ILLINOIS POLLUTION CONTROL BOARD
November
1,
1979
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v
)
PCB 78—256
HERMAN DANEKAS AND DORA DANEKAS,
d/b/a DANEKAS FARMS,
Respondents.
MS. LORETTA WEBER AND MS. JILL DRELL, ASSISTANT ATTORNEYS GENERAL,
APPEARED ON BEHALF
OF THE COMPLAINANT.
MR. EDWARD
T.
GRAHAM, ATTORNEY AT LAWS APPEARED ON BEHALF OF THE
RESPONDENTS.
OPINION AND ORDER OF THE BOARD
(by Dr. Satchell):
This matter comes before the Board upon an amended complaint
filed February 20, 1979 by the Environmental Protection Agency
(Agency) against Respondents Herman Danekas and Dora Danekas,
d/b/a Danekas Farms
(Respondent or Danekas).
The complaint
charged violations of §~12(a) and 12(d)
of the Environmental
Protection Act
(Act)
and Rules 203(a),
203(d)
and 601(b)
of
Chapter
3:
Water Pollution.
The allegations involve a fish kill,
violations
of water quality standards for dissolved oxygen and
unnatural color and turbidity, placing contaminants upon the land
so as to create a water pollution hazard and failing to take all
reasonable measures to prevent spillage of contaminants from
causing water pollution.
Hearings were held on June
27,
1979
and July 18,
1979 in Oregon,
Ogle County.
Members of the public
attended but did not comment.
Prior to the hearing each party served interrogatories upon
the other requesting the names of persons having relevant know-
ledge and information.
The Hearing Officer excluded the testimony
of Agency witnesses Matsanga, Daugherty and Paltel because their
names had not been given Respondent.
For the same reason, the
Board upholds the Hearing Officer’s ruling admitting the testi-
mony of Respondent’s witnesses over the Agency’s similar objection.
36—21
—2—
Respondent owns a 226 acre farm situated in Sec.
21,
T.
42 N.,
R.
1 E.,
3 PM in Ogle County.
This
is an irregular tract bounded
in part by Illinois Route
72 and the Milwaukee Railroad,
and
transected by that railroad.
Mr. Danekas does not live on the
farm, but conducts a grain operation which does not involve
feeding cattle on the site
(R.
364; Resp.
Ex.
1).
There is a
tenant who lives
on the site, but Danekas controls the farming
operation
(R.
37)
Count II alleges a fish kill which occurred in August,
1977
along a six and one-half mile unnamed tributary which flows north
into the Rock River about one and one—half miles downstream from
the confluence of the Rock and Kishwaukee Rivers, just south of
Rockford and west of the Greater Rockford Airport, in Ogle and
Winnebago Counties.
For ease in discussion, relevant points have
been numbered from
0 to 13 upstream from the Rock River to the
Danekas
farm, with approximate stream miles indicated.
Numbers
in parentheses
(31 through
122)
indicate points which are trib-
utary to the unnamed stream but which do not receive Danekas
drainage.
The following is
a brief description of the watershed:
0
Confluence with the Rock River, mile
0.
1
Kishwaukee Road crossing, mile
.6.
Thousands of fish which
had been dead for three or four days were first observed
here on August 15,
1977
(R.
344).
Distressed minnows and
suckers were observed by Mr. Alec Pulley of the Department
of Conservation on August 29,
1977.
Recently killed fish
were counted on August 30, 1977
(R.
26,
59,
81).
Drainage
from about 12,000 acres passes through this point
(R.
456).
2
Condon Road crossing, mile 1.4.
Dead fish which had been
killed within forty-eight to seventy-two hours were counted
here.
Decomposed fish which had been dead longer were not
counted
CR.
30,
43,
77,
81)
3
Edson Road crossing, mile 2.5.
Dead fish were observed here;
fresh were counted, decomposed were not
(R.
31,
65).
(31)
Junction Road crossing.
Clear water and live fish were
observed on this tributary which does not receive drainage
from the Danekas farm
CR.
31,
65).
(32)
Browning-Ferris Sanitary Landfill.
Danekas suggests this
as a possible source of pollution.
In the exhibits it appears
to drain to location
31
CR.
422;
Resp.
Ex.
33,
34,
35; Comp.
Ex.
6i).
36—22
4
Scott Road crossing, mile 35.
Discolored water,
dead
algae and aquatic greens were observed.
Badly decomposed
fish were counted but not used for estimating the fish
kill
(R.
32,
66,
77,
80; Comp.
Ex.
6h)
(41)
Scott Road, southeast branch.
Clear water was observed~
it was assumed that there were no dead fish upstream
(R.
34,
67).
5
Scott Road, southwest branch, mile 4.3.
Discolored water
with a whitish substance was observed on August 30, 1977.
No dead fish are reported here or at any point upstream
(R.
34,
68,
78).
6
High Road crossing, mile 5.0.
On August
30, 1977 Mr.
Gerald Holmes of the Agency observed milky colored water
at this point
CR.
35,
92,
98,
125,
149).
Respondent
offered a number of black and white photos depicting this
area
(R.
409;
Resp.
Ex.
17,
18,
19, 20,
22,
23,
24).
7
Twelve-inch corrugated pipe, mile
5.2.
Here the drainage,
including that from the Danekas farm, emerges from a cor-
rugated pipe which follows the natural drainage.
During low
flow the water runs mostly through the pipe, but during high
flow it also travels
on the surface.
The parties agree
on
this, but there is dispute about where the pipe starts.
An
Agency witness described the drainage
as milky on August 30,
1977
(R.
98,
102, 124,
132,
293,
305,
310, 317,
322,
373,
377,
436,
447,
452,
467,
477; Camp.
Ex.
7a and b;
Resp.
Ex.
25, 27,
28).
(71)
One hundred feet upstream from twelve-inch corrugated pipe.
Apparently Comp.
Ex.
6c was taken upstream from the twelve-
inch corrugated pipe and downstream
from location 72.
(72)
Route
72.
In March,
1977
two
tank cars of phosphoric acid
derailed
and spilled at this point which is adjacent to
Illinois Route
72 and tributary to locations 71 and
7
CR.
90, 144,
329,
433,
457,
466;
Resp.
Ex.
29,
30).
(75)
Glendennings Farm.
An Agency employee visited this place
on August
30, 1977
(R.
92).
It appears to be tributary to
location
7 but not location 71.
8
Section
line, mile 5,6.
Here the drainage channel meets the
boundary of Section
17
and proceeds due south toward Utility
Road.
According to Respondent’s witnesses, there
is a bee-
hive grate near here which is the origin of the twelve—inch
corrugated pipe which drains at location
7
CR.
318, 368,
378,
444,
447,
450,
468;
Resp.
Ex.
26).
36—23
9
North of Utility Road,
mile 6.0.
At this point the drainage
course turns southeast,
-
Near here on August 30, Mr. Pulley
observed flowing, discolored water but no dead fish
(R.
35
367,
377,
466;
Comp.
Ex.
6g).
10
Utility Road, mile 6.1,
On August 30 Mr. Pulley walked the
entire distance from the railroad track (location 12) to Util-
ity
Road,
He observed discolored water the entire distance.
However,
on August 30 or
31 Mr.
Holmes saw clear water at
Util-
ity
Road,
He
testified that the stream from Danekas was going
under Utility Road in
a pipe,
apparently the twelve—inch cur-
rugated pipe which empties at location
7
(R. 37, 72, 136, 142,
300, 316,
377,
431, 465; Comp. Ex,
6f; Resp.
Ex,
14, 15).
11
Danekas property line, mile 6.3.
In this area the watercourse
is described as an intermittent stream or watercourse with hard—
pan on the bottom and vegetation on either side
(R..
120, 141,
287,
376,
431,
464, 475; Comp.
Ex.
6c,
d, e; Resp.
Ex. 14,
15)
12
Railroad tracks, mile 6.6.
The Danekas farm is biseëted by the
same railroad tracks mentioned in location
72.
The drainage
course runs from the southeast about 1600 feet across a field
from a culvert which runs under the tracks.
On the north side
of the tracks three drainage courses converge.
One
of these
runs down from location
13, where Respondent had stored about
1,000,000 pounds of fresh sweet corn ensilage.
A five—inch
clay field tile also empties into location 12.
The parties
agree that on August 30, 1977 a milky white liquid was flowing
from this tile at a rate of several gallons per minute.
The
Agency claims that the tile followed the natural drainage from
location 13 and that the discharge was silage leachate.
How-
ever,
Respondent claims the tile did not even come from the
pile
(R.
36,
54,
74,
96, 103,
120, 140,
284, 290,
309, 376,
389, 394,
440,
451,
462,
469;
Comp. Ex,
6a; Resp.
Ex.
12, 13).
(121,
122)
Route
72 revisited.
Two drainage courses run down from
the highway to the railroad tracks.
Agency personnel visited
there and did not observe the whitish water
(R.
36, 75, 393).
13
Silage, mile 6.9.
Between August 23 and August
29,
1977
Danekas stored
50() tons of fresh sweet corn ensilage on a
60 by 120 foot concrete slab
(R.
388).
The parties agree
that the pile was producing leachate which was ponding to
the north.
The Agency claims it was flowing about 100 feet
across
a field to a point where it swirled into a hole in
the ground which was the other end of the five—inch clay
field tile which was emptying at the railroad tracks,
36—24
—5--
(location
12)
some
800
to
1300
feet
away
(R.
37,
50,
56,
78,
93,
119,
128,
139,
284;
Comp.
Ex.
6b,
7c
and
d).
On
the
other
hand,
Danekas
contends
that
the
leachate
was
flowing through a sixteen foot,
twelve-inch corrugated pipe
under a grass covered berm which he had constructed to drive
equipment over the drainage way.
From there the leachate
entered a one acre detention area where it evaporated or
percolated into the ground without reaching the stream
(R.
282,
300,
307, 366,
382,
393, 445,
460,
474).
The
Board
has
examined
the
Agency’s
offer
of
proof
of
the
laboratory
analyses
of
water
samples
(R.
162;
Comp.
Ex.
6).
The
Hearing
Officer
ruled
these
inadmissible
as
business
records
because
a
“threshold
of
credibility”
was
not
reached.
This
ruling
is
incorrect
under
Procedural
Rule
324
which
states:
“All
other
circumstances
of
the
making
of
the
writing
or
record,
including
lack
of
personal
knowledge
by
the
entrant
or
maker,
may
be
shown
to
affect
its
weight,
but
shall
not
affect
its
admissibility.”
However,
the
record
does
show
confusion
about
the
locations
where
samples
were
taken.
The
following
table
presents
the
results
of
the
analyses
of
leachate
(13),
of
streamwater after mixing with
the five—inch clay field tile effluent
(12)
,
of the effluent from
the twelve—inch corrugated pipe
(7)
and of water upstream from the
twelve-inch corrugated pipe
(71)
Ex.
6b
Ex.
6a
Ex.
6d
Ex.
6c
Location
13
Location 12
Location
7
Location 71
Dis. Oxygen
0.0*
0.0
1.2
6.2
BOlD5
~‘3300
~l600
230
8
COD
178,000
4260
570
16
P~xnmonia
33,0
1,6
.06
.05
Nitrate
.6
2.6
2,6
22.0
Phosphorus
360.0
12.0
1,9
.93
TSS
2400
360
43
8
pH
3,8
4.8
7.7
8.2
*All units in mg/l except pH
36—25
—6—
Dead
fish
were
first
observed
by
a
Mr.
Cedarquist
near
Kish-
waukee
Road
(location
1)
on
or
about
August
15,
1977
(R.
344).
“Thousands”
of
dead
fish
from
two
inches
to
two
feet
were
hanging
in
tree
limbs
where
they
had been left by high water following a
rain
at
some
time
prior
to
that
date.
They
had
been
dead
for
three
or
four
days
CR.
362).
Sometime
between
the
19th
and
21st
Mr.
Cedarquist
went
to
Scott
Road
(4)
during
a
rainstorm.
He
observed
water
which
was
gray
in
the
center
and
brown
on
the
sides
(R.
350,
353).
On
August
22,
Mr.
Pulley
first
learned
of
the
fish
kill,
but
did
not
investigate
until
August
29,
1977
CR.
58).
Mr.
Danekas
testified
that
he
first
stored
corn
silage
on
August
23,
1977
(R.
380).
The
Agency
apparently
agrees
with
this
date
(Amended
Complaint,
¶5).
It
is
therefore
unlikely
that
the
silage
could
have
caused
the
earlier
fish
kill.
At
locations
1,
2,
3
and
4,
Mr.
Pulley
observed
both
fresh
killed
and
decomposed
fish
on
August
29
and
30,
1977.
Only
the
fresh
fish
were
counted.
Mr. Pulley stated that these had either
been
two
fish
kills
or
one
kill
of
long
duration
CR.
80).
At
location
1
Mr.
Pulley
observed
only
five
fresh
killed
fish
in
100
feet
(R.
29).
However,
Mr.
Cedarquist described the earilier kill
as
involving
thousands
of
fish
at
that
location
(R.
346).
At
location
4
Mr.
Pulley
observed
decomposed
fish
and
“greatly
dis-
colored water, dead algae and aquatic greens”
(R.
32).
One would
expect silage to be rich in nutrients and oxygen demanding waste.
Even
with
the
high
levels
of
suspended
solids
and
low
pH
shown
in
the
analyses,
one
would
not
expect
to
see
dead
algae
and
aquatic
greens
(Comp.
Ex.
6),
They
would
probably
thrive
in
such
a
waste
stream
since
they
are
oxygen
producers,
subject
to
restriction
of
sunlight
from
high
suspended
solids
and
eventual
eutrophication.
Dilution
and
utilization of nutrients along several miles of
meandering,
intermittent
stream
should
render
these
wastes
alto-
gether harmless to algae and aquatic plants,
as indicated by the
analyses
(Comp.
Ex.
6d).
Mr.
Cedarquist,
who
first
reported
the
fish
kill,
testified
that on or about August 23,
1977 he accompanied Mr. Pulley and
Jonn
Theandor
of
the
local
fire
department
to
the
scene
of
the
tank car derailment
(location 72) which had occurred in March,
1977
(R.
356).
This
appears
to
contradict Mr. Pulley’s testimony
that he first investigated the fish kill on August 29
(R.
56).
Mr. Theandor does not mention this incident in his testimony
(R.
325).
Mr.
Cedarquist, however, says that on this date someone
waded, knee deep,
in what appeared to be fresh cement in the
watercourse near the scene of the derailment
CR.
356).
There is
no mention of cement being spilled.
However, if lime were spread
on a pond of phosphoric acid, the result could be rather like
cement.
36—26
—7—
On
August
30,
Mr.
Holmes
went
first
to
the
scene
of
the
derailment
at
location
72
on
the
assumption
that
it
was
the
most
likely
cause
CR.
90).
He
reported
that
there
was
no
flow
from
the
spill
area
on
that
date.
The
analysis
of
the
water
at
lo-
cation 71, showing low phosphate, tends to confirm this observation
(Comp.
Ex.
6c).
However, this does not rule out the likelihood
that there was flow from the spill area during the rains which
are described by Mr. Cedarquist.
In the event the phosphoric acid
was covered with excess lime,
the runoff could also be harmful to
fish.
The pH
8.2 observed at location 71 may indicate this latter
possibility.
The evidence in this case is compatible with the following
chain
of
events,
A
heavy rainfall occurred on or about August
11.
At that time there was
a spill of toxic materials or elution of the
phosphoric acid, or possibly excess
lime, into the lower reaches of
the stream.
A massive fish kill resulted.
As the high water re-
ceded, the stream was repopulated with fish from the Rock River
after the stream was washed free of the chemicals.
As low flow
conditions returned, decomposing
fish, algae and vegetation resulted
in a low-oxygen situation, producing a secondary fish kill.
In any
event, Danekas did not cause the first kill and it is not surprising
to see fish dying in a stream two weeks after a massive fish kill.
Respondent has advanced some additional hypothetical causes
of the fish kill,
There
is a landfill at location 32 which appar-
ently drains through location 31 to location
3
CR.
422; Resp.
Ex.
33,
34,
35).
This landfill is the same one which
is involved in
an enforcement case pending before the Board,
County of Ogle v.
Browning-Ferris Industries,
Inc.,
PCB 78—149.
In that case there
are allegations of leachate flows which could pose
a threat of
water pollution.
However,
Mr. Pulley observed live fish and clear
water at location 31.
Furthermore, there were dead fish at lo-
cation
4 which apparently does not receive drainage from location
32
CR.
31)
Mr.
Danekas
testified
that
in
the
fall
of
1977
he
observed
about twenty dump truck
loads worth of hog manure
in
the watercourse
at
a
location
approximately
1000
to
1300
feet
from
Scott
Road,
probably
upstream
from
location
41
(R.
425,
447;
Resp.
Ex.
31,
32).
Mr. Pulley however, observed clear water at location
41
but
dis-
colored water at location 5.
He did not walk up the branch far
enough to see the manure Mr. Danekas describes
(R.
34,
67),
Al-
though oxygen demanding waste is not necessarily colored,
it is
likely that the hog manure would produce discolored water if it
were contributing to the waste load downstream.
However,
this is
another hypothesis which the Agency’s evidence does not fully exclude.
Mr.
Danekas also says there are other feedlots, silage piles and
drainage tiles
in the vicinity
(R.
381,
434).
36—2 7
—8—
Dead fish were observed at locations
1,
2,
3 and 4, with all
recently killed fish downstream of
location 3.
The fish kill is
separated from the silage by about three miles.
The link between
the two depends on circumstantial evidence.
Respondent has offered
evidence not only of alternative causes of the fish kill, but also
evidence which directly contradicts the chain of causation.
Mr.
Pulley walked the watercourse from the railroad
(12) to
Utility Road
(10).
On August 30 he observed discolored water the
entire distance
(R.
37).
However,
on August 30 or 31,
Mr. Holmes
saw clear
water flowing under Utility Road
(10).
He stated that
Danekas’
flow was underground in a pipe.
He apparently believed
that the twelve-inch corrugated pipe
(7) began at some point up-
stream from Utility Road
(R.
136,
141).
Respondent’s witnesses,
however, established that the pipe began downstream of Utility
Road at the beehive grate
(8) and that the flow from Danekas was
over the surface at Utility Road
(R.
300,
316,
377,
431,
465;
Resp.
Ex.
25,
27,
28).
The contradiction between the Agency’s
witnesses,
together with their uncertainty about the watercourse
casts doubt on the causal connection between the silage and the
fish kill.
Neither of the Agency’s witnesses walked from the silage
(13)
to the railroad tracks
(12) where the five—inch clay tile emptied.
Their testimony that the leachate flowed into a hole
in the ground
does not contradict Danekas’ testimony that
it was flowing into
a
sixteen foot pipe under a grass roadway to a retention area
(R.
282,
300,
307,
366, 382,
393,
445,
460,
474).
The Agency’s wit-
nesses did not testify to the absence of such roadway and detention
area and they could not since~they did not walk the drainage way
beyond the hole
(R.
54).
A grassy field for evaporation and per-
colation would be a satisfactory treatment system for the deoxy—
genating waste
from the silage.
On August 31, 1977 Mr. Danekas dug up the lower end of the
five-inch clay tile
(12) and plugged it
(R.
391).
Mr. Danekas
testified that he subsequently followed the tile with a tile
probe.
It did not follow the water course to the silage pile
(13), but proceeded 150 feet to a higher area in the field to
the north between that watercourse and the railroad tracks.
Later he had to unplug the tile to dry that area to pick his
corn
(R.
392,
398,
443).
36—28
—9—
The
Agency
did
not
perform
a
dye
test
to
directly
demonstrate
that
the
silage
leachate was the source of the tile drainage.
The
Board
must
weigh
Respondent’s
direct
evidence
against
the
Agency’s
conclusion
which
was
based
on
the
general
lay
of
the
land
and
the
fact
that
the
discharge
was
a
milky
color
which,
downstream,
smelled
“somewhat”
like
the
silage
(R.
98).
Mr.
Danekas
testified
that
it
was
not
unusual
after
a
summer
rain
for
the
discharges
to
be
milky
because
of
silt
accumulation
during
dry
weather
CR.
379).
Section
30(c)
of
the
Act
provides that the burden of proof in
an
enforcement
case
is
upon the Agency.
After considering the
evidence,
the
Board
finds
that
the
Agency
has
not
met
this
burden
by
presenting
clear
and
convincing
evidence to substantiate the
allegations
of
Count
II.
Count
IV
alleged
violation
of
§12(d)
by
depositing
contaminants
upon
the
land
so
as
to
create
a
water
pollution
hazard.
Count
V
alleged
violation
of
Rule
601(b)
of
Chapter
3:
Water
Pollution
by
failing
to
take
all
reasonable
measures
to
prevent
spillage of contaminants from causing water
pollution.
Counts
IV
and
V
will
be
dismissed
since
the
Agency
has
failed
to
establish
that
the
silage
pile threatened water
pollution.
Count
I
charges
violation
of
§12(c)
of
the
Act
and
Water
Rule
203(a)
in
that:
“The
events
described
in
paragraphs
6
and
7
of
this
Count
I
caused
unnatural
color
or
turbidity
in
the
waters.
.
.
.“
Paragraph
6
alleges that liquid leached from the
corn pulp into a drainage tile.
Paragraph
7 alleges discharge
from the tile into the unnamed tributary.
Although Respondent
has admitted color and turbidity in the testimony, the allegations
are expressly limited to a charge of unnatural color and turbidity
caused by the silage.
Since the Agency has failed to establish
this causation, Count
I will be dismissed.
Count III alleges
dissolved oxygen of less than 5.0 mg/l in the receiving stream in
violation of Water Rule 203(d),
Although the analysis shows low
oxygen,
the allegation is again that the silage pile caused the
condition.
Furthermore, Mr. Holmes was uncertain about where this
sample was taken
CR.
110; Comp.
Ex.
6a).
Count III will also be
dismissed.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter,
—10—
ORDER
The
complaint
in
this
proceeding
is
dismissed.
IT
IS
SO
ORDERED.
I,
Christan L.
£4offett,
Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order
were adopted on the__J-~~_dayof
,
1979
by a vote of
7-0
/
~#Z9
Christan L. Mo fett,
C
rk
Illinois Pollution Control Board
36—30
