ILLINOIS POLLUTION CONTROL BOARD

April 18, 1984

ILLINOIS ENVIRONMENTAL      

)

PROTECTION AGENCY,        

)

Comolainant,    

)

PCB 83—178

V.

I

DE RALB—PFIZER GENETICS,

an Illinois partnership,     

)

Respondent.

)

MR. NEIL F. FLYNN, MARTIN, CRAIG, CHESTER & SONNENSCHEIN,

APPEARED ON

BEHALF OF RESPONDENT.

MR.

JAMES 

MORGAN, ASSISTANT

ATTORNEY 

GENERAL,

APPEARED ON 

BEHALF

OF COMPLAINANT.

INTERIM ORDER OF THE BOARD (by 3

•

Theodore Meyer):

This matter comes before the Board on a November 28, 1983

complaint by the Illinois Environmental Protection Agency

(Agency) against De Kalb—Pfizer Genetics (DPG). The complaint

alleges that DPG committed open burning in violation ot Sections

9(a) and 9(c) of the Illinois Environmental Protection Act (Act)

and former Rule 502(a), now recodified at 35 Ill. Mm. Code

237.102(a).

A hearing was held on March 8, 1985 at which time the

parties incorporated a properly signed copy of the Stipulation

and Proposal for Settlement into the record.

According to the stipulated statement of facts, DPG owns and

operates a seed corn conditioning plant near flhiopolis, Sangamon

County, Illinois. At the plant, recently harvested “green” corn

undergoes preparation for distribution as seed corn. The corn is

dried, shelled, sized, treated and

bagged for subsequent sale.

During these conditioning processes, waste materials ate

accumulated consisting of corn cobs, chaff, husks and sheller

dust (hereinafter the “conditioning wastes”).

During every harvest season since 1966, DPG has burned the

conditioning wastes in the open. The harvest season lasts for

twelve to fifteen weekd each autumn and during the season

approximately eight truck loads of wastes are hauled from the

plant daily. Burning has taken place at several locations; the

last location was approximately four miles from the village of

flliopolis and three—quarters of a mile from the nearest

residence.

83-483

2

On Septouber 23, 1982 an Agency inspector visited 

to invootigate a complaint about the burning regirtct 

£~

~n-vTh7resident. At that time the inspector obse:v~C“hc bu.niag

n’! the raditioning wastes. The Agency notified 

X’3 

by Jetter of

its contention that this practice violated the .~t. Consequently,

D’fl ‘liocoatinued burning its conditioning wastes cu~

this ‘efuse is spread over the cropland where ço ‘~r~ 

plowed under.

The parties tgrne that the statement of facts ‘~.ca i’

the 3tipult’ion 

nixi

rn?osal for Settlement repr~n~.

tir

suninry of ~ae ovida .a and testimony which wou 

intr&Iund were a f’i:~ henring held. The partt’n

. •

ot~

however, as to whethr nfl’s conduct constitute’ i  

- ‘-

c.  o.

the act. DtG nainta”ts that the conditioning wi’i’~rt

agricultural wastes as clefmed in 35 Ill. Adm. C~ 9  3 1 a C

are therefore 

o’tnpt

from the prohibition agatha: 

~.rc.1

‘‘. .

trc.

“agricultural wastes” are defined in relevant p 

t

refuse, except garbage and drtd animals, generatti t 

- -

r

ranch by crop and livestock production practices nc.~’ is

items as 

. . .

crop rest’ns but excluding landa”;n 

?1.

Under section 237.120 these wastes are specifinV-y (“Q !-

the prohibition against open burning contained 

‘a’:. i

237.102.

The Agency, however, contends that the condttionsig --   es

are a trade waste as defined ta Section 237.S1. ~r I as

are not exempt from the prohibition against o~sn:-•irrtin 

Ti

waste is “any refuse rentttng from the prosecutti ± i’ t~d~

business, industry, co~nercialventure, utility or 

v

activity, and any go’nrnent or institutional acts-nty, wtethcr

or not for profIt. The term includes landscape 

n-tate 

•

it

excludes agriculturnt ~nste.” Consequently, refuse thic. falls

within the definition n~ rn ngricultural waste cannot also

constitute a tr’t’Je tn’~n.

The settle’nent agreement sets out the parties’ contentions

and goes on to require ttnt D?G cease and desist from i~,

practice of open burning and that it pay a stipulated penalty of

two thounnd dollars ($2.000.00). The Doard has t’io ob;ectio-is

to this agroonant.

First, tin proposed nettte~entagreement contains nr

admission of ‘itolat3ri. ~i 

ftct, DPG

expressly dcniea cr~~

violation basol on Its ctriin that it was burning “agri~t3~ral

wastes’. Purthornore t’23 rettlenent agreement, talcr. .3(r

seens to preclule the Nnrd from finding a violation sin~c :t

requests that the D’nrd adopt and accept it “as wri’-ter

otherwise, it shall Fe “null and void”. The Respondent  

otate

its view at hearing, however, that the settlement agreet an

presented sufficient stIpulated facts for the Board to ‘h mine

whether the burning of the conditioning wastes const1ru,~~o

violation of the Act and regulations (R. at 6). Th~

2” 

r(er

83-484

3

also stated that ~‘theparties have stipulated that 

should ~tte

Board make such a finding of violation that a penalty 

of $2,000

is the apprOpDiate penalty for the actions complained 

of~ (R. at

7)

The explicit terms of the settlement agreement 

and

ResDondent’S statements at hearing appear to be 

contradictory~ As

decided in IEP~v, Chemetco, PCB 83—2, February 

20~. :L9$5,

the

Board cannot order pay~nt of penalties and other 

acts of

compliance unless eere has been a concomitant 

finding of a

violation. If the Parties wish the Board to make 

this

determination,

be:c~d on 

the stipulated facts, they should amend

the

nettiectent a~.cement accordingly.

Second, the ttioulation and Proposal for

Settlement does not

present sufficient. sti~ulated facts

upon which a 

detarminacion of

~iiolation

can ~be

made, The 

only facts before the 3oarci are that

DPG owns

and

operates a need corn conditioning plant which

generates a

waste of 

disputable nature, Whether this refuse

constitutes

an

agricultural waste entitled to

an

exemution terms

on whether 

the waste

itself was 

~‘generated on a fer~i throuph

croo production ~ractices~ 

Simply

put, 

the definition requires

that the waste generator 

he producing a crop

and

that the waste

at

issue

he

directly attributable to the crop produceil.

:Shus,

waste which is the product of cro~s

imported 

from ourerde farms

for

processing 

would not be

exempt 

simply because the prccsseinq

facility

is also 

a farm.

This interpretation is in keeping with the terms 

of the

exemption for agricultural wastes, Specifically, 

agriculture.

refuse

may only 

he burned

on ~the premises on 

which such waste is

generated.~ 35 111. Adm~ Code

237,120(a)(l). 

~~1oreover, open

burning may only take ~lace 1) in areas one mile 

or more away

from the boundary of a municipality havingca 

population of 1,000

or more; 2) when atmoonheric conditions will 

readily dissipat.e

contaminants; 3) if such burning does not create 

a w:Lsit:Llity

hazard on roadways, railroad tracks or air fields; 4) 

more

than

1,000 feet from residential or other populated areas; and

when

it can he affirmatively demonstrated that no economically

reasonable alternative method of disposal i~ available.

~~hen

read in conjunction, the regulations clearly require a threshold

demonstration

by the 

claimant

to an 

exemption that. its refuse was

1) generated on a farm; 2) as a

result of the 

farm’s crop

production Dractices and

was burned on that farm’s oremses.

The parties do

not

dicioute that the conditioning wastes are

generated at P~l~3~sfaci1itfes~

Unrevealed by the stipulation,

however, is whether D~G’s facilities

constitute a far~r and :Lf

50r

whether all the 

waste burned

was

in fact generated on the fern

premises through ci:~opproduction practices.

If

the par ties

intend that the heard make

the

determination as to whether a

violation has occur::eci, clarification

of these issues will be

necessary.

63~465

4

The Board hereby rejects the Stipulation Agreement and

Proposal for Settlement and orders that hearing in this matter be

scheduled within 30 and held within 60 days of the date of this

order.

Should the parties determine that they wish to file an

amended settlement agreement containing either sufficient

admissions of violation to support the remedy or to allow the

Board to make such a finding based on sufficient facts, they may

file within 35 days the appropriate pleadings.

IT IS SO 

Ohdtb.ED.

Chairman J~ St. Dumelle concurred.

I, Dorothy Yb. Gunn, Clerk of the Illinois Pollution Control

Board, hereby 

certifv~th~at

the above Opinion and Order was

ddopted on the   

/_____

day of         

1985, by a

vote of 5—~-~

/

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

63-466