ILLINOIS POLLUTION CONTROL BOARD

June

18,

1976

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 75—353

)

EDWARD H.

WEIDE,

)

Respondent.

Mr. Steven Watts, Assistant Attorney General, appeared on behalf

of Complainant

Mr. Paul Perona, Perona and Perona, appeared on behalf of

Respondent.

OPINION

AND

ORDER OF THE BOARD

(by Mr. Goodman):

This matter comes before the Pollution Control Board

(Board)

upon the September

9,

1975 Complaint of the Environmental Protection

Agency

(Agency)

charging that Mr. Edward H. Weide

(Weide) violated

Rule

203(a)

of the Water Regulations and Section 12(a)

of the

Environmental Protection Act

(Act)

on or about August

9,

1974.

Weide

is accused of causing or allowing the discharge of corn silage wastes

into an unnamed tributary of Big Sandy Creek resulting in unnatural

sludge or bottom deposits,

odor, unnatural color,

and a fish kill.

Respondent is also charged with violation of Water Rules

203(f)

(causing said stream’s ammonia nitrogen level to exceed acceptable

levels)

and 203(d)

(causing said stream’s dissolved oxygen to be

less than 5.0 mg/i).

Mr. Michael Conlin testified that he was called to investigate

a fish kill in August,

1974.

Mr. Conlin traced the upper

limit of

the fish kill to the entrance of an unnamed tributary to Big Sandy

Creek

(R.l5-16).

The fish kill covered 2.6 miles.

The water being

cloudy, dirty,

and milky,

and having a putrid odor

(R.16).

Mr.

Conlin followed the unnamed tributary by sight and smell

to

white turbid water on Weide’s pasture

(R.17).

He found the banks

to be saturated with waste material

(R.l7).

Mr. Conlin spoke

to

Weide, who admitted placing corn silage at that spot two days be-

fore

(R.l8).

22—123

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—2—

Mr. Conlin set up three sampling areas each consisting of 150

feet,

in

light, moderate and heavy kill areas respectively

(R.30-31)

Mr.

Conliri then counted the fish in these areas and projected a

fish

kill of approximately 25,000

fish

(R.15 Comp.

Ex.

1).

Mr. Conlin

testified that corn silage has a high BOD which could result in oxy-

gen depletion thereby suffocating fish (R.23).

Mr. Weide testified that on August

9,

1974, he cleaned his silo

putting the waste in a manure spreader.

Using the manure spreader,

Weide placed the siiage in the ditch to help stop erosion;

no water

was seen in the ditch at that time.

Mr. Weide neither cultivated

under the silage nor seeded on top.

A total of

6

to

8

cubic

yards

of silage was deposited, having a fairly high moisture content.

The

silage was placed on top of soil and concrete foundations which had

been placed previously to control erosion

(R.58-68,

129).

Mr.

William Tucker testified that high organic material, such

as corn silage, will cause oxygen depletion and could cause an in-

stantaneous fish kill

(R.81—86).

In addition, he testified that

the stream could recover in

as little as

1

1/2 days

(R.109).

He

measured the dissolved oxygen

(DO)

to be 9.3

+

10.3 ppm upstream

and downstream from the discharge.

At the point of discharge the

DO was 0.6 ppm

(Comp.

Ex.

4, R.121).

On the 10th of August

.60 inches of rain fell

(Camp.

Ex.

3).

Mr. Weide testified that usually the ditch has water in the spring

or after a hard rain

(R.62).

He estimated that 2 to

2

1/2 inches of

rain fell two days after he spread the silage

(R.128).

Mr.

Jim Frank,

an Agency Agricultural Advisor, testified that

the best way to spread silage

is with a manure spreader but that

nc

silage should be spread closer than two to three hundred yards from

any stream

(R.73).

Although corn silage

is an acceptable cover

material,

it should be used on dry land; without cultivation or seed-

ing,

it would have minimal effect on erosion

(R.75).

Mr. Weide testified that he is purchasing the 647 acre farm

one mile south of Magnolia, Marshall County,

Illinois.

In 1974,

40

acres were planted in beans,

230 in corn,

20-25

in alfalfa.

Three

hundred acres were in pasture land

(R.57).

The area is rolling

pasture with some timber

(R.58).

Mr. Weide also testified that the

placement area was

three hundred to four hundred feet from the

flow-

ing portion of the unnamed tributary

(R.127).

No information was

22—124

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—3—

presented to the Board concerning the Respondent’s financial condi-

tion.

We must presume that Respondent could have placed the silage

in an area farther from the stream at little or no additional

cost.

Complainant’s Exhibit

4 shows violation of Rules 203(d)

and

203(f)

as alleged in the Complaint.

The Board also finds that

Respondent has violated Rule 203(a) of the Water Regulations and

Section 12(a)

of the Act.

Complainant asks that a penalty be assessed on the basis

of

the cost of replacing the fish killed.

The Agency estimates that

25,002 fish were killed having a value of $4,354.76 (Complainant

Ex.

1).

The Board finds that the sampling method utilizing 450 feet

as against

2 1/2 miles leaves an excessive margin for error.

In

consideration thereof,

the Board finds that an assessment of

$2600.00 is appropriate.

This Opinion constitutes the Board’s findings of fact and con-

clusions of law in this matter.

ORDER

It is

the Order of the Pollution Control Board that:

1.

Weide is found to have violated Rule

203(a),

(d)

and

(f)

of the Water Regulations and Section

12(a)

of the

Act.

2.

Weide shall pay,

as

a reasonable value of the

fish

killed through said violations,

$2600.00 by certified

check or money order payable to the Game and Fish Fund,

State of Illinois, 2200 Churchill Road, Springfield,

Illinois

62706 within thirty-five days of the date of

this Order.

3.

Weide shall cease and desist from depositing corn

silage wastes in such a way as to contaminate the un-

named tributary to Big Sandy Creek.

Mr.

Young abstained.

22— 125

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—4—

I, Christan L.

Moffett, Clerk of the Illinois Pollution Control

Board,

hereby certif

the above Opinion and Order were adopted on the

___________day of

,

1976 by a vote of

~

Christan L. Moffett,

k

Illinois Pollution

ol Board