ILLINOIS POLLUTION CONTROL BOARD
August
23,
1979
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
V.
)
PCB 78—150
MAGGIE BELL HICKS and TERRY HICKS,
Respondents.
MESSRS. BRIAN
S.
REYNOLDS AND REED NEUMAN, ASSISTANT ATTORNEYS
GENERAL,
APPEARED
ON
BEHALF
OF THE COMPLAINANT.
MRS.
MAGGIE
BELL
HICKS
APPEARED
PRO
SE.
OPINION AND ORDER OF THE BOARD
(by Dr. Satchell):
This matter comes before the Board upon a complaint filed
May
23,
1978 by the Environmental Protection Agency
(Agency)
against Respondents Maggie Bell Hicks
(Respondent)
and Terry Hicks.
The complaint charges that the Respondents violated Section 9(a)
of the Environmental Protection Act
(Act)
by causing air pollution
in the form of odor emitted from a hog operation on the outskirts
of the city of Nokomis, Montgomery County.
Hearings were held in
Hilisboro on April
19,
20 and 26.
Respondent Maggie Bell Hicks
appeared ~
se
and indicated that she had no money for an attorney
(R.
3).
Terry Hicks did not appear and the Agency moved to drop
him as
a party after there was testimony that he is no longer a
partner in the operation
(R.
229).
The Hicks hoglot is located on a 1.8 acre tract across a lane
from the south city limits of Nokomis, near the southeast corner of
the
city
(Ex.
1).
A Mr. Singler owns another hoglot about
500 feet
east of Respondent
(R.
5).
The sketch map shows about twenty houses
within
three blocks of the Hicks
lot
(Ex.
1).
The Hicks and Sing—
icr residences
are closest to the hoglots.
Mr.
Singler did not
t:est:Lfy, but
the
occupants of about one—half of the houses shown
testified
for or against Respondent.
Five neighbors testified for
the Agency.
All had rural backgrounds, general knowledge of farm
odors and agreed that there was
a hog odor in the area
(R.
20,
37,
50,
63, 72).
Mr. Wilbur Pieper had hauled hogs for five years and
was therefore particularly qualified to judge the odor
(R.
50,
182).
One of Respondent’s witnesses testified that in the summer the
whole town stunk
(R.
122,
124).
The odor had been present for
twenty years but hadn’t been so bad for the last ten years
(R. 125).
35—19 1
—2—
Two witnesses denied that there was any odor
(R.
137,
151).
They
were both sisters of Respondent
(R.
142,
152)
.
Since Respondent
and some of her other witnesses seem to acknowledge that there was
an odor, the Board will disregard this testimony
(R.
121,
124,
157).
There was general agreement that Mrs.
Hicks started keeping
hogs on the lot in 1974
(R.
161).
Hogs had run on the ground for
twenty years, but the barns were built around 1974.
Prior to that
time Mr. Singler’s hogs were on the lOt
(R.
159).
Witnesses
for
the Agency agreed that the odor first became noticeable in early
1975
(B.
20,
30, 38,
57,
65, 73).
These witnesses all agreed that
the odor was only present when the wind was out of the south,
the
direction of the Hicks
hoglot
(B.
16, 22,
30, 39, 51,
57,
63,
66,
79,
180)
Mr. Bowers testified that the hog odor became stronger
as one drove toward the lot and disappeared after the lot was passed
(R.
38).
Mr.
Zueck had been east,
south and west of the hoglot and
smelled nothing when the wind was out of the south, but had smelled
hogs upwind on the north side
(R.
74,
83).
A number of other possible odor sources are mentioned in the
record.
Mr. Singler has hogs about 500 feet east of Mrs. Hicks
(H.
5).
The Agency witnesses testified that they didn’t smell hogs
when
the wind was blowing from the east or southeast from Mr. Sing-
ler’s direction
(B.
22,
30,
39, 58,
65,
69).
Mr. Bowers explained
that Mr. Singler ran just a few hogs on a lot of land which had
vegetation and that they therefore didn’t stink, whereas Mrs. Hicks
had forty to fifty hogs on 1.8 acres
of bare ground
(R.
39, 44).
There is testimony also that Mr. Singler occasionally keeps hogs
and other livestock in his backyard, inside the corporate limits
and between the Hicks
hoglot and most of the witnesses
(R.
143,
168,
190).
Another possible odor source is
a Mr. Barnstable
who has
a
feedlot which is not shown on the sketch map, but which is southeast
of Mrs.
Hicks,
a greater distance from town
(B.
29,
33,
52, 58,
135,
157,
174).
At one time Barnstable kept turkeys which had an odor
(B.
29,
33).
However, he apparently now has
a hog feedlot.
Re-
spondent’s witnesses testified that it emitted hog odors
(R.
135,
174).
One of the Agency’s witnesses seemed to be unaware that there
were hogs at Barnstable’s
(R.
29, 33).
However, another witness,
Mr. Pieper,testified that Barnstable’s was about one—half mile
southeast of him and that he didn’t smell hog odor when the wind
blew from that direction
(R.
52,
58,
59,
181).
On cross—examination of Mrs.
Zueck, Mrs. Hicks made reference
to an open sewer
(R.
28).
Apparently this was a septic tank runoff
problem which has been taken care of.
Mrs.
Hicks did not present
evidence that this was the odor
source.
35—192
—3—
On cross-examination Mr. Pieper admitted that he had an out-
house which he could sometimes smell.
He put quicklime on it when
this happened and could distinguish hog manure from human excre-
ment
(B.
183,
185).
Three of Respondent’s witnesses suggested that the odor was
from manure spreading or application of farm chemicals or liquid
fertilizer
(B.
122,
126,
133,
146,
157).
It was brought out on
cross-examination that liquid fertilizer application takes place
only in spring; whereas, the odor persists throughout the summer
(B.
127).
Mrs.
Hicks testified that Mr. Singler had a practice
of spreading manure and waiting until the next day to chisel
it in
(B.
157).
This produces quite an odor for which Mrs. Hicks is
blamed.
Respondent’s witnesses were able to distinguish odors
from fresh spread manure from odors caused by manure accumulation
(R.
135)
Since
the witnesses for the
Agency all have farm backgrounds,
they should be able to distinguish hoglot odor from the other types
mentioned in the record.
Manure spreading and chemical applications
do not take place throughout the summer and hence are inadequate to
fully explain the continuing odor.
The testimony concerning wind
direction and odor and the testimony that there was no odor upwind
of the Hicks
lot is quite convincing.
The Board therefore
finds
that the Hicks
hoglot is
a source of odor
in southeast Nokomis.
Although it seems likely that other odor sources were present,
this
alone
is not a defense.
Section
9(a)
of the Act provides that:
“No person shall cause
or allow the discharge
or emission of any contaminant into
the environment
.
.
.
so as to cause or tend to cause air pollution
in Illinois, either alone or in combination with other sources.”
Section 3(b)
of the Act defines air pollution as:
“The pres-
ence in the atmosphere of one or more contaminants in sufficient
quantities of such characteristics and duration as to be injurious
to human,
plant,
or animal life,
to health,
or to property,
or to
unreasonably interfere with the enjoyment of life or property.”
The Agency has offered no evidence that the hog odor is injur-
ious
to life,
health or property.
The question is then whether it
constitutes an unreasonable interference with the enjoyment of life
or property.
The Complainant’s witnesses testified that the hog odor was
mostly
a summer problem when the prevailing winds were out of the
south and people were outside or had their windows open
(R.
24,
40,
52,
66,
78).
Three witnesses estimated that the odor was a problem
35—193
—4—
froni 70-80
of the time in the summer
(R.
41,
66,
78).
All testified
that they were forced to close the windows and use the air condition-
er more because of the odor
(B.
24, 27,
40,
54,
66,
69, 78,
80)
.
All
testified that guests had complained about the odor
(B.
24,
25,
41,
53, 66,
79).
One had had to wash clothes
to remove the odor
(R.
25).
Another said it was hard to stay outdoors to take care of his gar-
den because of the odor
(B.
77).
Mrs.
Zueck had to take medication
when she got upset about it
CR.
34).
The Board therefore finds that
the odor constitutes an unreasonable interference with the enjoyment
of life and property in violation of Section 9(a)
of the Act.
The Board will consider Section
33(c)
of the Act in fashioning
its Order.
The odor does not pose a direct threat to health or
)roperty but does constitute
an unreasonable interference with the
enjoyment of life and property.
The social and economic value of
the hoglot is not questioned.
The primary questions involve its
suitability to the area and the technical practicability and econ-
omic reasonableness of reducing the emissions.
It appears that there have been livestock operations in the
area for at least twenty years
(B.
125,
159).
There are two other
hog operations
in the immediate vicinity.
The area seems to be
semi-rural with septic tanks, outhouses and livestock inside the
corporate limits.
The Board cannot find that the area is absolutely
unsuited for a hog ooeration.
On October
20, 1975,
in response to complaints received by
the Agency from neighbors,
a compliance conference was held in
Springfield with Mrs. Hicks.
The parties
at that time reached
an
agreement intended to permit continued operation of the hoglot with
minimal odor.
The agreement provided that sows were not to be
farrowed more than twice per year,
the piglets were to be marketed
at eight to ten weeks and manure was to be removed and spread on
a
field immediately to the south
(Ex.
2).
The Agency conducted three inspections
since the agreement was
signed
(B.
92,
102,
112).
On April
1,
1977,
there were about
eighty-five swine
on the lot:
ten sows and seventy to eighty pig-
lets aged above and below ten weeks
(R.
102,
Ex.
3,
4).
There was
manure half a foot deep in one building and a dead pig on the lot
(B.
103,
112).
In August of 1977 the hoglot was in compliance
(B.
94).
On March
2,
1978, there were eight to ten sows with
twenty or thirty hogs about ten weeks old
CR.
113).
There was no
excessive accumulation of manure
(R.
115).
Mrs.
Hicks testified that she had generally complied with
the terms of the agreement.
She had kept only ten sows,
sold pigs
at eight to ten weeks and kept
a few gilts and pigs to butcher
(B.
154).
She cleans her barns twice
a year and spreads rock in the
water holes
(B.
156).
She has had lime spread to reduce the odor.
3 5—194
-.5—
Mrs. Hicks is
a sixty-four year old widow
CR.
157).
She once
owned a restaurant but has since sold it
(B. 162).
She mentions
having paid $10,000 in medical bills
(B.
158).
She started the
hog operation with Terry Hicks whom she had raised after his father
was killed and who is nineteen years old and has recently moved
away
(B.
163)
.
Mrs. Hicks’
only income is social security and what
she makes from the hogs
(B.
157).
Selling at ten weeks reduces her
gross return which apparently amounts to
a gross income of $1500
to $2250 per year based on fifty pigs at $30 to $45 apiece
(R.
165)
There is other evidence that the operation could produce
80-160 pigs
per year
(B.
102).
She had about twenty—six animals
at the time of
the hearing:
fourteen old sows, eight guts,
two boars and two
for butcher
(B. 167).
She owns another two acre tract a little
farther from town
(B. 168).
It
is not clear whether the Agency’s position is that the odor
problem has continued because the terms of the agreement were in-
sufficient to stop it or because Mrs.
Hicks has not complied with
the agreement.
The Agency has not presented expert testimony about
what measures would in
fact remedy the odor problems.
The Board
will order Respondent to cease and desist violating the Act and
will order a new compliance conference.
The hoard finds that a
$100 penalty would aid in enforcement of the Act.
However, the
penalty
is suspended because of economic hardship.
This Opinion constitutes the Board’s finding of fact and con-
clusions of
law in this matter.
ORDER
It
is the Order of the Pollution Control Board that:
1.
Respondent Terry Hicks is dismissed
as a party to this
action.
2.
Respondent Maggie Bell Hicks is
in violation of Section
9(a)
of the Environmental Protection Act.
3.
Respondent Maggie Bell Hicks is assessed
a $100 civil
penalty
which
is
suspended.
4.
F
)C)fldeflt Maggie
Bell
Hicks
is
ordered
to
cease
and
dc~tst
from
Further
violations
of
Section 9(a)
of
the
Act.
35— 195
—6—
5.
Within sixty days of the date of this Order the Agency
shall schedule a compliance
conference.
Respondent
Maggie Bell Hicks
is ordered to attend this conference.
I,
Christan L. Moffett, Clerk of the Illinois Pollution Con-
trol
Board
~ereby
ce
tify
th
above
Opinion
and
Ord
r
were
adopted
on
the
~3
day
of
___________,
1979
by
a
vote
of
..~
~~anL~”~t
Clerk
Illinois
Po1lution~,~ntrol
Board
35— 196