ILLINOIS POLLUTION CONTROL BOARD
April 10, 1986
PEOPLE OF THE STATE OF ILLINOIS
)
and the ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainants,
)
)
v.
)
PCB 83-226
)
ARCHER DANIELS MIDLAND CORPORATION, )
a Delaware corporation,
)
)
Respondent.
)
MR. JAMES L. MORGAN, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE COMPLAINANTS.
MR. F. LOUIS BEHRENDS, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF THE
RESPONDENT.
OPINION AND ORDER OF THE BOARD (by W.J. Nega):
This matter follows a remat~dresulting from an interlocutory
appeal by Archer Daniels Midland Corporation (ADM) and the People
of the State of Illinois (People) and the Illinois Environmental
Protection Agency (Agency) to the Third District of the Illinois
Appellate Court from an Order of the Illinois Pollution Control
Board (Board) entered March 22, 1985 which rejected a Stipulation
and Proposal for Settlement submitted by ADM and the Complainants
in the enforcement action in PCB 83-226. (See: Board Order of
March 22, 1985 in People of the State of Illinois and the IEPA
v.
Archer Daniels Midland Corporation, PCB 83-226).
The Stipulation filed with the Board on November 19, 1984
included a provision which indicated that Archer Daniels Midland
Corporation neither admitted nor denied the allegations of the
Amended Complaint. Additionally, the proposed settlement
agreement included a compliance plan (i.e., the installation and
operation of a gas chromatograph to monitor benzene emissions)
and provided for a stipulated penalty of S12,500.OO to be paid
into the Illinois Environmental Protection Trust Fund.
In its Order of March 22, 1985, the Board on a 4-2 vote
(with Chairman Jacob D. Dumelle and W.J. Nega dissenting)
rejected the proposed Stipulation because~it was believed that
the Board lacked the statutory authority to accept settlements
requiring the payments of stipulated penalties and imposing
compliance conditions without a Board finding of violation. In
support of this viewpoint, the Board cited its February 20, 1985
decision in IEPA v. Chemetco, Inc., PCB 83-2.
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However, realizing that an important legal issue was
involved, the Board allowed immediate interlocutory appeal. On
pages five and six of its March 22, 1985 Order rejecting the
proposed settlement agreement in PCB 83-226, the Board certified
the following question of law for interlocutory appeal:
“Whether the Board correctly determined that
it lacks statutory authority, pursuant to Ill.
Rev. Stat. ch. 112-1/2, Sections 1032, 1033
and 1042 as they relate to Board acceptance of
stipulations of fact and proposals for
settlement in enforcement cases, to issue
Opinions and Orders in which any Board
findings of violation are precluded by the
terms of the stipulation and proposal, but in
which respondent is ordered to pay a
stipulated penalty and to timely perform
agreed-upon compliance activities.”
After the Board entered its March 22, 1985 Order in PCB
83-226, the parties filed an interlocutory appeal request with
the Third District of the Illinois Appellate Court on April 5,
1985.
The Illinois Appellate Court docketed the interlocutory
appeal request as General Case No. 3-85-0222; granted the parties
leave to appeal pursuant to Illinois Supreme Court Rule 308 (see:
87 Ill. 2d R. 308), and entered a final judgment on March 5, 1986
(see: Modified Opinion of March 5, 1986 in People of the State of
Illinois and the IEPA v. Archer Daniels Midland Corporation, No.
3-85-0222, consolidated with No. 3-85-0224, 3rd District 1986)
which reversed the March 22, 1985 decision of the Illinois
Pollution Control Board in PCB 83-226 and remanded the instant
case back to the Board for further proceedings consistent with
the court’s views.
In its March 5, 1986 decision, the Third District of the
Illinois Appellate Court concluded that “a finding of violation
is not required before the Board may approve a settlement
agreement”.
The Board will now accept in its entirety the Stipulation
and Proposal for Settlement filed by the parties on November 19,
1984
. *
*In reference to the same legal issue of the Board’s
statutory authority to accept settlement agreements absent a
finding or admission of violation, the Fifth District of the
Illinois Appellate Court vacated the Board’s February 20, 1985
Order in PCB 83-2 (i.e., the Chemetco case) and concluded on
January 14, 1986 in Chemetco v. IPCB and IEPA, No. 5-85-0143,
(continued)
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LEGAL HISTORY OF THIS CASE
This case initially came before the Board on the December 9,
1983 Complaint brought by the People of the State of Illinois.
On June 11, 1984, the People and the Illinois Environmental
Protection Agency filed a Motion to Amend the Complaint and an
Amended Complaint.
On June 18, 1984, the Hearing Officer entered an Order
granting the Complainants leave to file an Amended Complaint.
Count I of the Amended Complaint alleged that, on or about
April 14, 1983, the Respondent discharged an unknown quantity of
wastewater containing approximately 300 parts per million (ppm)
of benzene from its grain distillery near downtown Peoria,
Illinois into the Illinois River, thereby causing and/or allowing
the discharge of a contaminant into the environment so as to
cause, or tend to cause, water pollution in violation of
Section 12(a) of the Illinois Environmental Protection Act (Act).
Count II alleged that, as a result of the Respondent’s
discharge of contaminated water on or about April 14, 1983
containing approximately 300 ppm of benzene, a listed hazardous
waste delineated in 35 Ill. Adm. Code 721.133, the Respondent
thereby illegally disposed of a.hazardous waste in violation of
Section 21(f)(l) of the Act.
Count III alleged that: (1) commencing some time before
February 5, 1981 and continuing until April 30, 1982, the
Respondent violated 35 Ill. Adm. Code 201.142 (formerly Rule
103(a) of Chapter 2: Air Pollution Regulations) and Section 9(b)
of the Act by constructing new grain dryers; a new boiler; a drag
conveyor for grain; a new distillation system; new grain
scalpers; and a modification of a pneumatic grain conveying
system without first obtaining the necessary Construction Permits
from the Agency, and (2) on, or about, April 6, 1983, the
Respondent began construction of a second new set of anhydrous
distillation equipment and continued construction to a date
better known only to the Respondent, thereby violating 35 111.
Adm. Code 201.142 and Section 9(a) of the Act.
Fifth Dist. 1986) that “The Board has the statutory authority to
accept settlement agreements in enforcement cases where findings
of violation are precluded by the terms of the stipulation and
proposal but where the respondent is ordered to pay a stipulated
penalty and to timely perform agreed upon compliance
activities”. (See: Opinion and Order of the Board of March 27,
1986 in IEPA v. Chemetco, P08 83-2).
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Count IV alleged that: (1) commencing on December 1, 1982
and continuing intermittently on dates better known only to the
Respondent, the company violated 35 Ill. Adm. Code 201.143
(formerly Rule 103(b)(1) of Chapter 2: Air Pollution Regulations)
by operating grain dryers, a feed load-out system, a drag
conveyor, anhydrous distillation equipment, grain scalpers, and
ethanol storage tanks without the requisite Operating Permits
from the Agency authorizing the operation of new emission
sources, and (2) from December 1, 1982 until June 11, 1984, the
Respondent has continued to operate its ethanol plant equipment
(including grain dryers, the feed load-out, its drag conveyor,
anhydrous distillation equipment, grain scalpers, and ethanol
storage tanks) even though Construction Permits #81070034 and
#81070040 issued by the Agency on May 28, 1982 only authorized
such operations for 181 days, thereby operating such ethanol
plant equipment without first obtaining the required Operating
Permit from the Agency in violation of 35 Ill. Adm. Code 201.143
and Section 9(b) of the Act.
A hearing was held on November 15, 1984 and the parties
filed their Stipulation and Proposal for Settlement on
November 19, 1984.
The subsequent developments are laid out earlier in this
Opinion.
COMPANY OPERATIONS
The Respondent, Archer Daniels Midland Corporation, is a
Delaware corporation duly authorized by the Illinois Secretary of
State to transact business in Illinois. ADM operates a grain
distillery and manufactures grain alcohol at its plant located on
the Illinois River near downtown Peoria, at the food of Edmund
Street, in Peoria County, Illinois. The Respondent began its
operations at this site during mid-1982 after ADM took over the
plant from the Hiram Walker Distillery Company which also
utilized the facility to produce alcohol. (Stip. 2-3).
Using approximately 80,000 bushels of grain per day, the
Respondent’s facility can produce about 300,000 gallons per day
of 190 and/or 2.00 proof ethanol. Depending on the particular
manufacturing process that is used, the alcohol manufactured at
the company’s facility can be sold for fuel, industrial, and
beverage uses. The parties have stipulated that “therefore, it
is evident ADM is an asset to the area agri-business”.
(Stip. 3).
The Respondent’s ethanol production process involves the
conversion of the components of corn into alcohol. First, the
corn is transferred by a drag conveyor from the Tabor Grain
Company grain elevator. This grain elevator is located next door
to the ADM alcohol plant. Secondly, grain scalpers remove
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foreign matter from the corn. Thirdly, the corn is then mixed
with water and this corn/water mixture is subsequently fermented
in fermentation tanks where the ethanol is produced. (Stip. 3).
After the fermentation process is completed, the remaining
mixture is then distilled into two parts. One part is a mixture
of water and spent corn. This mixture, which is then processed
to become dried distillers’ grain, is used as an animal feed.
(Stip. 3). The second part is approximately 95 ethanol which
can be used for commercial alcohol or beverage alcohol. However,
“most of the 95 ethanol is distilled in a second distillation
system where benzene is added which removes the last part of the
water to produce anhydrous ethanol which is used mostly as an
octane booster in gasoline”. (Stip. 3).
The primary environmental concern involved in this case is
related to the part of the Respondent’s process which uses
benzene to remove the water from the alcohol. Benzene is a known
cancer-causing agent (i.e., a carcinogen) and is highly toxic to
humans. Scientists and medical doctors believe that exposure to
benzene may result in narcosis, blood chemistry changes, fatigue
and anorexia, central nervous system disorders, and an
enhancement of mammary carcinomas and leukemia.
THE PROPOSED SETTLEMENT AGREEMENT
The Agency has indicated that it stands prepared to present
evidence to conclusively establish that: (1) on, or about,
April 14, 1983, the Respondent caused and/or allowed an unknown
quantity of wastewater containing approximately 300 parts per
million of benzene to be discharged from its plant into the
Illinois River; (2.) the Respondent did not, and does not now,
possess a RCRA Permit issued by the Agency which would have
authorized the previously mentioned discharge of benzene;
(3) beginning some time before February 5, 1981 and continuing
until April 30, 1982, the Respondent installed and constructed
new emission sources (i.e., new grain dryers, a new boiler, a new
grain drag conveyor, new grain scalpers, a new distillation
system, and modification of a pneumatic grain system) capable of
causing or contributing to air pollution without first obtaining
the requisite Agency Construction Permit; (4) starting on
December 1, 1982 and continuing intermittently thereafter, the
company began operation of new emission sources (namely, grain
dryers, a feed load-out system, a drag conveyor, grain scalpers,
ethanol storage tanks, and anhydrous distillation equipment)
without first obtaining the necessary Agency Operating Permits,
and (5) beginning on December 1, 1982, the Respondent continued
to operate the ethanol plant equipment without obtaining the
required Operating Permit from the Agency. (Stip. 4-5)
However, in reference to the previously mentioned alleged
violations, the Agency has indicated that the Respondent
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currently “has applied for or presently has permits for all
emission and discharge sources which are the subject of the First
Amended Complaint filed in this cause.” (Stip. 5).
Although Archer Daniels Midland Corporation has neither
admitted nor denied the allegations of the First Amended
Complaint, the proposed settlement agreement provides that the
Respondent agrees to promptly pay a stipulated penalty of
$12,500.00 into the Illinois Environmental Protection Trust
Fund. (Stip. 6). Additionally, the Respondent’s compliance plan
calls for the installation of a gas chromatograph monitoring
device to analyze several emission points throughout the ADM
facility to detect any potential leaks of benzene into the air or
into the water of the Illinois River. To alert the Respondent
when necessary corrective action needs to be taken, the company
agreed to install a gas chroniatograph with an alarm to indicate
potential environmental problems.
The parties have stipulated that the Respondent already has
installed, and is currently maintaining in good working order, a
Beckman Model 6750 microprocessor-based process gas chromatograph
in order to prevent and eliminate the discharge of benzene and
other contaminated wastewaters into the Illinois River. (Stip.
5-6; see: Exhibit A of the Stipulation). This highly
sophisticated instrument is designed to analyze air and water
samples for ethanol (i.e., ethyl alcohol) and benzene and is
programmed to analyze certain critical points in numerous air and
water samples. Moreover, the a’iarm is pre-set to the
Occupational Safety and Health Administration (OSHA) standard for
ambient conditions for employees (i.e., which is ten parts per
million of benzene) and the alarm will ring if the benzene
concentration reaches that level so that company employees can
take all necessary corrective actions to eliminate the problem.
(See: Exhibit A of the Stipulation).
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 proposed
settlement agreement acceptable under 35 Ill. Adm. Code
103.180. Pursuant to the remand by the Illinois Appellate Court
(Third District), the proposed settlement agreement originally
filed by the parties on November 19, 1984 will be accepted in its
entirety. The Respondent will, therefore, be ordered to pay the
stipulated penalty of $12,500.00 into the Environmental
Protection Trust Fund.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
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that
ORDER
It is the Order of the Illinois Pollution Control Board
1. Within 35 days of the date of the Order, the
Respondent, Archer Daniels Midland
Corporation, shall, by certified check or
money order payable to the State of Illinois
and designated for deposit into the
Environmental Protection Trust Fund, pay the
stipulated penalty of $12,500.00 which is to
be sent to:
Manager
Division of Land Pollution Control
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois 62706
2. The Respondent shall comply with all the terms
and conditions of the Stipulation and Proposal
for Settlement filed on November 19, 1984,
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 J~ZZ day of
_____________________,
1986 by a
vote of
-~7-c:~
/
Dorothy
~
M. ~unn,
2~.
Clerk
Illinois Pollution Control Board
69-31