ILLINOIS POLLUTION CONTROL BOARD
April 28
,
1977
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 76-77
HAROLD CRAIG and ROBERT CRAIG,
Respondents.
Mr. John Van Vranken, Assistant Attorney General, appeared on
behalf of Complainant.
Mr. Randall Robertson and Mr. Eric Robertson appeared on behalf
of Respondents.
OPINION AND ORDER OF THE BOARD
(by Dr. Satchell):
On March 18,
1976 the Environmental Protection Agency
(Agency)
filed with the Pollution Control Board a complaint
against Harold Craig and Robert Craig alleging violations of
Section 12(a)
of the Environmental Protection Act
(Act);
Rules 203(a),
203(d),
403 and 405 of the Chapter
3: Water
Pollution Regulations
(Chapter 3); and causing a fish kill
in Swank Creek on or about July 18,
1975.
Hearings were held
August 19, 1976,
September 28,
1976 and November 16,
1976.
Respondents operate the Craig Brothers Dairy Farm which
includes about
830 acres
(R.
46).
From 640 to 650 acres are
planted
to crops and about 250 acres are used
to produce feed
for the
dairy
caLiLle
(R.
52).
Corn,beans,
hay, oats and wheat
are raised
(R.
47).
Respondents have 130 dairy cattle and
approximately another 100 head of cattle scattered on other
parts of the farm
(R.
48).
Manure from the dairy cows is
stored in a pit behind the barn for application on the fields
(R.
48).
The pit is not quite
100 yards from Swank Creek at
the nearest point
(R.
49).
Swank Creek flows through the
farm and around the town of Indianola
(R.
48).
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361
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On July 18, 1975 an employee of the Agency, Tom Smith,
inspected Swank Creek in response to a call reporting a
fish kill
(R.
55, 97).
On this date Mr.
Smith took four
water samples from Swank Creek, one from above the Craig
farm and Indianola;
one at a twelve-inch corrugated tile
approximately 100 yards east of the Craig dairy barn, dis-
charging into Swank Creek; one downstream at the northeast
corner of Indianola;
and one at the last road bridge before
Swank Creek enters the Little Vermilion River
(Cornp. Exs.
5-8).
These samples showed that upstream from the Craig farm
and Indianola that the stream was clear with no odor, no fish
were observed
(R.
71,
72, Comp.
Ex.
7).
Slightly north of
Indianola by the Craig brothers~farm Mr.
Smith observed a
quantity of manure in the stream
(R.
67).
A water sample
was taken at this point from a tile discharge into the
stream
(R.
67, Comp.
Ex.
8).
The tile discharges from the
Craig farm
(R. 69).
The stream was dark brown, with moderate
manure odor and with dead minnows in the vicinity
(Comp.
Ex.
8).
Slightly upstream the stream was approximately ten yards wide
and had approximately a ten yard stretch of manure in it
(R.
71).
The next sampling point downstream showed the stream with a
brown cast,
slight manure odor, and with dead minnows,
carp,
suckers and pickerel in the vicinity
(R.
72, Comp.
Ex.
5).
The last point sampled downstream showed the water with a brown
cast,
slight manure odor and no fish
--
dead,
alive or dis-
tressed were observed
(R.
72, Comp.
Ex.
6).
Mr. Smith returned
the next day accompanied by an engineer and observed similar
conditions in the stream
(R.
73, Comp.
Ex.
9).
During Mr.
Smith’s inspection on July 18 and 19, 1975 he observed no
other tiles discharging into the stream
(R.
95).
Mr. Richard Ryczek, an Agency engineer, also testified.
He visited the stream site on July 19, 1975 and observed con-
ditions similar to those described by Mr.
Smith.
He also
expanded the description of the manure in the stream.
Approxi-
mately twenty-five yards upstream of the tile
(12-inch corrugated
pipe)
discharge the entire stream bottom was covered with manure
(R.
110).
The investigators traced this upstream to a point
where a large stockpile of manure was observed and which had
apparently overflowed
(R.
110).
A makeshift earthen dam had
recently been erected to stem the flow of the manure into the
creek
(R.
110).
Mr. Ryczek investigated the stream again on
September 30, 1975.
Jim Frank of the Agency was also with him.
On this date the stream behind the Craig barn was choked with
manure for a distance of
30 yards downstream of the point of
entry
(R.
116).
On October
1, 1975, Mr. Ryczek did a complete
stream survey
(R.
118).
Above the Craig farm the stream was
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362
—3—
clear
(R.
118).
At the tile discharge at the Craig barn the
manure was still flowing to the creek
(R.
119).
Below this
point there were sludge banks, no evidence of any life,
excessive algae, turbid water and a manure odor
(R. 119).
Proceeding downstream the water gradually improved; the
samples included two additional discharges downstream
(R.
120,
121)
Mr. Ryczek inspected the area on July 29,
1976
(R.
129).
At this time the manure pile had been removed and efforts had
been made to construct
a manure holder behind the barn
(R. 125).
No stream survey was made.
Kenneth Brummett,
a fishery biologist for the Illinois
Department of Conservation, determined the number and value
of fish killed on July 18,
1975
(R.
190,
196).
Mr. Brummet
stated that manure introduced into a stream would remove
oxygen from the stream having an adverse effect upon fish
(R.
198).
However, no actual determination of cause of death of
the fish was made.
Respondents have attempted to show with extensive testimony
that the Complainant’s case is inadequate by suggesting the
existence of other potential discharges into portions of
Swank Creek downstream from the Craig farm.
Respondents have
not shown that any other cause did actually occur or exist on
July 18, 1975.
The evidence
is circumstantial; however,
the
overpowering thrust of the evidence
is that Respondents’ manure
was the major cause of the fish kill that occurred on July 18,
1975.
The Board
finds that the exhibits and testimony also
clearly show the existence of violations of Rules 203(a),
203(d),
403 and 405 of Chapter
3 and Section
12(a)
of the Act.
Prior to determining the resolution of this problem the
Board must consider the factors of Section 33(c)
of the Act.
The Department of Conservation has determined that approxi-
mately 31,665 fish were killed at an estimated value of
$1,345.40
(Comp.
Ex. 24).
This figure does not include
injury to the general public such as the nuisance of the
odor, the unappealing appearance of the stream on the con-
tribution of pollution to other users downstream of the
Little Vermilion.
There is no doubt that the Craig Brothers’ Dairy Farm is
of social and economic value.
The farm is located just out-
side the city limits of Indianola
(R.
47).
Indianola has
approximately 400 people with little industry
(R. 47).
The
Craig Brothers’ Dairy Farm is suitably located.
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363
—4—
There was
a great deal of discussion concerning tech-
nical practicability and economic reasonableness.
There is
no question that elimination of the discharge is possible.
The discussion concerned whether Complainant’s or Respondents’
method was
a better method.
Complainant’s method was based
on some knowledge and some assumptions on the part of the
Agency
(R.
256).
The Agency was also concerned with potential
odor problems from hauling part of the manure through or by
Indianola as Respondents’
plan requires; however, Respondents
have done this in the past with no known complaints
(R.
455).
The Agency’s estimated cost is $12,270
(Comp.
Ex.
28).
Re-
spondents claim the Agency’s plan will cost $37,050
(R. 444).
Respondents’ plan is estimated to cost $14,000
(R.
439).
The
Agency’s plan is $158 less to operate per year than Respondents’
according to Respondents’ engineer
(R. 441).
The Craigs have
hired an engineering firm to design a system of containment of
livestock waste
(R.
431).
The system is to be economically
compatible with the Craig operation and meet all the require-
ments of the Agency
(R.
432).
The Craigs are prepared to
install the recommended system and have in fact begun in-
stallation
(R.
340).
The bulk of the work is to be completed
in the fall of 1976 with seeding to be done in the spring of
1977
(R.
342).
The drain tile from the Craigs’ milk parlor
has been altered so that it drains into their lagoon rather
than Swank Creek
(FL
343).
The Craigs did not provide financial data for their
entire operation, but did show gross income and losses for
the farm for the years 1970 through 1975.
The year 1970
showed gross profit of $5,240
(R.
344).
The following years
show losses:
1971
—
$3,322;
1972
—
$15,748;
1973
—
$1,904;
1974
—
$27,689;
and 1975
—
$29,394
(R.
344).
This informa-
tion fails
to consider the benefit to the grain growing
operation that the use of manure rather than fertilizer provides.
The Board finds that the fact the Craigs have hired an
engineering firm and committed themselves to follow its plan
shows that compliance is economically and technologically
feasible.
The Craig plan was designed to meet the require-
ments of the regulations and the Act and the needs of the
Craigs.
At completion of the project any failure to meet
these requirements will,
of course, remain the responsibility
of the Craigs.
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364
—5—
In accordance with Section 42(b)
of the Act the Board
will require the Respondents
to
pay the
reasonable value of
$1,345.40 to the Game and Fish Fund in the State Treasury.
The Board
finds that the continuing violations of Chapter
3
and Section
12(a)
of the Act for at least several months
merits
a heavy penalty; however,
in light of the cost of
compliance,
payment
for the fish and the profit and loss
statements,
a penalty
of $500 will be sufficient to aid in
enforcement
of the Board’s Regulations and the Act.
This Opinion constitutes the Board’s findings of fact
and conclusions of law
in this matter.
ORDER
It is the Order of the Pollution Control Board
that:
1.
Harold Craig and Robert Craig are found
to be
in
violation of Rules
203(a)
,
203(d)
,
403 and 405 of
the Chapter
3: Water Pollution Regulations and
Section
12(a)
of the Environmental Protection Act,
which resulted in a fish kill on July
18,
1975.
2.
Respondents shall cease and desist all further
violations.
3.
Respondents shall pay to the Game and Fish Fund
of the State Treasury the value of the fish
killed, $1,345.40, within 35 days of this Order.
4.
A penalty of $500 is assessed.
Payment shall
be by certified check or money order payable to:
State of Illinois
Fiscal
Services Division
Environmental Protection
J\gency
2200 Churchill Road
Springfield,
Illinois 62706
Payment is due within 35 days of this Order.
Mr. James
Younçj
~.bstained.
Mr. Jacob D.
Duina1l~concurred.
I, Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the a ave Opinion and Order were
adopted on the
~
day of
_______,
1977
by a vote of
Chi~istanL. Moffettj ~4rk
Illinois Pollution Co~rol Board
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