ILLINOIS POLLUTION CONTROL BOARD
January
23,
1986
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
)
v.
)
PCB 85-23
)
A
& R TRANSPORT,
INC., an
)
Illinois
corporation, and
JAMES BEDEKER,
)
)
Respondents.
MS. NANCY
J.
RICH,
ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF THE COMPLAINANT.
KRANTZ, MADLER & PELDYAK
(MR. JAMES R. MADLER, OF COUNSEL)
APPEARED ON BEHALF OF THE RESPONDENTS.
OPINION AND ORDER OF THE BOARD
(by W.J.
Nega):
This matter comes before the Board on
a three-count Com-
plaint filed
on February
21,
1985 by the Illinois Environmental
Protection
Agency
(Agency).
Count
I
of
the
Complaint
alleged
that:
(1)
on,
or
about,
June
1983,
the Respondents caused or allowed the construction of
a
leach
field
which
is
a
new
treatment
works
at
their
facility
without
first
obtaining
the
necessary
Construction
Permit
from
the
Agency,
and
(2)
since
on,
or
about,
June,
1983
until
the
issuance
of
a
permit
on
August
15,
1984,
the
Respondents
caused
or
allowed
the
use
or
operation
of
the
leach
field
without
first
obtaining
the
requisite
Operating
Permit
from
the
Agency
in
violation
of
35
Ill.
Adm.
Code
309.202(a),
35
Ill.
Adm.
Code
309.203
and
Sections
12(a),
12(b),
and 12(c)
of the Illinois
Environmental
Protection
Act
(Act).
Count
II
alleged
that,
from
October,
1981
until
February
29,
1984
(including,
but
not
limited
to,
October
21,
1981,
December
16,
1981,
October
27,
1982,
June
8,
1983,
June
29,
1983,
and
October
24,
1983),
the
Respondents
caused
or
allowed
the
concentration of five-day biochemical oxygen demand (BOD5)
and/or
suspended solids
in
the effluent discharged from their unlined
lagoon
and/or
leach
field
to
the
unnamed
creek
that
flowed
into
a
farm
pond
commonly
known
as
the
Frank
Nelson
Farm
Pond
to
exceed
30
milligrams
per
liter
(mg/i)
on
a
daily
average
as determined
67-501
pursuant
to
35
Iii.
Adm. Code 304.104(a)(3)
in violation of 35
Ill.
Adm. Code 304.120
and Section 12(a)
of the Act.
Count III alleged
that,
from October,
1981 until February
29, 1984,
the Respondents have caused,
threatened,
or allowed the
discharge of contaminants into Illinois waters without the
required NPDES Permit
in violation of
35 Ill. Adm. Code 309.102
and Section 12(f)
of
the Act.
The parties filed
a Stipulation and Proposal for Settlement
on August
28,
1985.
A hearing was held on October
23,
1985 at
which
no members
of
the public were present.
At the hearing,
the
Hearing Officer granted the Agency’s request
for permission
to
file Complainant’s Exhibit A within ten days of the date
of the
hearing.
(R.
7—8).
On October 31,
1985,
the Agency filed Com-
plainant’s Exhibit
A which consisted
of
an Agency inspection
report with an
attached memo which
indicated
that recent sample
results
from the Frank Nelson Farm Pond
showed normal effluent
parameter levels and the achievement
of compliance.
Respondent James Bedeker
is the President,
director,
a
stockholder,
and manager
of Respondent A
& R Transport,
Inc.
The
Respondents own and operate
a trucking business which
is located
at 2996 North Route 71/Rural Route #3 in the City
of Ottawa,
LaSalle County,
Illinois.
The Respondents’
facility
is utilized
for washing
the interiors and exteriors of
tank trucks.
Waste—
water produced from washing out the interiors
of the tank trucks
is
received and stored
in
a holding tank which has been espe-
cially constructed for that purpose.
(Stip.
2).
During June of 1983,
the Respondents constructed
a
leach
field
at their facility.
Wastewater from the washing of
the
exteriors of the tank trucks was disposed
of
in
this leach
field.
Between 1981 and the construction
of the leach
field
in
June of
1983,
the Respondents’
contaminated truck wash water was
routed
to
an unlined
lagoon.
This unlined
lagoon overflowed
into
a small
creek
that then flowed
into
a farm pond
(i.e.,
the Frank
Nelson Farm Pond)
which was located approximately 20
feet further
downstream.
(Stip.
2—3).
Additionally, from the
time the
Respondents built the leach
field
in June, 1983
until February
29,
1984,
contaminated water was also discharged from the
drainage tile.
These drainage tile contaminants also flowed
into
the unnamed creek and subsequently flowed
into the Frank Nelson
Farm Pond.
(Stip.
3).
It
is stipulated
that the Respondents never applied
for,
and
never received, any of the necessary permits from the Agency for
their
activities until the Agency issued an appropriate joint
Construction/Operating Permit for
their
operations on August 15,
1984.
(Stip.
3).
Moreover,
the parties have stipulated that the
Respondents:
(1) caused
or allowed
the construction of
a leach
field
in June of 1983 which
is
a new treatment works without
first obtaining an Agency Construction Permit
in violation of
35
Ill.
Adrn.
Code 309.202 and Sections 12(a), 12(b),
and 12(c)
of
67-502
—3—
the Act;
(2)
from June, 1983 until
the issuance of
the Agency
joint Construction/Operating Permit on August
15, 1984,
caused
or
allowed
the use or operation of their
leach
field which is
a
treatment works
for which
a construction permit
is required under
35
Iii.
Adm. Code 309.202 without first obtaining the requisite
Operating Permit from the Agency
in violation of 35
Iii.
Adm.
Code 309.203 and Sections 12(a), 12(b),
and 12(c)
of the Act,
and
(3) from October, 1981 until February
29,
1984,
caused, threat-
ened,
or
allowed the discharge
of contaminants into Illinois
waters without the necessary NPDES Permit
in violation of 35 Ill.
Adm. Code 309.102 and Section 12(f)
of
the Act.
(Stip.
2—4).
The parties have also stipulated that inspections by Agency
field personnel ascertained
that,
on six specified dates
between
October 21,
1981 and October
24,
1983
(i.e., October 21,
1981,
December
16, 1981, October
27, 1982, June
8, 1983, June 29, 1983,
and October
24,
1983),
the Respondents caused
or allowed the
concentrations of BOD5 and/or suspended solids
in the effluent
discharged from their unlined lagoon and/or leach field
to the
small unnamed creek flowing into the Frank Nelson Farm Pond
to
exceed
30 mg/i on
a daily average as determined pursuant
to
35
Ill.
Adm. Code 304.104(a)(3), thereby violating
35
Ill. Adm.
Code
304.120(a)
and Section 12(a)
of the Act.
(Stip.
4).
However,
the Complainant has emphasized that subsequent
Agency inspections conducted in 1984 and 1985 demonstrated,
and
sample results verified,
that the concentrations of BODç and
suspended solids
in the area of
the Respondents’
leach field and
the Frank Nelson Farm Pond were within the appropriate limits
during 1984 and 1985 due
to various steps
taken by the Respon-
dents
to eliminate the environmental problems
at their
facility.
(Stip.
5).
In reference
to the good faith efforts
of the Respondents
to
correct the environmental problems
at their
facility,
it
is
stipulated
that:
“...The Agency and Respondents agree
that
Respondents’ construction of
the leach
field,
though
not permitted
as required
by the Act,
was nonetheless
a genuine attempt by Respon-
dents
to abate pollution at their facility.
Respondents incurred
numerous construction and
other expenses due
to the leach
field.
Respondents’ subsequent willingness
to dis-
continue use of
its
leach field
in favor
of
an
arguably more secure and verifiable disposal
method
is
a further indication of
Respondents’
good faith
...
Respondents expended additional
funds
in good faith
to survey and analyze
water quality at the A
& R site and at
Nelson’s Pond.
Documentation
of the various
engineering fees incurred by Respondents
are
attached hereto and incorporated by reference
67-503
—4—
as Exhibit A.”
(Stip.
5—6;
see:
Exhibit A
which
is attached to the Stipulation).
During
the
time period
in which
the Respondents worked with
the Agency
in attempting
to
resolve their environmental problems,
the Respondents expended
a total
of $5,585.63 on private tests
and water samples.
(See:
Exhibit A which
is attached
to the
Stipulation).
Registered professional engineers were retained
for
a
septic
system project and for rehabilitation of the Frank
Nelson Farm Pond
in which
topographical surveys
of
the Respon-
dents’ property and the farm pond were made;
silt
and water
samples were obtained from the farm pond; percolation
tests
in
the area of
the proposed seepage field were conducted,
and
a
proposed septic system was designed
at
a cost
of $3,112.88.
Additionally,
a private water environmental technology firm was
hired
to conduct detailed laboratory analyses
of pond sediment
in
accordance with United States Environmental Protection Agency
approved methodologies at
a cost of
$2,472.75,
thereby resulting
in
total incurred expenditures by the Respondents of $5,585.63
(i.e.,
$3,112.88
+
$2,472.75
=
$5,585.63).
The results of the previously mentioned
tests
and water
sample analyses were available
at all
times
for
the Agency’s
perusal and evaluation.
(R.
10).
It was finally concluded that
the best method of wastewater disposal would
be
to enter
into a
contract
with
the
City
of
Ottawa
to
handle
all
the
Respondents’
wastewater
disposal
needs,
and
such
a
contract
was
entered
into
on
April
1,
1985
between
the
Respondents
and
the
City
of
Ottawa.
(Stip.
6—7;
R.
4—10).
Under
this
agreement
with
the
City of Ottawa,
all
of
the wastewater generated by the Respon-
dents’ truck washing operations will
be taken
to
the facilities
of the City
of Ottawa and disposed
of there.
To accomplish this
activity, wastewater
is first placed
in
a holding tank at
the
Respondents’ facility and
is subsequently pumped out
to
a tank
trailer and
then taken
to one
of the City
of Ottawa’s drop facil-
ities.
The City of Ottawa inspects
the quality
of the water on
a
regular basis
to insure
that appropriate environmental standards
are being maintained.
Accordingly,
the Respondents are not pres-
ently utilizing,
and do not
intend to
use,
their
leach
field
because
of their contractual arrangement with the City of
Ottawa.
(R.
4—5).
Furthermore, because there was some indication that some
partial environmental damage may have occurred at
the Frank
Nelson Farm Pond,
the Respondents have agreed
to restock this
farm pond with various kinds
of small game fish which will
result
in an additional expenditure of approximately $800.00.
(Stip.
7—8;
R.
5—10).
This fish restocking program will
be
in accor-
dance with the recommendations of
the Illinois Department
of
Conservation and Agency and fish hatchery personnel will also be
consulted
to insure proper
restocking.
(R. 5—6;
see:
pages
1
and
6 of Exhibit A of the Stipulation).
67-504
—5-
Accordingly,
the proposed settlement agreement provides that
the Respondents admit the violations alleged
in the Complaint and
agree to:
(1) cease and desist from further violations;
(2) dis-
pose of all wastewater generated by their operations
in accor-
dance with the contractual agreement entered into on April
1,
1985 with the City of Ottawa;
(3) notify the Agency
if, for any
reason, the contract with the City of Ottawa
is no longer
in
effect;
(4) promptly restock the Frank Nelson Farm Pond with
specified varieties of fish in accordance with the recommenda-
tions of the Illinois Department of Conservation, and
(5) pay a
stipulated penalty of $3,000.00 into the Environmental Protection
Trust
Fund.
(Stip.
6-9).
In evaluating this enforcement action and proposed settle-
ment agreement,
the Board has taken
into consideration all the
facts and circumstances
in light of the specific criteria delin-
eated
in Section 33(c)
of the Act and finds the settlement agree-
ment acceptable under
35
Ill. Adm.
Code 103.180.
However,
the Board
is concerned
that the 30-day provision
in
the proposed
settlement agreement for restocking the Frank Nelson
Farm Pond would,
if followed literally,
result
in the requisite
fish restocking operations being conducted
in cold winter weather
which might lead to the unnecessary death of fish.
Accordingly,
the Board has inserted
a provision
in item V
of its Order which
states that
“if cold or otherwise inclement weather would make it
likely that such fish would not
be able to
survive,
the
restocking operation shall proceed
at the time recommended by the
Illinois Department of Conservation as most favorable to the
likelihood of fish survival and the previously mentioned 30-day
time limit
shall not be
applicable”.
If the parties believe that this minor language modification
to their initially proposed settlement agreement is reasonable,
appropriate, and acceptable,
they can sign and file
a Certificate
of Acceptance and Agreement to be bound to all terms and
conditions of the Order,
which has been included for their
convenience as item
#10 of the Order.
The Board
finds that the Respondents have violated
35
Ill.
Adm.
Code 304.120(a),
309.102(a),
309.202(a), and 309.203 and
Sections 12(a),
12(b),
12(c), and 12(f)
of the Act.
The Respon-
dents will be ordered to cease and desist from further viola-
tions, to follow the agreed-upon compliance plan,
and to pay a
stipulated penalty of $3,000.00 into the Environmental Protection
Trust Fund.
This
Opinion
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:
67-505
-b-
1.
The Respondents,
A
& R Transport,
Inc. and James
Bedeker, have violated
35 Ill. Adm.
Code 3O4.120(a),
309.102(a),
309.202(a),
and
309.203 and Sections
12(a),
12(b),
12(c),
and
12(f) of the Illinois Environmental
Protection
Act.
2.
The Respondents
shall cease and desist from all further
violations.
3.
The Respondents
shall dispose of all wastewater gener-
ated by their operations
in accordance with the contrac-
tual agreement entered into on April
1,
1985 between the
Respondents and the City of Ottawa,
Illinois.
4.
If,
for any reason,
the agreement between the Respon-
dents and the City of Ottawa
is no longer
in effect or
if,
for any reason,
the City of Ottawa does not accept
any or all of the Respondents’ wastewater,
the Respon-
dents shall promptly notify the Agency and
state
the
manner
in which such wastewater shall be disposed of.
5.
If,
for
any
reason,
the
Respondents
plan
to
resume
the
disposal of wastewater
in the Respondents’
leach
field,
the Respondents shall
first notify the Agency of such
intention
in writing,
no later than 30 days
before dis-
posal in the leach field
is
scheduled
to begin.
6.
As per the specific stipulated agreement between the
parties,
the Agency
is authorized to inspect the Respon-
dents’ premises,
including the leach field,
at any
reasonable time,
and to modify the Respondents’
permit
in any manner tending to encourage compliance with the
Act
and
the
rules
and
regulations
promulgated
thereunder.
7.
Within
30 days of the date of this Order,
the Respon-
dents shall restock the Frank Nelson Farm Pond with
the
following sizes
(in length) and types of fish in accor-
dance with the recommendations of the illinois Depart-
ment of Conservation:
(a)
One hundred fifty
(150) eight
to ten inch channel
catfish;
(b)
One hundred
fifty
(150) five to eight inch large-
mouth bass; and
(c)
Fifteen hundred
(1,500)
three to five inch hybrid
sunfish.
The Respondents agree
that the above-specified
fish will
be
of
sufficiently
high
quality
that
they
are
capable
of
surviving
in
the
pond
under
normal
conditions.
67-506
—7-
If cold or otherwise inclement weather would make it
likely that such
fish would not
be able to survive, the re-
stocking operation shall proceed
at the time recommended by
the Illinois Department of Conservation as most favorable to
the likelihood of fish survival and the previously mentioned
30-day time limit shall not be applicable.
8.
Within
30 days of the date of this Order,
the Respon-
dents
shall, by certified check or money order payable
to the State of Illinois
and designated
for deposit into
the Environmental Protection Trust Fund,
jointly and
severally pay the stipulated penalty of $3,000.00 which
is
to be sent to:
Illinois Environmental Protection Agency
Fiscal
Services
Division
2200
Churchill
Road
Springfield, Illinois
62706
9.
The Respondents
shall comply with all the terms and
conditions of the Stipulation and Proposal for Settle-
ment
filed on August
28,
1985,
as amended by the Board
in
item #7 of this Order, which is
incorporated by
reference as
if fully set forth herein.
10.
Within forty-five days of the date of this Order,
the
parties shall execute and
forward
to Dorothy
M.
Gunn,
Clerk,
Illinois Pollution Control Board,
Suite
11-500,
State of Illinois Center,
100 West Randolph Street,
Chicago,
Illinois 60601 and to Mr. William D. Ingersoll,
Enforcement
Programs, Illinois Environmental Protection
Agency,
2200 Churchill Road,
Springfield,
Illinois
62706,
a Certificate of Acceptance and Agreement
to be
bound to all the
terms and conditions of the Order of
the Illinois Pollution Control Board
in PCB 85-23,
dated
January 23,
1986.
This forty-five day period shall be
held in abeyance for any time period this matter
is
being appealed.
The form of this certificate shall be
as
follows:
CERTIFICATION
I,
(We),
,
hereby
accept and agree
to be bound by all the terms and conditions of
the Order of the Illinois Pollution Control Board
in PCB 85-23,
dated January 23,
1986.
A
& R Transport,
Inc.
James Bedeker
By:
Authorized
Agent
By:
Authorized Agent
67-507
—8-
Title
Title
Date
Date
Illinois
Environmental
Protection
Agency
By:
Authorized
Agent
Title
Date
IT IS SO ORDERED.
Board Member
J. Theodore Meyer concurred.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above
Opinion and Order was
adopted on the
~
day
of
__________________,
1986
by
a
vote
of
-7-0
.
/
Dorothy
M.
G4inn,
Clerk
Illinois
Pollution
Control
Board
67-508