant, the PEOPLE OF THE STATE OF ILLINOIS, respectfully
request that the Board enter an order against the Respondents Brian Bradshaw and Bradshaw
Enterprises LLC
:
7
A.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein ;
B.
Finding that Respondents have violated the Act and regulations as alleged
herein;
C .
Ordering Respondents to cease and desist from any further violations of the Act
and associated regulations ;
D.
Assessing against Respondent a civil penalty of fifty thousand dollars ($50,000)
for each violation of the Act, and an additional penalty of ten thousand dollars ($10,000) for
each day during which each violation has continued thereafter
; and
E.
Granting such other relief as the Board may deem appropriate .
COUNTIII
NPDES VIOLATION
1-22 .
Complainant realleges and incorporates herein by reference paragraphs 1
through 22 of Count I as paragraphs 1 through 22 this Count III .
23 .
Section 12(f) of the Act, 415 ILCS 5/12(f) (2002), provides, in pertinent part :
No person shall :
(f)
Cause, threaten or allow the discharge of any contaminant into the
waters of the State, as defined herein, including but not limited to, waters
to any sewage works, or into any well or from any point source within the
State, without an NPDES permit for point source discharges issued by
the Agency under Section 39(b) of this Act, or in violation of any term or
condition imposed by such permit, or in violation of any NPDES permit
filing requirement established under Section 39(b), or in violation of any
regulations adopted by the Board or of any order adopted by the Board
with respect to the NPDES program .
24 .
Respondents have not obtained an NPDES permit for the facility . The Illinois
EPA does has not received an NPDES permit application for the facility from the Respondents
8
for the facility
. At all times relevant to the complaint, the facility was not permitted under the
NPDES program .
25 .
The release of livestock waste from the facility's land application supply hose
was a point source discharge of contaminants to waters of the State .
26 .
By causing or allowing the release of livestock waste to waters of the State from
a point source at and under the control of a facility that is not permitted under the NPDES
program, Respondents have violated Section 12(f) of the Act, 415 ILCS 5/12(f) (2002) .
PRAYER FOR RELIEF
WHEREFORE, Complainant, the PEOPLE OF THE STATE OF ILLINOIS, respectfully
request that the Board enter an order against the Respondents Brian Bradshaw and Bradshaw
Enterprises LLC :
A.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein ;
B.
Finding that Respondents have violated the Act and regulations as alleged
herein ;
C.
Ordering Respondents to cease and desist from, any further violations of the Act
and associated regulations ;
D.
Assessing against Respondent a civil penalty of fifty thousand dollars ($50,000)
for each violation of the Act, and an additional penalty of ten thousand dollars ($10,000) for
each day during which each violation has continued thereafter ; and
9
E.
Of Counsel
Jane E . McBride
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : j//Q ~ / C
Granting such other relief as the Board may deem appropriate .
10
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
of the State of Illinois,
MATTHEW J . DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY: THOMAS
DAVIS,
~
Chief-
Assistant Attorney General
Environmental Bureau
/RCLERK'SECEIVED
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Nov
1 4 2006
PEOPLE OF THE STATE OF ILLINOIS,
)
Pollution Control Board
Complainant,
)
V .
)
PCB
(Water-Enforcement)
No.
0~
BRADSHAW ENTERPRISES, LLC
)
an Illinois limited liability corporation, and
)
BRIAN BRADSHAW, individually
)
Respondents .
)
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General of the State of Illinois, the Illinois Environmental Protection Agency ("Illinois EPA"), and
Bradshaw Enterprises, LLC and Brian Bradshaw ("Respondents"), have agreed to the making
of this Stipulation and Proposal for Settlement ("Stipulation") and submit it to the Illinois
Pollution Control Board ("Board") for approval . 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 hearing were held . The parties further stipulate that this statement
of facts is made and agreed upon for purposes of settlement only and that neither the fact that
a party has entered into this Stipulation, nor any of the facts stipulated herein, shall be
introduced into evidence in any other proceeding regarding the claims asserted in the
Complaint except as otherwise provided herein . If the Board approves and enters this
Stipulation, Respondent agrees to be bound by the Stipulation and Board Order and not to
contest their validity in any subsequent proceeding to implement or enforce their terms
.
I . JURISDICTION
The Board has jurisdiction of the subject matter herein and of the parties consenting
hereto pursuant to the Illinois Environmental Protection Act ("Act"), 415 ILCS 5/1 et seq . (2002) .
II. AUTHORIZATION
The undersigned representatives for each party certify that they are fully authorized by
the party whom they represent to enter into the terms and conditions of this Stipulation and to
legally bind them to it .
Ill . STATEMENT OF FACTS
A.
Parties
1 .
Simultaneously with this Stipulation and Proposal for Settlement, a Complaint is
being filed, on behalf of the People of the State of Illinois by Lisa Madigan, Attorney General of
the State of Illinois, on her own motion and upon the request of the Illinois EPA, pursuant to
Section 31 of the Act, 415 ILCS 5/31(2002), against the Respondent .
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4 of the Act, 415 ILCS 5/4 (2002) .
3.
Bradshaw Enterprises, LLC ("Bradshaw Enterprises"), is listed with the Illinois
Secretary of State's offices as an Illinois limited liability corporation subject to involuntary
dissolution, effective May 29, 2004 . Brian Bradshaw is the registered agent . Brian Bradshaw's
address is RR 1, Box 3, New Salem, Illinois 62357 . Brian Bradshaw has indicated to the
Illinois EPA that Bradshaw Enterprises LLC is active and properly the subject of this
enforcement action . According to the Illinois Secretary of State's business records, Bradshaw
Enterprise, LLC was reinstated as of August 27, 2004
.
2
4.
Brian Bradshaw ("Bradshaw") has identified himself to the Illinois EPA as the
owner of the facility that is the subject of this complaint
. At all times relevant to this complaint,
Respondent Brian Bradshaw personally directed and has been in control of the day-to-day
operations of the subject facility
.
B.
Site Description
1 .
At all times relevant to the Complaint, Respondents owned a farrow to wean hog
operation with a capacity of approximately 1,000 sows located in the southwest quarter of
Section 15, Township 9 North, Range 14 West, Clark County (the "facility") . All livestock waste
is directed to the facility's primary lagoon
. An overflow pipe in the berm of the primary lagoon
allows livestock waste to flow into the facility's secondary lagoon
.
2.
On December 16, 2003, the Illinois EPA received a complaint from Clark County
Highway Engineer Jack Ward that the facility had allowed livestock waste to flow into an
unnamed tributary of Mount Branch, which is tributary to the North Fork of the Embarrass River .
3.
On December 17, 2003, an Illinois EPA inspector conducted an investigation of
the complaint
. The inspector observed discoloration, turbidity, odor and dead fish in the
unnamed tributary of Mount Branch
. The discharge was an obvious red color in the stream .
4 .
At the time of the Illinois EPA's investigation, the inspector interviewed
Respondent Bradshaw . Respondent Bradshaw indicated to the inspector that the facility had
been unaware of waste flowing in to the stream until the facility was contacted by the Clark
County Highway Department in the afternoon of December 16, 2003
. According to Respondent
Bradshaw, the over-application of waste resulted when a large irrigation system supply hose
became disconnected, allowing the direct discharge of liquid waste onto crop land . At the time
of the interview, Respondent Bradshaw admitted that it is the facility's practice to check the
3
waste application system only once every two hours or so, and that the worker assigned to
check the system on December 16, 2003 was inexperienced .
5.
At the time of the December 17, 2003 inspection, the Illinois EPA inspector
observed that the waste that had been discharged from the supply hose had flowed off of the
crop land in at least three locations into the nearby stream
. The inspector observed that the
quantity of waste released onto the land was excessive, and thus resulted in the runoff to the
stream
.
6 .
Two small streams converge to form the unnamed tributary that was the stream
that received the waste
. The stream from the north east was clear and contained live fish . At
the time of the December 17, 2003 inspection, the stream from the northwest was red colored
and somewhat turbid with a slight livestock waste odor. Several dead fish were observed in the
northwest stream . The northwest stream drains the area surrounding the facility
.
7.
At the time of the December 17, 2003 inspection of the facility, the Illinois EPA
inspector collected a water sample from the receiving stream . The sample indicated levels of
ammonia nitrogen of 43 mg/I .
8 .
On December 17, 2003, the Illinois Department of Natural Resources ("Illinois
DNR") conducted an investigation of the fish kill that resulted from the facility's release of waste
on December 16, 2003
. The Illinois DNR investigators categorized the fish kill as "heavy",
extending for more than four miles and resulting in the loss of an estimated 924 small fish .
9.
On March 5, 2004, the Illinois EPA issued a Violation Notice ("VIN") concerning
the December 16, 2003 release, to Brian Bradshaw and Bradshaw Enterprises
. On April 20,
2004, Respondents Bradshaw and Bradshaw Enterprises responded to the VN by submitting a
check in the amount of the fish kill assessment . On May 4, 2004, the Illinois EPA issued a
Compliance Commitment Agreement ("CCA") rejection letter to the Respondents in response,
4
based upon the nature and seriousness of the violations coupled with the Respondents' failure
to outline corrective measures implemented or planned at the facility to avoid a reoccurrence
.
10.
On May 28, 2004, the Illinois EPA received a letter from the Respondents in
response to the Illinois EPA's May 4, 2004 rejection
. The May 28, 2004 letter, the Respondents
included an explanation of the cause of the spill and described steps taken to prevent a
reoccurrence .
11 .
On June 4, 2004, the Illinois EPA sent the Respondents a Notice of Intent to
Pursue Legal Action ("NITPLA") notification regarding the December 16, 2003 release,
Respondent Bradshaw contacted the Illinois EPA to schedule a meeting pursuant to the
NITPLA letter . On July 1, 2004, the requested meeting was held . At the time of the meeting,
Respondent Bradshaw indicated he had implemented the following measures at the facility to
avoid a future release: he replaced the supply hose clamp and enhanced the security of the
connection by adding a retaining wire . Further, he indicated that the pumping system is now
monitored during operation by trained staff.
12.
At all times relevant to the complaint, the facility was not permitted under the
NPDES program .
13 .
The release of livestock waste from the facility's land application supply hose
was a point source discharge of contaminants to waters of the State .
C .
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act and Board regulations :
CountI :
1 .
By causing or allowing the release of livestock waste so that it discharged
5
directly off crop land into a stream, thereby causing a fish kill four miles in length in "waters" of
the State, the Respondents have caused water pollution in the State of Illinois, and thereby
violated Section 12(a) of the Act, 415 ILCS 5/12(a) (2002) .
2.
By causing or allowing the deposit of livestock waste in a manner and quantity
that exceeded a practical limit and created a water pollution hazard, Respondents have violated
Section 12(d) of the Act, 415 ILCS 5/12(d) (2002), and 35 III . Adm . Code 501 .405 .
Count II :
3.
By causing or allowing a discharge to waters of the State that resulted in
unnatural coloration, turbidity and odor, Respondents have violated Section 12(a) of the Act,
415 ILCS 5/12(a) (2002) and 35 III . Adm . Code 302 .203 .
4 .
By causing or allowing a discharge of livestock waste to waters of the State that
resulted in levels of ammonia nitrogen that exceeded 15 mg/I, Respondents have violated
Section 12(a) of the Act, 415 ILCS 5/12(a) and 35 III. Adm . Code 302 .212(a) .
CountIII :
5.
By causing or allowing the release of livestock waste to waters of the State from
a point source at and under the control of a facility that is not permitted under the NPDES
program, Respondents have violated Section 12(f) of the Act, 415 ILCS 5/12(f) (2002)
.
D.
Admission of Violations
The Respondents represent that it has entered into this Stipulation for the purpose of
settling and compromising disputed claims without having to incur the expense of contested
litigation . By entering into this Stipulation and complying with its terms, the Respondents do not
affirmatively admit the allegations of violation within the Complaint and referenced within
6
Section III .C herein, and this Stipulation shall not be interpreted as including such admission .
E .
Compliance Activities to Date
Respondent Bradshaw purchased injection equipment for the facility in response to the
spill . The purchase included Angus hose, 4-inch drag hose, an applicator plow and a tractor to
pull the applicator . The system incorporated use of existing equipment, including a Dota
manure pump and a tractor to run the pump .
F.
Value of Settlement and Resulting Benefits
The total amount expended to achieve compliance was $93,000 .00 .
IV . APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and the
Respondents, and any officer, director, agent, or employee of the Respondents, as well as any
successors or assigns of the Respondents . The Respondents shall not raise as a defense to
any enforcement action taken pursuant to this Stipulation the failure of any of its officers,
directors, agents, employees or successors or assigns to take such action as shall be required
to comply with the provisions of this Stipulation .
1 .
No change in ownership, corporate status or operator of the facility shall in any way alter
the responsibilities of the Respondents under this Stipulation and Proposal for Settlement . In
the event of any conveyance of title, easement or other interest in the facility, the Respondents
shall continue to be bound by and remain liable for performance of all obligations under this
Stipulation .
7
2.
In the event that the Respondents propose to sell or transfer any real property or
operations subject to any Order accepting and adopting the terms of this Stipulation and
Proposal for Settlement, the Respondents shall notify the Complainant 30 days prior to the
conveyance of title, ownership or other interest, including
a leasehold interest in the facility or a
portion thereof . The Respondents shall make the prospective purchaser or successor's
compliance with any Order accepting and adopting the terms of this Stipulation a condition of
any such sale or transfer and shall provide a copy of this Stipulation and any Order accepting
and adopting the terms of this Stipulation to any such successor in interest . This provision does
not relieve the Respondents from compliance with any regulatory requirement regarding notice
and transfer of applicable facility permits
.
3 .
The Respondents shall notify each contractor to be retained to perform work required by
any Order accepting and adopting the terms of this Stipulation of each of the requirements of
said Order relevant to the activities to be performed by that contractor, including all relevant
work schedules and reporting deadlines, and shall provide a copy of this Stipulation and any
Order accepting and adopting the terms of this Stipulation to each contractor already retained
no later than 30 days after the date of adoption of this Stipulation . In addition, the Respondents
shall provide copies of all schedules for implementation of the provisions of this Stipulation to
the prime vendor(s) supplying the control technology systems and other equipment required by
any Order accepting and adopting the terms of this Stipulation
.
V. COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities of the Respondents to comply with
any other federal, state or local laws or regulations including, but not limited to, the Act and the
8
Board regulations, 35 III . Adm . Code, Subtitles A through H
.
VI . IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) of the Act, 415 ILCS 5133(c)(2002), provides 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 :
1 .
the character and degree of injury to, or interference with the
protection of the health, general welfare and physical property of
the people ;
2.
the social and economic value of the pollution source
;
3 .
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
;
4.
the technical practicability and economic reasonableness of
reducing or eliminating the emissions, discharges or deposits
resulting from such pollution source ; and
5.
any subsequent compliance .
In response to these factors, the parties state the following
:
1 .
The December 16, 2003 discharge of livestock waste resulted in a fish kill, the
receiving water being impacted by unnatural color, turbidity and odor, and elevated ammonia
nitrogen levels in the receiving stream .
2.
There is social and economic benefit to the facility .
3.
Operation of the facility, when done in compliance with the state's environmental
regulations, is suitable for the area in which it occurred
.
4 .
It is technically practicable and economically reasonable to land apply livestock
waste without a discharge .
5 .
Respondents have subsequently complied with the Act and the Board
9
Regulations
.
VII.
CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h)(2002), provides as follows :
In determining the appropriate civil penalty to be imposed under . . .
this Section,
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 respondent in
attempting to comply with requirements of this Act and regulations thereunder or
to secure relief therefrom as provided by this Act ;
3 .
any economic benefits accrued by the respondent because of delay in
compliance with requirements, in which case the economic benefits shall be
determined by the lowest cost alternative for achieving compliance ;
4.
the amount of monetary penalty which will serve to deter further violations by the
respondent and to otherwise aid in enhancing voluntary compliance with this Act
by the respondent and other persons similarly subject to the Act
;
5.
the number, proximity in time, and gravity of previously adjudicated violations of
this Act by the respondent
;
6 .
whether the respondent voluntarily self-disclosed, in accordance with subsection
i of this Section, the non-compliance to the Agency
; and
7 .
whether the respondent has agreed to undertake a "supplemental environmental
project," which means an environmentally beneficial project that a respondent
agrees to undertake in settlement of an enforcement action brought under this
Act, but which the respondent is not otherwise legally required to perform
.
In response to these factors, the parties state as follows
:
1 .
The discharge of waste occurred on December 16, 2003 . Complainant is not
aware of another discharge or over-application of livestock waste at this facility
.
2 .
The Respondents were diligent in attempting to come back into compliance with
the Act, Board regulations and applicable federal regulations, once the Illinois EPA notified it of
its noncompliance .
10
3.
The over-application of waste resulted when a large
irrigation system supply
hose became disconnected, allowing the direct discharge of liquid waste onto crop land . The
hose became disconnected due to the failure of a clamp
. At the time of the discharge
inspection, Respondent Bradshaw admitted that it was the facility's practice to check the waste
application system only once every two hours or so, and
that the worker assigned to check the
system on December 16, 2003 was inexperienced . Respondent Bradshaw has replaced the
irrigation system in use at the time of the December 16, 2003 discharge, with an injection
system . The amount required to come into compliance would
entail repair or modification of the
original system so as to prevent a discharge and for the
labor costs involved in additional
training for personnel and time dedicated to monitoring waste application . Respondent
Bradshaw chose to replace the original system with an injection system . The cost of the
injection system was $93,000 .00
.
4.
Complainant has determined, based upon the specific facts of this matter, that a
penalty of Three Thousand Five Hundred Dollars ($3,500
.00) will serve to deter further
violations and aid in future voluntary compliance with
the Act and Board regulations .
5 .
To Complainant's knowledge, Respondents have no previously adjudicated
violations of the Act .
6 .
Self-disclosure is not at issue in this matter
.
7 .
The settlement of this matter does not include a supplemental environmental
project .
VIII . TERMS OF SETTLEMENT
A.
Penalty Payment
1 .
The Respondents, Bradshaw Enterprises LLC and Brian Bradshaw individually,
11
shall, jointly and severally, pay a civil penalty in the sum of Three Thousand Five Hundred
Dollars ($3,500 .00) within thirty (30) days from the date the Board adopts and accepts this
Stipulation . The Respondents stipulate that payment has been tendered to Respondents'
attorney of record in this matter in a form acceptable to that attorney
. Further, Respondents
stipulate that said attorney has been directed to make the penalty payment on behalf of
Respondents, within thirty (30) days from the date the Board adopts and accepts this
Stipulation, in a manner prescribed below . The penalty described in this Stipulation shall be
paid by certified check, money order or electronic funds transfer payable to the Illinois EPA,
designated to the Illinois Environmental Protection Trust Fund and submitted to :
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P .O. Box 19276
Springfield, IL 62794-9276
The name and number of the case and Respondent Bradshaw Enterprise LLC's Federal
Employer Identification Number (FEIN), 35-2164473, shall appear on the check . A copy of the
certified check, money order or record of electronic funds transfer and any transmittal letter
shall be sent to:
Jane E . McBride
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
James Day
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P .O. Box 19276
Springfield, Illinois 62794-9276
2 .
Pursuant to Section 42(g) of the Act, 415 ILCS 5/42(g) (2002), interest shall
12
accrue on any payment not paid within the time period prescribed above at the maximum rate
allowable under Section 1003(a) of the Illinois Income Tax Act, 35 ILCS 5/1003 (2002) . Interest
on any unpaid payment shall begin to accrue from the date
the payment is due and continue to
accrue until the date payment is received
. When partial payment(s) are made, such partial
payment shall be first applied to any interest on unpaid payment then due and owing . All
interest on payment owed shall be paid by certified check, money order or electronic funds
transfer, payable to the Illinois EPA, designated to the Illinois Environmental Protection Trust
Fund and delivered to the address and in the manner described
above .
3.
For purposes of payment and collection, Respondents
may be reached at the
following address :
Mr . Brian Bradshaw
RR 1, Box 3
New Salem, Illinois 62357
4.
In the event of default of this Section VIII
.A, the Complainant shall be entitled to
all available relief including, but not limited to, reasonable costs of collection and reasonable
attorney's fees .
B.
Future Use
Notwithstanding any other language in this Stipulation to the contrary, and in
consideration of the mutual promises and conditions
contained in this Stipulation, including the
Release from Liability contained in Section VIII
.D, below, the Respondents hereby agree that
this Stipulation may be used against the Respondents in any subsequent enforcement action or
permit proceeding as proof of a past adjudication of violation of the Act and the Board
Regulations promulgated thereunder for all violations
alleged in the Complaint in this matter, for
purposes of Section 39(a) and (i) and/or 42(h) of the Act, 415 ILCS 5/39(a) and(i) and/or
13
5/42(h)(2002) . Further, Respondents agree to waive any rights to contest, in any subsequent
enforcement action or permit proceeding, any allegations that these alleged violations were
adjudicated .
C .
Cease and Desist
The Respondents shall cease and desist from future violations of the Act and Board
Regulations that were the subject matter of the Complaint as outlined in Section III .C
("Allegations of Non-Compliance") of this Stipulation .
D .
Release from Liability
In consideration of the Respondents' joint and several payment of the $3,500 .00 penalty
and agreement to Cease and Desist as contained in Section VIII .C and upon the Pollution
Control Board's acceptance and approval of the terms of this Stipulation and Proposal for
Settlement, the Complainant releases, waives and discharges the Respondents from any
further liability or penalties for violations of the Act and Board Regulations that were the subject
matter of the Complaint herein . The release set forth above does not extend to any matters
other than those expressly specified in Complainant's Complaint filed simultaneously with this
Stipulation and Proposal for Settlement . The Complainant reserves, and this Stipulation is
without prejudice to, all rights of the State of Illinois against the Respondents with respect to all
other matters, including but not limited to, the following :
a .
criminal liability ;
b .
liability for future violation of state, federal, local, and common laws and/or
regulations ;
c .
liability for natural resources damage arising out of the alleged violations
; and
14
d.
liability or claims based on the Respondents' failure to satisfy the requirements of
this Stipulation .
Nothing in this Stipulation is intended as a waiver, discharge, release, or covenant not to
sue for any claim or cause of action, administrative or judicial, civil or criminal, past or future, in
law or in equity, which the State of Illinois or the Illinois EPA may have against any person, as
defined by Section 3 .315 of the Act, 415 ILLS 5/3 .315, or entity other than the Respondents .
E .
Right of Entry
In addition to any other authority, the Illinois EPA, its employees and representatives,
and the Attorney General, her agents and representatives, shall have the right of entry into and
upon the Respondents' facility which is the subject of this Stipulation, at all reasonable times for
the purposes of carrying out inspections . In conducting such inspections, the Illinois EPA, its
employees and representatives, and the Attorney General, her employees and representatives
may take photographs, samples, and collect information, as they deem necessary .
F.
Modification of Stipulation
The parties may, by mutual written consent, agree to extend any compliance dates or
modify the terms of this Stipulation
.
A request for any modification shall be submitted to the
Plaintiff in writing . Any such request shall be made by separate document, and shall not be
submitted within any other report or submittal required by this Stipulation . Any such agreed
modification shall be in writing, signed by authorized representatives of each party, and then
accompany a joint motion to the Illinois Pollution Control
Board seeking a modification of the
prior order approving and accepting the Stipulation to approve and accept the Stipulation as
amended
.
15
G .
Enforcement of Board Order
1 .
Upon the entry of the Board's Order approving and accepting this Stipulation and
Proposal for Settlement, that Order is a binding and enforceable order of the Illinois Pollution
Control Board and may be enforced as such through any and all available means .
2.
Respondents agree that notice of any subsequent proceeding to enforce the
Board Order approving and accepting this Stipulation and Proposal for Settlement may be
made by mail and waives any requirement of service of process .
3.
The parties agree that, if the Board does not approve and accept this Stipulation
and Proposal for Settlement, then neither party is bound by the terms herein .
4.
It is the intent of the Complainant and Respondents that the provisions of this
Stipulation and Proposal for Settlement and any Board Order accepting and approving such
shall be severable, and should any provision be declared by a court of competent jurisdiction to
be inconsistent with state or federal law, and therefore unenforceable, the remaining clauses
shall remain in full force and effect .
16
the foregoing Stipulation and Proposal for Settlement as written .
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J . DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
BY:
WHEREFORE, Complainant and Respondents request that the
Board adopt and accept
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL
PROTECTI AGENCY
BY :
RO ERT A. ME S A
Chief Legal Counsel
BRADSHAW ENTERPRISES, LLC
BY :
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17
