ILLINOIS POLLUTION CONTROL BOARD

April 4, 1974

ENVIRONMENTAL

PROTECTION AGENCY,  

)

Complainant,

v.

)

PCB 73—329

LESTER KIPLING, d/b/a Kipling

Chicken Hatchery,

Respondent.

Mr.

Lawrence Eaton, attorney for Complainant.

Mr. James Lucie, attorney for Respondent.

OPINION AND ORDER OF THE BOARD (by Dr. Odell)

The

Environmental Protection Agency (EPA) filed its

Complaint against Respondent Lester Kipling on August 8, 1973.

Complainant alleged that Respondent operated its facilities

causing air pollution in violation of Section 9(a) of the

Environmental Protection Act (Act) 

It was averred that

violations occurred between July 1, 1970, and August 8, 1973 

including approximately 50 specified dates during the summer of

1972. Mr. Kipling operates an egg production facility in the

600 block of North Coal Street, Coichester, McDonough County,

Illinois. The pullets and feed are supplied by another party,

who also markets the eggs. Respondent leases the premises, sees

to it that the automatic equipment is functioning properly, and

disposes of the by-product chicken manure. EPA alleged that the

odor from this yet unhauled manure constituted a violation of

Section 9(a) of the Act.

A hearing took place in Macomb, Illinois, on November 7,

1973. Complainant relied on 13 citizen witnesses and 2 EPA

employees to establish its case. Lester Kipling was the only

witness for Respondent. The Hearing Officer admitted witness

testimony regarding the condition of the facility from February,

1973, until August, 1973, although no specific dates after Februar

1973, were named in the Complaint. Respondent objected on due

process grounds in that he could not adequately defend against

such evidence because of the general nature of the Complaint.

We hold that the Hearing Officer’s ruling should not be set

aside. Rule 308(h) of the Pollution Control Board’s Procedural

Rules states that “Rulings of the Hearing Officer 

. . .

will be

set aside only to avoid material prejudice to the rights of the

litigant.” Informationelicitedfrom witnesses did not create

any material prejudice here. The testimony only covered., facts of

a general nature without regard to specified times and created no

problem of surprise or difficulty of defense.

12—7

—2—

The November 7, 1973, hearing established that Respondent

violated Section 9(a) of the Act. Respondent’s facility un-

reasonably interfered with its neighbors’ enjoyment of life and

property. First, interference clearly occurred during the

summer of 1972. Specific dates include May 16 (Comp. Ex. #1, 2,

6, 7) 

May 17 (Comp. Ex. #1, 6, 7, 10) 

May

18 (Comp. Ex. #1, 6,

7, 10) 

May 19 (Comp. Ex. #1, 6, 7, 10, 11) 

June 6 (Comp. Ex. #1,

7, 10, 11) 

June 25, (Comp. Ex. #3, 10, 11) 

June 26 (Comp. Ex. #3,

10, 11), July 26 (Comp. Ex. #4, 7), and July 31 (Comp. Ex. #4, 7).

Respondent admitted that manure wa~ not hauled from the facility

from May until September of that year (R-2l4). The complaints and

observations of the citizens were quite similar and can briefly be

summarized. High humidity made the odors worse (Cornp. Ex. #1, 9,

10). House windows had to be closed in the summer because of the

odor (Comp. Ex. #8). The smell was horrible and made one feel like

vomiting (Comp. Ex. #2, 3, 7, 13). The odor seriously curtailed

use of the yard and porch for normal outside activities (Comp. Ex.

#3, 4, 6, 7, 8, 11, 12). Air conditioners had to be used to

minimize the effects of the odors (Comp. Ex. #4, 6, 10). One

citizen was reluctant to invite friends over to his home because

of the smell (Comp. Ex. #4). Sleeping was affected (Comp. Ex. #1).

Sewer odors are present intermittently in the area, but the smell

of the chicken facility has an odor clearly distinguishable from

that of the sewer (R-l9, 34, 168).

Second, we find that the interference on the above mentioned

dates was unreasonable, noting the factors in Section 33(c) of the

Act. The interference was more than short—lived. The social and

economic value of the pollution source must be balanced against the

monetary and pragmatic costs to citizens burdened by the foul air.

Most of the neighbors moved into the area after the operation began

in the mid—l950’s. They admitted having knowledge of the facility

before they moved in, but typically added that they did not realize

the seriousness of the odor prob.em until after they had purchased

their homes (R-22, 79, 118, 142, 143). EPA introduced evidence of

practical steps, such as improved housekeeping and regular manure

removal, that could be taken to reduce the odor. Respondent ad-

mitted that changes could be made following the EPA plan that

would result in a reasonable and practical method of odor reduction.

Installation of an all-weather gravel road, where needed, to permit

year-around truck access between the 10,000—bird facility and an

acceptable manure—stockpiling and land disposal area, would also

facilitate regular manure removal from the poultry house (R—2l9,

231, 239—243)

Testimony was offered by Respondent that he derived 75 of

his annual income from operating the hatchery. Based on averages

taken from the record (R—2l9-230), we estimate that Respondent

earns approximately $6,500 yearly in the egg-production business

for wages ($5,000) and depreciation ($1,500) on equipment and

buildings. This is based on a 75 egg production rate from the

10,000 hens when eggs are sold by the contractor for 30~per dozen.

If Respondent is given 14 of the sale price and utilizes his

facility two-thirds of the time, the result is the $6,500 annual

figure.

12—S

The EPA recommended a penalty and a compliance program. We

think both suggestions are warranted here because of the severe

disruption of neighborhood activities as well as the need for

protection during the future use of this poultry facility.

This constitutes the findings of fact and conclusions of

law ~f the Board.

ORDER

IT IS THE ORDER of the Pollution Control Board that:

1. Respondent shall cease and desist from causing

violations of Section 9(a) of the ActS

2. Respondent shall pay a penalty of $500.00 for the

violations of Section 9(a) as described in this Opinion. Payment

shall be by certified check or money order made payable to the

State of Illinois, Fiscal Services Division, Environmental

Protection Agency, 2200 Churchill Road, Springfield, Illinois 62706.

Payment shall be made within 35 days of the adoption of this

Order.

3. Respondent must institute an odor abatement program

according to the following procedures:

A. Haul away all manure and thoroughly clean the

premises within 35 days of the adoption of this

Order.

B. When operations resume in the large building.

Respondent must follow good management

practices, including the following, to abate

odors:

(1) Remove the manure from the facility on a

weekly basis during the laying cycle,

providing weather conditions permit;

the manure can be temporarily stockpiled

at a suitable receiving area if weather

conditions do not permit immediate field

application.

(2) Install a gravel road or its equivalent, where

needed, to permit easy access between the

hatchery and the manure disposal area, in the

event that Respondent discovers this is

necessary to comply with the weekly hauling

schedule set out in B(l) 

above.

(3) Haul the manure when the wind direction is

away from the nearest homes and during the

week to avoid interference with weekend

neighborhond activity.

12—9

—4—

(4) Remove manure from the large building

within one week of the termination of

each egg-laying cycle. The large building

must be thoroughly cleaned within two

weeks of the termination of each laying

cycle.

(5) Maintain the continuous flow watering

system to avoid the mixture of water

with manure.

(6) Experiment with the use of chemical

deodorizing agents.

(7) Install and utilize dust filtering devices

if items B(l) through B(6) fail to effectively

limit the odorous emissions.

(8) Dispose of all dead poultry in compliance

with the provisions of the Dead Animal

Disposal Act (Ill. Rev. Stat., 1971,

Chap. 8, Par. 149—167).

(9) Notify the EPA in writing of the termination

of each laying cycle in advance of its

actual termination.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted on the 

day of 

__________,

1974, by a vote of 

____

to p

Q~Li~~

Christan L. Moff~, Clerk

—