ILLINOIS RJLLU11’I(1~lWNTROL BOARD
January 18, .1979
ILLINOIS ENVI1~MEl’ffAL
prurEcrIa\J AGEN~,
Corrplainant,
v.
)
PcB 77—238
CIJY OF DFX~A11JRand
DECATUR SANITARY DISTRICT,
)
Respondents.
MR. JOHN VAN VEANDEN, ASSISTANT ATTORNEY GENERAL, APPEARED C)N
BEHALF OF THE OPLAINANT.
GREANIAS, BJGI’H, GREANIAS & BURTON, ATTORNEYS AT LAW (MR. GUS T.
GREANIAS, OF (DJNSEL), APPEARED CX~’T BEHALF OF THE RESPOHDENT.
OPINIC~lAND GRDER OF THE BOARD (by
Mr.
Werner):
This matter
comes
before the Board on the Sept~nber 19, 1977
C~rp1aintbrought by
the Illinois Environmental
Protect ion
Agency
(“Agency~)alleging that: (1) on or about July 16, 1976 and
July 22, 1976, the Respondents caused or allowed the discharge of
contaminants from their combined sewers into the Sangamun River so
as to cause the death of fish; and (2) on or about July 13, 1977,
the Respondents caused or allowed
the
discharge of contaminants
from their cathined sewers and from the City of Decatur’s water
treatment plant’s lime softening process sludge lagoons into the
SanganDn River so as to cause the death of fish in violation of
Section 12(a) of the Illinois Environmental Protection Act (“Act’).
Hearings were held on this matter on Decenher 5, 1977 and on
April 4, 1978.
The City of Decatur and the Decatur Sanitary District are
both Illinois municipal corporations. The City of Decatur owns
and controls a water treatment plant v~hich contains several lime
softening process sludge lagoons. The Decatur Sanitary District
and City of Decatur own and control combined sewers which discharge
into the Sangamun River.
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I. FISH KILL OF JULY 16, 1976
At the hearing, the Agency’s first witness (called under the
Board’s Procedural Rule 325 pertaining to adverse witnesses) was
Mr. Gene Henry
-
a field :3upervisor eTployed by the Decatur
Sanitary District. Mr. henry testified that certain sections of
the southeast combined sewer are owned by the City of Decatur and
sai~portions are owned by the Decatur Sanitary District. (Record,
p. 10; ~ 19; See: Carpiainant’s Exhibit 1). He indicated that
various outfall sewers take storm water and overflow from sewers,
and when the level of materials in those sewers reach a certain
point, the overflow finds
its way into the Sangamon River (the
“river”), (Record, p. 16).
The Carpiajnant~ssecond witness was Mr. Richard A. Ryczek,
an environmental protection engineer effpioyed by the Agency. Mr.
Ryczek testified that on July 17, 1976, he investigated the fish
kill in the Sangarron River near the City of Decatur which was
reported on July 16, 1976.
Mr. Ryczek testified that, during the course of his
investigation, he observed and took water sarrples: (I) at the point
of discharge fran the Edward Street combined storm sewer; (2)
upstream from the storm sewer; and (3) downstream fran the storm
sewer. Upstream from the storm sewer, he observed that the water
was relatively clear, live fish were present, there were no dead
or distressed fish and no odor. (See: Carplainant’s Exhibits 2
and 3). At the Edward Street combined storm sewer, Mr. Ryczek
observed that the sewer discharge “had a black cast to it” and an
odor. (Record, p. 29), Moreover, “the channel bottom was covered
with deposits of black solid from x~hichgas bubbles were rising.”
(Record, p. 29). He noted a “black color, septic odor,” and
“sludge like appearance” at the Edward Street storm sewer. (See:
Carp lainant’s Exhibits 4 and 5). Downstream fran the storm sewer,
near the Route 48 bridge, “the river was a gray or gray/black in
appearance, and there was a sewerage or septic odor associated
with it.” (Record, p. 26). “Between 10 and 20 dead or distressed
fish” were observed at this point. (Record, p. 26-27). Mr.
Ryczek stated that he then proceeded further downstream to a
gravel pit site located between the Route 48 bridge and the
Decatur Sanitary District and observed “hundreds” of dead and
distressed fish, (Record, p. 30), Mr. Ryczek noted in his
report that downstream from the storm sewer, the water was a
“dark color;” there were “nunerous dead fish” and “distressed fish
gulping air.” (See: Corrplainant’s Exhibits 6 and 7), Further
downstream from the storm sewer, near Stephens Creek, Mr. Ryczek
noted that the water was a “gray-black color” and that “dead and
distressed fish” were present. (See: Co~rplainant’s Exhibit 7).
:32—408
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Mr. Ryczek stated that, other than the discharges from the Edward
Street storm sewer, he did not see any discharges into the river
between the old dam and the Route 48 bridge, (Record, p. 33—34).
Mr. Ryczek also testified that he recorded the taking of the
water sarrples on the requisite Agency forms, properly preserved
the sarrples in the field, and turned over the sanpies and forms
to the laboratory personnel at the Agency’s laboratory in Champaign.
(Record, p. 34-37; See: Carplainant’s Exhibits 2 through 8). In
reference to a fish kill in the Sangarron River near Decatur on
July 22, 1976, Mr. Ryczek indicated that he was involved in an
investigation of this matter and that some dead fish were seen.
(Record, p. 38-40).
The Carplainant’s third witness was Mr. Frank John Schmidt,
Mr. Schmidt testified that he has the title Laboratory Manager I
and is the supervisor of chemistry at the Agency’s Charrpaign
laboratory. (Record, p. 68—69). His testirrony delineated the
general laboratory methods that the Agency fol lowed when the water
sanples arrived. (Record, p. 68—74).
Another Agency witness was Mr. Kenneth Lloyd Brurrmett, ~kio
was a District Fishery Biologist with the Illinois Department of
Conservation at the time of the fish kills. Mr. Brixrmett testified
that he investigated the fish kills of July 16, 1976 and July 13,
1977 and determined the nnmher and value of the fish killed in
accordance with standard Department of Conservation procedures.
(Record, p. 117-124). He indicated that the rronetary value per
fish assigned to various sizes and species of fish is a standard
“replacement value” set by the National Chapter of American
Fisheries Society. (Record, p. 119). The “estimated total nunber
of fish killed” is multiplied by the “value per fish” to obtain
the total value of a particular size and species of fish. (See:
Ccnpiainant’s Exhibit 16 and Complainant’s Exhibit 17).
MT. Brumiett’s report on his investigation of the fish kill
of July 16, 1976 stated that a heavy .45 inch rain had fallen on
downtown Decatur on July 15, 1976 within a 10 minute period. (See:
Carplainant’s Exhibit 17). At the hearing, it was mentioned that the
Respondents have an NPDES permit to discharge overflows from the Edward
Street combined storm sewer into the Sanganon River. (Record, p. 56;
p. 98—99; See: Corrplainant’s Exhibit 18). The regular storm sewer apparently
could not handle the runoff after the “flash rain” and the overflow
flushed sludge out of the old storm overflow sewer into the Sangarron
River. The evidence indicates that, on July 16, 1976, a discharge from
the Edward Street combined storm sewer to the Sangarron River was the
cause of a fish kill just below Lake Decatur on the Sangarron River
which extended for 1.8 miles and killed about 17,268 fish
32—4 09
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(including many big carp and channel catfish) with an estimated value
of $3,061.47. (See: Carplainant’s Exhibits 17 and 18).
According to Mr. Ryczek’s testimony, a flow of blackish water
(having a bad odor) from the Edward Street canbined storm sewer out-
let just below the old darn on the Sangarron River below Lake Decatur
was detected during the subsequent Agency investigation. (Record,
P. 28—30). Black silt had been deposited on the stream bank and
on the abutments of the Edward Street sewer outlet. (Corrplainant’s
Exhibit 17). Biochemical degradation of organic matter or sewage
can readily result in the lowering of the dissolved oxygen in a
stream. (Record, p. 46; p. 60—64). It appears that the addition
of the rich, black silt (which has a high biochemical oxygen demand)
from the Edward Street storm sewer outlet resulted in an insufficient
concentration of dissolved oxygen in the river. (See: Conplainant’s
Exhibits 2 through 8 and Exhibit 17). Dead fish were first found
about three-quarters of a mile heIow the Edward Street sewer outlet
and the last dead fish were found at the entrance of Stevens Creek.
Agency personnel made dissolved oxygen tests at several stations and
found very little or no dissolved oxygen in the river from the Edward
Street storm sewer with the black discharge to the entrance of Stevens
Creek. (See: Complainant’s Exhibit 17). Upstream and downstream
from this stretch, there was sufficient dissolved oxygen to support
fish life and visual observations of live fish confirmed the lab tests
on this point. (See: Carplainant’s Exhibits 2 through 8). Accord-
ingly, the fish appear to have died from a Tack of dissolved oxygen
brought about by a discharge fran the Edward Street carbined storm
sewer to the Sangarron River on June 16, 1976. Because of the limited
nature of the testimony and evidence presented pertaining to the inter-
related incident of July 22, 1976, and the fact that the Department of
Conservation has attached no monetary value to any fish ~th~iichmight
have been killed on that specific date, the Board finds that no purpose
would be served by finding that a violation of the Act occurred on
July 22, 1976. (See: Record, p. 38—44).
II. FISH KILL OF JULY 13, 1977
According to the testimony and written report of fishery biolo-
gist Kenneth Brunnett, the fish kill which occurred on July 13, 1977
extended for 4 miles and involved about 9,198 dead fish having an
estimated value of $766.70. (Record, p. 142—148; Carplainant’s Ex-
hibit 16). On July 13, 1977, employees of the Decatur Sanitary
District first discovered many dead and struggling fish in the river
near the Route 48 bridge, and called Steve Baldwin (an Agency
environmental protection specialist) to report that thousands of
fish were dead or dying just below the danE on the Sangamon River
32—a 10
—5—
below Lake Decatur. (See: Carplainant’s Exhibit 16 and 18). There
were also dead fish on both sides of the Route 48 bridge for a good
distance. (See:
Conplainant’s Exhibit 18). No water was coming
over the dam at that time and the river elevation had subsided
approximately 3 feet in the past hours (i.e., the river, because
of a prolonged dry period, was at an abnormally low level and the
air temperature was about 93°F.). Many of the dead fish were 2
and 3 feet out of water. (See: Gorrplainant’s Exhibit 18).
Mr. Stephen Edward Baldwin, one of the Corrplainant’s main
witnesses, testified that, in his capacity as an Agency environ--
mental protection specialist, he investigated a fish kill in the
Sangarron River near Decatur on July 13, 1977 after Mr. Charles
Wil1iarr~ of the Decatur Sanitary District telephoned him at his
Charrpaign office “advising of the circumstances.” (Record, p.83).
Mr. Baldwin testified that, during the course of his investigation,
he observed pipes of about 18 inches in diameter which were
discharging into the Sanganon River. He also testified that the
origin of the discharges from the tiles was the City of Decatur
municipal water lime lagoon. (Record, p. 86—92). At various
nearby points where he took water samples, Mr. Baldwin noted that
the water was cloudy, gray—white in color, and warm to touch, and
that extensive lime sludge deposits were found around the discharge.
There was no flow over the darn. (See: Carplainant’s Exhibits 9
through 11). At the sarrple point near the Edward Street storm
sewer discharge, he noted that the water was slightly black in
color; there were “black bottom deposits;” and noted “gas bubbles”
and “un—natural odors.” (Record, p. 89—90; See: Ccnplainant’s
Exhibit 12). Near the Route 48 bridge, Baldwin noted “numerous
dead fish” in the river and “on both banks.” (See: Carplainant’s
Exhibits 13 through 15). Mr. Baldwin stated that, prior to taking
the water samples to the lab, he properly preserved them by putting
them into a cooler and adding ice to the cooler for refrigeration
purposes. (Record, p. 94).
Another Agency witness, Mr. Roy Parker Frazier, testified
that he is the Laboratory Manager of the Agency’s Charrpaign labor-
atory and described the laboratory routine that was used after
Baldwin’s water sarrples
and “special analysis forms” were brought
to the laboratory. (Record, p. 76—81; See: Complainant’s Exhibits
9 through 15).
The Conplainant also called on Mr. Richard P. Kaptain, the
Assistant Manager-Engineer of the Sanitary District of Decatur, to
testify (as an adverse witness under the Board’s Procedural Rule
325). Mr. Kaptain testified that, at the request of the Agency,
32—411
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about a week after the fish kill in question, he opened the darn
(i.e., water was let out of Lake Decatur over the new dam) to
allow more water into the Sanganon River to prevent possible fish
kills, having been notified there were fish in distress in the
river. (Record, p. 150-152). After the darn was opened, no fish
kill occurred. (Record, P. 153).
Mr. Brumiett’s testimony and written report indicated that
“the dead fish started just below the old darn on the river” and
“the kill ended just upstream from the mouth of Stevens Creek.”
The Sangarron River had “very little flow and it was reported that
no water was going over the Lake Decatur dam” when the fish kill
started. (See: Complainant’s Exhibit 16). Water was subsequently
released over the dam of Lake Decatur and brought the water level
up in an attempt to partially rectify the situation.
In reference to the fish kills of July 16, 1976 and July 13,
1977, the Respondents have att~rptedto show (by extensive cross—
examination of Corrplainant’s witnesses) that the Cctrplainant’s case
is inadequate by suggesting the existence of other potential
injurious discharges into the Sangarron River fran private sewers,
storm water run-of fs, and agricultural and natural drainage. (See:
Record, P. 51). The Respondents have attempted to raise factual
and legal questions pertaining to the methodology and conclusions
of the lab tests, the observations of Agency personnel, the actual
causation (i.e., etiology) of the death of the fish, the meeting of
the burden of proof, etc. The attorney for the Respondents sum~rized
their position as follows: “All of the evidence here is that sar~body
saw scn~ fish in distress on the Sanganon River. The Sangarron River
is not under the exclusive control of either of these Respondents. There
are other sources of pollution that enter into this stream. They are
not the custodians nor guarantors of the cleanliness of the Sanganon
River
...“
The Agency has “not shown what the fish died of. How can
they say it was us who killed those fish?” (See: Record, p. 165—169).
Flowever, no evidence was introduced into the record by the Respondents
in support of their position.
The Board believes that a preponderance of the evidence clearly
sho~that discharges on July 16, 1976 and July 13, 1977 from carbined
sewers owned by the City of Decatur and the Decatur Sanitary District
and from the City of Decatur’s lime softening process sludge lagoon
reduced the level of oxygen in the Sanganon River and contaminated
the water to a point which rendered the water injurious to fish. After
due consideration, the Respondents’ notion to dismiss the Ccrrplaint
and the Respondents’ motion for oral argument before the Board (which
were referred back to the Board during the hearing of this case) are
hereby denied. (Record, p. 163—169; p. 174—175; See: Board’s
Procedural Rules 308(d) and 308(e)).
32—4 12
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In evaluating this enforcement action, the Board has taken
into consideration all the facts and circixnstances in light of
the specific criteria delineated in Section 33(c) of the Illinois
Environmental Protection Act. Incinerator, Inc. v. Illinois
Pollution Control Board, 59 Ill. 2d 290, 319 N.E. 2d 794 (1974).
The Board finds that, on July 16, 1976 and July 13, 1977, the
Respondents discharged contaminants into the Sangarron River in
violation of Section 12(a) of the Illinois Environmental Protection
Act which resulted in t~oextensive fish kills. The Board hereby
in-poses no penalty against the Respondents. However, in accordance
with Section 42(b) of the Act, the Board will require the Respondents
to pay the reasonable value of the fish killed
-
$3,828.17
-
to
the Game and Fish Fund of the State Treasury.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
cEDER
It is the Order of the Illinois Pollution Control Board that:
1.. The Respondents are found to have violated Section 12(a)
of the Illinois Environmental Protection Act on July 16, 1976 and
July 13, 1977 which resulted in fish kills on the dates in question.
2. The allegation that the Respondents violated Section 12(a)
of the Act on July 22, 1976 is hereby dismissed.
3. The Respondents shall cease and desist all further
violations.
4. Within 45 days of the date of this Order, the Respondents
jointly and severally shall pay to the Game and Fish Fund of the State
Treasury the value of the fish killed, $3,828.17, payment to be made by
certified check or money order to:
State of Illinois
Fiscal Services Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois 62706
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, here~Xcertify the above Opinion and Order were
adopted on the
~
day of
,
1979 by a
vote of LJ.~
Christan L. Mo fett,,-t~t~rk
Illinois Pollution C5~tro1Board
32—4
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