RECE1~VEE~
CLERK’S
QPF1(~
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
JUL30
2003
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
LISA MADIGAN, Attorney
)
STATE OF ILLINOIS
General
of
the
State
of
Illinois
)
pollution
Control
Board
Complainant,
(V
v.
)
PCB 04-
(Enforcement-Water)
ATKINSON GRAIN & FERTILIZER,
INC.,
a Delaware Corporation,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on July
iô,
2003,
we filed with the
Illinois Pollution Control Board a Complaint and Appearance,, a true
and correct copy of which is attached and hereby served upon you.
Failure to file an answer to this complaint within 60 days may
have severe consequences.
Failure to answer will mean that all
allegations in the complaint will be taken as if admitted for purposes
of this proceeding.
If you have any questions about this procedure,
you should contact the hearing officer assigned to this proceeding,
the Clerk’s Office or an attorney.
Financing to correct the violations alleged may be available
through the Illinois Environmental Facilities Financing Act 20 ILCS
3515/1,
e~ seq.
Respectfully submitted,
LISA MADIGAN
Attorney General
State oLlllinois
BY:
Christ
AssistantAttorn~,JGeneral
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago,
Illinois
60601
(312)
814-3532
SERVICE LIST
Atkinson Grain & Fertilizer,
Inc.
c/o Virgil T.
Harbach,
Reg. Agent
1006
S. Quincy Street
Clinton, Illinois 61727
Mr. Kurt
J. Horberg
Telleen, Braendle, Horberg & Smith,
P.C.
124 West Exchange Street
Post Office Box 178
Cambridge,
Illinois 61238
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CL.E~~
flP~r
PEOPLE OF THE STATE OF ILLINOIS,
)
JUL.
3
0
2003
ex
rel.
LISA MADIGAN, Attorney
General of the State of Illinois,
)
.
STATE
OF~L
PollUtj0~ControlBoard
Complainant,
v.
)
PCB 04-
(Enforcement-Water)
ATKINSON GRAIN & FERTILIZER,
INC.,
a Delaware corporation,
Respondent.
COMPLAINT
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN,
Attorney General of the State of Illinois,
complains of the
Respondent, ATKINSON GRAIN & FERTILIZER,
INC.,
as follows:
COTJ~TI
WATER POLLUTION
1.
This Complaint
is brought by the Attorney General on her own
motion and. upon the request of the Illinois Environmental Protection
Agency (Illinois
EPA!T)
pursuant to the terms and provisions of
Section 31 of the Illinois Environmental Protection Act
(HAct1),
415
ILCS 5/31
(2002)
2..
The Illinois EPA is an administrative agency of the State of
Illinois, created pursuant to Section 4 of the Act,
415 ILCS 5/4
(2002), and charged,
infter
alia,
with the duty of enforcing the Act.
3.
Respondent,
ATKINSON GRAIN & FERTILIZER,
INC.
(“AGF”),
is
a
Delaware corporation registered
to do business in Illinois and
headquartered at 400 N. Spring Street, Atkinson, Henry County,
Illinois.
.
4..
AGF is
a wholesale agricultural chemical and fertilizer
mixer and distributer.
5.
As part of its business, AGF sells fertilizer and other
agricultural chemicals to farmers and others.
6.
On May
1,
2002,
an AGF employee in the course of his
employment was driving a truck from the property of a customer of AGF
to AGF’s facility located in Atkinson,.Illinois.
7.
The truck driven by the AGF employee belonged to the AGF
customer, not to AGF.
8.
The truck carried a 1600 gallon capacity polyethylene tank
owned by AGF.
9.
The polyethylene tank contained approximately 1000 gallons
of liquid fertilizer.
The fertilizer was of the type known as 10-34-0
fertilizer.
10.
The fertilizer contained,
among other things,
ammonia,
nitrate, phosphate and sulfate.
Ammonia, nitrate, phosphate and
sulfate when present at significant levels in the environment can
cause harm to animal and plant life.
11.
As the AGF employee driving the truck was turning a corner
at the intersection of U.S.
Route
6 and Spring Street in Atkinson,
the
truck overturned on its side.
The polyethylene tank then ruptured,
releasing its contents.
12.
The AGF employee was issued a traffic citation for violation
of 625 ILCS 5/15-109
(2002)
13.
The investigating police officer further described the
nature of the offense as
“Spilling load on highway
(Load not secured)”
on the face of the citation.
2
14.
The AGF employee pled guilty to the citation on May 15, 2002
and paid a fine.
15.
From the origin point
of the spill, the liquid fertilizer
flowed into a storm sewer inlet near the spill site.
The storm sewer
runs under U.S.
Route
6 for approximately forty
(40)
feet and then
joins a culvert.
The culvert discharges into
a ditch which runs
approximately fifty
(50)
feet east along U.S. Route
6.
At that point
liquid coming from the storm sewer pools, then flows into a riser pipe
connected to an underground tile leading to an unnamed stream
tributary to Green River.
(This route
is hereinafter referred to as
the “drainage route”.)
16.
The spilled fertilizer flowed along the drainage route
reaching at least to the unnamed stream tributary to Green River.
17.
AGF’s initial response to the spill included flushing of the
fertilizer into the storm sewer inlet.
The Atkinson Fire Department
(“AFD”)
responded to the spill and,
after consultations between AGF’
and the AFD, the AFD also flushed the fertilizer into the storm sewer
inlet.
The flushing resulted in additional and accelerated flow of
the fertilizer into the storm sewer and downstream along the drainage
route.
AGF did not attempt to contain or collect the spilled
fertilizer on May
1,
2002.
18.
On May 2,
2002 an Illinois EPA inspector observed turbid,
dark-colored, odorous liquid in the ditch downstream from the spill
area.
These conditions appeared at various distances from the spill
site to a distance of at least 200 feet from the spill
site.
19.
Also on May
2,
2002 the Illinois EPA inspector noted a dead
3
fish in the liquid located at the riser pipe. Dead fish
(minnows)
were
aLso noted in the unnamed stream tributary to Green River
approximately two miles from the spill site.
20.
Section 3.545 of the Act,
415 ILCS 5/3.545
(2002),
contains
the following definition:
“WATER POLLUTION”
is such alteration of the physical,
thermal, chemical,
biological,
or radioactive
properties
of any waters of the State,
or such
discharge of any contaminant into any waters of the
State,
as will or
is likely to create a nuisance or
render such water harmful or detrimental or injurious
to public health,
safety or welfare,
or to domestic,
commercial,
industrial, agricultural,
recreational, or
other legitimate uses,
or to livestock,
wild animals,
birds,
fish,
or other aquatic life.
21.
Section 3.315 the Act,
415 ILCS 5/3.315(2002), provides the
following definition:
“Person” means any individual, trust,
firm,
joint
stock company, corporation (inducing a government
corporation),
partnership,
association,
State,
municipality, commission, political subdivision of a
State,
federal government,
or interstate body.
22.
Respondent
is a person as that term is defined in 415 ILCS
5/3.315(2002).
23.
Section 3.550 of the Act,
415 ILCS 5/3.550
(2002),
contains
the following definition:
“WATERS” means all accumulation of water, surface and
underground,
natural, and artificial, public and
private,
or parts thereof, which are wholly or
partially within,
flow through,
or border upon this
State.
24.
Section 3.165 of the Act,
415 ILCS 5/3.165
(2002),
contains
the following definition:
“Contaminant”
is any solid,
liquid,
or gaseous matter,
any odor,
or any form of energy,
from whatever source.
4
25.
Section 12(a)
of the Act,
415 ILCS 5/12(a)
(2002),
states as
follows:
No person shall:
a.
Cause or threaten or allow the discharge of
any contaminants into the environment in
any State so as to cause or tend to cause
water pollution in the State of Illinois,
either alone or in combination with matter
from other sources,
or so as to violate
regulations or standards adopted by the
Pollution Control Board under this Act;
26.
The fertilizer as
a mixture and its constituents ammonia,
nitrate, phosphate and sulfate are “contaminants”
as that term
is
defined in Section 3.165 of the Act,
415 ILCS 5/3.165
(2002)
27.
The storm sewer,
ditch, drain tile and unnamed tributary to
Green River are waters of the State of Illinois.
28.
The presence of the fertilizer and its constituents in the
waters of the State of Illinois constituted water pollution.
The
presence of elevated levels of contaminants
as alleged in this count
constituted a public nuisance.
29..
The facts as alleged in this Count
I constitute
a violation
of Section 12(a)
of the Act,
415 ILCS 5/12 (a) (2002)
,
by the
Respondent,
AGF.
WHEREFORE,
Complainant,
PEOPLE OF THE STATE OF
ILLINOIS,
respectfully requests that the Board enter an order for Complainant
and against Respondent,
AGF,
with respect to this Count
I:
1..
Authorizing a hearing in this matter at which time the
Respondent will be required to answer the allegations alleged
herein;
2.
Finding that Respondent violated Section 12(a)
of the
5
3.
Ordering Respondent to cease and desist from further
violations of Section 12(a)
of the Act;
4.
Assessing against Respondent. a civil penalty of Fifty
Thousand Dollars
($50,000.00)
for each violation of the Act,
and
regulations promulgated thereunder, with an additional penalty of
Ten Thousand Dollars
($10,000.00)
for each and every day of
violation;
5.
Ordering Respondent to pay all costs including attorney,
expert witness and consultant fees expended by the State in pursuit
of this action; and
6.
Granting such additional relief as the Board deems
appropriate and just;
COUNT
II
CREATION OF A WATER POLLUTION HAZARD
1 to 27.
Complainant realleages and incorporates by reference
herein paragraphs
1 through 24 and 26 through 28 of Count
I as
paragraphs
1 through 27
of this Count II.
28.
Section 12 of the Act,
415 ILCS 5/12
states as follows:
No person shall:
*
*
*
d)
Deposit any contaminants upon the land in such’
place and manner as to create a water pollution
hazard.
29.
The discharge fertilizer as alleged resulted in the
deposition of contaminants,
including nitrate,
in the sedinients along
the discharge route,
including in the ditch between the culvert and
6
the riser pipe.
30.
The levels of nitrate in the sediments after the discharge
exceeded the Tiered Approach to Cleanup Objectives level for the
residential
/
class
I soil component for groundwater ingestion
exposure route value of 10 milligrams per liter
(“mg/L”),
35
Ill.Adm.
Code 742 Appendix B,
Table A.
31.
Sediments containing levels of nitrate in exceedance
of 10
mg/L remained in the ditch area at least through January 2003.
Results of sampling by AGF include levels of 22 parts per million
(“ppm”),
60 ppm,
13 ppm,
12 ppm,
23 ppm,
61 ppm,
26 ppm,
15 ppm,
14
ppm, and 12 ppm of nitrate in the sediments
(ppm is equivalent to
mg/L).
32.
The level described in paragraph 30
is a measure of the
amount of a substance in soil that may contaminate water with which it
is
in contact to a level that may be harmful to human health or the
environment.
Sediments with contaminants exceeding that level have
the potential to contaminate groundwater.
33.
The facts as alleged in this count constitute the creation
of a water pollution hazard in violation of Section 12(d)
of the Act,
415 ILCS 5/12 (d)
WHEREFORE,
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order for Complainant
and against Respondent,
AGF,
with respect to this Count
II:
1.
Authorizing a hearing in this matter at which time the
Respondent will be required to answer the allegations alleged
herein;
7
2.
Finding that Respondent violated Section 12(d)
of the
Act;
3.
Ordering Respondent to cease and desist from further
violations of Section 12(d)
of the Act;
4.
Assessing against Respondent a civil penalty of Fifty
Thousand Dollars
($50,000.00)
for each violation of the Act,
and
regulations promulgated thereunder,
with an additional penalty of
Ten Thousand Dollars
($10,000.00)
for each and every day of
violation;
5.
Ordering Respondent to pay all costs including attorney,
expert witness and consultant
fees expended by the State in pursuit
of this action; and
6.
Granting such additional relief as the Board deems
appropriate and just.
COUNT
III
VIOLATION OF WATER QUALITY STAI~1DARDS
1
to 28.
Complainant realleges and incorporates by reference
herein paragraphs
1 through 28
of Count
I as paragraphs
1 through 28
of this Count III.
29.
Part 302 of Title 35 of the Illinois Administrative Code
(“Code”)
regulates water quality standards in the State of Illinois.
30.
Section 302.203
of Part 302, Title
35 of the Code,
35
Ill.Adm. Code 302.203,
states as
follows:
Waters of the State shall be free of sludge or bottom
deposits,
floating debris, visible
oil,
odor,
plant or algal
growth,
color or turbidity of other than natural origin.
8
31.
Section 302.208(g)
of Part
302,
Title
35 of the Code,
35
I1l.Adm.
Code 302.208(g),
states as follows:
Concentrations of the following chemical constituents shall
not be exceeded except in waters for which mixing is allowed
pursuant to Section 302.102:
STORET
Constituent
Unit
Number
Standard
*
*
*
Sulfate
mg/L
00945
500
32.
Section 302.212(a)
of the Code,
35
Ill.
Adm.
Code
302.212(a),
states as follows:
Total ammonia nitrogen
(as N:STORET Number 00610)
shall
in
no case exceed 15 mg/L.
33.
Laboratory analysis of samples taken on May
2,
2002
indicated five exceedances of the standard for sulfate
at locations
along the drainage route from the spill origin to approximately two
(2) miles from the spill
site.
Sample results showed 6,270 mg/L;
10,600 mg/L;
510 mg/L;
515 mg/L
;
and 688 mg/L sulfate.
34.
Laboratory analysis of samples taken on May
2,
2002
indicated six exceedances of the standard for total ammonia nitrogen
at locations along the drainage route from the spill origin to
approximately two
(2) miles from the spill site.
Sample results
showed 3,000 mg/L;
4,500 mg/L;
18 mg/L;
84 mg/L;
34 mg/L and 69 mg/L
total ammonia nitrogen.
35.
On May 2,
2002 the Illinois EPA noted offensive conditions
at locations along the drainage route up to two
(2) miles from the
spill
origin.
36.
The facts as alleged in this Count II constitute a violation
9
of the water quality standards of Section 302.203, 302.208(g)
and
302.212(a)
of the Code as well as Section 12(a)
of the Act.
WHEREFORE,
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order for Complainant
and against Respondent,
AGF, with respect to this Count
III:
1.
Authorizing a hearing in this matter at which time the
Respondent will be required to answer the allegations alleged
herein;
2.
Finding that Respondent violated Section 12(a)
of the
Act and 35 Ill.Adm. Code 302.203,
302.208(g)
and 302.212(a);
3.
Ordering Respondent to cease and desist from further
violations of Section 12(a)
of the Act and 35 Ill.Adm. Code 302.203,
302.208(g)
and 302.212(a);
4.
Assessing against Respondent a civil penalty of Fifty
Thousand Dollars
($50,000.00)
for each violation of the Act,
and
regulations promulgated thereunder, with an additional penalty of
Ten Thousand Dollars
($10,000.00)
for each and every day of
violation;
5.
Ordering Respondent to pay all costs including attorney,
expert witness and consultant fees expended by the State in pursuit
of this action;
and
6.
G*anting such additional relief as the Board deems
appropriate and just.
10
COUNT IV
DISCHARGE OF CONTAMINANTS WITHOUT NPDES PERMIT
1 to 34.
Complainant realleges and incorporates by reference
herein paragraphs
1
through 24 and 26 through 35 of Count III as
paragraphs
1 through 34 of this Count
IV.
35.
Section 12(f)’of the Act,
415 ILCS 5/12(f) (2002), provides
as follows:
No person shall:
f.
Cause,
threaten or allow the discharge of any
contaminant into the water of the State,
as
defined herein,
including but not limited to,
water to any sewage works,
or into any well or
from any point source within the State, without
an NPDES permit for point source discharges
issued by the Agency under Section 39(b)
of this
Act,
or in violation of any term or condition
imposed by such permit,
or in violation of any
NPDES permit filing requirement established under
Section 39(b),
or in violation of any regulations
adopted by the Board or of any order adopted by
the Board with respect to the NPDES program.
36.
Section 309.102(a)
of the Code,
35 Il1.Adm. Code 309.102 (a),
states as follows:
a)
Except as in compliance with provisions of the Act,
Board regulations and the CWA, and the provisions and
conditions of the NPDES permit issued to the
discharger,
the discharge of any contaminant or
pollutant into the waters
of the State from a point
source or into a well shall be unlawful.
37.
The discharge from the tank and the flushing of the
contaminants into the storm sewer inlet constituted point source
discharges of contaminants into waters of the State of Illinois.
38.
AGF did not have a National Pollution Discharge Elimination
System
(“NPDES”)
permit
for the discharges of the contaminants.
11
39.
The discharge of contaminants from a point
source into a
water of the State as alleged in this Count constituted a violation of
415 ILCS 5/12(f)
and 35 Ill.Adm. Code 309.102(a).
WHEREFORE,
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order for Complainant
and against Respondent,
AGF, with respect to this Count
IV:
1.
Authorizing a hearing in this matter at which time the
Respondent will be required to answer the allegations alleged
herein;
2.
Finding that Respondent violated Section 12(f)
of the
Act and 35 Ill. Adm. Code 309.102(a);
3.
Ordering Respondent to cease and desist from further
violations of Section 12(f)
of the Act and 35 Ill.
Adm. Code
309.102(a);
4.
Assessing against Respondent a civil penalty of Ten
Thousand Dollars
($10,000.00)
for each and every day of violation;
5.
Ordering Respondent to pay all costs including attorney,’
expert witness and consultant fees expended by the State
in pursuit
of this action;
and
.
6.
Granting such additional relief as the Board deems
appropriate and just.
12
PEOPLE
OF THE STATE OF
ILLINOIS,
LISA
MADIGAN
Attorney General
State of Illinois
MATTHEW J.
DUNN,
Chief
Environmental Enforcement/Asbestos
Litigation Division
Assistant Attorney General
OF COUNSEL:
CHRISTOPHER
P. PERZAN
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
20th Floor
Chicago,
IL 60601
(312)
814-3532
13
CLEfl~’~
~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
3
0
2003
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.,
LISA MAJIGAN,
Attorney
General of the State of Illinois,
Complainant,
V.
ATKINSON GRAIN & FERTILIZER,
INC.,
a
a Delaware Corporation,
Respondent.
STATE
OF ILLINOIS
PoJlutjo,~ControlBoard
PCB 04-
(Enforcement-Water)
APPEARANCE
I hereby file my appearance in this proceedings,
on behalf of the
Complainant,
People of the State of Illinois.I
I_I
J.~_#~SSa~JJ.\__,~
Assistant Attor
Environmental Bureau
188 W. Randolph s~•,
20th
Floor
Chicago,
Illinois 60601
312 814-3532
CERTIFICATE OF SERVICE
I,
CHRISTOPHER P.
PERZAN,
an Assistant Attorney General,
certify
that on the
30th
day of July,
2003,
I caused to be served by
Registered Certified Mail,
Return Receipt Requested,
the foregoing
Complaint and Appearance to the parties named on the attached service
list,
by depositing same in postage prepaid envelopes with the United
States Postal Service located at 100 West Randolph Street,
Chicago,
Illinois 60601.
I
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.
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