67-524
67-527

ILLINOIS POLLUTION CONTROL BOARD

January

23,

1986

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Complainant,

)

)

v.

)

 PCB 85-127

)

RIP’S FERTILIZER SERVICE,

)

)

Respondent.

)

MR. MARK A.

 LaROSE, ASSISTANT ATTORNEY GENERAL, APPEARED ON

BEHALF OF THE COMPLAINANT.

MR. GARY W.

 (RIP)

 GREEN,

 OWNER OF RIP’S FERTILIZER SERVICE,

APPEARED ON BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD

 (by W.J.

 Nega):

This matter comes before the Board on

 a four-count Complaint

filed on August

22,

 1985 by the Illinois Environmental Protection

Agency (Agency).

Count

 I of the Complaint alleged that:

 (1) intermittently

from May

26,

 1982 until August

22,

 1985 (including,

 but not

limited

to,

 June

29,

 1983,

 September

 15, 1983,

 and July

19,

1984),

 the Respondent threatened

 the discharge of contaminants

from its facility into Illinois waters

 so as

 to cause or tend to

cause water pollution

 in violation of Section 12(a) of

the

Illinois Environmental Protection Act

 (Act);

 (2) intermittently

from May

26,

 1982 until August 22,

 1985,

 the Respondent deposited

contaminants upon the land at

 its facility in such

 a place and

in

such

 a manner

 so as

 to create

 a water pollution hazard

in

violation of

 Section

 12(d)

of

 the Act;

 (3) intermittently from

April

28,

 1983 until August

22,

 1985,

 the Respondent threatened

the discharge of contaminants into Illinois waters from the

county road

 so as

 to cause or tend to cause water pollution in

violation of Section 12(a) of the Act,

and

(4)

intermittently

from April

28,

 1983 until August 22,

 1985,

 the Respondent

deposited contaminants upon the land,

 specifically the county

road,

 in such place and manner

 so as to create a water pollution

hazard

 in violation of Section 12(d)

 of the Act.

Count

 II alleged

 that,

at

 intermittent times

 from May 26,

1982 until August

22,

 1985,

 the Respondent caused or allowed the

67-521

—2—

discharge of Treflan* and Lasso*

 at its facility into Illinois

 waters

 so as

 to cause therein the presence of

 those materials in

concentrations greater

 than one—tenth

 of the 96—hour median

tolerance

 limit

 (96—hr. TLm)

 for certain native fish species

in

violation of

35

 Ill. Adm. Code 302.210

 (Substances Toxic

to

Aquatic Life)

 and Section 12(a)

of

 the Act.

Count III alleged that,

 intermittently from June 29,

1983

until July 9,

 1984,

 the Respondent constructed and operated

a

chemical rinsate pit

 at its facility without first obtaining

the

necessary Agency construction and operating permits

 in violation

of

35

 Ill. Adm. Code 309.202(a) and

35

 Ill. Adm. Code 309.203

and

Section 12(a)

of

 the Act.

Count

 IV alleged that:

(1)

 intermittently from May 26, 1982

until August 22,

 1985 (including,

 but not

 limited

 to, June 29,

1983

 and July 9,

 1984),

 the Respondent

 failed

 to take appropriate

measures

 to prevent the spillage

 of liquid 32

 ammonia solution

from causing water pollution had such spillage occurred

in

violation of

35

 Ill. Adm. Code 306.102

 and Section 12(a)

of

the

Act,

and

 (2) intermittently from July 9,

 1984 until August

22,

1985,

 the Respondent failed

 to take appropriate measures

to

prevent

 spillage of potash fertilizer from causing water

pollution in violation of

 35 Ill. Adm. Code 306.102 and Section

12(a)

of

 the Act.

The parties

 filed

 a Stipulation and Proposal for Settlement

on August 22,

 1985 and

 a hearing was held on October

11,

 1985 at

which no members

 of the public were present.

(R.

 14).

 At the

hearing,,

 the Hearing Officer granted the Agency’s motion for

leave

 to file Attachments A through D

as

 a supplement

 to the

record,

 since

 these attachments were not originally filed with

the Stipulation and Proposal

 for Settlement due

 to an inadvertent

oversight.

 (R. 3—4;

 see: letter

 filed on October 22,

 1985 from

Assistant Attorney General LaRose

 to Clerk

 of the Board).

The Respondent, Rip’s Fertilizer Service,

is

 a sole

proprietorship owned

 and operated

 by Mr. Gary W.

 (Rip)

 Green

which

 is located near Roseville, Warren County,

 Illinois.

The

Respondent

 is primarily in

 the business

 of selling and applying

agricultural herbicides

 and fertilizers.

 There are three

buildings on the Respondent’s site:

 a dry fertilizer storage

building,

 a shop,

and

 an office.

 (See: Attachments A,

B,

 and C

to the Stipulation).

 There are also three storage tanks

 at the

site:

 two tanks for the storage of

32

 ammonia solution

 (which

have a capacity

 of approximately 12,000

 to 15,000 gallons)

and

*Treflan

 is the trade name for

 the herbicide trifluralin

which

 is produced by Elanco Products Company.

 Lasso

 is the trade

name for the herbicide alachlor which

 is produced by Monsanto

Company.

 Attachment D to the Stipulation provides further

details on these chemicals and their

 toxicity

 to bluegill,

channel catfish,

 fathead minnows

 and daphnia.

67-522

—

one

 tank for

 the storage

 of liquid anhydrous ammonia

 (which has

a

capacity of

 about 18,000 gallons).

 There are three

 “floater”

trucks used

 to spray fertilizers, anhydrous ammonia nurse

 tanks,

and some other

 tank vehicles which are parked

 in the open area at

various locations

 at the site when not

 in service.

 (Stip.

2;

see: Attachment

B

 to the Stipulation).

On May 26, 1982,

 an Agency inspection of the Respondent’s

site revealed two areas

 of pesticide runoff from the facility:

(1) contaminated runoff

 from tank vehicles parked near the head

of the drainage ditch was draining from the north side

of

the

property and entering

 a roadside ditch and

 (2) ponded liquid

on

the east side of

 the facility was traveling

 to the northeast

across

 a farm field

 and through the yard

 of the neighboring

resident, Mr. Paul Hill.

 (Stip.

 2—3).

The Agency inspector observed that

 the roadsite ditch,

 which

was void

 of vegetation for

 a substantial distance,

 is tributary

to

 an unnamed tributary of Swan Creek.

 Two grab samples were

taken from the drainage ditch

 on May 26, 1982.

The

 first grab

sample,

 at Station R—l, was taken at the head

 of the drainage

ditch, while

 the second sample,

 at Station R—2, was taken about

50 yards north and west of Station R—l

 in the drainage ditch.

(Stip.

2;

 see: Attachment A

 to the Stipulation).

 The sampling

results

 at Stations R—1 and R—2 indicated

 the following results:

Concentration

 (mg/l)

Contaminant

 Station R—1

 Station R—2

Treflan

550

 0.86

Lasso

790

8.6

BOD

36

COD

2010

pH

7.0

(Stip.

3).

Similarly, grab sampling

 of the runoff from the ponded area

on the east side of

the

 site which travelled across

 a farm field

indicated the following data:

Contaminant

 Concentration

 (mg/l)

Treflan

8.1

Lasso

 230.0

(Stip.

3).

In addition

 to the sampling done

 on May 26,

 1982,

 the Agency

inspector also observed that

 the Respondent had no berm or other

spill control device designed

 to contain or control spills

or

leaks from the two 32

 ammonia storage tanks on the property.

(Stip.

3).

67-523

—4—

On June 29, 1983,

 the same Agency inspector again visited

the Respondent’s facility.

In

 the interim time period between

the first and second Agency inspections,

 the Respondent had

constructed

 an unlined pit for the storage

 of chemical rinsate

in

an attempt

 to alleviate some

 of the runoff problems

 at the

site.

 However,

 the Respondent constructed the chemical

 rinsing

pit without first obtaining the requisite Agency permit.

Moreover,

 because

 the chemical rinsing pit was unlined,

 it was

possible for

 its contents

 to percolate into the groundwater.

(Stip.

3;

R.

 6—8).

 Accordingly,

 a grab sample of

 the contents

of

the Respondent’s chemical rinsing pit indicated the presence of

the following contaminants:

Contaminant

 Concentration

 (mg/l)

Treflan

2.0

Lasso

 87.0

Atrazine*

 120.0

Dual*

 210.0

Sencor*

 13.0

(Stip.

3).

Similarly,

 a grab sample taken on June

 29, 1983

 of the small

ponded area of

 liquid located

 to the west of

 the chemical

 rising

pit showed the presence

 of the following contaminants:

Contaminant

 Concentration (mg/l)

Treflan

 0.009

Lasso

7.2

Dual

7.2

Atrazine

2.3

Sencor

 0.13

It was also observed by the Agency inspector on June 29,

1983

 that

 the Respondent had not yet utilized

 a dike or other

device designed

 to control

 or contain spills from the two 32

ammonia storage tanks.

 (Stip.

4).

During

 the inspection conducted by the Agency on July

9,

1984,

 it was found

 that the chemical rinsing pit had been removed

*Atrazine is

 a herbicide commonly marketed under the trade

name AAtrex

 and produced by Ciba—Geigy Corporation.

 Dual

 is the

trade name for the herbicide metolachlor which

 is produced

 by the

Ciba—Geigy Corporation.

 Sencor

 is the

 trade name

 of the

herbicide metribuzin which

 is produced by the Mobay Chemical

Company.

 The herbicide metribuzin

 is also known

 by the

 trade

name Lexone and

 is marketed by the DuPont Company.

 Attachment D

to the Stipulation provides further details on these chemicals

and their

 toxicity

 to bluegill, channel catfish,

 fathead minnows

and daphnia.

67-524

—5—

(reportedly during

 the summer

 of 1983).

 (Stip.

4).

 On July

9,

1984,

 the Agency inspector also observed that

 a portion of

the

farm field

 to the east of the Respondent’s site and the

drainageway

through

Mr.

Paul

Hill’s

property

both

had

absence

vegetation.

The

inspector

indicated

that

the

barren

area

the

farm

field

was

about

feet

wide

and

100

200

feet

long.

(Stip.

4).

 It was also noticed

 that no dike or spill control

device had yet been built

 to control potential spills from the

two 32

 ammonia storage tanks.

 (Stip.

 4—5).

Additionally,

the

Agency

inspector

observed

potash

storage

pile

during

his

July

1984

inspection.

This

potash

storage

pile

was

located

the

west

side

the

dry

fertilizer

storage

building

and

consisted

about

tons

potash

which

was

contained by

 a wooden fence

 and stored outside

 the building.

Because

the

fence

was

broken

several

places,

some

potash

was

spilling

outside

the

containment

area.

The

Agency

inspector

noted

that

there

was

spill

containment

the

potash

load—out

conveyor

 located on

 the east side

 of the dry fertilizer storage

building

and

 there

was

 no device

 or equipment to control

air

pollution from the conveyor.

 (Stip.

5).

reference

the

effects

the

Respondent’s

operations

neighboring

property,

Agency

inspection

April

28,

1983

the

county

road

and

adjacent

farm

field

owned

Ellen

Allaman showed

 a wet path on the road which had recently been

scraped

that

started

the

entrance

the

farm

field

and

extended

for

about

one—fourth

mile

the

north.

was

learned

that the Allaman field had previously been sprayed by the

Respondent’s floater truck

and

 a small

 spill occurred when

a

valve was accidentally left open on

 a nurse tank which provided

chemicals

 to the floater truck.

 (Stip.

5).

 (See: Attachment

C

to the Stipulation).

Soil from the county

 road was subsequently sampled

 at four

locations by a private citizen and then analyzed by the Agency.

Sampling Station

 1 was

 located on the west side of the county

road about 150 feet south

 of the abandoned railroad

 tracks, while

Station

was

located

along

the

west

side

the

road

about

one—fourth

mile

south

Station

(i.e.,

north

the

field

entrance).

 Station

 3 was also a short distance north

 of the

field entrance and located along

 the west side

 of the county

 road

south

 of Station

2,

 while Station

 4 was located directly at the

field entrance.

 (Stip.

5).

 According to the Agency,

 the ditch

along

 the west side of the county road intersected and drained

into a small stream which flowed

 into Mr. Russell Ault’s farm

pond.

 (Stip.

6).

 The analysis of

 the soil samples

 taken from

the four sampling locations showed

 the following concentrations

of contaminants:

67-525

—6--

Concentration

(ug/g)

(ppm)

Contaminant

Station

Dual

100

180

270

300

Atrazine

Anmoriia Nitrogen

 (mg/l)

 45,000

The Agency has conducted

 a literature review pertaining

to

the

potential

toxicity

the

substances

both

aquatic

and

human

 life.

 (See:

 Attachment D of

 the Stipulation).

The

pertinent literature expresses toxicity

 to native fish

 in terms

of

 the median lethal concentration

 (LC50) which

 is defined

as

a

statistical estimate of

 the concentration of

 a test material

in

air

 or water

 necessary to cause death

 to 50

of

 a fish test

population within

 a given

 time

 (often

 96 hours).

 This 96—hour

LC50 (median lethal concentration)

 is equivalent

 to the 96—hour

TLm

 (median tolerance limit

 for certain native fish species which

produces death

to

50

of

 a tested fish population

in

 a 96—hour

period) provided

in

35

 Ill. Mm.

 Code 302.210.

 The Agency has

indicated

 the following water quality standards which

 are based

upon the least stringent 96—hour LC50 for each species

as

determined from the Agency’s literature review:

TABLE

I

TOXICITIES* AND STANDARDS**

Lasso

 Mtrex

 Dual

 Sencor

 Treflan

—

 parts per million

—

Bluegill

6.4

26

 15.0

 ½l00

.19

Standard

.64

2.6

1.5

—

 .019

Channel

Catfish

***

4.9

2.2

Standard

.49

—

.22

Fathead

Minnow

~‘~)‘~

 .105

Standard

.Dll

D~hnia

3.6

***

.56

Standard

—

.36

—

 .056

 Highest level

 reported

 Based

 on 1/10 96—hr LC50

data

available

(Stip., Attachment D)

67-526

—7—

Because

 the roadside ditch and

 the drainageway

 to the north

and

 to the west of the Respondent’s facility are accessible

to

the general public,

 the Agency believes there

is

 a slight

potential

danger

humans

from

 each of

 the herbicides used.

(Stip.

6).

 However,

 at the hearing

 it was emphasized

 that the

Agency had

indication

that

 there had

 been any actual harmful

effects or

 actual

 injury

 to any humans

 or any farm animals

or

any

wildlife

any

fish.

(R.

10—11).

The

parties

have

stipulated

that

the

Respondent:

(1)

caused

or allowed the

discharge

 of contaminants from

 its facility

 into

Illinois waters

 so as

 to cause or tend

 to cause water pollution

in violation of Section 12(a)

 of the Act;

(2)

 threatened

the

discharge of

 contaminants from its facility into Illinois waters

so

as

 to cause

 or tend to cause water pollution in violation of

Section 12(a)

 of the Act;

(3)

 caused or allowed the discharge of

Treflan and Lasso from its facility into Illinois waters

in

concentrations greater than one—tenth

 of the 96—hour TL~for

certain

native

fish

species

violation

 Ill. Adm. Code

302.210

 and Section 12(a)

 of the Act;

 (4) deposited contaminants

upon

 the land at

 its facility

 in such place

 and manner

so

as

to

create

 a water pollution hazard

 in violation

 of Section 12(d)

of

the Act;

(5)

 constructed and operated a chemical rinsate pit

at

its facility without first obtaining the requisite Construction

and Operating Permits from the Agency

 in violation

of

 35 Ill.

Adm. Code 309.202(a),

35

 Ill. Mm.

 Code 309.203,

 and Section

12(a)

of

 the Act;

 (6) failed

 to take appropriate measures

to

prevent spillage

 of potash fertilizer from causing water

pollution in violation of

35

 Ill. Mm.

 Code 306.102 and Section

12(a)

 of the Act;

 (7) failed

 to take appropriate measures

to

prevent spillage

 of liquid 32

 ammonia solution from causing

water pollution had such spillage occurred

 in violation

of

35

Ill. Mm.

 Code 306.102 and Section 12(a)

 of the Act;

(8)

threatened

 the discharge of contaminants into an Illinois water

from the county road so

as

 to cause or tend

 to cause water

pollution in violation of Section 12(a)

 of the Act,

and

(9)

deposited contaminants upon the land,and specifically the county

road,

 in such

 a place

 and manner

so

as

 to create

 a water

pollution

hazard

violation

Section

12(d)

the

Act.

(Stip.

 7—9).

The proposed settlement agreement provides

 that the

Respondent

admits

the

aforementioned

violations

and

agrees

to:

(1)

cease

and

desist

from

further

violations;

(2)

specified

Agency—approved

compliance

program,

and

(3)

pay

stipulated penalty

 of $1,800.00

 in three installments

 of $600.00

each

into

the

Illinois

 Environmental Protection Trust Fund.

(Stip.

 8—10).

achieve

expeditious

compliance,

the

Respondent

has

agreed

to

 (and has substantially completed)

 the following measures

as

part

of

 its compliance program and schedule:

67-527

—8—

Compliance

Program

The

Respondent

shall

take

the

following

measures

achieve

compliance:

Item

Completion

Date

Construct

dike

around

ammonia

Completed

solution

tanks

Construct

load

in/load

out

pad

Completed

for

ammonia

solutions

 Repair

 the potash pile containment

 Completed

wall

4.

 Potash fertilizer will be stored

 Beginning 4/1/85

inside the dry fertilizer building

and

thereafter

the

extent

possible.

Potash

may be stored outside in the

 containment area when necessary

between March 15

—

June

and

August

—

November

30,

provided

that

covered

with

plastic

at all times.

During

the

application

season,

two

Beginning

4/1/85

floater

trucks

shall

parked

 and thereafter

inside the

shop

building

when

not in use, and the third floater

truck

shall

 parked

the

ammonia load in/load out pad

when

not

use.

Spillage

leakage

from the floater trucks shall be

collected and either re—used or

land

applied.

After

the

application

season

completed

and

the

floater

trucks cleaned, they may be parked

 any location.

Provide

proper

containment

spillage

Immediately

when

and

leakage

from

any

additional

necessary

floater

trucks

which

are

purchased

used

the

future

Cover

the

conveyor

extension

the

Completed

east side of dry fertilizer

building

and

attach

the

boot

end

the

conveyor.

(Stip.

9—10)

67-528

—9—

In evaluating this enforcement action

 and proposed

settlement agreement,

 the Board has taken

 into consideration all

the facts

 and circumstances in light of the specific criteria

delineated

 in Section 33(c)

of

 the Act and finds the settlement

agreement acceptable under

35

 Ill.

 Adin.

 Code 103.180.

In reference

 to the character and degree of injury to,

or

interference with,

 the protection of the health and

 general

welfare,

 the Agency has emphasized

 that the Respondent’s

operations caused

 no actual

 injury or

 actual harmful effects

to

any humans

 or any farm animals

 or any wildlife or any fish

 or any

neighboring property.

 (R. 10).

 Some

of

 the Respondent’s storage

 tanks were not bermed properly

 to prevent the sudden or unplanned

release

of

 the substances that were held

 in the tanks from

escaping

 into the environment, but there

 is no tangible evidence

of substantial leakage.

 Because the wooden fence

 surrounding the

potash storage pile was broken

 in several places,

 some potash was

spilling outside the containment

 areas

on

 the Respondent’s own

property,

but

actual

damage

 was done.

 There was some

contaminated runoff which was

of

 a potentially

 injurio,us nature,

but no evidence of any actual injury caused by this violation.

Moreover,

 the Agency has characterized the Respondent’s facility

as having minor problems and operating pretty much up to the

standard operating procedures

of

 a small facility

 at the time.

(R. 11).

Additionally,

 no violations were of

 a willful

 or wanton

nature,

and

 the Respondent exhibited good faith by constructing

a

chemical

 rinsing pit

 for the purpose of alleviating runoff

problems at the facility once those problems were brought to

its

attention.

 Good faith was also shown by the Respondent’s

cooperation with Agency personnel,

 the allowing of

 numerous

 inspections

to

 be made

 at various

 times,

 and compliance with

Agency suggestions for improving the Respondent’s operating

procedures.

 (R. 5—12).

 The Agency has also noted

 that the

actions taken by

 the Respondent since

 the first inspection by the

Agency have eliminated

 the problems

 at the facility.

(R.

8;

R.

13).

Furthermore,

it

 is stipulated

 that the Respondent

is

 “a

small,

 privately owned independent facility and has experienced

financial difficulties over the past several years”

 (Stip.

8;

R.

8).

The

Respondent’s

facility

clearly

has

social

and

economic

value when herbicides

 and fertilizers are properly handled

and

the Respondent produces

 a good product and provides needed

services which are socially and economically beneficial

to

the

rural and farming community

 in which

 the site

 is located.

(R.

8).

 The suitability

 of the Respondent’s site

 to the area

in

which

it

 is located

 is also appropriate, providing all operations

are conducted

 in an environmentally suitable manner

 in accordance

 with sound ecological principles

for

 the handling

 and storage

of

herbicides

and

 fertilizers.

 It was technically practicable

and

economically reasonable

 to have eliminated

 the violations

 alleged

67-529

—10—

in the Complaint,

 thereby eliminating potential environmental

problems from the Respondent’s site.

The Board

 finds

 that the Respondent,

 Rip’s Fertilizer

Service,

has

violated

Ill.

Adin.

Code

302.210,

306.102,

309.202(a),

and

309.203

and

Sections

12(a)

and

12(d)

the

Act.

The

Respondent

will

ordered

the

agreed—upon

compliance plan;

 to cease and desist from further

 violations,

and

pay

stipulated

penalty

$1,800.00

three

installments

$600.00

each

into

the

Illinois

Environmental

Protection

Trust

Fund.

This

Opinion

constitutes

the

Board’s

findings

fact

and

conclusions

law

this

matter.

ORDER

the

Order

the

Illinois

Pollution

Control

Board

that:

1.

 The Respondent, Rip’s Fertilizer

 Service, has violated

Ill.

Adm.

Code

302.210,

306.102,

309.202(a),

and

309.203

and

Sections

12(a)

and

12(d)

the

Illinois

Environmental Protection Act.

The

Respondent

shall

cease

and

desist

from

all

further

violations.

within

days

the

date

this

Order,

the

Respondent

shall,

 by certified check

 or money order payable

 to the

State

 of Illinois and designated

 for deposit

 into the

Environmental

Protection

Trust

Fund,

pay

the

first

installment

of

 $600.00 on the total stipulated penalty

of $1,800.00 which

is

 to be sent

to:

Illinois Environmental Protection Agency

Fiscal

Services

Division

2200

Churchill

Road

Springfield,

 Illinois

62706

The

second

installment

$600.00

shall

paid

on,

before,

May

15,

 1986 and the third

 installment

of

$600.00

shall

paid

on,

before,

November

15,

1986

the

same

manner

and

with

the

same

designation

indicated

above.

stipulated

the

parties

that

the Respondent has waived any right

 to have any unused

portion

the

 penalty returned

 from the Environmental

Protection

Trust

Fund.

The

Respondent

shall

comply

with

all

the

terms

and

conditions of

 the Stipulation and Proposal for

67-530

-11-

Settlement filed on August

22,

 1985,

 which

is

incorporated by reference as

 if fully

set

 forth herein.

IT IS SO ORDERED.

Board Member

 J. Theodore Meyer dissented.

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board,

 hereby certify that the~boveOpinion and Order

was

adopted on the~~”~’day of

(~~-L~

 1986 by

 a vote

of

~-/

~~1

Dorothy N.

 Gtinn,

 Clerk

Illinois Pollution Control Board

67-531