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08/24/89 Russell Perkinson, D/B/A v. the Pollution Control

August 24, 1989

RUSSELL PERKINSON, D/B/A PORKVILLE, PETITIONER

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

543 N.E.2d 901, 187 Ill. App. 3d 689, 135 Ill. Dec. 333 1989.IL.1293

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Russell Perkinson, the owner and operator of a swine farm, appeals from an opinion and order of the Illinois Pollution Control Board which found that he had caused or allowed an illegal discharge of swine waste into a stream. He was ordered to pay a fine of $10,000 and the cost of the resulting fish kill, an additional $10,376.

According to a stipulation of facts filed by the parties, on July 7, 1983, an estimated 400,000 gallons of liquid swine waste escaped from one of two lagoons where the waste was accumulated from Perkinson's swine buildings and entered an unnamed tributary to Spring Creek near Thawville in Iroquois County, Illinois. As a result of the pollution, 101,219 fish were killed having a value of $10,376.

The parties further stipulated that the discharge was caused by a man-made trench or channel cut directly through the east dike of the north lagoon near its north end and that Perkinson did not cause or authorize the trench and has no knowledge of who was responsible for it. Additionally, it was stipulated that Perkinson learned of the discharge at about 2 p.m. on July 7, 1983, but he did not notify any authorities and did not send a report to the Environmental Protection Agency. On July 8 after the EPA was notified of the fish kill by an unnamed informant, the incident was investigated by Eric Ackermann.

The stipulation set forth Perkinson's past compliance history and also described a second discharge incident which occurred on July 16, 1984, when a temporary obstruction in the drainage alley between buildings caused swine waste to flow into an adjacent field. In both instances of discharge, the waste entered field drain tiles which were connected to a discharge pipe into the water of the stream.

At the hearing before a hearing officer of the Pollution Control Board, a Perkinson employee, Ken Hanford, testified that he discovered the trench which had caused the liquid waste in the lagoon to drain into the adjacent field. He notified first Dave and then Russell Perkinson. The latter went out to view the trench and promptly filled it in by shoveling back into the trench the dirt piled beside it. The trench was described as being 18 inches wide, 16 inches deep, and 8 feet long.

The lagoons which held the swine waste were constructed with berms of compacted soil. Russell Perkinson stated that there had been some problems with seepage through the north berm due to the permeability of the soil used to construct that berm. A neighbor's field adjoining the lagoon area had incurred some crop damage due to excessive seepage. Perkinson had constructed a ditch parallel to the berm so the liquid could be pumped back into the lagoon. He stated that in August of 1983 he replaced the loose permeable soil with clay to form a watertight, impermeable berm.

The witnesses testified that they did not know who would have dug the trench and that they did not do so and did not authorize any other employees to do so. The swine farm operation employed seven persons, but, other than Hanford, those employees were primarily involved with indoor work in the hog confinement buildings. Russell Perkinson stated that he did not suspect any of his neighbors or either of two former employees and that he did not report the vandalism to law enforcement authorities.

Eric Ackermann, an EPA investigator, testified that he came to Perkinson's farm on July 8 to investigate the pollution of Spring Creek and its tributary. He observed a large wet area in Perkinson's corn field and saw debris and erosion on the back side of the east dike. One of the documents stipulated to by the parties was Ackermann's report of that investigation in which he determined that there had been seepage of wastewater through the dikes of the north lagoon, that the recent discharge through the trench occurred during dry weather and not during a catastrophic rainfall event, and that Perkinson failed to notify the EPA of the discharge.

The Pollution Control Board (PCB or Board) found that Russell Perkinson was in violation of sections 12(a) through 12(f) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111 1/2, pars. 1012(a) through (f)), several rules and regulations of the Pollution Control Board, and two of the conditions in Perkinson's NPDES (National Pollutant Discharge Elimination System) permit requiring notification of any discharge. The Attorney General requested a fine of $10,000 for each of the nine counts in addition to the value of the fish killed. The Board noted that nine counts of the complaint involved only two instances of violations and that the penalties recommended could be an "unmanageable burden" on Perkinson. The Board ...


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