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Since the beginnings of the mega Tradition Dairy in Jo Daviess County, the HOMES Group has tried to block development.


Loopholes polluting Illinois waters

by Kennedy Elliott and Joe Piaskowy
Dec 03, 2009



*A different percentage of Illinois streams were assessed for each category.  For Aquatic Life, 21.5 percent of total waterways were assessed; Fish Consumption, 5.4 percent; Indigenous Aquatic Life, 100 percent; Primary Contact (such as swimming), 5.5 percent; Brief Contact, 100 percent; Aesthetic Quality, 0 percent.

*For 2008, 15,569 Illinois stream miles, or 21.8 percent of the total 71,394 stream miles in Illinois have been assessed for attainment of at least one designated use.



A different percentage of Illinois lakes were assessed for each category.  For Aesthetic Quality, 44.8 percent of the total waterways were assessed; Aquatic Life, 44.8 percent; Fish Consumption, 27.3 percent; Indigenous Aquatic Life, 100 percent; Primary Contact (such as swimming), 0.6 percent; Public Water Supplies, 99.8 percent; Secondary contact, 100 percent.


* For this 2008 report, a total of 147,361 Illinois lake acres were assessed for at least one designated use. This represents 46 percent of total lake and pond acreage (318,477) in the state.

Kennedy Elliott and Joe Piaskowy/MEDILL

Nic Anderson, representative of Illinois Livestock Development Group, discusses clean water regulations and the use of porous "karst" land as a lever to oppose the mega dairy.

Karst land is characterized by sinks, ravines and underground streams that is vulnerable to leakages.

It has all the makings of a best-selling novel. A rural county polarized. A heated trial against a mega dairy farm owner. A small group of community members fighting a multi-million dollar company. Threats of big business possibly polluting the water supply. Even the name of the defendant - the mega dairy owner – is pronounced “boss.”

This real-life drama is playing out in the rolling hills of Jo Daviess County in Northwest Illinois. The small towns of Warren, Nora and Stockton are split in a battle over the development of a mega dairy only miles away from residential homes and farm land.

The escalating conflict has led to the current litigation pitting a small non-profit group named Helping Others Maintain Environmental Standards (HOMES) against mega dairy owner A.J. Bos of California.

Supporters of Bos' Tradition Dairy say it will bring jobs and money - some $70 million - to the region. Opponents of the Concentrated Animal Feeding Operation (CAFO) argue the proposed 5,000-cow farm is being built on porous "karst" land and its tens of millions of pounds of manure will pollute air and waterways, inevitably putting the county’s drinking water at risk of contamination.  

“I think our biggest concern is the environmental issues, the water and air quality,” said Judy Bergstrom, Jo Daviess County resident and member of HOMES. “This is just so the wrong place for an operation like this.”

The conflict between HOMES and Bos started two years ago and finally went to trial Nov. 23 and the trial is expected to continue for at least another week. The trial in Jo Daviess County Circuit Court aims to stop the mega dairy from continuing to develop in the county on the grounds that it has potential to create irreparable damage to the drinking water source.

Dairy farming has long been a staple of Jo Daviess County. “Dairy farming is our livelihood.  I raised my family by the dairy industry. A.J. coming in here will bring business,” said former State Rep. Ronald Lawfer of Stockton.

The Illinois Department of Agriculture and the Illinois Farm Bureau both support the mega dairy, according to a Annette McLane, farm bureau manager of Jo Daviess County. Bos was unable to be reached by the time of publication.

Industries are typically thought to be the major offenders in dumping pollution into Illinois waters and, historically, they have been. But the Clean Water Act of 1972 specifically targets industry, or point source polluters, and has been successful in limiting their pollution.

The case in Jo Daviess County highlights some of the complexities in dealing with clean water.  If anything, it shows that not all polluters are the usual suspects.

Agricultural firms in particular evade the system through a regulatory loophole, and are able to sidestep waste regulations. Agriculture falls under “nonpoint” source polluter, which means that the pollution does not come out of a pipe or a specific point.

Nonpoint sources of pollution include storm water runoff, construction sediment, excess fertilizer and bacteria and nutrients from livestock.

Albert Ettinger, a senior attorney with the Environmental Law and Policy Center in Chicago, said that the Clean Water Act has been incredibly successful in limiting point source pollution but it fails to properly address nonpoint, creating a complicated situation to deal with.  

“The law was aimed at these big ugly pipes, “ said Ettinger.

“But as the problems become more diffuse they become more difficult to deal with both politically and physically,” he said.

Ettinger explained that the single biggest loophole in the Clean Water Act is that it doesn’t cover agriculture.

In the case of HOMES versus A.J. Bos, this loophole is perhaps more apparent than in typical cases. The dairy would accumulate tens of millions of pounds of manure above the county’s ground water supply.

But it’s not as simple as including agricultural waste in the Clean Water Act. Many issues exist within the ecosystem of clean water regulation that prevent Illinois waterways from being as clean as they should be.

The Clean Water Act is regulated by the U.S. Environmental Protection Agency and each state has its own bureau responsible for enforcing its provisions. Companies are required to test their discharges for concentrations of chemicals as part of its policing. The Clean Water Act originally pledged to clean up the nation’s waterways by 1985. While waterways are still polluted, it has made tremendous strides in working towards its goal.

“It is kind of amazing what it has accomplished,” said Max Muller, program director of Environment Illinois, a statewide advocacy group.

“But it has fallen short of its goals. It hasn’t eliminated pollution and most waterways haven’t been assessed if they are safe for fishing and swimming and of those that have been about half don’t meet the standards,” he said.

Muller’s group released a report titled, “Wasting Our Waterways” in October 2009, which identified Illinois as having some of the most polluted waterways in nation.

The report used data from the EPA's Toxic Release Inventory.

“Toxicity varies among the covered chemicals (in the TRI report); data on amounts of the chemicals alone are inadequate to reach conclusions or formulate policy,” the EPA states on its Web site.

Ettinger agreed that this data varies in its relevance to toxicity to different life forms.  For instance something that is toxic to fish might not be toxic to people, especially if people aren’t eating the fish.

Muller said that, while the Clean Water Act has significantly improved waterways since the 1970s, states don’t always do a good job at enforcing its regulations. Illinois is an industrial state, and many companies often exceed their limits for chemical dumping but receive little or no penalty for doing so.

According to a recent investigative series produced by New York Times, only one of nearly 600 companies with at least eight violations against them in 2008 received a fine.

The series also found that only seven out of every 100 violators in Illinois suffered enforcement actions.

“To be fair enforcement in Illinois isn’t what we would like it to be but it isn’t as bad as it is in some places,” said Ettinger. “Overall the problem with the EPA enforcement system is that it is more of a nag system than a law enforcement system.”

The Illinois EPA has two teams for policing and enforcing the Clean Water Act. A field team visits with firms and inspects its discharges. A legal team issues violations to offending firms, though even firms in compliance can pollute, but within the limits of their permits.

Violations can be issued for minor offenses, such as failing to file paperwork stating the types of chemicals and the amounts that the firm is allowed to dump, or for major issues, such as exceeding the federally mandated limits of dumping.

If the Illinois EPA discovers that a firm has committed an offense, it issues a violation notice to that firm, according to Maggie Carson, communication manager at the Illinois EPA. The firm then has 45 days to present a plan of action and schedule of how it intends to rectify the situation. The Illinois EPA has 30 days to decide if this response is acceptable or not. If it approves the plan, the firm is released without monetary penalty and scrutinized for improvement.

“Most people want to do the right thing,” Carson said. “We find that the majority of problems can be resolved through internal and violation notice enforcement.”

If the Illinois EPA finds that the response is unacceptable, it forwards the violation materials to the state’s attorney general, who decides on a penalty. Robyn Ziegler of the attorney general’s office said about 150 environmental cases come through her doors every year.

“After the enforcement decision group decides to pursue enforcement then it’s really out of our hands,” said Mike Garretson, who oversees compliance assurance with the Illinois EPA.

“The operators on a whole in my opinion seem to be very conscientious and dedicated professionals. If there were problems of people falsifying information to us, it’s likely that it would be caught,” Garretson said.

If offenses are deemed a high emergency and imminent threat, the Illinois EPA has the ability to forward the offense directly to the attorney general’s office for action.

“We’ve had several [emergency cases] this year so far. It’s been a very wet year,” said Bruce Yurdin, who manages a team of about 40 field investigators. He recalled a livestock case where waste inappropriately stockpiled, which was reported to the state attorney general as an emergency case.

Staffing shortages could also be at the root of the regulation struggles within the EPA. Yurdin admitted that the Illinois EPA has been unable to fill several positions, though could not specify how many remain vacant. A larger staff dedicated to enforcing the Clean Water Act could better patrol wastes, he said.

Yurdin says nationally, Clean Water Act violations have gone up from a little under a million per year to over 10 million per year within the last 30 years.

However, the consensus among officials, regardless of affiliation, is that the Clean Water Act has worked – to an extent.

“But it has taken us about as far as it can,” said Ettinger.

For many environmentalists, the time has come for sweeping reform of the Clean Water Act. In order for it to accomplish its ambitious goals, it needs to include stormwater regulation and runoff control, as well as new standards for emerging contaminants such as pharmaceutical drugs, chemicals from personal care products and fertilizer.

As more farms become mega agricultural businesses and the demand for a cheap ubiquitous food supply grows, it will become more important that farms and CAFOs are properly regulated.

Part of the problem falls onto the shoulders of policy makers and government officials, as it is clear that existing laws and enforcement need to improve.

As seen in Jo Daviess County these issues have been deeply divisive among people fighting for big business and those for the environment.  For now, as more problems are out on the horizon, a county government looks for answers and a community remains divided.

“In the great words of Pogo, ‘We have met the enemy and he is us’,” said Ettinger.

View Illinois Clean Waters in a larger map

This map represents the top offenders of the Clean Water Act in Illinois (shown in red) as well as the highest priority rivers and streams for cleanliness (shown in blue), as deemed by the EPA. The map incorporates EPA data from 2004 to 2009.

The institutions shown have at least 11 violations to the Clean Water Act cited against them by the EPA. However, most of these “top offenders” are cited for minor offenses such as failure to submit paperwork.

Few have committed effluent violations, which are those that involve sewage or liquid waste discharges into Illinois waterways. However, many of these firms are located in areas where water pollution is especially high.

Illinois is considered one of the leading contributors of pollution to the “Dead Zone” in the Gulf of Mexico via the Mississippi River. Because of nutrients deposited in waterways leading into the Gulf, a Dead Zone forms where oxygen levels are so low that life cannot be sustained.

Because of Illinois’ known water offenses, the statistics shown in the map raise questions about the effectiveness of the Clean Water Act and the enforcement policies of the EPA.

To find detailed information, click on the markers and follow it to the link.