ILLINOIS POLLUTION CONTROL BOARD
December
91
1971
ENVIRONMENTAL PROTECTION AGENCY
v.
)
PCB 71—272
SOIL ENRICHMENT MATERIALS CORPORATION
Opinion of the Board
(by Mr. Dumelle)
A complaint on behalf of
the Environmental Protection Agency
(EPA) was filed by the Attorney General in this matter on
September
13,
1971.
Soil Enrichment Materials Corporation
(SEMCO)
was alleged to have caused or
to have tended to cause water pollution
on six separate occasions between February 22 and August
7,
1971 all
in violation of the Environmental Protection Pct and/or a condition
of the permit issued to SEMCO by
the Sanitary Water Board
(one of
this Board’s and the Environmental Protection Agency’s predecessors)
on May
27,
1970.
The condition of the permit which SENCO
is alleged
to have violated is Condition
9 which requires
the maint~ianceof
a constraining berm around the sludge application areas.
‘
A money
penalty and cease and desist order were asked for by the EPA.
The parties agreed to submit the controversy to the Board upon
a Stipulation and Supplemental Stipulation transmitted to the Board
on November
8,
1971.
The total agreement
is comprised of
19 numbered
paragraphs and
a number of exhibits.
We find this Board to be
limited to the factual matters in the stipulation but
not necessarily
constrained to the conclusions expressed
in the stipulation.
We
accept the parties agreement as
to the factual matters in this
proceeding which has expedited resolution of
this controversy by
eliminating
the necessity of
a hearing.
We must emphasize, both
for the instant parties and for the guidance of future parties before
1
Permit #1970
—
GA—342
Condition #9
-
This permit is issued on the basis that
•a
perimeter berm of adequate construction and height will be
constructed around the sludge application areas to retain
all runoff during or immediately after
the application of
sludge before
the material has been plowed into
the ground.
The perimeter berm shall be adequate to insure the capture
and storage of runoff from the most severe historical
storm of record which has ever occurred in the area,
all in
accordance with the intent stated in the February
26, 1970
letter to this Board from Bauer Engineering,
Inc.
under
the heading of “Prevention of Surface Runoff”.
3~
23~
the Board,
that parties can only enter into binding stipulations
with regard
to facts and not to legal conclusions.
It is the
Board’s function to draw the appropriate legal conclusions from the
facts.
Within the generally recognized limitations of public policy
and reasonableness parties may enter
into stipulations or agreements
in respect to either controversial or uncontroverted matters of
fact and questions of law.
Any subject matter
involving
the parties
rights may be made the subject of
a stipulation and the Board must look
with
favor on such agreements which have the effect of avoiding delay,
trouble and expense by simplifying, shortening and settling contested
matters.
All, however, must be bound by the rule that parties may
not by their admissions of law bind the Board
to adopt their point
of view.
In this case,
as in others, we want to thake
two aspects of
stipulations
clear;
we welcome parties’ agreement as
to questions
of law and legal conclusions but are not necessarily bound by
them.
(See, Wiegal v. One LaSalle Co.
75 Ill. App.
2d 272
(1966)
at
276)
SEMCO owns
and controls certain facilities
in Douglas County,
Illinois, designed and used
for the purpose of applying sludge from
the Metropolitan Sanitary District of Greater Chicago
(MSD)
to farm
lands controlled by SENCO.
SEMCO’s facilities include
a sludge
unloading trench,
a sludge storage
lagoon, piping and pumping
equipment and spraying facilities.
The Douglas County facility
is part of the MSD’s utilization plans
for nutrient-rich liquid
wastes.
The underlying rationale of transporting digested metropo-
litan Chicago sewage sludge to Douglas County is
to make
a beneficial
use of the digested sludge rather than conceptionalizing it as
a
waste product to be dealt with as
a “problem”.
In principle
the
nutrient-rich liquid waste
is to be applied to the land in such
a
way as to not hydraulically disrupt the surface soil condition.
As the
liquid filters down through the crop land it
is used by the crop root
system,
the plant nutrients being transformed by bacteria into
a form
used by the
plants for growth.
The carrier—water continues downward,
being filtered as
it moves,
and becomes part of
the ground water supply.
The Environmental Protection Act defines
“waters”
as
“all
accumulations of water, surface and underground,
natural,
and
artifical, public and private, or parts thereof, which are wholly
or partially within,
flow through,
or border upon this State.”2
In this case we
are not considering
the sludge leachate which mi-
grates through the ground.
We are,
rather,
concerned about the
sludge contaminated water which escapes through
a break in the
restraint,
or which is directed to an area outside of the contained
area
and flows into
a drainage ditch or other water course and
ultimately pollutes or threatens to pollute the waters of
this state.
2T
Ill.
Rev.
Stat.
Ch.
111—1/2 ~ 1003
(o)
3
—
240
The digested sludge
is characterized by the EPA as
a pollutant
by reason of its concentration of heavy metals
and suspended solids
(Stipulation paragraph
14).
In at least two places in the stipulation
the sludge is said to contain no pathogenic organisms
(paragraph
6,
14).
However,
the presence of pathogens in the sludge is manifest
from even
a casual observation of the exhibits attached to the
stipulation.
Both fecal coliform and fecal streptococcus
are noted
in varying quantities among the samples
(Exhibit B—B, D-5, D-6,D-8).
There are
also references in the stipulation to use of chlorine,
presumably
as
a disinfectant.
Further, we can take official notice
of the oxygen-demanding qualities of sludge and its nutrient content.
We could not be
far of£ the mark
(in the absence of
a description
in the record)
in characterizing the digested sludge as being
approximately 3-6
solids and rich in nitrogen and phosphorus
and
containing an array of materials
in lesser quantities which we
can generically refer to as contaminants.
On February
22,
1971, an accumulation of surface water containing
dissolved and suspended sludge materials escaped around the end of
the
berm and ultimately into the natural surface drainage.
Upon
the
request of the EPA,
the berm was extended to prevent the recurrence
of the incident.
It
is believed that all of the runoff was cleared
up
(paragraph
7).
The flow of the surface water was apparently
caused by the frozen condition of the ground and high rate of rain
fall at the time
(Ex. A—3).
During the night of April
29,
1971,
sludge washed through
a
protective berm around
a field tile catch basin in
a field under
irrigation.
The catch basin had been protected from the sludge by
a
12” berm around the perimeter and covering with
a layer of heavy
duty plastic.
The weight of the sludge which collected on the
plastic was enough to pull
the plastic loose allowing the sludge
to wash through the protective berm and enter
the tile of
the catch
basin, which drained into
an open railroad drainage ditch.
There
was little or no water
in the drainage ditch at the time and the
sludge was entrapped there.
Upon discovery on April
30,
spraying
was immediately stopped and
a berm was constructed across the
drainage ditch to prevent further drainage of
sludge.
On the same
day the catch basins were replugged with plywood and the berm
was replaced with compacted earth.
The
tile was dug
up and plugged
near its terminal point
and its contents pumped into
a large storage
lagoon
(paragraph
8).
A discernible flow of sludge apparently
extended
for approximately one—half mile in the drainage ditch
(Ex.
B-i).
On May
7,
1971,
following a substantial rain after sludge had
been applied,
sludge over-ran a protective berm and flowed into
a
road ditch adjacent to SENCO property.
The situation was cleaned
up in short order
(paragraph 9).
Not however before sludge had
traveled down the drainage ditch for approximately one-eighth of
a mile
(Ex. C-l).
Samples were collected from the ditch and from
3
—
241
the SEMCO field and analyzed for mercury.
Concentrations of 18.4
and 2.9 mg/i of mercury respectively were noted
(Ex.
0—3,
0—4).
We
find the
three preceding incidents to be violations of the permit
condition
*9.
On June
28,
1971, SEMCO reported to EPA that
a six inch
diameter pressure rubber hose which connected a booster pump to
the sludge pipeline
from
a lagoon to the spreading site had ruptured
causing sludge
to flow along a ditch and enter
a subsurface 24”
drainage tile.
Upon discovery of the leak, operations were ceased
and
a cleanup followed.
A berm was erected around the tile to
prevent sludge from entering.
The tile was then dug up and blocked.
A portable pump and water truck were used to pump the sludge material
back over the berm.
Six gallons of Clorox Bleach were added to
the ditch and tile.
It was believed that all the lost sludge was
contained.
However,
the field tile was
then inspected at
a downstream
point and it was evident that an unknown quantity of sludge had
entered the tile and flowed into
a watercourse which flows directly
to the Kaskaskia River.
The point of discharge was viewed and
a heavy
concentration of sludge was
noted.
The watercourse was black
for
approximately the two-hundred and fifty yards which were viewed,
No
trace of
the sludge could be found where
the watercourse was inspected
approximately three quarters of
a mile below the point where the tile
surfaces; apparently bdcause of the
low velocity of the stream the
sludge had not yet reached that point
(paragraph
10).
Samples were
taken from the break in the field tile which upon analysis showed
a fecal coliform concentration of 1090/100 ml, total coliform of
22,000/100
ml and fecal streptococcus of 690/100 ml
(Exhibits D—5)
Another sample taken off—site showed higher concentrations of fecal
and total coliform bacteria
(Exhibit D-6).
We
find this incident to
have caused water pollution.
On July
27,
1971,
SEMCO reported to EPA that failure of
a connecting clamp on the pipe line from the holding lagoon to the
spreading site caused a small quantity of sludge to enter
a road
side ditch.
The ditch was immediately blocked and no sludge reached
any field tiles.
The contained sludge was then diluted with wash
water, chlorinated with HTH tablets,
and pumped onto SEMCO property
(paragraph 11).
The Board finds no threat of water pollution in this
incident though
I would have so found.
Had it been raining at the
time the pollution would probably not have been contained.
On August
7,
1971
a
pipeline
broke
at
a
“U”
bend
under
a
road
causing sludge to flow into a ditch on the side of the road.
The
pump was shut off after
a drop in line pressure was noted.
As soon
as the break was located,
earth dams were made in the ditch to
contain the sludge.
The sludge was then pumped out of the ditch
onto adjacent SEMCO property.
The area was cleaned and the earth
dams in the ditch were removed.
The following corrective actions were
instituted to prevent recurrence of
this type of spill:
(1)
Addi-
tional
walkie-taikie
radios
were
procured
so
that
immediate
coinmuni-
cation
could
be
made
with
the
personnel
at
the
pumps
at
all
times.
(2)
The
personnel
were
instructed in how to interpret pressure
gauge readings at
the pumps
and to shut off the pumps immed~,ateiyif
there were
any indications of
a pipe line failure.
(3)
Stakes and
3
—
242
an
earth
cover
were
used
to
secure
the
pipe
line
against
pressure
surges
where
the
pipe
line
makes
the
“U”
bend
under
the
road,
(4)
T
Field
Superintendent
was
relieved
of
his
duties
and
replaced
(para-
graph
12).
An
EPA
memorandum
attached
to
the
stipulation
of
the
facts
in this incident indicates that the sludge involved in the
spill on this date was not as well digested as other material
ureviously received
(Ex.
F—4).
The same exhibit reports that
approximately 50,000 gallons of sludge was lost into SEMCO’s
drainage channel.
Again the majority of the Board finds this inciden
not to constitute a threat
to water pollution.
I would have found
otherwise,
Had
it been raining
the 50,000 gallons of partially
digested sludge probably could not have been contained.
Clearly the four occurrences
first outlined above constitute
separate viola~ons of Section 12(a),
(b)
or
(d)
of the Environmental
Protection Act~’~and/or Condition
9 of the permit issued by SEMCO.
There are multiple violations connected with some of these several
occurrences,
In each instance in which the restraining berm was
breached
a violation of permit Condition
9 occurred.
In the June
28
instance sludge reached protected waters and caused water pollution.
The majority cannot find violations on July
27
or August
7,
since
there
was
neither
pollution
of
a
stream,
violation
of
the
permit
conditions,
hor proof of negligence such as to justify
a finding that
the
risk
(“threat”)
of
pollution
was
iiir~n~n~h1~.
Digested sludge
may
in
fact
be
a
“resource
out of place” but it
is
also
a
serious
contaminant if not handled properly.
It
is the intent of this
opinion to reflect the Board’s concern for care in handling digested
sludge when land placement
is undertaken.
We will impose
a penalty
of
$500 for each
violation for
a total penalty of $2,000.
Further
we will order SEMCO to cease and desist its violations of the
Environmental Protection Act and the conditions of the permit.
This opinion constitutes
the Board’s findings
of fact and con-
clusions of law in this proceeding.
Mr. Aldrich will file
a separate
concurring
Opinion.
3
111.
Rev.
Stat.
Ch.
111—1/2
~
1012(a)
,
(b)
,.
(d)
3
—
24,~