ILLINOIS POLLUTION CONTROL BOARD

April 21,

1994

ALBERT WARNER,

)

Complainant,

)

v.

)

 PCB 93—65

(Enforcement)

WARNER

BROS. TRUCKING,

 INC. and

)

URBANA

CHAMPAIGN

SANITARY

)

DISTRICT,

)

Respondents.

JOHN

HENSLEY

 APPEARED

FOR

COMPLAINANT;

KENT

FOLLMER

APPEARED

FOR

RESPONDENT

 WARNER

BROS.

TRUCKING,

INC.;

MARC

ANSEL

APPEARED

FOR

RESPONDENT

 URBANA AND

CHAMPAIGN

SANITARY

DISTRICT.

OPINION

AND ORDER

OF

THE BOARD

 (by R.

 C. Flemal):

This matter is before the Board upon a formal complaint

filed on March 29,

 1993 by Albert Warner

 (Albert’).

 Albert

alleges that respondents Warner Bros. Trucking,

 Inc.

 (WBTI)

and

Urbana & Champaign Sanitary District (District) have violated

provisions of the Environmental Protection Act

 (Act)

 (415 ILCS

5/1 et seq.

 (1992)) and the District’s Permit for Land

Application of Sewage Sludge.

 On April

19,

 1993 the District

filed its answer to the formal complaint.

Hearing was held on June 29,

 1993 in Champaign,

 Illinois,

before hearing officer Arnold Blockman.

 Closing arguments were

reserved for briefs.

 Albert filed his brief2 on August 23,

 1993.

The District filed its brief on October 12,

 1993.

 WBTI filed its

brief on October 25,

 1993.

 Complainant’s reply brief was filed

on November 15,

 1993.

1

The shortforms used herein comport with those used by the

parties in their own pleadings.

2

The various briefs are each characterized by the filing

parties as “closing argument’t in the case of complainant’s and

respondents’ briefs and “rebuttal argument” for complainant’s

reply brief.

ALLEGED

VIOLATIONS

AND

BACKGROUND

Albert

alleges

that

the

respondents

violated

section

 9(a)

of

the Act, and conditions 5(c), 6(a) (1),

 6(a) (2),

 6(c), 6(h), and

6(j)(2)

 of the District’s permit for Land Application of Sewage

Sludge (Permit No.

 1992-SC—0763, issued May 27,

 1992).

 (Compl.

Br. at 4_93•)

 (Complaint at 3.)

 Albert alleges that violations

occurred in Rantoul Township, Illinois,

 in township sections 9,

18, and 20.

 For section 9, he alleges that violations occurred

in November and December 1992.

 For section 18 he alleges that

violations occurred in 1990 and 1991.

 Further violations are

alleged to have occurred in December 1991 and February 1992.

For

section 20, he alleges generally that the hauling and dumping

practices occurred in three principal timeframes from late

February until May, July,

 and September until November, all in

1992.

 (Compi. Br. at 1—4.)

Albert requests as relief that the Board order

WBTI

and the

District to cease and desist from violations of the Act and the

terms of the District’s permit4,

 and to assess penalties against

respondents as appropriate.

 (Complaint at 5, Compl.

Br.

 at 11.)

Albert lives in a farmhouse on a two—acre parcel of land in

the northwest corner of section 20.

 The remainder of the tract

is owned by Albert’s mother, Justena Warner.

 Albert is the

brother of Joe Warner and Gene Warner, owners of WBTI, but Albert

has no ownership or other interest in the business.

 (Compi. Br.

at 1—2.)

Sludge Operations.

WBTI

 and Evidentiary Matters

The District administers a program for the distribution of

 dried sewage sludge to the general public,

 for application on

farm land.

 (Tr. at 127.)

 This sludge is hauled from the

District’s facilities to farm fields by independent contractors

or by the District’s own trucks

 (Tr. at 143.)

Although Albert testified that all the sludge that is the

subject matter of this litigation was hauled by WBTI (Tr. at 42),

he also testified that some sludge was hauled by other trucking

companies.

 (Tr. at 63—65.)

 The District witness testified that

at the present time, WBTI hauls all the dried sludge in the

District’s farm distribution program, though they also use their

~Violations of Sections 12 and 21 of the Act were also

alleged in the complaint.

 However, these alleged violations were

not pursued in closing argument at hearing and brief.

 Therefore,

the Board deems these allegations waived.

‘

The permit is included in the record as Respondent’s

Exhibit C.

3

own trucks.

 (Tr. at 143.)

 The District determines the precise

location where dried sludge is to be stockpiled based on maps

showing where crops aren’t being

grown.

 (Tr. at 144.)

The

District’s employees perform the sludge application in the

fields.

 (Tr. at 145.)

 Truckloads were brought in tractor-

trailers, with watertight boxes, each having a capacity of 24

 tons.

 (Tr. at 55.)

 WBTI witness Joseph Warner testified that

the District tells him where to haul and dump the sludge, that he

is not involved in the determination of the location or amount of

sludge to be dumped, and that WBTI does not perform the spreading

of the sludge.

 (Tr. at 107-109.)

As an initial matter and based on these facts, the Board

dismisses WBTI as a respondent in this proceeding for all

a?’ egations of violations of the District’s permit.

 The Board

finds that the District is the only entity that can violate its

permit.

 The record does not indicate that the haulers have

permits from the Agency, nor are they permitted via the

District’s permit.

In addition, Albert requested that the Board reverse its

hearing officer’s ruling excluding exhibits Gi and G2.

 These

exhibits are video tapes allegedly depicting sludge handling

practices.

 The hearing officer denied the admission of these

tapes because they are cumulative of the photographic evidence,

are beyond the scope of rebuttal, and are not easily amenable to

the interposition of objections by the Respondents.

 (Tr. at 202—

203.)

 The Board upholds the ruling of its hearing officer.

DISCUSSION

A complainant in an enforcement proceeding has the burden of

proving violations of the Act by a preponderance of the evidence.

This standard of proof requires that the proposition proved must

be more probably true than not.

 Once the complainant presents

sufficient evidence to make a

 prima tacie

 case, the burden of

going forward shifts to the respondent to disprove the

propositions.

 (Illinois Environmental Protection Aaencv v. Bliss

(August 2,

 1984), 59 PCB 191, PCB 83—17.)

We now turn to each alleged violation and address its

merits.

Condition 6

(~)

(2)

 Off-site interim stora~eof dried

sludge in excess of two months shall not be allowed.

In addition. measures shall be taken to contain runoff

and leachate from any dried sludge that is stored.

In its answer, brief, and at hearing, the District admits to

violations of condition 6(j)(2) as it pertains to storage longer

than two months that occurred before January 1993.

 (Answer at

1;

Resp.

 Br. at

4,

6.)

 The District states that after conversations

4

with the Agency,

 it now complies with this condition.

 (Tr. at

152-156.)

 The District further asserts that no harm has been

done by its failure, prior to 1993, to comply with this

condition.

 (Resp.

 Br. at 6.)

Condition 6(c~

 Sludae shall not be applied to land

which lies within 200 feet of

* * *

surface waters or

intermittent streams

* *

*

Albert testified that sludge was stockpiled in 1990 and 1991

in section 18 right up to a swale,

 and that some was within the

swale.

 He further described ponding that occurred as a result of

the stockpiling of sludge close to or within the swales.

 (Tr. at

45-46.)

 He also testified that he observed stockpiled sludge in

section 20 within 80 feet of a swale.

 (Tr. at 57,

 60.)

 Also,

photograph 21 of exhibit B shows sludge stockpiled up to a swale.

This was identified as Section 20

 (Exh.

 B, Photo 21; R 78—79.)

Albert also testified that when the sludge was stockpiled,

it

disrupted the drainage flows and caused ponding to occur

 in the

fields at Section 20.

 He stated that photograph nos.

 77 through

96 show “ponding water that’s created from stockpiled sludge

that’s stopping the natural flows of water”.

 (Tr. at 39-40, 41.)

Albert testified that the sludge that was stockpiled in Section

20 in 1992 was spread in November and December and incorporated

in January 1993.

 (Tr. at 69.)

 He stated that the District

“spread it in water and they spread it around the ponding water”.

(Tr. at 71.)

Prior to the time of the filing of this complaint, the

District also had discussions with the Agency regarding what

constitutes an “intermittent stream”.

 Both the Agency and the

District would conclude that grassy waterways or field swales

 would constitute “intermittent streams”.

 (Tr. at 156-157.)

In addressing whether the District is in violation of

condition 6(c), the District does not deny that it stockpiled

sludge within 200 feet of a swale.

 Rather the District attempts

to make a distinction between application and storage of sludge.

The District implies that it is allowed to store sludge within

200 feet of an intermittent stream, with the only consideration

being containing and controlling the runoff (condition 6(j)).

According to the District, this is distinct from application of

the sludge within 200 feet of that same stream (condition 6(c)).

Application is defined at 35 Ill. Adm. Code 391, the

Agency’s Design Criteria for Sludge Application on Land, as the

placement of sludge on or under the land surface.

 Since the

District placed the sludge on the land surface during the process

of storing, the 200-foot-limit contained in condition 6(c) would

pertain.

 The Board finds the District in violation of condition

6(c) of its permit for the time period alleged.

5

Condition 5(c)

 Only dried sludae shall be distributed

to the ~eneral public

Albert alleges that wet sludge was distributed to the

general public in violation of the District’s permit.

He

testified that sludge dumped on both sections 18 and 20 was “so

liquid that it would run and spread out in a big wide, flat area

approximately 10 to 12 inches deep”.

 (Tr. at 66.)

 He further

testified that prior to his retirement he worked as the

superintendent of the Village of Rantoul landfill for 25 years

(Tr. at 26), and that in his work for the Village of Rantoul

sludge that was as wet as that dumped in sections

 18 and 20 would

have been rejected for disposal as too wet.

 (Tr. at 67.)

The District testified that only dried sludge has been

distributed to the public

 (Tr. at 131.)

 Section 391.102 of the

Agency’s Design Criteria defines dried sludge as dewatered “such

that it can be transported and handled as a dry material”, with a

minimum of 15

 total solids, and that liquid sludge is “readily

pumpable and must be transported in a closed vessel” with a

maximum of 8

 total solids.

 The District argues that Albert

presented no evidence of the actual moisture content of the

sludge, therefore he has failed to show that the sludge was

distributed as liquid and not dried.

The Board finds that Albert has not presented sufficient

information for it to conclude that the sludge was not dewatered

as required.

 The Board is not finding that the only manner

Albert could have proven a violation was to enter onto the field

and have samples taken for the moisture content of the sludge.

However, even considering Albert’s experience at the Rantoul

landfill5, his observations at best are suggestive of a problem

and would lead one to further investigate whether a violation is

occurring,

 but are not specific enough to prove that a violation

actually occurred.

Conditions 6(a) (1) and

(2)

—

 Sludae shall be applied to

sites within the following quidelines:

(1)

—

 Sludae

shall not be applied to sites during precipitation;

(2)

—

 Sludge shall not be applied to sites which are

saturated or with bonded water

* * *

Albert testified that the respondents spread sludge in

November 1992 in section 20 when field conditions were muddy and

during extremely wet weather, also spreading some during a

rainfall event.

 He further stated that there was ponding of the

water.

 (Tr. at 67-69.)

 He testified regarding section 9 that

the sludge was dumped in November 1992 and spread in November or

~Albert did not testify as an expert in this regard.

 (Tr.

at 67,

 72.)

6

December 1992.

 He described that respondents spread the sludge

around the ponding water and also made ruts in the field, not

incorporating the sludge until January 1993.

 (Tr. at 70-71.)

The District argues that the purpose of this condition is to

minimize runoff and that there is no evidence that runoff has

occurred.

 The District argues that they have never had a

complaint from a property owner utilizing their sludge concerning

 wet field conditions during application.

 The District adds that

1992 was a record year for precipitation.

 (Resp. Br. at 5; Tr.

at 163.)

Unlike the previous alleged violation, the Board finds that

Albert has presented sufficient evidence to make a prima

.facie

case.

 The Board also finds that the District has not presented

any evidence disproving the allegations, and has not even

affirmatively denied depositing sludge in the manner alleged by

Albert.

 Based on Albert’s unrebutted testimony, the Board finds

that the District violated conditions 6(a)(l) and

 (2).

Condition 6(h)

 The deliverY and ao~lication

of sludge. and the choice of an application

site,

 shall be made so as to minimize the

emission of odors to nearby residents taking

into account the direction of the wind.

humidity and day of the week.

Albert alleges that sludge was delivered throughout the

summer of 1992 without regard to precipitation, weather

conditions,

 and ground saturation.

 Albert testified that the

District hauled the sludge close to his house and that the odors

worsened in the extreme wet weather.

 (Tr. 72—73.)

 Albert

further testified that in the Spring of 1992 and “after it

started warming up”

 (Tr.

 at 73), he was unable to use his yard

for recreation and that he was unable to open the windows in his

house due to the presence of odors.

 (Id.)

The District argues that this condition provides that in the

delivery and the application of sludge, choices be made to

minimize odors, but that it is not required that odors be

eliminated.

 The District argues that Albert has not presented

any evidence of what steps the District could have taken to

minimize the emission of odors.

 (Resp. Br. at 6.)

The Board finds that the condition contains some steps the

District could have taken to minimize the emission of odors,

including making choices based on the direction of the wind,

humidity, and the day of the week.

 The District fails to present

an adequate defense of how it has acted in accordance with this

condition to minimize the emissions of odors.

 The Board finds

that the District violated condition 6(h) by failing to act to

minimize the emission of odors.

7

Section 9(a) of the Act

—

 No person shall:

(a)

 Cause or

threaten or allow the discharge or emission of any

contaminant into the environment in

p~y

State so as to

cause or tend to cause air pollution in Illinois.

either alone or in combination with contaminants from

other sources1 or so as to violate reaulations or

standards adopted by the Board under this Act:

Albert alleges that respondents violated Section 9(a)

 of the

Act by causing the emission of contaminants to cause air

pollution.

 Air pollution is defined in Section 3.02 of the Act

as “the presence in the atmosphere of one or more contaminants in

sufficient quantities and of such characteristics and duration as

to be injurious to human, plant, or animal life, to health, or to

property, or to unreasonably interfere with the enjoyment of life

or property.

 Section 3.06 defines a contaminant as any solid,

liquid, or gaseous matter, any odor, or any form of energy, from

whatever source.

Dust

Albert alleges that during “dry summer months”, especially

July (1992), WBTI’s truck traffic along the access road to

section 20 created an extreme dust problem.

 (Tr. at 64—65,

 Exh.

B, Photos 22-24,

 71.)

 A portion of the testimony relevant to the

air pollution by dust allegations are as follows:

Q.

* *

*

Did the dust created by these dumping or

hauling operations create any problems for your family

in 1992?

A.

 The only problem it created is we left the windows

open one day and we didn’t know they was going to haul

that day and we come home that night and the dust had

got in the house.

 But the rest of the time we kept our

house shut up and run the air conditioning.

 (Tr. at

74.)

The District asserts that Albert has not presented

sufficient evidence to establish a violation of the air pollution

provisions of the Act or regulations promulgated thereunder.

The Board finds that pertaining to the dust, the record does

not support a finding that the dust created by the truck traffic

“created a presence in the atmosphere of one or more contaminants

in sufficient auantities and of such duration as to be inlurious

to human, plant, or animal life, to health.

 or to property,

 or to

unreasonablY interfere with the eniovment of life or property”,

and hence cause air pollution.

 Although the photographs do

depict trucks and dust, there

 is no causal connection established

between those trucks and air pollution in the testimony.

The

testimony only indicates that on one occasion Albert found dust

8

in his house.

 The closing of the windows and running of the air

conditioning is also not affirmatively connected to the presence

of dust.

 This testimony is further insufficient to establish

that the dust occurred in such duration as to be injurious to

life, or to unreasonably interfere with the enjoyment or use of

the property.

 (See also, Madoux v

 Straders Loaaing and Lumber

Mill (May 21,

 1991) PCB 90—149, 132 PCB 1227).

Odors

Albert incorporates his allegations and testimony regarding

odors as indicative of air pollution that occurred at or near his

home.

 As stated above, Albert testified that in the Spring of

1992 “and after it started warming up”

 (Tr. at 73), he was unable

 to use his yard for recreation and that he was unable to open the

windows in his house due to the presence of odors.

 (Tr. at 72—

73.)

The unrebutted testimony establishes an interference with

Albert’s enjoyment of life, and that such interference was caused

by the odors from the sludge application operations of the

District occurring in 1992.

 However, the Board will evaluate the

factors set forth in Section 33(c) of the Act to determine if

such interference was unreasonable, together with an evaluation

of all alleged violations.

For the allegations of violation of Section 9(a)

 of the Act,

the Board finds that since WBTI personnel did not apply the

sludge, the Board makes no findings of violation against WBTI.

Animal Inlurv

Lastly, Albert alleged that the sludge handling operations

caused the death of his dog.

 The Board finds that Albert has not

pled which provision of the Act, Board regulations, or permit

would have been violated by the injury to his dog.

 Moreover, the

evidence presented on this issue was excluded by the hearing

officer as hearsay, leaving nothing for the Board to consider on

this issue.

 The Board upholds the hearing officer’s action in

rejecting the hearsay testimony.

 Complainant asks the Board to

consider the testimony, yet admits that the hearing officer’s

action was proper.

 (Compl. Br. at 10.)

 Therefore,

 the Board

finds no violation for the alleged animal injury.

SECTION 33(C)

 FACTORS

In arriving at its findings and determinations, the Board

is

charged under Section 33(c) of the Act to take into consideration

all the facts and circumstances bearing upon the reasonableness

of the emissions, discharges or deposits resulting from the

pollution source.

 Such consideration is to include:

9

The

character

and

degree

injury

to,

interference

with

the

protection

the

health,

general welfare and physical property of the

people;

2)

 The social and economic value of the pollution

source;

3)

 The suitability or unsuitability of the pollution

source to the area in which it is located,

including the question of priority of location in

the area involved;

4)

 The technical practicability and economic

reasonableness of reducing or eliminating the

emissions,

 discharges or deposits resulting from such

pollution source; and

5)

 any subsequent compliance.

Regarding the alleged violations of Section 9(a) of the Act,

the Board considers that Albert testified that the odor

interference occurred in the Spring of 1992 and “after it started

warming up”.

 (Tr. at 73.)

 This was in response to counsel’s

 inquiries regarding the specific timeframes of the odor

occurrences.

 While the Board has found that an interference with

Albert’s enjoyment of life from the odors has occurred, the Board

must consider that finding in the context of Section 33(c)

factors, most specifically Section 33(c) (1).

 The Board finds

that the record is not sufficiently clear to establish the

duration of the odor occurrences and degree of injury such as to

find that the odor unreasonably interfered with the enjoyment of

life and property. Accordingly, the Board finds that the record

does not support a finding of violation of Section 9(a)

 of the

Act.

Also in the context of Section 33(c) (1), the Board finds

that the District’s violations of its permit are serious.

For Section 33(c) (2), the land application and interim

storage of dried sludge has economic and social value.

 Such

value includes saving of landfill space or other means of

disposal and also allows for fertilization of fields at low cost.

However, that value is diminished when permit provisions for

application and storage are not followed and the sludge is

misapplied or improperly stored, resulting in actual and

threatened pollution.

Albert’s residency appears to predate the application of

sludge on the neighboring properties and has priority of

location,

such

bears

Section

33(c)

(3).

Land

application

sludge

suitable

farm

fields

done

according

the

terms

the

permit.

Albert’s

residency

and

 the land application of

sludge can coexist if the land application is done according to

the terms of the permit.

Regarding the technical practicability and economic

reasonableness of the pollution source (Section 33(c) (4), the

record indicates that the District did not challenge the

conditions of the permit at the time it was issued.

 Therefore

the Board assumes that compliance with the permit is technically

practicable and economically reasonable.

 Regarding odors

resulting in air pollution, techniques for minimization of the

odors are contained in the permit.

 The Board assumes that these

procedures, having been accepted by the District when it agreed

to abide by the permit, are technically practicable and

economically reasonable.

As regards Section 33(c)(5), the District states that it is

in compliance with condition 6(j) (2) after consultation with the

Agency in January 1993.

 (Resp.

 Br. at 3.)

 The record contains

no evidence that the District has complied with the remainder of

the conditions for which the Board has found the District in

violation.

 However, the record does not disclose that these

violations are continuing.

CONCLUSION

Based on the above, the Board finds the District violated

conditions 6(j) (2),

 6(c),

 6(a) (1), 6(a) (2), and 6(h) of its

permit for land application of sewage sludge.

 For the remainder

of the allegations, the Board finds no violation against the

District.

 The Board finds no violation against WBTI.

REMEDY

Section 42(h)

 Factors

Since Albert has asked that penalties be assessed against

the District, the Board will address whether penalties are

warranted.

 In so doing, the Board is authorized to consider any

matters of record in mitigation or aggravation of penalty as

listed in Section 42(h)

 of the Act:

1)

 The duration and gravity of the violation;

2)

 The presence or absence of due diligence on

the

part

the

violator

attempting

comply

with

the

requirements

this

Act

and

regulations

thereunder

 to secure relief

therefrom as provided by this Act;

3)

Any

economic

benefits

accrued

the

violator

because of delay in compliance with requirements;

4)

 The amount of monetary penalty which will

serve to deter further violations by the

violator and to otherwise aid in enhancing

voluntary compliance with this Act by the

violator and other persons similarly subject

to the Act; and

5)

 The number, proximity in time, and gravity of

previously adjudicated violations of this Act by

the violator.

Upon review of the Section 42(h)

 factors, the Board finds

that the duration of the violations

 is minimal and the gravity of

the violations is serious.

 There is no evidence in the present

record that the District has failed to exhibit due diligence once

the violations were discovered.

 To the contrary, the District’s

ready compliance with the Agency’s suggested interpretations of

the District’s permit shows due diligence.

The District has probably accrued some economic benefit from

violation of sludge application requirements, especially

concerning condition 6(j) (2).

 This is evident since the District

did not incorporate or apply the sludge as often as it would have

had it complied with the stockpiling limitations prior to 1993.

However, any economic benefit appears to be minimal.

 Also,

 there

is no evidence of prior adjudicated violations of the Act against

the District.

Based on the record as a whole, the Board believes this case

has caused the District to critically consider its sludge

disposal activities pursuant to its permit.

 Therefore,

 the Board

finds that a monetary penalty is not necessary to deter future

violations of the Act and permit at this time.

 Accordingly, no

penalty will be assessed at this time.

 However, should the

District in any subsequent proceedings be found to be in

violation, the Board may reassess this position.

The Board believes it is the appropriate remedy at this time

to order the District to cease and desist from further

violations.

6

The Board observes that the complainant did not ask for or

argue for the imposition of penalties either in his complainant

or at hearing.

 The only reference to a penalty in complainant’s

case occurs as the final phrase in the Complainant’s Brief where

the

Board

asked

“to

assess

penalties

against

each

Respondent,

the

Board

deems

appropriate”

(Compi.

Br.

5).

12

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

The

Board

finds

 Urbana and Champaign Sanitary District

violated conditions 6(j) (2),

 6(c),

 6(a) (1),

 6(a) (2), and 6(h) of

its permit for land application of sewage sludge.

 For the

remainder of the allegations, the Board finds no violation

against the Urbana and Champaign Sanitary District.

 The Board

orders the Urbana

 & Champaign Sanitary District to cease and

desist from future violations.

The Board finds no violation against Warner Bros. Trucking

Inc., and orders that Warner Bros. Trucking, Inc. be dismissed

from this action.

ORDERED.

Board

Member

Tanner

Girard

concurred.

Section

the

Environmental

Protection

Act

(415

ILCS

5/41

 (1992)) provides for the appeal of final Board orders within

days

the

date

service

 of this order.

 The Rules of the

Supreme

Court

Illinois

establish

filing

requirements.

(See

also

Ill.Adm.Code

101.246

“Motions

for

Reconsideration”.)

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board, hereby certify that the abo

 opinion and order was

adopted on tbe~?/’~dayof ______________________,

 1994, by a

voteof

________.

74~-~_~

Dorothy M. ,~unn, Clerk

Illinois P~9’llutionControl Board