TJ~t~I’I3t3

POLLUTIO~1 CD~T~3L

3)’\~T)

Seotember

5,

~)~3~3

~LI~1Oi’~3

~J’T~t~O~t4EP1T?\L

P’iD.c~C

1’T)’1

(\T~1CY

Complainant,

v.

)

PC3

34-

11

C3R~BELT

FS,

INC.

)

Respondent.

3PI~JtO.~

A~1D ORDER

OF

THE

BOARD

(by

R.

C.

Flemal):

This

matter

comes

before

the

Board

on

a

six—count

complaint

filed

January

24,

1984,

by

the

Illinois

Environmental

Protection

kgency

(“Agency”)

against

Corn

Belt

FS,

Inc.

(“Corn

Be1t”)~

The

complaint

alleges

the

following

violations

by

Corn

Belt:

Count

1:

§12(a)

of

the

Illinois

Environmental

Protection

Act

(“Act”)

(causing

or

threatening

or

allowing

the

discharge of contaminants into

the environment

so

as

to

cause water pollution),

resulting

in the fish kill

of

an estimated 418,038 fish

in the unnamed tributary of

Long

Point

Creek,

Long

Point

Creek,

and

Kickapoo

Creek;

Count

2:

§12(a)

of

the

Act

and

35

ill.

Mm.

Code

306,102(b)

(failure

to take measures

to prevent spillage of

contaminants from causing water pollution),

relating

to

Corn Belt’s ~‘1apella,

Macon, Dewitt, Decatur,

~ioritic,

and Clinton facilities;

Count

3:

§12(a) of

the Act,

35

Ill.

Adm. Code 302.212 (water

quality standards for ammonia nitrogen and un—ionizez9

ammonia)

and

304.105

(prohibiting

any effluent,

alone

or

in combination with other sources, from causing

i

violation of any applicable water quality standar~i);

Count

4:

§12(a)

of the Act,

35

Iii. Adm.

Code 302.203 (r~u~ring

waters of the State to be

free from unnatural

sl.VLie

or

other unnatural matter)

and 304.105;

Count

5:

§12(f)

of the Act (causing, threatening,

or

alIo~iiny

the

discharge

of

any

contaminant

into

the

waters

of

the

State

without

an

~PDES

oermit),

35

Ill.

Mm.

Code

304.141(b)

(prohibiting discharges subject to,

or

which

contribute

or threaten to cause

a violation of,

any

applicable federal

or state water quality standard,

effluent standard, guideline

or other

limitation,

unless limitation for such

a pollutant has been set

65-389

---

—2—

forth

in

an

applicable

~POES

permit)

and

309,1.02

(making

the

discharge

of

any

contaminant

by

any

r~e~

into

the

waters

of

the

State

from

a

point

source

unlawful,

except

~o~:

those

discharges

in

compi jane’

with

the

Act,

3oard

regulations,

The

Clean

~4at’~c

~t,

and

the

orovisions

and

conditions

of

the

P~)~

;~rTui

issued

to

the

discharger);

Thint

6:

§42(c)

of

the

Act

(allowing

recovery,

in

addition

to

the

other

penalties

provided

by

the

Act,

for

the

reasonable

value

of

~he

fish

or

aquatic

life

destroyed

through

violation

of

the

Act),

§S12(a)

and

12(f)

oF

the

Act.

Corn

Belt

owns

and

operates

agricultural

sales

and

servic”

facilities

in

the

central

portion

of

the

State,

including

c.ocations

in

Wapella,

Decatur,

Niantic,

t4acon,

Kenney,

Do

~itt,

and

Clinton.

Respondent

stores

various

liquid

products,

including

28

percent

urea—ammonium

nitrate,

petroleum

prociucLs~

alcohol

and

herbicides

in

storage

tanks

at

various

locations,

including

those

mentioned

above.

Hearing

was

held

in

Clinton,

De

~itt

County,

Illinois

on

3une

4,

1985.

One

member

of

the

general

public

attended

the

hearing.

At

that

time,

a

settlement

agreement

signed

by

both

parties

was

presented.

The

agreement

provides

a

statement

of

facts

which

the

parties agree

represents

a

fair summary

of

the

evidence

which

would

be introduced

if

a

full

hearing

were

held,

The

stipulated

facts

include

the

following.

On

March

9,

1983

1.eaking

occurred

from

two

storage

tanks

at

Corn

Belt’s

~apella

facility.

These

tanks

contained

28

percent

urea—ammonium

nitrate,

and

though

the

facts

are

somewhat

vague

it

appears

approximately

18,000

gallons

of

this

material

escaped

from

the

tanks.

This

effluent

eventually

entered

an

unnamed

tributary

of

song

Point

Creek,

and

later

Long

Point

Creek

itself

and

Kickapoo

Creek.

The

revised

estimate

of

the

fish

kill

resulting

from

this

discharge

is 358,957

fish with

a value of $22,829.43.

Corn Belt

did

not

possess

an

NPD~Spermit

for

the

discharges

from

the

~ape1la

facility

on

March

9,

1983.

The

terms

of

the

settlement

agreement,

in

toto,

are

reproduced

for

reference

purposes

below:

T~Rt~’1S

OF

SETTLEMENT

A.

Corn

Belt

admits

the

violations

as

alleged

in

Counts

I,

III,

IV

and

V

of

the

Complaint.

In

response

to

Count

VI,

Corn

8elt

admits

that

it

caused

the

death

of

an

estimated

358,957

Cis~i

with

a

reasonable

value

of

$22,829.43,

8.

Corn

Belt

does

not

acknowledge

the

applicability

of

35

Ill.

Mm.

Code

§306.102(b)

as

alleged

in

Count

II

of

the

Complaint

but

in

settlement

of

this

action

has

agreed

to

carr

out

the

actions

specified

in

Paragraphs

C,

D,

E,

F,

arid

..

65-390

---

—3—

C.

Corn Belt agrees

to cease

and desist From further

•ol

~.

ens

of

the

i~ct ind

the

Boar

1

:3

regulattons.

fl.

In

erdet

to

prevent

future discharge:; o~spilled

o::

~o:-iknd

materials

into

waters

of

the

3tate,

Corn

Belt aqroo:~

to

instLtute

the

following

measures

at

each of

its facilities:

1~

Corn

Belt

will

continue

its

program

of

regular

inspections

of

its

storage

tanks,

as

described

in

Paragraph

12

of

the

Statement

of

Facts,

at

all

of

its

Facil

ittes;

2.

Corn

Belt

has

installed

new

stainless

steel

fitting::

and

valves

on

each

of

its

storage

tanks

to guard against

valve

failure and

where

it

has

not

already

done

~o

will

install

locks

on

all

valves

on

all

storage

tanks,

pumps,

and

transfer

pipes

in order

to prevent discharges

due

~-o

acts

of

vandalism;

and

3.

InspectLons

on

at

least

a

weekly

basis

of

the

integrit’~

of

spill

containment

structures

such

as

dikes

wil.l

be

conducted~

E.

Corn

Belt

also

agrees

to

carry

out

the

following

measures

at

each

facility

in

addition

to

the

work

already

completed

at

the

~1apella

facility

as

described

in

Paragraph

12

of:

the

Statement

of

Facts:

1.

~apella:

a.

Construct

a berm around

the

loading

area,

in

accordance with

the diagram attached heret:n ~

Exhibit

D,

by June

30, 1985;

b.

Obtain Agency approval prior

to returning

the

plant’s

liquid

storage

pit to service for

containing

chemicals

or

wastewater;

and

c.

If

the

plant’s

Emergency

and

Response

Planning

document

has

not

been

revised

to

reflect

the

installation

of

the

new

containment

area

arid

otner

modifications,

these

revisions

should

be

made

and

filed

with

the

Agency

and

appropriate

local

agencies

including

the

local

emergency

response

authority

and

the

local

fire

department

within

21

:iavs

from

trir~

date

the

Board

approves

the

settlement

agroenent.

2.

Decatur

a.

Renovate

and

enlarge

the

existi~c~ dt~c

to

ted

edo

a?).

fertilizer

and

herbicide

tanks

and

anscointed

pumping

facilities

pursuant

to

plans

reviewed

and

approved

by

the

Agency

by

June

3O~~

1935;

and

65-39 1

---

h.

Provide

wastewater

collection

acil

itie

For

the

loading/unloading

area( s)

pursuant

to

ci

.irr~ u’v

i

and

aop:oved

by

the

Aqency

by

Juan

:10,

1.505.

3.

Hacon:

a.

Relocate

all

fertilizer

and

chemical

sto~aqe

t~nkn

and

associated

pumping

facilities

within

a

diko

at

another portion of

the

plant

pui:suant:

to

plans

rev..

~wed

and approved

by

the

Agency

by

5e’~rt

sOor

l913S;

and

b.

Provide wastewater collection facilities

for

the

loading/unloading area(s)

pursuant

to

plans

roviOwc?d

arid

approved

by

the

Agency

by

~opternbe

c

30,

1

986..

4.

l’liantic:

a.

Enclose

all

fertilizer

and

chene~cal

storage

tanks

and

associated

pumping

facilities

within

a

containment

dike

pursuant

to

plans

reviewed

arid

approved

by

the Agency by September 30,

1987;

and

b.

Provide wastewater collection facilities

~ar the

loading/unloading area(s) pursuant to plans

and

approved

by

the

Agency by

3optemoc.~

30,

1987,

Kenney:

a.

Construct

a

two--foot

berm

to

the

north

eF

existing

fertilizer

tanks

to

prevent

spills

From

reaching

the

adjacent

farmland

oursuant,

to

elms

reviewed

arid

approved

by

the

Agency

by

Juno

~f),

1988.

F.

In

the

event

a

spill

does

occur

or

in

the

evei~

~~ater

collected

inside

a

containment

area

must

he

removed,

it

will

ho

applied

to

agricultural

land

at

rat.es

not

to

eicceed

aqr~nomtc

rates

for

fertilizer

materials

or

labeled

rates

for

ceoIstered

pesticides

so

as

to

avoid

water

pollution

or

discharges

t:,)

~at.:~rs

of

the

State.

S.

~o fertilizer or chemica.

storage

tanks

ars

to

be

added

at any site unless

the tanks

are placed within

Agerc y-

.aoprcved

containment

diking

and

addition

of

the

tanks

would

not.

:o±:co

the

capacity

of

such

(liking

below

the

point

where

‘t

can:..:

i:air

the

volume

of

the

larqeso

tank

plus

10

of

the

volu~eo

n.

toe

remaining

tanks.

F-I.

Corn

Belt

agrees

to

pai

a

osnalty

in

the

arra:ot

Thousand

Dollar::

($6, 000~00

)

to

the

~rivironisee:.al

Pe::o:,

t.~or

Trust

Fund

in

to!

~e

installments

of

fwo

Thousa~’td 5ol.~:.a:

($2,000.00).

To

first

!nstellc•:~nr

;fll

he

..::;.8

i

months

of

the

i:~suance

of

bra:

0a~

~

JS’~

~.

.0C

I

settlement,

the

second

installment:.

-it, bin

cve~.

:.~e ‘son’:.,

:

::bo:n :t~

---

and

the final

installment within eighteen months thereof.

‘The

parties agree that the payment Six Thousand Dollars

($6,000.00)

into

the Environmental Protection Trust Fund will aid

in the

enforcement of the Act.

I,

In

settlement

of

Count VI Corn Belt agrees

to pay the

sum of $22,829.43

into the Wildlife and Fish Fund of the

.State

Treasury for causing the death of fish and aquatic

life.

The

parties agree

that the sum of $22,829~43,as calculated

in the

revised fish kill survey (Exhibit A),

represents

the

reasonable

value of

the fish and aquatic life killed by the spill of 28(N)

by Corn Belt.

Corn

Belt will pay this amount within

30 days

of

issuance of the Board’s Order

accepting this settlements

~eo

tance of the St~t

ion

The

Board

has

statutory

authority to accept settlement

agreements

which

require payment of penalties and impose

compliance

conditions

if such agreements contain admissions

of

violations

of

the

Act and/or Board

rules.

In some recent Orders,

the

Board

in

divided

decisions

has

rejected

settlements

in

which

the payment of penalties

and

imposition

of

compliance

conditions

were

stipulated,

but

in

which

no

violations

of either

the Act

or

Board

rules

was

admitted,

See

Illinois

Environmental

Protection

A~encyv.Chemetco,Inc., PCB 83-2, interlocu~~~al

docketed,

No.

5—85—0143

(Illinois Appellate Court, Fifth

District,

February

20,

1985)

and

P~v~j~rcherDanielsMidland

Corporation,

PCB83—226, !~!rl22ut2~ao~ldoc,~eted,

~los.3—85—

0222 and

3—85—0224

(Illinois Appellate Court,

Third District.,

June

21,

1985),

Acceptance of this stipulation and settlement agreement does

not involve

the question of whether the Board has statutory

authority to do so, however, because

at least

in this instance

it

clearly does.

For every penalty and compliance condition imposed

on Corn Belt

by

this agreement,

there

is

a

corresponding

admission

by

the

Respondent

of

violation

of

the

Act

and/or

Board

rules.

Paragraph A of

the ‘~Terms of Settlement”

section

of

the

settlement agreement

(p.

8)

contains Corn Belt’s admissions of

all violations alleged

in Counts

I,

III,

IV and V of

the Agency’s

complaint.

The

Board

finds acceptable

the stipulated payment of

a $6,000 penalty

to

the

Environmental

Protection

Trust

Fund

as

a

result of

the commission of

any or all of those violations.

The language of

the

agreement

is

not

as

clear

regarding

admissions

of

violations

to support the compliance conditions

and

penalty

relating

to

Counts

II and VI,

respectively.

The

ambiguity

of

the document causes

the Board

to look to the

manifest

intent

of

the

parties

as

expressed

by

the

character

of

the

agreement

itself.

Through such an analysis the Board

is able

to find that the necessary admissions are impliedly made

in the

settlement agreement,

and

thus the Board

is able to accept

these

portions of the settlement agreement as

well,

65-393

---

—6~-

The

‘~nn9~iance

.,nncU.ttnns

contained

in

the

netti

?:flIU’

•

~r~n-ient

&rv)t”fl

a

!fl’nhet of preventive measure:;

t•.

I;~’

nI~nnnte’i at

five

of

ie’~o’~c1ont~s

factltties.

1’itns.~

~;“~‘*n.

~y

the

terms

of

the

ngrseinent,

~te

Ant.

~

to

-

~

fl

!is::i~:’i

disc~tn~’jon

‘.f

spitie.

•r

toa~e’J:oal. -rzai.

~•i

I.

•:nnitttow3

•~orrespondto

Count

It

of

the

Mjoncy’o

c~ssnp1.~inI.

which

a~1n~n1

‘;iolatl.nns

of

512(n)

~f

the

Act

and

35

Lk.

i~1’t.

~:n’efl6.l’fl(5)

at

‘thei~e !ac&lities.

ta

paragraph

~

‘~(

th~

:1l;)cm.3

n~

3ettlaront”

Corn

3eit

specifically

deni’is

the

:t~)fl1~-Ptfll

t”

of

1fl6.1fl2i’)

as

attego~

tn

Cowtt

IL

hut-

a~r~’

~arr”

rn’:

thn

coi’t~tiance ‘~onciitions.

fle.Lthec

paraj:a~.h

:j,

:•~~

jnv

l41V3t ,a~agcn~

of the

“-?or~sof

~ettlc1nentK,

~

flel’’s pnn’.tinn ~n response

to the

)~goncy’nalIcg-s~tousLu

.nit.t:.

.~

n~

51-2(a)

;Ttolmtians

at

Respondent’s

aforementio’icCi

~

v:.

torn Bolt does, ‘~n~-nuer,admit to violations of 511n)

5:

;:t:

nants~tnnof the

5.L2(a)

vtolations

containeJ

IA

CounK.

f,

,;

~

~

the

con’

liance coniLttonn agreel to by

Cni”

?‘Li

•e

•~t3nrLv1nte’~4eñto

alleviate

§12(a)

violations,

the

U;i:~.

I

~~qoontje~t’s

other

admissions

of

51.2(a) viotattorm

~

suppoct

the

compliance

conditions

contained

in

the

rjtti-’~x’

agreement.

In

making

such

a

finding

the

Boari

is

in

no

pa-i

ruling

on

the

applicability

of

306.102(b)

to

aesp:~n.ienvs

activities at issue

in this case.

Count VI of the Agency’s complaint asks

for

-a $38,860.

1.

penalty pursuant to 542(c) of the Act for the value

‘it

(La:i

killed as a result of the March 9, 1983 discharje

in

viol:sctnu

§512(a) and 12(f) of the Act.

This

sum

was

derived

from

tht?

kill survey conducted by the Illinois De9artmont of

ionflz~cV~

;-:

on ~tarch12, 1933, which ostimated that 418,033

ftsh had

hecen

killed.

This figure was later revised

to 358,951 fish

kilJ’ti.

with a value of $22,829.43,

and this amount is tho one found

the settlement agreement.

The Board suspects that tho

~

in the estimated number of fish killed is rosponsibla far

t.~uf

settlement agreement’s failure to state outright that

~otr

:;o!.

admits to the violations alleged in Count Vt.

This shocL.i;.’n~..~

notwithstanding, a plain readin3 of paragraph

1 of the

“rn-

Settlement” shows that Corn Belt is here admitting

to the

applicability of 542(c).

The first sentence of that

2a”~tr

~‘t

reads ‘In settlement of Count VI Corn Bolt a~roesto :“w

~

~

of $22,829.43

into the Wildlife and Fish Fund of the St:st’

Vreasury for causing the death of fish and w-p;atic

jfn~

flu:

is precisely the remedy provided by 542(c),

‘ntich

macis

the

:‘~‘

to conclude that Respondent is in fact consenting

application of that section to the present case.

admitted to violations of these sections through its a&tiztt&au--

to

the violations as alleged in Counts I,

III, IV and

V,

Therefore,

‘roposal for Settlement as submitted by the Agency and t-’r:-

85-394

---

—7—

ORDER

The

Illinois

Pollution Control Board hereby orders

that

the

~pondent

fully

comply

with

the

Stipulation

and

Proposal

for

Settlement

introduced

at

hearing

on

this

matter

on

3une

4,

1985,

the

terms

of

such

agreement

being

reproduced

on

pages

2—5

herein.

IT

IS

SO ORO~RED.

3.

Theodore Meyer

concurring,

and Joan Anderson, Bill

F’orcade,

and

John

Marlin

dissenting.

I,

Dorothy

~

Gunn,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby

certify

that

theçabove

Order

was

adopted

on

the

_______________

day

of

~

,

1985,

by

a

vote

-

i/.

~3

/

~2),

~

Dorothy

M. dunn, Clerk

Illinois Pollution Control Board

65-395