ILLINOIS POLLUTION CONTROL BOARD

September 26, 1973

ORAN

BUCKLES,

Complainant,

vs.

)

PCB 73—210

KEITH POPE AND

LEROY OSBORN,

Respondents.

Mr. Homer

Harris, of

Harris and Harris, Lincoln, Illinois,

on behalf of Complainant;

Mr. Dick H. Woods, Jr., of

Woods and

Bates, Lincoln, Illinois,

on behalf of Respondents.

OPINION

AND

ORDER OF

THE

BOARD (by Dr. Russell T. Odell)

On May 21, 1973, the Illinois Pollution Control Board

received from Oran Buckles, Complainant, a formal complaint

that Keith Pope and Leroy Osborn, the Respondents, were

discharging animal waste which drained across Complainant’s

land into Clear Creek. Complainant (Buckles) and Pope

(Respondent) own adjoining real estate.

The regulations allegedly violated by the Respondent

are:

Sections 12 (c) and (d) of Title III and

Section 21 (b) of Title V of The Environmental

Protection Act, Chapter 111-1/2, Illinois

Rev. Stat., Par. 1012 (c) and (d) and Par.

1021 (b), together with applicable Rules

and Regulations adopted by the Pollution Control

Board. Also Chapter 100-1/2 (Nuisances)

Illinois Rev. Stat., Par. 26 (1), (2) and (3).

The Respondent is claimed toh~in violation as follows:

Respondent, by his tenant (Osborn), raises

hogs by means of self contained houses with

automatic feeding system. Animal waste is

discharged or deposited in large concentrations

into existing surface drains, grass waterways

and underground title, from whence it eventually

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surfaces on Complainant’s land by means of

underground horizontal holes or channels

dug without permission on Complainant’s

land, and the mixture of animal waste and

water then proceeds to drain into Clear Creek.

In an answer of June 26, 1973, and an amended answer

of July 9, 1973, the Respondents, through their attorney,

admitted the allegation in paragraph 1 (that Complainant

Buckles and Respondent Pope own adjoining farm real c~tate)

of the Complainant, and the allegation in paragraph 2 (that

Respondents raise hogs by means of self contained houses

with automatic feeding systems)

.

However, Respondents deny

the other allegations (in paragraphs 3 and 4) in the Complaint.

A hearing was held on July 10, 1973. At the hearing

on July 10, 1973, Complainant Exhibits 9, 10, 11. and 12 were

letters of August 30, 1972; September 28, l972~ January 17, 1973;

and April 4, 1973, respectively, from the Illinois Environmental

Protection Agency to Mr. Oran F. Buckles, Complainant, concerning

alleged animal waste pollution by the Resnondents. The letter

of September 28, 1972, states that the Environmental Protection

Agency investiqated the alleged water pollution by Mr. Keith

Pope on September 8, 1972, and reported their findings at that

time as follows:

“The hog lot in questil’n might have the potential

for discharging pollutional materials into

the stream under certain abnormal conditions,

however no discharge was occurring at the time

of tht~visit.

The other three letters from EPA related to arrangements for

investigations.

Complainant (Buckles) owns and operates 40 acres of

land in Section 23 east of Atlanta, Illinois, and lives on

other land 1/4 mile farther east. Clear Creek crosses the

southwestern portion of the 40—acre tract. There are two tile

lines on this tract. The west field tile begins near the

north boundary line and extends SSW to within about 8 feet from

Clear Creek and about 8 feet from the two holes shown in

Complainant’s Exhibit 3 of the bank of Clear Creek. The short

field tile begins approximately 250 feet west of the east

Buckles-Pope boundary line and extends ~7S~ about 1,000 feet

in a grass waterway to within 400 feet of Clear Creek.

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Immediately north and east of the Complainant’s

(Buckles) land, the Respondents (Pope, owner, and Osborn,

operator) opc~ratea 200—acre farm on which there is a

confinement hog operation (concrete slatted floors over pits

in a 50’ x 36’ farrowing house and a 100’ x 27’ finishing

house) and about 30 beef cows and calves. Liquid and dry

animal waste is applied on approximately 160 acres of

Respondent’s land, of which about 32 acres near the farm—

stead drain toward Complainant’s land, and the remainder

slopes in other directions. Mr. Pope started his hog

confinement operation in 1962 with a lagoon west of the

finishing house from 1962 to 1965. He drained the lagoon

in 1965, westward through Mr. Buckles’ land with the latter’s

agreement, and filled the lagoon. In 1968, Respondents

increased the animal—waste storage capacity of the pits

and blocked the previous outlet. Liquid animal waste

has been pumped out of pits, hauled to the field, and knifed

into the soil during approximately the past two years

(Pope, page 75) to nearly three years (Osborn, page 120).

In response to a letter of August 24, 1970, from EPA

(Respondent’s Exhibit 3)

,

Respondents installed knives on the

honey wagon and moved more sows away from the farmstead into

the fields in order to reduce the possibility of runoff and

pollution. Small amounts of dry manure are applied with

a manure spreader and disced into the soil to minimize runoff.

Mr. Osborn has farmed with Mr. Pope since 1965.

Several photographs taken on March 23, 1973, by Mr.

Larry B. Shroyer for the Complainant were introduced to show

various holes dug to or near tile (Complainant’s Exhibits

1, ~i,5, and 6), and a landscape view of Clear Creek. The

disputed Complainant’s Exhibit 3 purports to show two holes

fror which water is flowing into Clear Creek. Mr. Shroyer

sta::~dthat there was a tile in one (left) of these two holes

(page 28), but Mr. Buckles (Complainant) stated later (page

184) that there were no tile in these holes. The source of

water in these holes was not traced or determined. Mr. Shroyer

stated that he smelled animal waste odor coming from several

of the holes that were dug, but he got no closer than 5 or 6

feet from the holes in Complainant’s Exhibit 3.

In April, 1971, Mr. George Deavers installed a perforated

plastic tile (5.7 inches in diameter) 3 feet deep in a waterway

northwest of the Respondent’s farm buildings. The tile starts

72 feet west of the farrowing house and ends at the soil surface

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12 feet east of the Pope-Buckles property line. It was

blocked at the upper end, and was not connected with any

other tile nor with the finishing house or farrowing house.

These facts were supported by Mr. Marvin Smalley, who came

to see the new plastic tile and watched Mr. Deavers install

it. There is no mechanism at the outlet of this tile to

regulate flow (page 116)

-

merely a cover to keep things

from qetting into it.

Mr. Pope testified that he had neither spread nor knifed

in any animal waste (1) on Mr. Buckles’ land, or (2) along

their property boundary, (3) nor had he discharged any of

these materials over the tile line that was installed in

April, 1971, or (4) into Clear Creek.

In April, 1972, Mr. Buckles saw water (with foam on

it) flow down the east waterway (page 146) from Respondent’s

farmstead, and Complainant alleged that he saw Mr. Pope

~‘kickoff the trap door” on the ~uth side of the finishing

house to reduce the water flow. The clarity of Mr. Buckles’

view of the south side of the finishing house was questioned

(page 176), and he did not answer in the affirmative when

asked whether he had “ever observed either Mr. Osborn or

Mr. Pope removing or dumping any material from the red (hog)

houses onto the surface of the ground surrounding these houses.”

Mr. Buckles never saw Respondents dump animal waste (1) at

the beginning point of their tile that was installed in

April, 1971, nor (2) into the Complainant’s waterway. Also,

in December, 1972, while ice from a storm was melting, Mr.

Buckles saw yellowish water flow along his tile from the

east and the north. The runoff water was alleged to have a

hog odor.

In lengthy testimony, Mr. Buckles (Complainant) alleged

that, beginning in March, 1972, numerous vertical and horizontal

holes were dug along his tile lines to increase percolation

and transmission of animal wastes from the Respondent’s

livestock operation through the Complainant’s tile. The

shorter,eastern tile on Complainant’s land began about 250

feet west of the Pope--Buckles property line (page 174).

Complainant believes that Respondent auqered horizontal holes

this distance, as well as auxiliary vertical holes to improve

Respondent’s drainage (pages 185 and 186)

.

However, Complainant

never saw Respondents dig these holes, nor did anyone tell

him that

the

Respondents dug the holes (page 190)

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In August, 1972, Complainant took a picture (his Exhibit

7) of feam in Clear Creek, north of the road bridge on the

south boundary line. Similar material was observed by

Complainant on March 2, 9, 14, 18, and 30 and April 4, 1973.

Mr. Osborn testified that above Complainant’s land along

Clear Creek, within a two- or three—mile area, there were

four farmers with livestock operations which had access to

the creek and could contaminate it.

The Pollution Control Board recognizes that a livestock

enterprise such as the one that is operated by the Respondents

has a potential for discharging pollutional materials, and

careful management must be exercised to prevent this.

It is, however, the opinion of this Board that the

Complainant has not proven the allegations in the complaint~

ORDER

IT IS THE ORDER of the Pollution Control Board: That

the complaint against the Respondent be and is hereby dismissed.

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

Cc’~rolBoard, hereby certify the above Oinon and Order

~va~ adopted on the

~

day of

________________,

1973,

byavoteof~

to ~

Christan L. Moffe~ç7Clerk

Illinois Polluti~ontrol Board

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