ILLINOIS POLLUTION CONTROL BOARD
May
23,
1974
ENVIRONMENTAL PROTECTION AGENCY
Complainant,
v.
PCB 73—109
ARNOLD N. MAY; HILLVIEW FARMS
)
FERTILIZERS,
INC.,
a domestic
)
corporation; and ARNOLD N.
MAY
BUILDERS,
INC.,
a domestic
)
corporation,
Respondents.
Mr. Michael
A. Benedetto,
Jr.,
attorney for Complainant.
Mr. William A. Kelly and Mr. Joseph
S. Wright,
Jr., attorneys
for Respondents.
OPINION AND ORDER OF
THE
BOARD
(by Dr.
Odell)
The Environmental Protection Agency
(EPA)
filed a Complaint
against Arnold N. May, Hiliview Farms Corp., Hiliview Farms
Fertilizers,
Inc.,
and Arnold N. May Builders,
Inc. on March 9,
1973.
An Amended Complaint was filed April
23, 1973,
and moved that
Hiliview Farms Corp.
be dismissed in that it was not a proper party
to the action.
The Amended Complaint alleged that:
1.
Respondents, in operating their farmland and sludge
disposal facility, have spread sludge on non—permit areas
in
violation of 12 (b)
of the Environmental Protection Act
(Act).
Violations occurred in 1972 on Feb~uary 22, April 17, August 28,
September
25, and October 11.
2.
Respondents created a water pollution hazard in spread-~
ing sludge on non-permit areas in violation of
12(d)
of the Act.
This hazard,
in 1972, existed on February 22, April
17, August
28,
September
25, and October Ii.
3.
Respondents caused or allowed sludge to be spread on
the permit area or other land causing air pollution in violation
of Section 9(a)
of the Act.
Various motions and responses were subsequently filed by
the parties.
In appropriate circumstances the Pollution Control
Board
(Board)
made rulings.
May 7,
1973
Respondents filed a Motion to Strike
Arnold N. May Builders,
Inc.
from the
Amended Complaint.
12—321
July
2,
1973
Respondents filed several motions:
a.
Motion to Dismiss.
b.
Motion for a Jury Trial.
c.
Motion to Strike the Amended
Complaint.
July 12, 1973
Respondents filed a Motion to Grant
the July
2,
1973, Motion.
July 12,
1973
The Pollution Control Board issued
an Order.
The Board:
a.
Gave EPA additional time to
respond to the Motion for Dis-
missal.
b.
Denied Motion for Jury Trial.
c.
Denied Respondents1 Motion to
Strike Amended Complaint.
July
16, 1973
Respondents filed their Objection to
Written Interrogatories sought by
the EPA.
July 19,
1973
EPA responded to the Motion to Dismiss
and the Motion to Grant Motion.
July 26, 1973
The Board denied Respondents’
Motion
for Dismissal.
August
16,
1973
EPA moved for Reconsideration of the
Hearing Officer’s Order and Request
for Exclusion of Evidence.
September 10,
1973
Respondents moved the Hearing Officer
to convene a pre—hearing conference
to seek relief from unreasonable EPA
discovery procedures.
September 14, 1973
EPA responded to Respondents’ Motion
for Relief.
September 24, 1973
Respondents filed a Motion for the
EPA to Produce Documents.
September
26, 1973
EPA filed its Response to Respondents’
Motion to Produce.
October 10, 1973
Respondents filed Motion for a
Pollution Control Board Statement on
the Standard of Proof.
October 10,
1973
EPA filed a Second Amended Complaint~
October 11, 1973
Hearing Officer denied Respondents~
‘flotion to Produce.
12—322
October 11,
1973
Respondents moved the Board to issue
a Protective Order.
October 17,
1973
EPA replied to Respondents’ Motion
for a Board Statement and Motion for
Protective Order.
October 18,
1973
The Board
ruled that the standard
of proof is that used in civil
proceedings and denied the Motion
for Protective Order.
October 19, 1973
Respondents filed an Objection to
EPA’s Motion for Leave to File a
Second Amended Complaint.
October 25,
1973
The Board denied the Motion for
Second Amended Complaint.
December
7,
1973
Respondent filed a Communication to
the Board regarding the motive and
credibility of Respondents in the
October 11, 1973, submission of
their Motion for Protective Order.
December
7, 1973
Respondents’ Final Brief was sub-
mitted.
December 11,
1973
EPA filed a Motion to Strike
Respondents’ Communication to the
Board and filed its Final Brief.
Two days of hearings occurred at the end of July,
1973.
An
additional five days of hearings wçre conducted October 22 to
October 26, 1973.
Respondents’
Operations
Arnold
N. May has extensive property interests located in
and around the town of Richmond in McHenry County, Illinois.
Many homeowners have purchased land from him, and some residents
live in homes built by his construction company.
His endeavors
have created jobs for many people in the community.
The area
around Richmond is primarily rural, containing grain and live-
stock farms and scattered residential developments.
Arnold May
is the president and sole stockholder of Hiliview Farm Fertilizers,
Inc.
(R-l330). The corporation’s activity is limited to receiving
sludge and handling the finances associated with the sludge opera-
tion
(R-1325).
Hillview Farms
(Farms)
is separate from Hillview
Farms Fertilizers,
Inc.. Farms is the term used to identify the
collection of tracts of land located in the Richmond area
(R-l327).
Legal title to these farms
is held in land trust
(R—l387),
Arnold
May is the sole beneficial owner of these farms and exercises con-
trol over them (R-l318),
Since March,
1971, Mr. May has been spreading sludge on
12—323
—4—
Part of T.46 N., R.8 E. of 3rd P.M.
McHenry County, Illinois
0
I
2 miles
Respondents1 Witness
x
Complainant1s Witness
:
Railroad
—
—
Section Line
______
Road
Town
—~—~~Stream
approximately eight separate tracts of Hillview Farms.
On June 6,
1972,Hillview Farms, Arnold N. May, beneficial owner, received
a
permit from the EPA to apply sludge to one portion of one of
these farms encompassing
a 40—acre tract at the intersection of
North Solon Road and Hill Road
(the Permit Area).
The permit
(Group Joint Ex.
1)
stated in pertinent part:
June 6,
1972
“Hiliview Farms
-
(McHenry County)
Combination Digested Sludge and Feed Lot Waste
Spray Irrigation Farm
Construction, and Operation
Log #699—72
PERMIT #1972—GA-576
Hillview Farms
9714 North Solon Road
Richmond, Illinois 60071
“Permit is hereby granted to Hillview Farms, Arnold N. May, owner,
McHenry County, Illinois, to install, own and operate spray irriga-
tion facilities
and
related appurtenances for the purpose of apply-
ing a mixture of anaerobically digested and properly stabilized
liquid sludge from the North Shore Sanitary District (Waukegan
Plant)
together with confined animal feed lot waste to a forty
(40)
acre site located in the Southeast
¼
of the Northeast
¼
of Section
15, Township 46 North, Range
8
East,of the Third Principal
Meridian.
“This Permit is issued subject to the Standard Conditions set
forth on Page
2, attached hereto and incorporated herein by
reference.
“This Permit is subject to the following Special Conditions.
If
such Special Conditions require additional or revised facilities,
satisfactory engineering plan documents must be submitted to this
Agency for review and approval for issuance of
a Supplemental
Permit:
SPECIAL CONDITION #2:
The maximum allowable application
rate to the forty
(40)
acre farm shall not exceed fifty
(50) dry tons per acre per year.
SPECIAL CONDITION #3:
The designated weekly delivery rate
of anaerobically digested and properly stabilized liquid
sludge from the North Shore Sanitary District to Hillview
Farms
is 300,000 gallons.
Therefore,
the yearly delivery
rate shall not exceed 15,600,000 gallons without a new
permit from this Agency.
(The annual total was reduced to
8,200,000 gallons in an EPA letter of January 30,
1973,
Group Joint Ex.
7,
to Hillview Farms).
SPECIAL CONDITION #5:
The sludge mixture may only be applied
to the acreage shown on Plan Drawing No.
B-l dated April
12,
12—325
1972 and received April 18,
1972.
If additional
acreage
is to be incorporated for expanded operations,
a new permit
will be required from this Agency.
SPECIAL CONDITION #9:
The Applicant is hereby notified
that if any sludge is sprayed past the protective berms,
runs off to an area other than the designated area, or is
deposited
in
any
manner,
anywhere,
other
than
the
forty
(40)
acres expressly permitted by this Agency, this Agency will
consider it a violation of this Permit.
SPECIAL CONDITION #13:
The proposed project, consisting of
large—scale disposal of sludge wastes on major land areas,
is
considered a new procedure in Illinois and is viewed as
experimental at the scale proposed, and the Applicant is
hereby informed that the project may be required to be
modified or terminated if it results in a threat of pollution
of waters, air, or lands of the State.
SPECIAL CONDITION #14:
Pursuant to the Pollution Control
Board’s adoption of Water Pollution Rules and Regulations,
this Agency has the authority to designate the duration for
which the facilities may be operated,
as specifically stated
in
Regulation #922
(b).
Hence, the operation of this
facility is valid for a period of two
(2) years commencing
from the date of this Permit.
This Permit shall be subject
to renewal upon receipt of an application for renewal from
the owner.
“The treatment works covered by this Permit shall be constructed
and operated in compliance with the provisions of the Environmental
Protection Act, and Chapter 3 of the Regulations as adopted by the
Illinois Pollution Control Boarth”
On the basis of information supplied by Respondents, they
were authorized by the EPA permit of June
6,
1972, to receive and
spread “anaerobically digested and properly stabilized liquid
sludge from the North Shore Sanitary District (Waukegan Plant)”.
On the basis of information supplied by the North Shore Sanitary
District
(NSSD), they were authorized in a permit issued July 13,
1972, by another EPA office to haul up to 7,650,000 gallons
annually of “liquid digested. slUdge” from seven of their plants to
Hiliview Farms
(Group Joint Ex.
2).
Testimony during the hearing
indicated that the author of the EPA permit to Respondents
intended the sludge to come from only the Waukegan Plant of NSSD
(R~l508),whereas the author of the EPA permit to NSSD intended
that the sludge from seven of their plants would be delivered to
Hillview Farms
(R—1575).
The Respondents’
40-acre permit area accepts, holds, and
distributes the sludge;
it contains a feedlot housing approximately
1,200 hogs and 400 cattle
(R~l363,4);
it has an impounded area: to
collect runoff.
Crop—growing operations occur on the permit area,
The sludge
is delivered by Ronald
Larsen from various sewage
treatment plants.
Larsen is under contract with
NSSD
to remove
the
sludge from their facilities.
Tank trucks deliver the sludge
in maximum loads of 5,000 gallons per truck
(R-l446)
to Respondents’
permit area on a year-around basis.
Farms
is paid $30.00 for each
truck load it accepts
(R—l324).
Larsen also delivers undetermined
loads of sludge to Hillview Farms from the towns of Mundelein,
Deerfield, Algonquin, McHenry and Richmond
(R-l356).
Dominic
DeSilvestro, who works for Western Sewage Company
(R-ll4O, 41),
has also been hauling loads
(each 1,000 to 1,600 gallons)
of
material from Sara Lee Bakeries to the permit area
(R-l447).
This
material is not sludge but residue of eggs and batter from Sara
Lee’s process.
The record does not indicate how much Farms was
paid for these loads.
During 1972, Larsen hauled approximately
7,700,000 gallons of sludge and DeSIlvestro hauled about 340,000
gallons of material to Respondents.
The following summary
(EPA
Ex.
32)
lists loads hauled during a period slightly longer than
two years.
Number of loads hauled by Ronald Larsen Trucking and
Dominic DeSilvestro during selected periods to
Hillview Farms Fertilizers
Date
Name
Loads
March
1,
1971,
through
Larsen
1845
December 13,
1971
December
13,
1971, through
Larsen
1551
December 15,
1972
DeSilvestro
261
December 15,
1972, through
Larsen
774
July 16,
1973
Ronald Larsen Trucking
Subtotal
4170
Dominic DeSilvestro
“
261
TOTAL
4431
Upon delivery, the sludge and egg batter are deposited
in an underground concrete holding tank
(R-l36l) having a capacity
of approximately
1 million gallons
(EPA Ex.
22 and 26).
This
tank is located beneath the barn which houses the cattle.
The barn
contains a slatted floor so that the waste from the cattle drops
into the concrete pit.
The hogs are in a separate facility v~itha
slatted floor and a separate pit that contains only the hog dung
and urine,
This manure pit is drained by opening a valve so that
it empties into the large sludge holding tank
(R—l362).
Total
livestock waste approximates 1,680,000 gallons per year or 4,600
gallons per day.
This figure is the sum of 400 gallons of solid
and liquid waste per hog plus 3,000 gallons of solid and liquid
waste per head of cattle.
The mixture of sludge and manure
is
pumped onto the fields in the permit area, using the spray irrigation
system approved by the EPA.
May estimated that the ratio of sludge
to cattle and hog manure remained basically constant a~about 10:1
(R-1365 to 70). In conventional livestock operations of this size,
liquid livestock waste from holding pits or solid manure is usually
hauled from the feedlot to fields and spread on the land;
liquid
livestock is often knifed into the soil to minimize odors.
12
—
327
Evidence Concerning Violations
Permit Violations.
The evidence establishes that the
Respondents applied the sludge to non-permit areas
in violation
of Section 12(b)
of the Act.
Special condition #9 of Respondents’
permit makes clear that any spreading of sludge on
non-permit areas
is
a violation of the permit.
Respondents argued that 12(b) was
not violated because a permit was not
required in order to run
the spray irrigation system.
We disagree.
Respondents’ experi-
mental operation is clearly subject to Chapter Three: Water
Pollution Regulations of Illinois.
Rule 902 of Chapter Three
states:
“No person shall cause or allow the use or operation of
any treatment works, sewer, or wastewater source for
which a Construction Permit is required under Rule 901
without an Operating Permit issued by the Agency,
except
for such testing operations as may be authorized by the
Construction Permit.”
Rule 104 of Chapter Three defines “Treatment Works” and
“Wastewater”:
“Treatment Works” means individually or collectively
those constructions or devices, except sewers, used
for collecting, pumping,
treating, or disposing of
wastewaters or for the recovery of by—products from
such wastewater;
“Wastewater” means sewage, industrial waste, or
other waste, or any combination of these, whether
treated or untreated, plus any admixed land run-
off;”
The spray irrigation system operated on the permit area is
a
method of sludge disposal.
It is clearly a treatment works in
that sewage is disposed of through the spray irrigation device.
Arnold May admitted dumping of sludge on the McNish Farm
and the Buxton Farm
(#5 and #6 on EPA Ex.
21)
after the permit
was issued in June,
1972
(R-l332).
Evidence of spreading on
the Buxton Farm was substantiated by an EPA witness
(EPA Ex.
19;
R-1154).
Evidence was introduced as to a liquid being spread on
property north of the McNish Farm tenanted by Mr.
Zeien.
This
occurred on August 9,
1972
(R-834,
7).
The odor was characterized
as “septic”
(R-899).
Although this date was not mentioned in the
Amended Complaint, we conclude that undue surprise did not occur
in regard to the proof offered for this date and that a violation
has been established.
Material spread at Respondents’ property near the Miller
Farm on August 29,
1972, was identified as
“sludge”
(EPA Ex.
8)
taken from the permit site
(R—865,
6).
No violation of 12(b)
was established, however, because the witness later stated “if
I said it was sludge
it would not be true.
I would say that it
was hog manure”
(R—898).
Since application of sludge is not
12—328
—9—
proven, no violation of the permit has been established on this
tract.
The evidence establishes that spreading occurred on an
area adjacent to Kuhn Road about
½
mile west of North Solon Road
on August 28, 1972
(R—1l32).
Respondents carried out a sludge
demonstration at the site on August 10, 1972
(R-12l2).
No
violation is found for this date because the EPA is estopped to
assert any violation in that it raised no objection to this
demonstration.
The material observed on August 28 was not the
same material spread during the August 10 demonstration.
This
August 28th’material was described ‘as a mixture of animal waste
and sewage and was of significantly greater accumulation than
that observed on August 10.
EPA testimony was corroborated by
a citizen witness who testified that dumping occurred at this
site throughout the summer of 1972
(R—116,7)
and that the smell
was not that of normal farm odor;
rather,
it smelled like sewage
(R—l19)
Odors.
We find that Section 9(a)
of the Act has been
violated.
Lacking a specific regulation, air pollution exists
when,
under Section 3(b)
of the Act:
1.
Injury’ occurs to human,
plant,
animal life,
health,
or property or
2,
Unreasonable interference occurs with the enjoy-
ment of life or property.
Proof of either injury or unreasonable interference establishes
a violation of the Act.
In this case, both kinds of violations
occurred.
First, Respondents’ activities caused some
injury
to hunan
health,
The degree of injury
to health was
not severe, but nore
than mere discomfort was experienced by residents in the
area.
The odor made several residents sick
to their
stomachs
(R—79,
324, 408);
two women vomited from the odor
(R—79,
125).
One
resident’s eyes and throat were affected
(R-114,
117),
Several
people described the odor as
a sickening smell
(R-94,
321).
Neighbors complained of being awakened at night
(R—74,
411,
570);
one resident could not eat because of the odor
(R-410).
These
odors were noticed at times before the Amended Complaint was
filed and were attributed to Respondents’ operations.
Second, interference from odors was clearly established
despite the conflicting testimony of witnesses.
The kinds and
nature of the interference were explained by Complainant’s
witnesses.
The following testimony represents typical statements,
The odors from the May permit area were different from hog and
cattle odors’ (R—47)
and caused discomfort.
Windows of the house
could not be opened when the odors were bad
(R-52).
Septic odors
from
the permit area awakened witnesses
(R-74,
407,
411),
The
odor from the sludge makes one so sick that staying outside is
impossible
(R-83).
Animal odors are distinguishable from the
smell of sludge emanating from the May farm
(R—84,
94).
These
odors are different from the kinds of odors one ex’oects
Suer:: ~
farm (R-9l).
The odor smells like human crap
(R-93).
Farm
odors are different
(R-1l9); the house had to be closed up even
though no air conditioning is available
(R-ll8).
Activities
had to be moved inside
(R-l25)
and the smell
is different from
animal odors
(R-l28).
The odor is different from farm odors
(R-l60,
172,
327)
and forces one to go into the house
(R—l62).
The odors from the permit area are not animal or fowl
(R—239).
A putrid stench comes from the permit area
(R-32l).
A woman
stated that she does not hang clothes outside because they pick
up the smell caused by the permit area
(R-47l, 476).
A farmer
located close to May stated he could distinguish permit area
odors from barn and pig odors
in the area
(R-568).
The odors
are very distasteful
(R-554)
and vary in intensity and duration
(R-59l).
The odors have been worse the last 18 months and out-
door barbecuing has been curtailed
(R-643).
Testimony for the Respondents contradicted that of the EPA,
Typical statements were that no offensive odors have been noticed
at the permit area since 1972
(R-198); only pig odors exist at
the permit area (R-21l).
Permit area only smells like animal
manure
(R—23l).
Chicken farm odors cause the problem, not
Respondents
(R-304).
Although he drives past the permit area
several times a week,
no odor problem is noticed
(R-388); only
typical farm odors come from the permit area (R—445); no odor
problems
(R-460); chicken odors are as offensive as the the May
odor,
and one must get used to these odors while living in a farm
community (R-49l).
A witness only noticed hog odors
from the
permit area owned by May
(R-658).
Only pig and cattle manure
smells are at the May farm
(R-669).
Once interference has been established, EPA has the burden
of proof
to show that the interference
is unreasonable in light
of the factors set out in Section 33(c)
of the Act.
(See City
of Monmouth v. EPA 295 NE2 136, Mystik Tape v. PCB 306 NE~574;
also see the recent Board case of EPA v, Kipling #73—329, April
4,
1974),
EPA introduced some evidence of technology to control
odors.
Possible methods of control included the use of masking
agents, aerobic digestion, discing under, and soil injection
(R-l067).
However,
this testimony concerning control methods
was too fragmentary to establish unreasonableness under Section
33(c).
Looking to the other factors in Section 33(c), we find
that EPA has met its burden of proof.
Respondents’ pollution
source
is of recent origin and was not in the area prior to the
time that most residents purchased their property.
We are also
cognizant of the long duration of the interference.
When we
examine the chronic nature of the odor and the amount of incon-
venience and consternation it caused numerous citizens,
it is
clear that the interference is unreasonable.
Respondents countered
with uncontradicted evidence that they had no obligation to run
tests on in-coming sludge to see whether it was stabilized when
it reached the facility
(R-1499).
Respondents had no practical
way to determine that the sludge was unstabilized when delivered
because chemical analysis to establish stability
(total volatile
solids and pH) cannot be rapidly performed (R-970).
Odor itself
is not a good indicator of digestion because fresh sewage
—
virtually
undigested
-
often still contains sufficient oxygen so that an
12
—
330
offensive odor would not be emitted
(R-974).
Finally, Respondents
stressed the social value of the pollution source. While we
encourage experimental projects to investigate methods
to handle
disposal of sewage, the facts set forth here by Respondents do
not, on balance, make the odorous emissions reasonable.
Water Pollution.
We hold that no 12(d) violation has been
established.
The evidence that Respondents caused a water pollution
hazard on non—permit areas is not convincing.
A witness testified
that there was a potential for water pollution at the Kuhn Road
site
(R—ll33) but later testified that it would take at least a
one-inch rain in 15 to
30 minutes for such runoff to occur
(R-llBl).
The expected frequency of such rainfalls in the area was not in-
dicated.
Furthermore,
the potential for runoff is slight in light
of the gravel pit towards the end of the site
(EPA Ex.
18, page
two).
The soils
in this area are permeable enough that the
potential for ground—water pollution may be as great or greater
than from runoff
(EPA Ex.
36).
Water from the Zeien tenancy
(marked as
“l6A” and “20” in EPA Ex.
1)
flows into water from
Twin Lakes
(R-842) but no evidence was offered as to how this
could be harmful or detrimental to public health.
Finally,
Buxton Farm is located
½
mile from Nippersink Creek
(R-1l90).
Runoff for such a.distance is too speculative on the evidence
submitted to warrant a finding of a water pollution hazard.
Where the threat of water pollution is not clear and convincing,
no violation can be found.
See EPA v.
SENCO #71—272,
3 PCB 239,
243
(December 9,
1971)
Determination Of Penalty
We dismiss Arnold
N. May Builders,
Inc.
from this case.
No proof was established of any violation against it.
Complainant
agrees with this finding.
(See Complainant’s Final Brief,
page 36).
Heeding the standards in Section 33(c)
of the Act, we
believe
a severe penalty is not warranted here.
The health effects
were minimal.
More serious, however,
is
the discomfort and incon-
venience caused to neighbors over
a long period of time.
This
factor,
if considered alone, would demand a heavy penalty.
How-
ever,
the social value of such projects
is very important and
weighs heavily in favor of mitigation.
We favor recycling of
resources and development of methods for recycling, such as were
undertaken by Mr. May.
Such projects are to be encouraged, but
they need to be accomplished without damage to the environment
and such discomfort to citizenry.
Next, the basically rural
character of the area is well-suited to such a project.
The
residents were already acclimated to odors, although doubtless
could not have expected the bombardment from offensive odors
from sludge.
Finally, although several methods of odor control
appear feasii7le,
they may not be realistically possible once the
sludge has been accepted at the permit area.
Dumping of sludge
at non—permit areas had minimal adverse environmental impact.
This constitutes the findings of fact and conclusions of
law of the Board.
12—331
—12—
ORDER
IT IS THE ORDER of the Pollution Control Board that:
1.
Respondents cease and desist from violating Section
9(a) and 12(b)
of the Act.
Sludge cannot be spread on locations
other than the permit area unless other permits are obtained.
2.
No sludge or similar materials can be accepted from
any source other than NSSD unless additional permits are
obtained.
3.
Respondents, Arnold N. May and Hillview Farms
Fertilizers,
Inc.,
are jointly and severally liable to pay a
penalty of $2,500 for violations established in this action.
Payment should be made within thirty-five
(35)
days of the
adoption of this Order.
Payment should 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.
4,
Respondents
shall apply only digested and properly
stabilized sludge to the permit area.
Respondents can either
accept sludge certified to be anaerobically digested and
properly stabilized when received from suppliers, or apply
sludge
to
the
permit
area only after laboratory tests show
that the sludge
is anaerobically digested and properly
stabilized.
Mr.
Dumelie dissents,
I,
Christan
L. Moffett, Clerk of the Illinois Pollution Control
Board,
hereby
certify
that
the
above
Opinion
and
Order
was
ahopted
on
the
~V~day
of
~
1974,
by
a
vote
of
__
to
~.
Christan
L.
Mo
t
