ILLINOIS POLLUTION CONTROL BOARD

September 20, 1985

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Complainant,

)

)

v.

)

PCB 83-178

)

1)E KALB-PFIZER GENETICS,

)

)

Respondent.

)

JAMES MORGAN, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF OF

COMPLAINANT.

NEIL F. FLYNN, HARTIN, CRAIG, CHESTER & SONNENSCHIEN, APPEARED ON

BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD (by J. 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)

.

DPC allegedly

committed open burning in violation of Sections 9(a) and 9(c) of

the Illinois Environmental Protection Act (Act) and former Rule

502(a), now recodified at 35 Iii. Adm. Code 237.102(a).

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

parties incorporated a properly signed copy of a Stipulation and

Proposal for Settlement into the record. By Board Order of April

18, 1985 the Stipulation was rejected because it contained no

admission of violation and lacked sufficient information for the

Board to determine whether a violation had occurred. A revised

Stipulation and Proposal for Settlement was filed on June 13,

t 985.

DPG owns and operates a seed corn conditioning plant near

Illiopolis, Sangamon County, Illinois. The plant prepares

recently harvested ~‘green”corn for distribution as seed corn.

This process generates waste materials including corn cobs,

husks, and dust (hereinafter the “conditioning wastes”.) From

1966 to 1982, for approximately six to nine weeks of the harvest

season, DPG burned the conditioning wastes in the open at several

locations. DPG discontinued this practice after the Agency

notified it of its contention that the burning was a violation of

the Act. Presently the wastes are spread over and plowed under

the cropland where the crops were generated. (Stip. at 2-4).

The Agency and DPG disagree over the proper characterization

or the wastes. DPG maintains that the wastes are “agricultural

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wastes”

and therefore exempt from the

prohibition against open

burning.

The Agency contends that the

wastes are “trade wastes”

for which

no exemption exists,* The

Stipulation provides that

should the

Board determine

that DPG has committed the violations

alleged that a penalty of $2,000 is appropriate.

As construed by the Board in its

order of April 18, 1985 in

this matter, “agricultural waste” entitled

to an exemption must

be waste

that is 1) generated on a farm; 2)

as a result of the

farm’s crop production practices; and 3) be

burned on that farm’s

premises.

Previously, the only facts before

the Board were that

DPG owns and operates a seed corn conditioning plant which

generates a waste of disputable nature, As revised, the

stipulated statement of facts provides that “the

corn

comes

from farm land owned by the principal partner in

DPG, Dc

Kalb Ag

Research, Inca (~De Kaib”) or from farm land farmed

and owned

by

persons under contract to DPG.” (Stip.

at 2). It is further

provided that Dc Kaib or DPG has conducted the

burning “on farm

land owned by Dc Kaib from which a portion of the

corn was

produced.” (Stip~ at 3).

Based on these facts, the Board finds that the waste

attributable to crops produced under contract

to DPG is not

agricultural waste and consequently is not

exempt from the

prohibition against open burning. The

wastes are clearly not

generated on the same farm where the crops were

sown

but at the

conditioning plant where the crops were

transported to. As

stated previously in this matter by the

Board, “waste which

is

the

product

of crops imported from outside

farms

is

not exempt

simply because the processing facility is also a

farm.”

(Op. at 3).

As to the waste attributable to corn grown

by Dc Kalb, not

enough information exists in the record to

determine

its

nature. The Board construes the term

agricultural waste to apply

to only those wastes actually generated

on

the

premises

of a

farm. Although the parties have stipulated that the

corn

“comes

*HAgricultural wastes” are defined in relevant part as

“any

refuse, except garbage and dead animals, generated on a farm

or

ranch by crop and livestock production

practices

including such

items as

. .

crop residues but excluding

landscape wastes.” 35

Ill, Adm. Code 237,101. Under Section

237.120

these

wastes are

specifically exempt from the prohibition against

open burning

contained in Section 237.102.

“Trade Wastes” are not exempt from the prohibition against

open burning and include “any refuse resulting from

the

prosecution of any trade, business, industry,

commercial venture,

utility or service activity, whether or not for profit. The term

includes landscape waste but excludes agricultural waste.” 35

Ill.

Adm, Code 237.101.

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from Dc Ka1b~sproperty”, unaddressed is the salient issue

whether the corn husks, sheller dust and cobs are generated on

the same property as the corn. To be entitled to an exemption,

the

waste generator must establish that in preparing a crop

for

market, wastes or

“crop residues”

are created at the same

location where the crops were

sown. Although this information

has

not

yet

been

provided, the Board finds that

in this instance,

the determination

of the issue

is unnecessary.

This is because

even if DPG were able to establish that the waste were produced

at

the

same location as the crops and therefore constituted

agricultural wastes,

it would still fail on the issue of

its

entitlement to

an

exemption. The

open burning

of agricultural

waste, although permitted, is still strictly

regulated under 35

itt.

t~dm.

Code 237,L20.* Of specific note is the

requirement.

that

it

“be affirmatively demonstrated

that no economicalLy

reasonable alternative

method of disposal is available.”

35

it.

Adm. Code 237.120 (a)(6).

DPG failed to

make this affirmative

demonstration and has, in fact, demonstrated that it does

have

a

reasonable alternative

disposal method, i.e., plowing the wastes

under. (Stip. at 4).

Accordingly, the Board

finds that the waste attributable

to

crops grown under contract as well as crops grown by Dc Kaih was

burned

in violation of

the prohibition against open burning

during the period 1966 to 1982. The Board finds that the

stipulated

penalty of $2000.00 is a reasonable penalty.

In evaluating this enforcement action and proposed

settlement agreement, the Board has taken into consideration

all.

of the facts and circumstances in light of the specific criteria

*Section 237.120 exempts the open burning of agricultural waste

“hut only”:

1) On the premises on which such waste is generated; and

2) In areas other than restricted areas; and

3) When atmospheric conditions

will readily dissipate

contaminants; and

4) If such burning does not create a visibility hazard on

roadways, railroads tracks or air fields; and

5) More than 305 meters (1,000 feet) from residential or

other populated areas; and

6)

When it can be affirmatively demonstrated

that no

economically reasonable

alternative method of

disposal

is

available,

35 Ill.

Adm. Code 237.120(a).

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delineated in Section 33(c) of the Act and finds the settlement

agreement acceptable under 35 Ill. Adm. Code 103.180.

The Respondent is hereby found to have violated Sections

9(a) and 9(c) of the Act and 35 Iii. Adm. Code 237.102(a). The

Respondent is ordered to comply with the terms and the conditions

of the proposed settlement agreement and to pay the stipulated

penalty of Two Thousand Dollars ($2000.00).

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

OR DER

It is the order of the Illinois Pollution Control Board

that:

1. The Respondent, De Kalb-Pfizer Genetics, violated

Sections 9(a) and 9(c) of the Illinois Environmental

Protection Act and 35 Iii. Adm. Code 237.102(a).

2. Within 40 days of the date of this Order the Respondent

shall, by certified check or money order payable to the

State of Illinois, pay the stipulated penalty of Two

Thousand Dollars ($2000.00) which is to be sent to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield,

Illinois

62706

3. The Respondent shall comply with all terms and

conditions of the Stipulation and Proposal for

Settlement filed on June 13, 1985, which is incorporated

by reference as if fully set forth herein.

IT IS SO ORDERED.

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

Board, hereby certify that the above Opinion and Order was

adopted on the

~-Q~ day of

_________________,

1985, by a

Dorothy M. unn, Clerk

Illinois

Pollution Control Board

65-468