ILLINOIS POLLUTION CONTROL BOARD
February 19, 1987
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Complainant,
v.
)
PCB 85—69
MAPLEHURST FARMS,
INC., AN
)
ILLINOIS CORPORATION,
Respondent.
MR. MICHAEL
J.
MAHER, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE COMPLAINANT.
MR.
EDWARD T.
GRAHAM APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by
3.
Marlin):
This matter comes before the Board on
a Complaint and
Amended Complaint filed by the Illinois Environmental Protection
Agency (Agency)
on June
4 and July 22,
1985,
respectively.
The
matter concerns an incident alleged
to have occurred
in May of
1982.
The Amended Complaint
(Am. Comp.)
merely substitutes the
term “28 percent liquid nitrogen” for the term “anhydrous
ammonia”.
In its five—count complaint,
the Agency alleges that
Maplehurst Farms,
Inc.
(Maplehurst)
violated various sections of
the Illinois Environmental Protection Act
(Act)
and regulations
thereunder.
An Agreed Stipulation and Proposed Settlement
(Stip.)
was presented by both parties at
a Board hearing
in this
matter conducted on September
26,
1986.
Maplehurst is an Illinois Corporation which sells grains and
fertilizer.
Specifically, Maplehurst sells 28 percent liquid
nitrogen.
(Stip.,
p.
2).
In its complaint,
the Agency alleges
that Maplehurst pumps
the 28 percent liquid nitrogen from a
storage tank into awaiting trucks at its truck loading
facility.
According to the Agency,
the truck loading facility,
at the time of
the alleged violation,
consisted of
a gravel
surface located on sloping ground which drained into
a storm
grate.
The Agency asserts that the storm grate leads to
a field
tile which
in turn discharges into an unnamed tributary of
Kilbuck Creek,
County of Ogle, Illinois,
a water of the State of
Illinois.
(Am.
Comp.,
p.2).
The alleged
incident upon which the Agency bases its
complaint involves
a spill of
28 percent liquid nitrogen.
The
Agency contends that on or
about May 10,
1982, Maplehurst caused,
threatened or allowed
28 percent liquid nitrogen to be spilled
in
Maplehurst’s truck loading facility and subsequently to be
76-2
2
discharged into an unnamed tributary of Kilbuck Creek.
(Am. Comp.
p.3).
The specific allegations
of each count
is as follows:
Count
I
——
Violation
of Section 12(a)
of the Act:
That Maplehurst caused, threatened,
or allowed the discharge
of
28 percent liquid nitrogen so as to cause or tend
to cause
water pollution in Illinois
in that the resulting discharge
destroyed indigenous fish and aquatic life of Kilbuck Creek.
(Am.
Comp.,
P.
3,4).
Count
II
——
Violation of
35 Ill. Adm. Code 304.105,
302.212 and
Section
12(a)
of the Act:
That Maplehurst violated Board regulations (thereby
violating Section 12(a)) by causing the exceedance of a water
quality standard
(thereby violating 35
Ill. Adm. Code
304.105)
through the discharge of
28 percent liquid nitrogen.
The general
water quality standard alleged to be violated was 1.5 mg/l of
ammonia nitrogen
(as N)
(35 Ill. Adm. Code 302.212, effective
prior
to September 7,
1982 as Rule 203, presently amended).
(Am.
Comp.,
p.
3,4).
Count
III
——
Violation of
35
Ill.
Adrn. Code 306.102(b)
and
Section 12(a)
of the Act:
That Mapelhurst violated Board regulations
(thereby
violating Section 12(a))
by failing
to take reasonable measures
to prevent spillage of contaminants from causing water pollution
(thereby violat1ing 35 Ill. Adm. Code 306.102(b)).
(Am. Comp., p.
5,6).
Count
IV
——
Violation of Section 12(d)
of the Act:
That Maplehurst deposited 28 percent liquid nitrogen upon
the land
in such place and manner so
as
to create
a water
pollution hazard
in that the resulting discharge caused or
allowed indigenous fish and aquatic life of Kilbuck Creek to be
destroyed.
(Am. Comp.,
p.
6,7).
Count V
——
Violation of
35
Ill. Adm. Code 309.102(a)
and Section
12(f)
of the Act:
That Maplehurst caused, threatened or allowed the discharge
of 28 percent liquid nitrogen from the field tile originating at
the storm grate near Maplehurst’s truck loading area into an
unnamed tributary of Kilbuck Creek,
a water
of the State of
Illinois without possessing a National Pollutant Discharge
Elimination System permit for the discharge in question (thereby
violating
35
Ill. Adm. Code 309.102(a)
and Section 12(f)
of the
Act).
In its Amended Complaint,
the Agency’s requested relief
includes:
76-3
3
1.
That the Board enter
a final order directing Maplehurst to
cease and desist from further violations.
2.
That the Board assess
a penalty, not
to exceed
$10,000.00,
against Maplehurst for violations in Counts
I through IV and
an additional $1,000.00 per each day during which
these
violations continued.
3.
That the Board assess
a penalty,
not to exceed $10,000.00,
against Maplehurst for violations
in Count V and an
additional $10,000.00
for each day during which these
violations continued.
4.
That Maplehurst be required
to pay the Game and Fish Fund of
Illinois State the value
of the fish and aquatic life
destroyed
in the amount of $6,704.96 plus any expenses
incurred
in determining the amount and value of the fish and
aquatic life destroyed.
5.
That the Board enter
such additional
final relief
as
it deems
appropriate under the circumstances.
(Am. Comp.,
p.
8,9).
The Agreed Stipulation and Proposed Settlement states that
Maplehurst voluntarily constructed a spill
contaminant retention
area
in its truck loading
area.
This french drain pit is capable
of
retaining 15,000 gallons of liquid which could then be
reclaimed and sold.
The Agency,
in the proposed settlement, has
reduced the value of compensation for the killed
fish and aquatic
life from $6,740.95 to $1,982.63.
This reduction reflects the
fact that the Illinois Department of Conservation had established
5 counting stations rather than 17 as required by its
procedures.
It
is also agreed that Maplehurst “denies all
allegations of wrongdoing and of any acts or omissions alleged by
the Agency as against Respondent’s operation causing or allowing
a violation of Section
12 of
the Act or any fish kills.”
(Stip.,
p.
4).
The proposed settlement provides that Maplehurst “shall pay
the Game and Fish Fund of the Illinois State Treasury $1,982.63,
an amount equal
to the reasonable value of the fish detroyed.”
Under the settlement,
Maplehurst would not be required
to modify
its operations any further
or pay any additional amount.
(Stip.
p.
5).
The Board
notes that the allegations of the Agency are
serious.
If Maplehurst had admitted
to the violations complained
of by the Agency,
the terms of the proposed settlement would
likely have been deemed insufficient to redress the alleged
wrongs.
However, the Board must view this proposed settlement in
the context of
the case’s circumstances.
Although Maplehurst has
not admitted
to any violations,
it has modified its truck loading
area
to prevent future spills
from occurring.
In addition, by
76.4
4
the terms of the proposal, Maplehurst will pay $1,982.63
to the
Game and Fish Fund.
In light of these actions and the fact that
the incident which precipitated the complaint took place over
4
years ago, the Board concurs with the Agency
in finding that this
proposed settlement will properly resolve this matter.
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 Agreed
Stipulation and Proposed Settlement acceptable under 35 Ill. Adm.
Code 103.180.
Accordingly,
the Board orders
the Respondents to
comply with the Order set forth herein.
This Opinion and Order constitutes the Board’s findings of
fact and conclusions of law
in this matter.
ORDER
It is the Order
of the Illinois Pollution Control Board
that:
1.
The Respondent
shall pay one thousand nine hundred eighty two
dollars and sixty
three cents ($1,982.63)
to the Game and
Fish Fund of the Illinois State Treasury.
This payment shall
be made within thirty days of the date of this Order.
The
payment shall be made by certified check or money order
payable to the Game and Fish Fund of
Illinois State Treasury
and delivered
to:
H. Alfred Ryan
Assistant Attorney General
Environmental Control Division
100 West Randolph Street
Room 13-178
Chicago,
IL 60601
2.
The Respondent shall
comply with all the terms and conditions
of the Agreed Stipulation and Proposed Settlement filed as
PCB Hearing Exhibit #1 on September 30,
1986 which
is
attached hereto.
IT IS SO ORDERED.
3.
G. Anderson concurred.
J.
T.
Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the ab9ve Opinion and Order was
adopted on the
~
day of —-~7~?-~-
,
1987,
by a vote
of
~
/
.
~
Dorothy M./Gunn, Clerk
Illinois Pollution Control
Board
76.5
STATE OF ILLINOIS
)
COUNTY OF OGLE
)
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
vs.
)
PCB 85—69
MAPLEHURST
FARMS,
an
)
Illinois Corporation,
Respondent.
AGREED STIPULATION
AND
PROPOSED SETTLEMENT
Complainant, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, by
NEIL F. HARTIGAN, Attorney General of Illinois and Respondent,
MAPLEHURST
FARMS,
INC., by its attorney, Edward T.
Graham, hereby
agree to the following as a basis for settlement of this cause.
I. BACKGROUND
1.
The Environmental Protection Agency (“Agency”)
is an
agency of the State of Illinois created pursuant to Section
4 of
the Illinois Environmental Protection Act,
Ill. Rev.
Stat.,
ch.
111-1/2, pars.
1001 et
~.
(“Act”) and charged with the duty of
enforcing the Act pursuant to Title VII thereof.
PCB
~Ia~LL1
/
76.6
j/
~
2.
Respondent Maplehurst Farms,
Inc.
is now and has been at
all times pertinent hereto, an Illinois corporation engaged in
the business of selling grains and fertilizer.
3.
Respondent has,
at all times pertinent hereto, owned and
operated a facility in Rochelle, Ogle County,
Illinois.
4.
As
part of its business activities, Respondent sells
twenty-eight per cent
(28)
liquid nitrogen fertilizer.
5.
Respondent’s facilities for the sale of 28
liquid
nitrogen consist of a storage tank and a truck loading area.
The
28
liquid nitrogen is pumped from the storage tank into trucks
at the loading area.
6.
At all times pertinent hereto, Respondent’s truck load-
ing area consisted of a gravel surface on sloping ground which
drained into a storm grate.
7.
A field tile originating at said storm grate discharged
into a drop box and thence into an unnamed tributary of Kilbuck
Creek,
Ogle County,
Illinois.
8.
Kilbuck Creek, and the unnamed tributary thereto,
in
Ogle County, Illinois are waters of the State of Illinois.
2
76-7
9.
The parties agree that supplying liquid nitrogen
fertilizer to farmers in the area of the facility is of social
and economic value.
10.
The instant action complains of an alleged water pollu-
tion of waters of the State of Illinois resulting from
Respondent’s actions in violation of the Illinois Environmental
Protection Act, and allegedly causing a fish kill extending for a
length of 17 stream miles.
11.
Specifically, the Agency alleges that on or about May
10,
1982, spills or discharges of fertilizer (28
liquid
nitrogen) occurred at Maplehurst Farms which traveled from the
fertilizer loading area into a storm drain and then into a field
tile which terminated at a drop box discharging into a tributary
of Kilbuck Creek.
12.
The Agency alleges in its Complaint that Respondent
thereby violated Section 12(a)
of the Act,
Ill. Rev.
Stat.,
ch.
110 1/2, par 1012(a) by causing, threatening or allowing the dis-
charge of 28
liquid nitrogen into an unnamed tributary of
Kilbuck Creek, Ogle County, Illinois, a water of the State of
Illinois so as to cause or tend to cause water pollution in that
as a result of said discharge,
indigenous fish in Kilbuck Creek
were destroyed.
3
76.8
13.
Respondent denies all allegations of wrongdoing and of
any acts or omissions alleged by the Agency as against
Respondent’s operations causing or allowing a violation of
Section 12 of the Act or of any fish kills.
II. SETTLEMENT TERMS
ANt) FACTORS
1.
Since the pertinent dates in the Complaint,
Respondent
has voluntarily taken steps to minimize the possibility of spills
by constructing a spill containment retention area to catch and
retain any spills or discharges of fertilizer in the loading
area.
2.
Respondent’s retention area consists of a french drain
pit capable ~f retaining 15,000 gallons of liquid which is then
reclaimed and sold.
3.
The Agency has calculated the total fish kill compensa-
tion to be $6,740.95, reduced to $1,982.63 to reflect the
Illinois Department of Conservation’s establishment of 5 counting
stations rather than 17 counting stations as required under the
Department’ s sampling procedures.
*
*
(5/17 OF $6,740.95
$1,982.63)
4
76-9
NOW THEREFORE, the parties to this proceeding hereby stipu-
late as follows:
A.
This action is brought by the ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
for violations of Section 12(a) of the
Illinois Environmental Protection Act, Ill. Rev. Stat.,
ch.
111—1/2, par 1012(a).
B.
The parties agree that this settlement resolves all con-
troversies regarding the allegations of the Complainant’s
Complaint in the instant case.
C.
The parties agree that,
in the event this Agreed
Stipulation And Proposed Settlement is not accepted by the
Pollution Control Board,
it shall be null and void and of no ef-
fect and may not be used in any proceeding, now pending or
hereafter brought,
for any purpose and the parties reserve their
respective rights to pursue and defend this matter.
D.
Respondent shall pay the Game and Fish Fund of the
Illinois State Treasury $1,982.63, an amount equal to the reason-
able value of the fish destroyed.
This payment shall be made within thirty
(30) days of the
Order of the Board accepting this stipulation.
Payment shall be
made by certified check or money order payable to the Game and
Fish Fund of the Illinois State Treasury and delivered to:
5
76-10
H. Alfred Ryan
Assistant Attorney General
Environmental Control Division
100 West Randolph
Room 13-178
Chicago, Illinois 60601
E.
This Agreement, when accepted by the Board, shall be
binding on all signatories and their successors and assigns.
_____
________________
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
_______________________
MA
HURST
FARMS, INC.
BY:
4
~
DATE:
____
I
DATE:
~/7 ~
/i~~
6
76-11