ILLINOIS POLLUTION CONTROL
BOARD
October 17,
1980
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 78—198
A &
F MATERIALS COMPANY, INC.,
)
Respondents.
PATRICK CHESLEY AND BRIAN E.
REYNOLDS, ASSISTANT ATTORNEYS GENERAL,
APPEARED ON BEHALF OF COMPLAINANT.
RAY FEHRENBACKER APPEARED ON BEHALF OF RESPONDENT.
SUPPLEMENTAL OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on the January 23,
1980
motion of the Environmental Protection Agency
(Agency) for
a
determination pursuant to paragraph F of the
stipulation
and in
accordance with Rule 334(b)(1)
as to whether Respondent A
& F
Materials Company,
Inc.
(A
&
F)
should receive relief from the
final Order of the Board entered against
A
& F in EPA v.
A
& F
Materials Company,
Inc., PCB 78—198,
32 PCB
431,
(January 18,
1979).
By its Order of February
7,
1980,
the Board authorized hearing on
this motion.
Because of the inability of the hearing officer to
get Respondent to agree on earlier hearing dates, hearing was not
held until August 19,
1980
(see Hearing Officer Order of July 25,
1980).
No members of the public were in attendance.
The Board’s Opinion and Order of January 18,
1979, from which
relief is sought, accepted a stipulation and proposal
for settlement
of an enforcement action instituted by the Agency on September 20,
1978.
In this stipulation,
filed November 20,
1978,
A
& F admitted
that it had engaged in the operation of an unpermitted holding
lagoon facility in Richland County,
Illinois,
that it had continued
to do so even after both written and verbal notification from the
Agency,
and that it had caused or allowed the discharge of con-
taminants into a water of the State,
i.e.
an unnamed tributary of
the Fox River.
The facility was constructed by A
& F on or after
July 6,
1976,
and “was designed to store, without discharging,
rolling oil and alum type substances for ultimate refining and
recovery operations
(Stip 2).
The provisions of the stipulation at issue here, which were
incorporated into the Board’s Order,
32 PCB at 433, by reference
as if fully set forth, are these:
2
“Proposed Terms of Settlement”
***
D.
The Respondent agrees that by no later than December 1,
1978, the Respondent will have pumped and completely emptied
the holding lagoon facility described in paragraph 2,
supra,
to include the removal of all residue of substances previously
stored therein.
E.
The Respondent further agrees that by no later than
December 15,
1978, the Respondent will have completely
filled, covered, and leveled the holding lagoon facility
described in paragraph
2,
~
F.
Respondent’s obligation to meet the time requirements
set out in paragraphs D and
E,
supra,
shall be extended as
the result of an act of God or by a circumstance agreed to
by the parties.
Prompt written notice of the claimed appli-
cability of this provision must be give to Agency by the
Respondent, or a claim for extension based upon a given set
of facts is waived.
Should the parties fail to agree on what
circumstances shall excuse a delay
in the performance or on
the period of extension due, Respondent may submit the matter
to the Board for resolution after a hearing which may be
called or requested by either the Agency or the Respondent,
or both, i~accordance with Board Procedural Rule 334(b)(1).
H.
Respondent agrees to pay a civil penalty in the amount
of $1,100...
(Stip.
4—5 emphasis in original)
*
**
As the Board had received no information tO the contrary,
the
Board assumed that the clean—up of the site had taken place prior
to the entry of the Board’s Order.
Such apparently was not the
case.
In its motion of January 23,
1980, the Agency alleges that
A
& F failed to meet the time requirements of D &
E,
states that
it does not agree with Respondent that the delay is excusable,
and seeks a determination of this issue by the Board pursuant to
paragraph F of the stipulation.
The uncontroverted evidence adduced at hearing is that A & F
had not completely emptied the holding lagoons at the facility
and had not filled, covered or leveled them, as of the date of
hearing.
The Agency’s photographic exhibits
(Comp.
Ex. 2-8) and
the diagram
(Ex.
1) and testimony of its employee—witness, envi-
ronmental protection specialist,
Dwight Hill,
show that
5 lagoons,
or pits now exist on the property at issue, the Alva Runyon farm
in Olney,
Illinois.
While the Board could simply note this fact
and proceed to discuss the reasons offered for non—compliance,
it
feels that this opinion should set forth the condition of the
holding facility as of August,
1980.
3
The area of concern is bounded on the north and east sides
by streams.
At the junction of these two streams
is a logjam,
the waters of which appeared to contain globules of oil
(Comp.
Ex.
8,
R.
32—36).
Kenneth Ault, president of A
&
F, testified
that of the
5 pits so bounded, only what were described as pits
2 and
3 were constructed by A
&
F.
The other
3 pits were created
by overflow into adjacent naturally occurring or manmade depres-
sions.
These three overflow pits contained surface run—off,
supernatant exhibiting an Oily sheen, and some solids
(R.
51,
18,
28—29).
It was Mr.
Hill’s testimony that on August
5 and 19, 1980,
that pit
2 was “brimful,” with an eight to ten inch crust of oil
and some type of solid covering approximately 99
of the pit’s
surface.
Pit 3,
which was full to the berm top, had a crust similar
to that of pit
2 covering 50 to 60
of its surface, and the visible
liquid had an oily, sheen
(R.
64—65,
21—22,
24).
The testimony of Kenneth Ault concerned reasons for A
& F’s
failure to perform the duties stipulated to on or before December 15,
1978.
It
is first important to note that overflow pits
1 and 5
did not contain liquids in late 1978
-
early 1979, although pit
4 contained a “bad smelling sludge” even at that time.
Ault
testified that, due to bad weather,
no work at all was performed
until April
of 1979.
In April—May,
1979,
60,000 gallons of sludge
and water were removed from pits
2 and 3.
Mr.
Ault estimated that
as of June
6,
1979,
40,000 gallons of sludge remained to be removed
from the pits.
No work has been performed since June
6,
1979
(R.
52—53,
66—67).
The sludge and water removed from pits
2 and 3 was taken for
processing to an A & F oil recycling plant located in Greenup,
Cumberland County,
Illinois, and A
& F had anticipated to so
handling the remaining sludge.
However, on June
6,
1979,
A
& F
was enjoined from operation of the Greenup facility by a preli-
minary injunction entered in Niccum v.
A
& F
Materials Co.,
Inc.,
79 CH 3
(Cumberland County Circuit Court 1979)
(Resp.
Ex.
1).
The
Niccum order stated that “unless the Defendant is enjoined from
impregnating the air with disagreeable, unwholesome, offensive
arid
noxious odors” that plaintiffs would suffer irreparable harm to
their health, enjoyment of life and use of their property.
Since
June
6,
1979, Greenup’s operations have been enjoined by this and
other unspecified orders.
The litigation concerning Greenup
continues to pend
(R.
53-58).
Following the injunction of recycling at Greenup,
A
&
F made
no inquiries concerning alternative means of disposal of sludge
from the Runyon farm pits
(R.
76—77).
It is A &
F’s
position that
recycling this waste to remove saleable oil at Greenup is the only
economically feasible way of disposing of it.
Mr. Ault testified
that A
&
F’s only assets are that portion of the Greenup property
containing sludge storage pits
(the balance of the property and
the processing plant having been sold to Genet Refining and Re-
covery
R.
68—70), and whatever value may be left in
a certain lease
contract with Genet
(R.
80).
4
At no time has A
&
F petitioned for an extension of time
pursuant to paragraph F of the stipulation, which stipulation was
executed by Mr. Ault himself on A
& F’s behalf
(R.
50—53, 66—67).
Mr.
Ault believes that the stipulated penalty was paid, but since
his paperwork is in “terrible shape,” he cannot produce evidence
to counter the State’s record that no fine was paid
(R.
58—59,
75).
On the record before us, the Board cannot find excusable A & F’s
delay in complying with its own stipulation of November, 1978 and
the Board’s Order of January 18,
1979.
Despite the parties’
failure
to inform the Board that the stipulation’s timetable had been violated
even before entry of the Order accepting it, the Board might have
excused non—performance during the winter months of 1978—1979, the
unusual severity of which the Board takes official notice.
However,
as the Agency points out, the stipulation entered into by A
&
F
in late October of 1978
(R.
83) promised that the lagoons would
be emptied in little more than a month, i.e. by December
1,
1978.
A & F has made no adequate explanation for its failure to complete
this one month job in April
and May of 1979.
As a result of A & F’s lack of activity, further environmental
degradation has occurred.
A
&
F has made no representation con-
cerning when,
if ever,
it would bring this site into compliance
(R. 86).
Under these circumstances, no purpose would be served
by granting A
&
F an extension of time in which to comply, and
the Board will not do so.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Pursuant to Procedural
Rule 334(b)(1),
and of Paragraph F of
the parties’ Stipulation and Settlement of November 20, 1978,
the
Board hereby denies
A
& F Materials Company,
Inc.,
a) an extension
of time to comply with the Board’s Order of January 18,
1979 and
b) any other relief from that Order.
IT IS SO ORDERED.
I,
Christan
L. Moffett, Clerk of the Illinois Pollution Control
Board, her~bycertify t a
the above Opinion and Order were ,edopted
on the
J7
~day
of
________________,
1980’ by a vote of
‘/—~
Christan L, Moff~’~Clerk
Illinois Pollution
ontrol Board
