ILLINOIS POLLUTION CONTROL BOARD
March 24, 1983
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Complainant,
v.
)
PCB 80—151
ARCHER DANIELS MIDLAND,
a
Delaware Corporation,
Respondent.
MR. VINCENT W.
MORETH AND MR. BRUCE L. CARLSON, ASSISTANT
ATTORNEYS GENERAL, APPEARED ON BEHALF OF THE ENVIRONMENTAL
PROTECTION AGENCY;
MR. WAYNE
L. BICKES AND MR. DAVID SMITH, ATTORNEYS AT LAW,
APPEARED ON BEHALF OF ARCHER DANIELS MIDLAND.
OPINION AND ORDER OF THE BOARD
(by J.D. Dumelle):
This matter comes before the Board upon an August
8,
1980
Complaint filed by the Illinois Environmental Protection Agency
(Agency) alleging that Archer Daniels Midland
(ADM) has violated
the Illinois Environmental Protection Act
(Act)
and various
provisions of
35
Ill.
Adm.
Code,
Subtitle
C:
Water Pollution
(old Chapter
3 of the Board’s rules).
An amended complaint was
filed on February 6,
1981,
a second amended complaint was filed
on October
9,
1981, and a third amended complaint was filed
January 19,
1982.
All amendments were allowed.
Seven days
of hearing were held from January 27,
1982 through February
9,
1982 at which both parties and members of the public appearec~
and testified.
Archer Daniels Midland
(ADM)
owns and operates
a facility
located on the southwest corner of Faries Parkway and Brush
College in the northeast quadrant of the City of Decatur.
The facility is a soybean extraction plant,
a corn germ (extraction
plant and a vegetable oil refinery.
It occupies approximately
25 acres and is equipped with elevators containing approximately
100 concrete reinforced grain tanks which are approximately 125
feet tall with facilities for loading in and out grain and refined
products by both rail and truck.
The Homewood Fishing Club Lake
is a small,
shallow body of
water created by damming up an unnamed tributary which drains
the area to its north,
including the ADM plant.
It is approximately
two to two and one—half acres in size and overflows into Lake
Decatur.
51-325
—2—
The area affected is primarily the Homewood Fishing Club
property.
Homewood Fishing Club is a corporation which owns some
acreage immediately beside
its lake and includes a total of
seventeen homes.
There are approximately thirty residents living
on Club property.
The ADM west plant was built in the 1920’s by the Shell—
abarger Grain Company and has been operated as a grain milling
and processing plant ever since,
Sometime later the plant was
acquired by Spencer Kellogg and finally ADM acquired the plant
in 1952,
In 1971 the company built two tanks, each having a capacity
of 180,000 to 200,000 gallons.
Initially,
one tank was used for
waste water processing and the second tank was designed to be
used as a clarifier,
This was to clarify surface storm water
which had been pumped into it from the storm water sewers.
In
1976 the method of handling surface water was changed to a
“first flush” concept.
The plant has a substantial system of storm water sewers which
holds 300,000 gallons of rainwater in and of itself,
In addition
to
that,
a portion of the plant is on a separate system which channels
all free water into the process water system.
As rainwater starts filling up the storm sewers, two
5,000 gallon per minute pumps are activated and the initial
rainwater run-off is then pumped into the holding tank.
As
the holding tank fills,
a portion of that water is pumped into
the waste water tank,
The concept is that the first one inch
of rain washes the plant down and the contaminated rainwater
is then pumped into the holding tank which is not discharged
into the tributary.
However, if the rain continues,
there is
a discharge into the tributary.
The Complaint consists of seven counts:
Count
I charges
ADM with effluent and water quality violations in that it
discharged effluent from its plant which contained bean oil and
other contaminants in sufficient quantities
to cause th?~
dissolved oxygen level in the tributary to the Homewood Fishing
Club Lake (Lake) and the Lake itself to be less than five
milligrams per liter
(mg/l).
Count II charges ADM with additional
effluent and water quality violations through the discharge of
effluent which contained settleable solids,
floating debris,
visible oil and a noticeable color and odor into the tributary,
thereby causing it and the Lake to become contaminated,
Count III charges that ADM violated its NPDES Permit by allowing
contaminated storm water containing sludge,
floating debris,
visible oil and color and an unnatural odor to be discharged
into the unnamed tributary causing
it and the Lake to become
contaminated with unnatural sludge and bottom deposits, floating
debris, visible oil and color and to emit an unnatural odor.
Count IV charges that ADM allowed the storm water clarifier at
its plant to discharge effluent into the unnamed tributary con-
taining,
inter alia, deoxygenating wastes in such quantity and
51-326
‘-3
*
concentrations as to cause the dissolved oxygen level of the
Lake to be reduced to 0.0 mg/i thereby killing 4,336 fish worth
an estimated value of $1,008.04,
Count V charges that ADM violated
its
NPDES
Permit by discharging effluent which had BOD~,
suspended
solids,
oil and grease in excess of permit limits,
Count VI and
VII charge
ADM
with additional effluent and water quality violations
for BODr~suspended solids,
oil~
floating debris, grease and
obvious~turbidity.
ADM does not seriously contest the Agency’s allegations;
it contends that the majority of the violations were “accidental,”
that other sources contribute to the pollution of the tributary
and
Lake,
and that there is no viable solution to the problem.
COUNT
I
Regarding Count I, Mr. George
T. Bachman,
a field
environmental
engineer with the Agency, testified that on July 20,
1975, he
received a call from Mr.
Ed Lloyd,
an employee of ADM, who
informed him that Mrs.
Trueblood,
who lives next to the headwall
of ADM’s
discharge, had called ADM and complained of odors coming
from the stream that runs behind her house.
Mr.
Lloyd stated that
due to a 2½”
to
3” rainfall,
ADM’S storm water clarifier had
been overflowing
for several hours
(R.
356),
and that samples of
this overflow material were being collected and sample results
would be furnished.
(See Compl.
Ex.
67).
Mr. Bachman also collected his own water samples from the
tributary and from the Lake itself,
These sample results showed
the dissolved oxygen level of the Lake to be 0,0 mg/l and the
dissolved oxygen of the tributary to be
1.2 mg/i.
Further, based
on BOD5 and TSS analyses,
the population equivalent of the discharge
was 52,500
(R. 378).
In 1974 prior to the July
20th
discharge,
Mr.
Bachman
had
done a dye test demonstrating that ADM’s storm water “clarifier”
did in fact outlet behind Mrs. Trueblood’s house
(R.
378),
a fact
ADM has known since that time
(R.
378),
Mr. Rodney Homer,
a fish pathologist for the Illinois
Department of Conservation, also testified that the dissolved
oxygen
level
of
the
Lake,
when
tested
in
July
of
1975,
was
0.0
mg/i of oxygen.
He further testified that
during
the course of
conducting
his fish kill count he found dead fish that were
windrowed in an oily scum that looked like bean debris and
soybean sludge
CR.
264),
Mr. Homer
was
familiar with this type
of material
in that he had
at some time earlier inspected a
similar type of grain processing company that discharged bean
oil and residue into a nearby waterway and observed this discharge
(R.
265),
When asked what effect the bean oil and bean sludge
would have on the dissolved
oxygen
level of the Lake,
he
replied
that “bean dust oil
sludge combination, when in water,
would
provide an excellent bacterial culture medium,
And it’s the
51-327
bacteria
utilizing this stuff as
food that takes the oxygen
out
of
the water, utilizing the oxygen in their metabolism”
(R.
265).
Mr. Richard Ryczek,
a project engineer in the Environmental
and Energy Control group of General Motors Corporation and a former
Agency Environmental Engineer, testified that on June
22,
1978,
he
was called to investigate another fish kill at the Lake,
When he
arrived he observed an oil slick floating
on
the surface
of
the
Lake and
an
oily residue similar to bean oil along the high water
mark of the tributary
CR. 91—92).
During the course of his
investigation and while he was inspecting ADM’s storm water
holding tank (formerly referred to as
a clarifier),
he observed
material remaining in the tank that was covered with an oily
substance
very
similar
in appearance to what he had previously
observed by the stream
(R. 94)~ This material was also character-
ized by Mr. Ryczek as being similar to bean oil
(R,
920).
ADM does not deny that on June
20, 1978,
June
30,
1978
and
July
1,
1978 they discharged contaminated storm water from their
plant.
(See Compi.
Ex. 24),
On July 28,
1979 another fish kill
occurred
at
the
Lake.
ADM
called
Mm,
Leonard Bridges, an Environmental Protection
Specialist
with the Agency, to inform
him
that
an
estimated
800,000 gallons of contaminated storm
water
had
overflowed
their
tank
(R.
161),
Mr. Bridges was told by Mr. Mayfield, an ADM
employee, that approximately 10 to 12 barrels of bean oil
had been discharged along
with 800,000
gallons of contaminated
storm water
CR. 170).
The presence of bean oil was confirmed
by laboratory analyses of samples collected by Mr. Bridges at
the lake and the stream.
(See Compi.
Group
Ex.
73),
Further,
analysis of the lake waters,
as evidenced by Compi.
Ex’s.
33,
34,
35 and 36, revealed 0.0 rn/I dissolved oxygen.
COUNT II
Regarding Count
Ii,
Mrs. Trueblood testified that the water
in the tributary which runs
behind
her house becomes black and
contains
slimy looking deposits
just
about
every
time after it
rains and that several times
21DM sent a clean—up crew to sweep
the
black slimy deposits off the
edges
of the banks
so they would flow
down
the
stream
(R.
537—538).
She
also
testified
that
21DM
once
discharged something that was so bad she called
the
police
(R.
538).
The
smell
was
characteristic
of lye and
the
fumes
were
so
heavy
and thick that they permeated
her
house and made her
gag
(R.
538).
Mr. Ryczek testified that
on June 22,
1978,
a short
time
after
ADM’s discharge, he noticed the water in the Lake had
an
unnatural
yellowish-green
color and gave
off a
musty unnatural odor
CR.
90).
He
went
on to testify that he
observed
an oily substance floating
on the north end of the Lake
CR.
91),
An inspection of the
tributary revealed that along the high
water
mark there
was
an
oily residue similar to bean oil
and
similar
to
what
he
saw
in
tb
storm water holding tank at
21DM
(R.
94).
—5—
Letters
from
ADM
to
the
Agency
show
that
on
July
3
and
July
19
of
1976
(Compl.
Ex.
2), January
11
(
Compl
Ex.
3),
May
4,
5
and
6
of
1977
(Compl.
Ex,
4),
and
June
10
(Compl.
Ex.
5),
June
30
and
July
1
of 1978
(Compl.
Ex. 24),
ADM allowed discharges of contaminated
storm water from their holding tank to occur.
Each letter was
sent
by
ADM
notifying
the
Agency
of
a
bypass
(as
required
by
its
NPDES
Permit).
Mr.
Robert
Hunter,
a
homeowner
on
the
Lake
and
professional
pilot,
testified
that
on
June
20,
1978
while
he
was
on
a
pleasure
flight
over
Lake
Decatur
he
noticed
an
oil
slick
out
in
the
lake
(R.
509),
He
followed
the
slick
in
an
attempt
to
determine
where
it
was
coming
from
and
determined
that
it
originated
at
the
spillway
where
the
Lake
spills
over
into
Lake
Decatur.
Once
he
landed,
he
went
to
the
Lake
and
traced
the
oil
all
the
way
up
to
the
headwall
behind
Mrs.
Trueblood’s
house
(R.
513).
At
the
headwall
he
determined
that
the
oil
was
being
discharged
from
ADM’s
outlet.
The
lab
sheets
for
the
material
discharged
on
the
dates
of
alleged
violations
reveal
it
contained
high
concentrations
for
BOD
,
suspended
solids
and
oils
(Compl.
Ex’s.
39,
40,
41
and
42).
Com~l. Ex.
39,
a
lab
analysis
sheet
for
a
sample
collected
by
Mr.
Bridges
from
behind
Mrs.
Trueblood’s
house
shows
11,900
mg/l
BOD5,
870
mg/l
suspended
solids
and
3020
mg/i
oil.
Compl.
Ex.
40,
the
analysis
sheet
for
the
sample
collected
from
behind
Mrs.
Hudson’s house,
shows 7130 mg/i BOD
,
4000
mg/l
suspended
solids,
1740
mg/i
oil,
and
0.3
mg/l
disJlved
oxygen.
Compl.
Ex.
41,
the
lab
sheet
for
the
sample
collected
from
the
area
near
the
clarifier,
shows
54,000
mg/l
suspended
solids,
11,600
mg/i
oil
and
62
BOD5.
COUNT
III
Count
III
of
the
Complaint
charges
that
ADM
discharged
contaminated
storm
water
from
its
plant
in
violation
of
its
NPDES
Permit
No.
IL
0038113
issued
July
1,
1977
which
disallowed
the
discharge
of
process
flow
or
pollutants
of
process
or
raw
materials
from
the
material
handling
areas
within
ADM’s
plant
(Compi.
Ex.
1).
Similarly,
the
renewed
NPDES
Permit
issued
June 18,
1980 and effective July 18,
1980 provided that the
discharge be “limited to storm water,
free from process and other
waste water discharges”
(Compl.
Ex. 72).
ADM’s
Discharge
Monitoring
Reports
(DMR’s)
for
the
it~onths
of August
(Compl.
Ex,
9),
and
September
(Compi.
Ex.
10)
of
1980,
and April
(Compl.
Ex. 17), May (Compi.
Ex.
18), July (Conipl.
Ex.
20),
August
(Compl.
Ex.
21),
and
September
(Compl.
Ex.
22)
of
1981,
show
that
21DM
discharged
effluent
which,
based
on
composite
samples,
contained
high
levels
of
BOD5
and
suspended
solids,
in
violation
of
these
permit
provisions.
Further,
the
testimony
of
Mr.
Foley
51-329
—6—
contains an admission that the first flush concept, utilized since
1975,
is ineffective and storm water contaminated with oil and
waste by~~productsis still being discharged and will continue
to be discharged
(R. 602),
During April of 1981,
180,000 gallons
were discharged with an average of 116 mg/i oil and grease.
In August of 1981, 1,193,265 gallons of contaminated storm
water
was discharged with an average of 84.5 mg/i and a maximum of 184 mg/i
of oil and grease.
Thus,
the Agency has established a prima facie case that on
June 20,
1978, June
30, 1978, July
1,
1978, January
7,
1979,
July 28, 1979 and June 26,
1981 ADM has violated the provision
of its permit by discharging storm water that was not free from
process and other waste.
COUNTS IV
-
VII
Count IV charges that on July 28, 1979 ADM discharged effluent
from its plant into the tributary and the Lake which contained
deoxygenating waste which caused the dissolved oxygen level of
the Lake to be 0.0 mg/i.
As a result,
it is alleged that
4336
fish died valued at $1,008.04.
Mr. Donald W.
Dufford’s report entitled “Report of Pollution
Caused Fish Kill Investigations of Homewood Fishin9 Club Lake in
Macon County on July 28, 1979” was admitted into evidence as
Compl.
Ex.
66.
21DM has presented no evidence to refute or challenge
the accuracy of Mr. Dufford’s report which states that the pollution
was so great that it killed off even the hardiest species of
fish, black bullheads, which can survive on one part per million
or less of dissolved oxygen.
The value of the fish kill was
established to be $1008.04
(R304’-308)~.
Count V of the Complaint charges that ADM violated its NPDES
Permit by discharging effluent from its plant in violation of
permit limits for BOD~,suspended solids,
and oil and grease.
ADM’s DMR’s demonstrate
these violations
(Compl.
Ex,
8 through 22).
The accuracy of these reports has not been questioned.
Counts VI and VII both are related
to
the
June
26,
1981
discharge.
The lab analyses of the material discharged show
that this material was highly polluted, containing heavy
concentrations of oils,
solids and biochemical oxygen
demanding material
(
Compl.
Ex’s,
39—42 and 74),
While not contesting that the
Agency
has
met
its
burden
of proof in establishing violations, ADM contends that there
is no solution to the problem under present technology, essentially
arguing that compliance would impose an arbitrary or unreasonable
hardship.
This argument goes to the penalty to be imposed,
rather than to a finding of
violation.
Therefore,
the
Board
finds
that ADM has violated those
Board
rules
and
those
Sections
of
the Act as alleged in the Agency’s third amended complaint.
51-330
PENALTY
In determining what penalty,
if any, should be imposed to
aid in the enforcement of the Act, the Board must consider the
factors listed in Section 33(c) of the Act,
Section 33(c)(i) concerns the character and degree of injury
to the property and general health and welfare of the people.
In
this regard,
21DM points out that no toxic materials were discharged,
that only about thirty people were affected by the discharges,
and
that property values have not been demonstrated to be adversely
affected.
It is doubtful that those people living on the Lake find
much
consolation in the fact that the fish kill resulted from depleted
dissolved oxygen levels rather than from poisoning.
However,
at least
human contact with the water would not be dangerous.
On the other
hand, the witnesses testified that they would rarely come into
contact with the Lake or the tributary in any case because the
waters were often foul smelling, murky, discolored and oily.
Thus, ADM~sargument that no toxics were discharged merely stands
for the proposition that the discharges were not as bad as they
might have been,
The argument that only about thirty people were affected
is neither particularly true nor mitigating.
By saying that
thirty
people were affected,
21DM admits that everyone on the Lake was
affected, and while the only area residents who testified lived
on the Lake, those people do not completely define the entire
affected class,
The evidence demonstrates that the Lake
overflows to Lake Decatur.
If the Lake
is polluted, that pollution
will be conveyed to Lake Decatur which is a public water supply
and recreation area,
As noted above, at least one oil
slick
was viewed on Lake Decatur which reached there over the spillway.
Thus, the class of affected people becomes much larger.
The question of depreciation of property values is not as
clear as it could be,
There was no expert testimony presented
(and few facts on which to base a quantitative judgment) as to
the
effect the pollution had on property values,
However, all of the
resident witnesses indicated at least a feeling that they were
being deprived of an anticipated asset
(the Lake) or th~t
they would not be able to receive the anticipated value for
their
homes upon sale,
Thus, regardless of the actual increase or
decrease in their property values, their perception is that the
value has decreased, indicating that enjoyment of their property
has been impaired.
Of particular note
in determining the extent of interference
is the testimony of the residents,
Robert Hunter testified that
since the summer of 1975, the Lake has changed from “a pretty,
51-331
nice,
fa rly c
t
vi acceptable lake to a little short of
sewer
ondi
‘oi
R
510), and that he has not been able to use
it fo
r- r~a~io
a
pu~posesfor “probably ten years”
(R.
513).
E~ y~
b
o
testified that after
a heavy rain there
woul
n
b
v.~’c
~liniylooking deposit’
on the banks
of th~
t’
i~
~id that. one morning “fumes were so thick in
her
~i
~.e
I
‘.
nv~deher gag
R.
~38),
She said it smelled
like
~yc
a
a
r butiry “was discolored,
sort of a thick
looki
g
flos~
“
vi th t she ~as forced to stay inside
(R.
539).
She
~urt~r t~’~ifisdthat it was enjoyable to live on the
tributary ~rto
to 19
5,
but that thereafter
“it ~iasa common
thing’
to b~
~o
mit the use of her back yard
(H.
541),
B rrie Huison, who has lived along
the tributary for twenty-
eight years
ta’~ifred. that she purchased the house because
“the backyard ~ia~’
jike a park’
with a “clear water” creek and
minnows
but ~.hat~
in the last twelve years “the water began to
get cloudy’
ani c used smells
CR.
546 and 549),
She also noted
that t~mcedurrrg 197$ her garden was flooded and that both times
she had to wash down her plants because they became “coated
with an oi y tan film” which was similar to vegetable oil”
(H,
548),
Or
several occasions she has observed the tributary’s
flow change co 0’s
H. 547~553),
Susan Foo~tztestified that she and her husband bought
their lousa on the Lake because they “fell in love with the
surrouvimnos
bu~that they cannot sell their home today “with
the
m e
0’
r~t’onal
vnluu
aestletic value,
or any of those
thina
‘
a
p
lute
the
ake
ku
s thousands of fish”
and t~e
arch
I
keep you in the ~aousefor weeks
CR,
469—470),
She also testified tlat the Lake “ferments
like a vat of beer”
and thit
oak rg
t..~ ~ii~’h
fish and frogs only results in finding
“them be iy up s~em
ai’ oil bath by ADM”
(R,
471)
In 1975
she won d not
II w her children to swim in the Lake, and in 1978
she could
~oL use har back yard as often as she wished because
of the smell
CR
481~483), Although she purchased her house in
1971 for $12,c
ard it is currently valued at $50,000
CR.
474),
she has made ~n undis losed number of improvements and she considers
its locati
r..
n
ha Lake to be a liability
(H.
482),
Tom Tarvin
also testified
tI
t tIe Lake location was not an asset
CR,
1235),
as did GeorgE. ~ibbons (R
1244),
James Ryan also testified that
the Lake ‘looks Jike a beer vat,
bubbles on a quiet day”
(R.
124J)
A)so
f rote
s that all of the residents testified that
conditions in the Lake Interfered with their enjoyment of their
property.
ron~cane forwsrd with any evidence to the contrary.
They also agreed that prior to the middle seventies the Lake
had been an
as ~t,
‘II
Ic adr
t inc that
it
~s not
a defense to the Agency’s
chargec
ACM cor en
s that sources other than
21DM have contributed
to the poor condition of the Lake,
It argues initially that
by
the very na’~’reof the Lake, any materials that are washed
into the La
..e and
s
tie to the bottoir can never escape.
51-332
—9—
e~, an
Agency witness,
testified regarding
vario
w
of the Lake.
He
stated
that they showed
piec~
-
cks, grass, plastic bottles and other
materials.
He
a
ter
that
he
had
seen
a
railroad
car
spill
almost
all
3
ts on the tracks south of
ADM
in 1980 causing
a
~fln
t
the
streambed
of
the
tributary.
11
)
testified that in
March
of
1980
the
water
in the
s
chalky,
sudsy,
and had a high
level
of
bottor
at
522).
She
stated
that
the
cause
of
the
bottom
depo..
~
i
meal
on
the
Illinois
Central
tracks
(R.
522).
she
f-
.
,ed
that
in
August
of
1977
there
was
anotter
spill
is
Central
tracks
which
contaminated
the
stream
(R.
56
aeveral
photographs
of large
grain
spills
on tne
4
-tad
other
large
quantities
of
grain
between
the
ta
a
ous
occasions
between
1979
and
1981.
Other
a
~~tified
as
to
spillage
of
various
grain
prolL..
..ch
tracks
south
of
the
ADM
plant
strung
out
beti..
:..‘
(R.
847,
851);
and
Mr.
Hayfield
testified
that
he
h-i
t
.
Je
Illinois
Central
tracks
without
grain
or
meal
onit
C
~.
.1
t
all
the
pollution
of
the
tributary
and
Lake
is
fzo
k’
Hcwever,
the
contribution
from
other
sources,
espec .a
r
v
gedin
spilled
along
the
railroad
tracks
does
not
ai
C.
as
great
as
indicated
by
ADM.
Testimony
by
railrc
‘
and
exhibits
showing
the
layout
of
the
tracks
and
“1
n
the
area
deironstrate
that
much of the spilled
mate
go to the tributary.
(see R. 1080—1130 and
Compl.
Lx’s.
k’
-)
dates
alleged
in
the
Complaint
and
those
brought
forth
do
not
coincide
with
non—RDM
pollution
incidents
that
oc
.
that
area.
The
soy
bean
meal
spill
which
occurred
on
the
Ia
ack,
operated
by
the
Illinois
Central
Gulf
Rail
Road,
happere
~ March of 1980 and was cleaned up shortly thereafter.
The C
~
r
:.~
not
charge
that
ADM is responsible for that
spill
I at
the
water
that
drains
off
this
track
area
is
at
y
xntaminated
with
organic
matter
such
~s
bean
or
co’
his
is
refuted
by the
lab
analysis
of
the
wates
t
j
xeam of
the
bean
meal
spill
on
April
28,
1980
which
...
.
-,
if
any,
contamination
present.
(Resp,
Lx.
17).
AD
£
argument
that
the
Norfolk
and
Western
railroad
clasai’
~.
-
‘ri is also a contributing source of pollution
to
the
“
rd
Lake
also
lacks
merit.
Mr.
Robert
Morrow,
Senic”
a
..ngineer
for
the
Norfolk
and
Western
railroad,
test
--
e
drainage
pattern
of
the
yard
(See
Ccmpl.
Lx.
75).
He
po
r
h~tthe
yards
are
designed
in
a
saucer
shapeu
so
that
,
by
force
of
gravity,
go
towards
the
center
(R.
1083)
‘
tnrm
water runoff.
51-333
—10—
Mr. Morrow further testified
that he could not conceive
that
any runoff from the Norfolk
and Western classification
yards
could enter the Lake since
a large five—foot culvert under
the tracks carries off
the rain water from the yard
(R.
1087 and
1102)
Mr. Lloyd Benton, the
railmaster
for the Norfolk and
Western
yards, also testified as
to the drainage pattern in the
yard
(R,
1114), stating that
the east portion of the yard
drains
from the east to the west
(the opposite direction of the
Lake
and
tributary and away
from Brush College Road), into a drainage
ditch
(R. 1117L~
He also
stated that the
runoff from ADM’s
plant
flows
from the
north to the south and that it eventually
goes
to the Illinois
Central Gulf tracks along Brush College
Road
and from there
to the tributary and the Lake
(R,
1119).
Finally,
he testified
that the runoff contains so much meal and
oil that
it clogs
the rail switches located at the east end of
ADM’s
plant
(R~
1131).
Based on these
facts, the Board finds that ADM has caused
substantial interference
with the public’s welfare and enjoyment
of property
through
its discharge of pollutants into the tributary
and the Lake.
Section 33(c) (ii) concerns the social and economic value
of the
pollution
source.
The Board does not question that ADM
has
substantial
social and economic value.
ADM empolyed 2,000
people in Decatur,
Illinois, in
1981.
415 of these full~time
employees work at the facility at
issue
here.
The payroll at the
plant is $8,000,000.00 per year,
and
in
1981,
$5,500,000.00
was spent for capital expenditures.
In that
same
year,
ADM processed
50 million bushels of soybeans and 63
million
bushels of
corn in Decatur.
The United States Department
of
Agriculture figures
show that there were 68 million bushels of
soybean
produced
within a 50—mile radius of Decatur, Illinois,
in
1981, and
250 million
bushels of corn in the same area.
Therefore,
ADM
purchased 7/8 of
all the soybeans grown within a 50—mile radius
of
Decatur and about
1/4 of the corn grown in the same area.
ADM
brought forth
several witnesses to demonstrate
its
beneficial
effects
on the economy of the area through employment,
taxes
and foundations,
However, these benefits do not excuse
non—compliance with
pollution laws and the adverse environmental
impacts.
This has
not been shown to be a case where benefits
would
be lost if the
corporation were to be forced to comply.
ADM’s
1981 profits were
$175 million
CR.
924).
Certainly those
profits are
sufficient
for ADM to remain in business while
meeting
the pollution
standards.
Thus, the Board
finds
that while
ADM
has considerable
social
and
economic value,
that
value is greatly reduced by its
adverse
environmental
impact.
51-334
—11—
Section 33(c)(iii)
concerns
the
suitability
of
the
site
locations~
The ADM
west plant is located in the extreme northeast
section of
Decatur,
The plan for Decatur has been that the
industrial area should
be on the lee side of the prevailing winds,
i.e.
in the northeast section of
the city;
and in that respect the
facility
is well situated.
The area in which ADM
is located is zoned M-2 Heavy Industrial.
Mr. Cherches,
Director
of the Department of Community Development
of Decatur,
testified
that the
ADM
west plant is in conformity
with the
city~s
long~-termland use plans and the zoning ordinance,
and there is
no more
appropriate area for this facility than the
area in
which it
is now located.
Further, as to priority of
location,
there is
no question that all of the residents in the
Homewood
drainage
area came to the area decades after the grain
milling facility was built.
The
only xeal problem with the location is that it
discharges
to a small,
shallow
lake.
Yet,
even this would not be a problem
if pollution standards were being met.
Therefore, the Board
finds
that the
site is
suitably located.
Section 33(c)(iv) concerns the technical feasibility and
economic reasonableness of reducing or eliminating the pollution.
As the Board recently held in EPA v. Victory Memorial
Ho~2~tal
(PCB 81-116, February 10,
1983), the burden of proof is on the
respondent to show “that compliance is not technologically
practicable or economically reasonable.”
In this regard ADM has
argued that there is no viable solution to its wastewater problem,
The major
points that
ADM raises in this regard are;
1.
The Agency has proposed no solution to the problem;
2.
Engineering firms hired by ADM can only suggest a
partial
solution;
and
3.
ADM stands ready to spend up to one million dollars
to
remedy the problem if someone will give them
assurances that it will work.
It is immaterial that the Agency has not proposed a solution.
As stated above, the burden of proof is on ADM.
If that were not
true, the Agency could be forced to become the environmental
engineering consultants
for all of the dischargers in the State:
a i~olewhich
was never
intended for it under the Act.
ADM’s
burden of proof could be met by demonstrating that no technology
exists to
solve
the problem or that the technology is so expensive
as to be
unjustified.
ADM, however, has not proven either
proposition;
rather,
it has simply shown that it has nOt found a
solution.
That
the
technology exists to effect a solution
is clear.
Even ADM admits
that
the Decatur Sanitary District
(DSD) could
adequately treat the flow if ADM were allowed to direct it there.
If the DSD could treat it,
it must be treatable.
The question
then becomes one of cost.
In that regard ADM’s evidence
is wholly
51-335
—12—
inadeguate~
The only cost data presented is that a 600,000
gallon tank could be built for $600,000 and that that might not
solve the problern~
Thus, there is some evidence that a solution
may cost in excess of that amount,
However, ADM has expressed
its willingness to pay up to $1 million and that amount, there-
fore,
cannot be said to be unreasonable and even a greater amount
might be reasonable, depending upon the environmental improvement
which would result from compliance.
However, evidence of the
environmental impact is also noticeable
in its absence,
Under the facts the Board finds that ADM has failed to meet
its burden in establishing an arbitrary or unreasonable hardship.
Therefore,
the Board concludes that ADM has violated those
Board rules and those provisions
of the Act at the
dates and times
alleged.
Along with these
factors, the Board must keep in mind that
a penalty is to be imposed to aid in the enforcement of the
Act.
In that regard,
it
is important to consider whether the
pollution events were foreseeable since a penalty cannot encourage
the avoidance of unforeseeable events.
ADM contends that most
of the incidents should be characterized as accidents for which
remedial
actions have been taken which will ensure their non-
recurrence.
The first of these incidents was July 20, 1975.
On that
date there was a heavy rain within a relatively short time.
Storm water was being pumped into the tank and an overflow
occurred spilling the materials from the top of the clarifier.
These materials were eventually washed down into the Lake.
Thereafter,
the use of the tank as a clarifier was abandoned and
it was used as a holding tank.
The second incident occurred on June 20,
1978.
Until
that time ADM had used two 1,000 gallon per minute pumps to lift
storm water from the storm system to the
holding
tank,
ADM
considered that these pumps were
inadequate
to
safely
pick up
the entire first flush and therefore
they
were
installing
two 5,000 gallon per minute pumps.
The work took a total of
thirty hours during which time ADM was caught with a heavy rain,
The two 1,000 gallon per minute pumps had
been
pulled
off line
and the 5,000 gallon per minute pumps had not yet been hooked
up.
As a result the rain washed the first flush into the
tributary.
On January 7,
1979,
during severe weather, there was another
incident.
At that time there were check valves between the pump
discharge and the holding basis,
and although the pumps worked
properly, water froze in the line preventing the water from being
pumped into the clarifier,
Mr. Garceau devised a method to drain
the line so that water could never stand in the lines again.
The next incident was on July 28,
1979.
During a heavy
rain, an employee was to manually shut off the 5,000 gallon per
51-336
—13—
minute pumps when the holding tank became
full.
However, the
employee charged with this obligation was absent when the holding
tank became
full, and a spill washed into the tributary.
The
actual time of the spill was only a matter of minutes,
However,
all of the floating material
is first to overflow the holding tank:
thus the worst possible materials were the first to go out.
After this incident ADM installed
an
automatic shut—off system
which would shut the pumps down when the holding tank becomes full.
In addition to this,
it keeps an employee present to monitor the
automatic shut off during periods of rainfall,
Another incident occurred
on June 26, 1981.
The
materials at
the bottom of the holding
tank were being cleaned out by
an
employee.
He pumped some
of these materials into a drain which
he
believed entered the
sanitary sewer.
However,
the drain was
actually connected with the
storm sewer and contaminated
material then entered the
tributary.
An investigation of the
sewer system was made and the
manhole
to
the
sewer
line
was
closed permanently by pouring concrete into it.
The Agency views
these
incidents in a somewhat different
fashion.
It states that
“these multiple discharge events call
into
question the adequacy of operation and the
degree
of
preventative
maintainance provided’
(Compl. Reply Br., p.1).
The Agency also
points
out that these incidents are
only
a
part
of
the
overall
allegations of violation,
The Agency is correct
that
these
five
incidents
do
not
address
all
of the violations which
have
been
found.
While
counts
I—IV,
V and
VII are specifically directed at these five incidents,
Count V includes violations of BOD5,
suspended solids, and oil
and
grease on a monthly basis
from April through September of 1981
(excluding June),
These
violations
range from approximately
three
to forty-seven times the
permitted discharge levels,
No
explanation
is given for those excursions, nor any mitigating evidence.
Further, there
is merit to
the
Agency’s
analysis
of
the
five
incidents.
Heavy rains and
cold
weather are certainly foreseeable
events
which should have
been
taken
into
consideration
when
the
system
was designed.
Employees
responsible for cleaning
the tank
should have known what drains
were
permissible
to
use,
and an
automatic
overflow shut—off
switch rather than manual operation
is
a simple safety measure
to protect against employee negligence.
That
one incident occurred
when pumps were being changed is more
understandable,
but only if
the
rain
was
highly
unexpected
and
ADM
had made a serious attempt
to schedule the installation
during
a
dry
weather period, which
the
record does not establjsh,
Thus, ADM~sexplanations
do not appear particularly
mitigating
and its corrective measures
appear largely to demonstrate what
could have, and should have,
been
done
sooner.
Finally, ADM contends
that its large
expenditures on environ-
mental
improvements are mitigating.
The
evidence shows these
51-337
—14—
expenditures on the affected facility to be $4.5 million dollars
since 1975
iltI~oughthe Agency demonstrated that at least some of
those expendit re.~served other than environmental purposes as well
(R, 734).
Ho’e
ci
even ignoring that contention, ADM probably
spent less thai
‘i~e—’~ialfof one percent of its profits on environ-
mental conti ls diring that period, hardly a tremendous outlay of
available
fu d
esoecially since the present system operates so
ineffectively
Moreo er, only $60,000 was spent on engineering
studies specifica
y addressing the stormwater issue since 1975
(R. 718),
Thus,
the re~ordas a whole supports the view that ADM
simply has not put a proper emphasis on environmental control
at its plant and that a penalty could encourage compliance with
the Act.
The Agency, based upon a United States Environmental Protection
Agency penalty fo~mula recommends that a penalty of at least
$50,000 be imposed.
That amount is estimated to represent
ADM~ssavings through non—compliance.
The Board, however, has
never accepted the proposition that economic savings are con-
trolling.
See IEPA v, Wasteland,
Inc., et al., PCB 81—98,
August 26,
1982),
It
is, however,
a factor to be considered.
While ADM cast some doubt upon some of the assumptions made
by
the Agency in determining the
savings,
it
failed
to
offer
any
better figures or any other method for determining those
savings.
Another factor to consider is what level of penalty will
have an impact on ADM.
Clearly, a penalty of a few thousand
dollars would be de minimus to a company with profits of $175
million,
The Agency even contends that $50,000 would be de
minimus.
The Board finds that a penalty of $40,000 is appropriate.
That amount of noney will not be taken lightly.
Further, ADM’s
conduct has not been shown to be intentional and steps were taken
after several of the incidents to remedy particular problems.
Such actions are somewhat mitigating.
However, there comes a time when enough problems have arisen
that it is
incuirbent upon management to take direct and comprehensive
action to remedy the overall problem rather than to simply patch
up an ineffecti’7e system.
This is particularly true where, as here,
monthly violations of pollution standards persisted over a several
month period unrelated to specific overflow incidents,
There is
a limited time period allowed for inaction,
ADM could have availed itself of the right to appeal
its
permit limitations which it now argues are unattainable,
but it
did not
It coul
have petitioned
for variance or for a site—
specific regulatior if it believed Board limitations inappropriate
for its system, but
it did not.
ADM could have completed more
51-338
—15—
extensive s~-~ ~
deternine exactly what
controls
would
be
necessary ~z a::alr. compliance and
what
their
cost
would
be,
but
it did not
There~c.e,
1ft~‘~ninnotnow
expect
leniency
as
it
throws
its
corporate
ha’1d~
L
~
air and asks “What could
I do?”
The
~L~eii~.;
~ ~c recommends
that
a
cease
and
desist
order
be
entered.
~resJ3oa~agrees
that
such
an
order
is
appropriate.
However,
scee t~ri~
~t
be granted
to
allow
for
a
compliance
plan
to be developed and for
its implementation.
Therefore,
the
Board
will speci~Tv
outer
limits
in
its
order.
The
Board’s
intent~
however
is
that
compliance
be
achieved
as
expeditiously
as
possible.
Finai:Ly,
the Board will impose a penalty of
$1008.04
for tue 7aiue of
the fish
killed.
This
opinion constitutes
the
Board’s
findings
of
fact
and
conclusions
of
Law iu this
matter,
ORDER
1,
Archer Daniels Midland
(ADM) has violated Rules 203,
402,
403,
404ic), 40d(a),
410(a)
and
901
of
Chapter
3:
Water
Pollution and Sections
:L2(a)
and
(f) of the Environmental
Protection
Act’
2.
ADM shall submit a
compliance plan acceptable to the
Agency to remedy these violations on or before December
1,
1983;
3.
ADM shal. complete
construction
and
commence
operation
of
the faciities described in its
compliance plan and shall
cease and desist from the violations
noted
in
paragraph
(1),
above,
by December
i,
1984
and shall
take
all
reasonable
measures
to
minimize violations until such operation
is achieved.
4.
Within
45 days of the date of this Order ADM shall pay
by certified
check or money
order payable to the State of Illinois
a
penalty
of S~V~OO~)to be mailed
to:
Illinois
Environmental
Protection
Agency
Frscal Services
Division
2200 Churchill Road
Spr~ngfieid, IL
62706
51-339
5.
of
the date
of
this
Order
ADM
shall
pay
the aeu~~
U ~ bj certified
check
or
money
order
payable
to
t~
:
:~a.~ish Fund
~
BcaLc
!
cerscn concurred.
I, Chr~’
~-
~
~.
~ett1
Clerk of
the
Illinois
Pollution
Control
I3oar~
~u~teL c’erti±ythat
the
abov~
Opinion and
Drder
was
adop1:e~
~‘
~
•~
,~~I1~day
ofJ,
1983
by
a ~‘u~e ~
Christan
L,
Moff
Clerk
Illinois Polluti
ontrol Board
5i-~340
