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

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