ILLINOIS POLLUTON CONTROL BOARD

November 7, 1985

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

PCB 80—151

ARCHER DANIELS MIDLAND,

)

a Delaware Corporation,

)

Respondent.

ORDER OF THE BOARD (by 3. Theodore Meyer):

This matter comes before the Board on remand from the Fourth

District Appellate Court ci a $40,000 penalty imposed by the

Board against Archer Daniels Midland (“ADM”), Archer Daniels

Midland v. Illinois Pollution Control Board, 456 N.E,2d 914 (Ill.

App. Ct. 1983), The court sustained the Board’s finding that ADM

was in violation of certain provisions of the Environmental

Protection Act (“Act’~) hut vacated the penalty and remanded it to

the Board for further determination.~ By order of November 8,

1984 the Board established a briefing schedule regarding the

penalty issue which contemplated final briefs by January 22,

1985. The parties, however, tiled a Stipulation of Penalty on

September 23, 1985 which requested that the Board accept ADM’S

penalty offer of $15,000.00. The Illinois Environmental

Protection Agency (“Agency”) represented that this amount would

serve to enhance enforcement of the Act.

The facts giving rise to the Agency’s complaint in this

matter and the Board~s findings are amply set forth in the

Board’s previous opinion and order in this matter of March 24,

1983. Briefly, the complaint consisted of seven counts which all

concerned ADM’s discharge of contaminated storm water. The

violating facility is a soybean extraction plant, corn germ

extraction plant, and a vegetable oil refinery located in

Decatur, Illinois, The stormwater becomes contaminated when rain

flushes spilled grain and grain products into the stormwater

collection system. ADM retains as much of the initial storm—

water as capacity will allow which is subsequently discharged to

a waste water treatment system. However, on various occasions

overflows and bypasses of the retention system have occurred

68~267

---

which resulted

in contaminated discharges to a small stream.

This stream has

been dammed to create the Homewood Fishing

Club

Lake around

which approximately 16 residences have been

erected. From the

fishing club lake, the water eventually flows

into Lake Decatur, a

municipal reservoir. The stormwater

bypasses were found

to violate the Board~srules and the Act as

enumerated by

the Agency. A $40.000 fine was imposed.

ADM

appealed

the finding of violation and the penalty

imposed. The

Fourth District upheld the Board~s finding of

violation but

vacated and remanded the penalty for

redetermination,

The Court found that the evidence was

insufficient

to support the imposition of a $40,000 penalty

because it was

arrived at based on an Agency formula which was

“so complex that

the Agency~sexpert could not explain

it.”

456 N.E.2d at 919~

In addition, the expert failed to present

the

data upon which

the calculations were performed. Accordingly,

the penalty was

remanded to the Board with instructions to

determine whether

any penalty was justified and if so, to

calculate

it in conformity with the court~s opinion.

Although ADM denies that under the facts and circumstances

of this case that

any penalty is proper, the parties,

in order to

end further

litigation, request that the Board accept

ADM’s

penalty offer.

(Stip. at l~2). The Board,

however, disagrees

with the Agency’s

assertion that this sum will

serve to enhance

enforcement of the Act,

and hereby rejects

the Stipulation of

Penalty. Many

considerations are relevant in

arriving at a

penalty amount. These

include: the nature of

the violation, the

violator’s efforts

to rectify th~problem, the environmental

harm

caused, as

well as the economic situation of the violator. The

penalty stipulated

to herein is inadequate to address these

considerations

under the facts of this case.

The Board points

out that the

$40,000 penalty assessed initially

by

the

Board was

not rejected as

excessive but merely as based

on an inadequate

foundation.

The Board is of the opinion

that a substantially

higher penalty

than $15,000 is supported

by

the

record given the

continuing

nature of ADM~sviolations and the

serious

environmental

consequences. Accordingly,

the Board orders that :

1. A hearing to address the appropriate

penalty shall be scheduled within 30 and held

within 60 days of the date of this order.

2. The Agency shall submit a brief regarding

the penalty issue within 30 days of hearing;

ADM

shall file a Reply Brief 30 days

thereafter and the Agency shall file any

Rebuttal brief within 14 days after that.

86~268

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IT

IS SO ORDERED,

3. D. Dumelle and R.

Flemal dissented.

I, Dorothy M. Gunn,

Clerk of the Illinois

Pollution Control

Board, hereby certify that

the above Order

was adopted on

the

?~-~-

day of

~

1985, by a vote

of -~2

2~2_~t~4

~

Dorothy

H, G~mn, Clerk

Illinois Pollution