0y
252008
OFFICE
OF
THE
ATT’ORNEY
GENERAL
STATE
OF
ILLINOIS
UtiO
CotroiS
Lisa
Madigan
ATTORNEY GENERAL
November21,
2008
John
T. TherriauIt,Asistant
Clerk
Illinois
PolluUon
Control Board
James
R.
Thompson
Center,
Ste.
11-500
100
West
Randolph
Chicago,
Illinois
60601
Re:
People
v.
Alan
Durkee,
dibla
Alan
Durkee
Swine
Farm
Dear
Clerk:
Enclosed for
filing
please
find
the
original
and
ten
copies
of
a
Notice
of Filing,
Entry
of
Appearance
and Complaint
in
regard
to
the above-captioned
matter.
Please
file
the originals
and
return
file-stamped
copies
to
me
in
the
enclosed,
self-addressed
envelope.
Thank
you
for
your
cooperation
and
consideration.
Very
truly
yours,
4
Jane
E. McBride
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois
62706
(217)
782-9031
JEM/pk
Enclosures
500 South
Second
Street,
Springfield,
Illinois
62706
• (217)
782-1090
•
‘PI’Y:
(877)
844-5461
•
Fax: (217)
782-7046
100
West
Randolph
Street,
Chicago,
Illinois
60601
• (312)
814-3000
•
TTY: (800)
964-3013
• Fax:
(312)
814-3806
NOTICE OF FILING
To:
Alan
Durkee,
dlb/a Alan Durkee
Swine Farm
Co.
Rd.
800N
&
Co.
Rd.
1700E
Stronghurst, IL
61480
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,
a
copy
of which is attached hereto
and
herewith
served
upon you.
Failure
to
file
an
answer
to
this Complaint within
60
days
may have
severe consequences.
Failure
to
answer will mean
that
all allegations in this Complaint will
be
taken as if
admitted for purposes
of
this proceeding. If you have any questions
about
this
procedure,
you
should contact
the
hearing officer assigned
to this
proceeding,
the
Clerk’s
Office
or an
attorney.
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
PEOF’LE
OF THE STATE OF ILLINOIS,
Complainant,
vs
)
PCB No
oq
(Enforcement)
ALAN DURKEE, dibla
)
ALAN DURKEE
SWINE
FARM,
)
Respondent.
)
FECEVED
CLEK’S
OFFICE
NOV
2.
5
2008
STATE
OF
IWNOIS
PoIIutiOr
Control
Board
1
FURTHER, please take
notice that
financing may be
available, through the Illinois
Environmental Facilities Financing Act, 20 ILCS 3515/1 (2006),
to correct the pollution alleged in
the Complaint
filed
in this case.
Respectfully submitted,
PEOPLE OF THE
STATE
OF
ILLINOIS
LISA MADIGAN,
Attorney General
of
the
State of
Illinois
MATTHEWJ.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation Division
BY:_______________________
-
7
JANE E. McBRIDE
Assistant
Attorney General
Environmental Bureau
500 South Second
Street
Springfield, Illinois
62706
217/782-9031
Dated:
November 24, 2008
2
CERTIFICATE
OF SERVICE
I hereby
certify
that
I did on November
24,
2008, send
by certified
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,
ENTRY
OF APPEARANCE
and
COMPLAINT:
To:
Alan
Durkee,
d/b/a
Alan Durkee
Swine
Farm
Co. Rd. SOON
& Co.
Rd. 1700E
Stronghurst,
IL
61480
and
the
original
and ten
copies
by
First Class
Mail
with postage
thereon fully
prepaid
of
the
same
foregoing
instrument(s):
To:
John
T.
Therriault,
Assistant Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
Suite 11-500
100 West
Randolph
Chicago,
Illinois 60601
Je
E. McBride
“ Assistant
Attorney
General
This filing
is
submitted
on
recycled
paper.
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF THE
STATE
OF ILLINOIS,
)
Complainant,
vs.
)
PCB
No.
)
(Enforcement)
ALAN
DURKEE,
dibla
)
!CEBVE
ALAN
DURKEE
SWINE
FARM,
)
LEfIcs
OFFICE
NOI
25
Respondent.
STATE
OF
ENTRY OF
APPEARANCE
U
10n
Control
Onbehfthe
Complainant,
PEOPLE
OF
THE
STATE
OF ILLINOIS,
Jane E.
McBride
and
Michael
D. Mankowski,
Assistant
Attorneys
General
of the State
of Illinois,
hereby
enter
their
appearance
as
attorneys
of
record.
Respectfully
submitted,
PEOPLE
OF
THE STATE
OF
ILLINOIS,
LISA
MADIGAN
Attorney
General
of
the
State of
Illinois
MATTHEWJ.
DUNN,
Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
,
2
Laf(e E.
McB ide
Michael
Mankowski
Environmental
Bureau
Assistant
Attorneys
General
500
South
Second
Street
Springfield,
Illinois
62706
21 7/7829031
Dated:
November
24, 2008
BEFORE THE
ILLINOIS POLLUTION
CONTROL
BOARD
PEOPLE OF THE
STATE OF ILLINOIS
)
)
Complainant,
)
v
ALAN DURKEE
d!b/a
)
ALAN
DURKEE
SWINE
FARM
)
Respondent
)
4O’I
‘15
ZOOS
SlATE
9o
Board
COMPLAINT
The
PEOPLE
OF THE STATE
OF ILLINOIS,
by
Lisa Madigan,
Attorney
General of
the
State of
Illinois, complain
of Respondent ALAN
DURKEE,
d/bla ALAN DURKEE
SWINE FARM,
as
follows:
COUNT
I
WATER
POLLUTION
VIOLATIONS
1.
This
Count is brought 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 at the request
of
the
Illinois Environmental
Protection Agency
(“Illinois
EPA”), pursuant
to
Sections
42(d)
and
(e) of
the
Illinois
Environmental
Protection
Act (“Act”),
415
ILCS
5/42(d), (e).
2.
The
Illinois EPA
is an agency of the
State
of Illinois
created
by
the General
Assembly
in Section 4
of the Act, 415
ILCS 5/4,
and
which
is charged, inter
alia, with the
duty of
enforcing
the
Act.
3.
This
Count is brought
pursuant to
Section
31
of the
Act,
415 ILCS 5/31,
after
providing
the
Respondent,
Alan Durkee,
d/b/a Alan Durkee
Swine Farm with
notice and the
opportunity to
meet with
the
Illinois
EPA.
1
4.
Respondent
Alan Durkee (“Durkee”)
is
an individual
engaged in the
business
of
swine
production. Respondent
Durkee
owns
and operates a
2,200
swine
feeder-to-finish
facility consisting
of two confinement
buildings and
a cement
manure
pit measuring 100
feet
by
20
feet and 8
feet
deep.
Respondent
Durkee’s
swine
operation is
located at the intersection
of
County
Road
800N and
County Road 1700E,
approximately two
miles east of
Stronghurst,
Illinois
in
Henderson
County (the “facility”
or
“site”).
5.
Section 3.545 of the
Act, 415
ILCS
5/3.545,
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 water
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.
6.
Section
3.550
of the Act,
415
ILCS 5/3.550,
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.
7.
Section 3.165
of the
Act,
415
ILCS 5/3.165,
provides:
“CONTAMINANT”
is
any
solid, liquid, or
gaseous matter, any
odor
or any
form
of
energy, from
whatever source.
8.
Section
12(a) and
(d) of the
Act,
415
ILCS
5/12(a),(d),
provides,
in pertinent
part,
as follows:
No
person
shall:
a.
Cause or
threaten or
allow
the
discharge of
any
contaminants
into the
2
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
so as
to create a
water pollution hazard.
***
9.
On
April 24, 2007, an
Illinois Department
of
Natural
Resources
(“IDNR”) fisheries
biologist
reported to
the Illinois EPA that Respondent Durkee surface applied livestock
wastewater
to pasture
ground when precipitation was imminent. Rain did fall that
evening,
either
during or
immediately after Respondent
land applied livestock wastewater.
10.
On
April 25, 2007, an Illinois EPA inspector conducted
an inspection
of
Respondent
Durkee’s
swine farm and observed that the manure
pit
had
approximately five
feet
of available
freeboard.
Markings
on the
concrete wall of the manure pit indicated that the pit
had recently
been
at full capacity. The
inspector observed two waste application
vehicles
at the
facility that
were
not equipped with
injection! incorporation equipment.
11.
At
the time of the inspection, the Illinois
EPA inspector observed that livestock
wastewater
had
recently been surface
applied
to a field
adjacent to
the
facility.
The
wastewater
formed
ponds in the
grass pasture next to
the swine building
and was
draining to various
off
site
areas.
The
wastewater drained to the north into an unnamed tributary of
Middle
Creek and
to
the west
into a
roadside ditch
along
County Road 1700E. The wastewater drained across
County
Road
1700E
and into an adjacent field. The inspector observed a relatively strong
swine
waste
odor west
of the pasture and confinement buildings.
12.
Samples taken
in
the
vicinity
of the Respondent Durkee’s application of waste
were
turbid and
odorous. A
sample take from an unnamed tributary
to
Middle Creek
near a
3
bridge along County Road
1 700E,
just north of the facility,
was
slightly
turbid with
a
brown/gray
color cast
and
an
obvious
swine
waste odor. A
sample taken from
a roadside ditch along
County
Road
1 700E, just
west of the
facility,
was dark brown/black
and turbid with
a very strong
swine
waste odor.
13.
On
April 26, 2007, an
Illinois Department
of Natural Resources
fisheries biologist
inspected Dixon
Creek and
Middle Creek. The
biologist
did
not
observe dead fish.
The
biologist
observed that
the significant amount
of
rainfall
most
likely diluted the
livestock waste
which
had been
land
applied and
that subsequently
discharged
to
surrounding streams.
14.
On April
27,
2007, in
a phone
call
with
the Illinois EPA
inspector, Respondent
Durkee
confirmed
that he
applied livestock
wastewater
to
an 8-acre rye grass
pasture on April
24 and
to the
row
crop fields earlier in the
week.
Respondent Durkee
explained
his
manure
pit
emptying
procedures
and the
possibility of
increasing the manure
storage
capacity
at
the
facility. The
Illinois EPA
inspector
advised
Respondent
Durkee to monitor
the weather and
not
apply
wastewater
to
any fields
when
precipitation
is
imminent,
and also recommended
that
Respondent
Durkee consider
purchasing
injection equipment
or
hiring an applicator to
incorporate
the
waste, and to
control the
application rate to prevent
any
ponding
in the fields.
15.
On
July
10, 2007,
the
Illinois EPA sent Respondent
Durkee
a violation
notice
letter
(“VN”),
W-2007-00230, for
the
livestock
waste
handling
and storage violations.
16.
On
August
22,
2007, Respondent
Durkee
replied
to the
VN
letter of
the
Illinois
EPA by
a
Compliance
Commitment
Agreement
(‘CCA”)
and
stated that
he
would
not
apply
manure when
rain
is imminent,
would
avoid ponding
when applying livestock
wastewater,
and
would
avoid any
application in
the
field next
to his neighbor except
once
in
the
fall.
Respondent
Durkee
also
stated
he completed and
implemented
an emergency response
protocol
and was
considering
utilizing
a
commercial
applicator
and
increasing
storage capacity.
4
17.
On September 18,
2007, Respondent
Durkee supplemented his proposed
CCA
with the
additional
measure that any application of manure to the
field
adjacent to the hog
building
would be by injection only,
and
all fall applications
to crop
land would be injected
or
incorporated within 24 hours. On September 20,
2007,
Illinois EPA sent Respondent
Durkee a
letter
rejecting his proposed
CCA. On November
28,
2007 the Illinois EPA sent Respondent
Durkee
a
Notice of Intent
to
Pursue
Legal
Action (‘NIPLA”).
The
NIPLA
was returned to sender
stamped “unclaimed” and no meeting regarding the NIPLA was conducted.
18.
The
Respondent has caused or allowed contaminants to
be
deposited upon
the
land in
such place and manner as to create
a
water pollution hazard by causing contaminants
in
the
soil to remain
on
the
land and subject
to
surface drainage or leaching into waters of the
State.
19.
By depositing contaminants upon the land in such
place
and
manner as to
create
a
water pollution
hazard,
the Respondent has violated Section 12(d) of the Act,
415
ILCS
5/12(d).
20.
The Respondent has caused
or
allowed the discharge of contaminants to
waters
of
the State as
will
or
is likely
to create a nuisance
or render such water
harmful or detrimental
or
injurious
to
public
health,
safety or welfare, or to domestic, commercial, industrial,
agricultural,
recreational, or
other legitimate uses.
21.
By causing, allowing or threatening
the
discharge
of
contaminants
to
waters
of
the State so as to cause
or tend to cause water pollution in Illinois,
the
Respondent
has
violated
Section
12(a) of the Act, 415 ILCS 5/12(a).
PRAYERFORRELIEF
WHEREFORE, the Complainant, the People of the state of Illinois, respectfully
requests
5
that the Board enter an order against the Respondent Durkee:
A.
Authorizing a hearing in this matter
at
which time
the Respondent will be
required
to answer the allegations herein;
B.
Finding that Respondent Durkee has violated
the Act and regulations as alleged
herein;
C.
Ordering Respondent Durkee
to cease and desist from any further violations
of
the Act and associated
regulations;
and
D.
Assessing against
Respondent Durkee 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, pursuant
to
Section 42(a)
of
the Act,
414 ILCS
5/42(a).
COUNT II
NPDES VIOLATION
1
.
This Count is brought 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 at the request of
the
Illinois Environmental Protection Agency (“Illinois EPA”), pursuant to
Sections
42(d)
and
(e)
of
the
Illinois Environmental Protection Act (“Act”), 415 ILCS
5/42(d), (e)
(2008)
2-21.
Complainant re-alleges and incorporates
by reference herein paragraphs 2
through
21 of Count
I as
paragraphs
2 through
21 of this Count II.
22.
Section 12 (f) of the Act, 415 ILCS 5/12(f),
provides, in pertinent part, as
follows:
No
person
shall:
6
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.
***
23.
Section 309 .102
of the
Board’s
water pollution
regulations, 35 III . Adm. Code
309.102(a), states,
in pertinent part:
NPDES Permit Required
a.
Except as in compliance with the provisions
of the Act, Board regulations,
and the CWA, and the provisions and conditions
of the NPDES
permit
issued to the discharger, the discharge
of any contaminant or
pollutant
by
any person into the waters of
the
State from
a point source
or
into
a well
shall be unlawful
24.
At the time of
the April 24, 2007 discharge from
Respondent Durkee’s facility,
the
facility did not have
a National Pollution Discharge Elimination
System Permit
(“NPDES”), and
Respondent
had not
applied
for an NPDES
permit for
the facility. Discharges
from a land
application vehicle and
land application site
are point source discharges.
25.
By
causing or allowing the discharge of livestock
wastewater
to waters
of
the
State
without an
NPDES permit, Respondent
Durkee
has violated
12(f) of the
Act,
415
ILCS
5/12(f),
and 35 III. Adm.
Code
309.102(a).
PRAYERFORRELIEF
WHEREFORE,
the Complainant, the People of the
state of Illinois,
respectfully
requests
that the
Board
enter an order against
the
Respondent Durkee:
7
A.
Authorizing a hearing
in
this matter
at
which time
the Respondent will be
required to answer the allegations
herein;
B.
Finding that Respondent
Durkee has violated the Act and regulations as
alleged
herein;
C.
Ordering
Respondent Durkee to cease and desist from any further violations
of
the Act and associated regulations;
and
D.
Assessing against
Respondent Durkee a
civil
penalty
of
ten thousand dollars
($10,000) per day of violation, pursuant to Section 42(b)(1) of the Act, 414 ILCS 5/42(b)(1).
COUNT
III
AGRICULTURE RELATED
POLLUTION VIOLATIONS
1 .
This Count is brought 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 at the
request
of
the
Illinois
Environmental Protection
Agency
(“Illinois
EPA”),
pursuant to
Sections 42(d)
and
(e) of
the Illinois
Environmental
Protection
Act (“Act”),
415
ILCS
5/42(d), (e).
2-21. Complainant re-alleges and incorporates by
reference herein paragraphs
2
through 21
of
Count
I
as
paragraphs 2 through 21 of this Count III.
22.
Section
501.405 of the Board’s Agriculture Related Pollution Regulations,
35 III.
Adm. Code 501.405,
provides, in pertinent part, as follows:
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. These livestock
waste
application guidelines will
be
adopted pursuant
to 35
lll.Adm.
Code
502.305
unless
otherwise provided for
by
Board regulations.
8
***
23.
The
April
24, 2007 discharge from Respondent Durkee’s facility was the result
of
Respondent
applying waste
at
a time when precipitation was imminent
and, in fact,
a
significant
rainfall did occur. Respondent
applied
livestock
waste
in
exceedence of the practical limit
based on existing
weather
and
soil conditions.
24.
By
land applying livestock waste in exceedence of practical limits, and
thereby
allowing the discharge of facility contaminants to waters of the State, Respondent Durkee has
violated Section
12(a)
of the Act,
415 ILCS
5/12(a), and 35
lll.Adm. Code 501 .405.
PRAYER
FOR
RELIEF
WHEREFORE, the Complainant, the People of the state
of
Illinois,
respectfully requests
that the Board
enter an order against the Respondent
Durkee:
A.
Authorizing a
hearing in this matter at which time the Respondent
will
be
required to answer
the allegations
herein;
B.
Finding that Respondent
Durkee has violated the Act and
regulations as alleged
herein;
C.
Ordering
Respondent Durkee to cease and desist from any further
violations
of
the Act
and associated
regulations; and
D.
Assessing
against Respondent Durkee 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, pursuant to
Section 42(a) of the
Act,
414
ILCS 5/42(a)(2008),
9
COUNT IV
OFFENSIVE CONDITIONS
1 .
This Count is brought on behalf of the People
of the State of Illinois,
by
Lisa
Madigan, Attorney General of the State of Illinois, on her own
motion, pursuant to Sections
42(d) and (e) of the Illinois
Environmental
Protection Act (“Act”), 415 ILCS
5/42(d), (e).
2-19. Complainant re-alleges and incorporates
by reference herein paragraphs 4
through 21 of
Count las paragraphs 2 through 19
of
this
Count IV.
20.
Section 302.203 of the Board’s water pollution regulations,
35
Ill
. Adm. Code
302.203, states,
in pertinent part:
Waters
of
the
State shall be free from
sludge
or bottom
deposits, floating
debris,
visible
oil,
odor,
plant
or algal growth,
color or
turbidity
of other than natural
origin. The
allowed mixing provisions of Section
302.102 shall not
be used
to
comply with the provisions of
this
Section.
21.
Sample results from
waters
impacted by the April 24, 2007 discharge
from
Respondent
Durkee’s facility, indicated turbid, discolored and odor conditions
in the waters
of
an unnamed
tributary
of
Middle Creek
and
a
roadside
ditch along County Road 1700E.
22.
By
improperly applying livestock
waste on land so as to allow
a
discharge
and
cause
turbid, discolored and odorous waters in an unnamed tributary of Middle
Creek and
a
roadside
ditch along County Road
1700E
, Respondent Durkee
has violated Section 12(a)
of
the
Act,
415 ILCS 5/12(a), and Section 302.203 of the Board’s
Agriculture Related Pollution
Regulations,
35 lll.Adm. Code 302.203.
PRAYER
FOR
RELIEF
WHEREFORE, the Complainant,
the
People
of
the state of Illinois, respectfully
requests
10
that the Board enter an order
against
the
Respondent Durkee:
A.
Authorizing
a hearing in this
matter
at
which time the Respondent will be
required to answer
the
allegations herein;
B.
Finding that Respondent Durkee has
violated
the Act and
regulations
as
alleged
herein;
C.
Ordering Respondent Durkee to
cease and desist from any further violations
of
the Act and associated
regulations; and
D.
Assessing against
Respondent Durkee a civil penalty of
fifty
thousand dollars
($50,000)
for each violation of the Act, and an
additional penalty of ten thousand dollars
11
($10,000) for
each day during which
each violation
has continued thereafter,
pursuant to
Section
42(a) of the Act, 414
ILCS
5/42(a)(2008).
Respectfully
submitted,
PEOPLE
OF
THE STATE
OF ILLINOIS,
ex
rel.
LISA MADIGAN,
Attorney
General
of the State of Illinois
MATTHEWJ.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY:__________________
THOMAS DAVIS,
Chief
Environmental
Bureau
Assistant
Attorney
General
Of Counsel
JANE E. MCBRIDE
Assistant
Attorney General
500 South Second
Street
Springfield,
Illinois
62706
217/782-9031
Dated:
///,
/og’
12
