ILLINOIS POLLUTION CONTROL BOARD
March 26, 1975
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 74—196
FOSDICK POULTRY PROCESSORS, INC.
an Illinois corporation, a/k/a
A.F. MURMANN COMPANY,
Respondent.
Mr. Stephen Z. Weiss, attorney for Complainant.
Mr. Waiwyn M. Trezise, attorney for Respondent.
OPINION AND ORDER OF THE BOARD (by Dr. Odell)
On May 24, 1974, the Environmental Protection Agency
(Agency) filed a C~mplaint against Fosdick Poultry Processors,
Inc. (Fosdick). An Amended Complaint was filed on June 28,
1974, charging violations of Section 12(a) and 12(b) of the
Environmental Protection Act (Act)
,
certain rules and regulations
of the Sanitary Water Board (SWB-2 and SWB-ll) prior to July 1,
1972, and various rules of the Water Pollution Regulations
(Chapter Three) of the Pollution Control Board (Board) from July
1, 1972, to June 28, 1974. Violations allegedly occurred from
July 1, 1970, until June 28, 1974, due to the manner in which
Respondent operated its facilities. The Chapter Three effluent
standards superceded SWB-ll on February 3, 1972.
Since August 26, 1970, Fosdick has owned and operated a
poultry processing plant on the southwest bank of the Rock River
at 6179 Kishwaukee Street, Rockford, Winnebago County, Illinois.
A waste treatment facility is operated in conjunction with the
processing operation. 14,000 to 16,000 chickens per day, equalling
13 million pounds of chicken per year, are processed at the
facility. The effluent from the treatment plant, consisting of a
grease trap, wet well, lift station, aerobic and anaerobic lagoon,
chlorination contact tank, and gas chlorination unit, flows
through a ditch for 75 feet and then into the Rock River.
The Amended Complaint specifically alleged that:
1. From July 1, 1970, until April 7, 1972, including certain
specified dates, Respondent failed to provide for the removal of
color, odor, and turbidity to below obvious levels in violation of
Section 12(a) of the Act and Rule 1.08 par. 10(b) (3) of SWB—l1.
2. From July 1, 1970, until July 1, 1972, including certain
specified dates, Respondent failed to adequately reduce the organic
pollution load of the treatment work’s effluent to below 20 milligrams
16 —183
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per liter fmg/l) of BOD in violation of Section 12(a) of the
Act and Rule 1.08 par. 10(a) and 11(b) of SWB—1l.
3. From July 1, 1970, until July 1, 1972, including certain
specified dates, Respondent failed to adequately reduce the
organic pollution load of the treatment work’s effluent to below
25 rng/l of suspended solids in violatipn of Section 12(a) of the
Act and Rule 1.08 par. 10(a) and 11(b) of SWB-11.
4. From July 1, 1970, until July 1, 1972, including certain
specified dates, Respondent failed to adequately reduce the organic
pollution load of the treatment work’s effluent to below 2000 fecal
coliforms per 100 ml of effluent in violation of Section 12(a) of
the Act and Rule 1.08 par. 10(a) and 11(b) of SWB-ll.
5. From July 1, 1970, until April 7, 1972, Respondent operated
its facility without an individual, properly certified, or under
the direct or active supervision of a properly certified superin-
tendent or chief operator, in violation of Section 12(a) of the
Act and Rule 1.02 of SWB-2.
6. From April 7, 1972, until June 28, 1974, including certain
specified dates, Respondent failed to reduce color, odor, and
turbidity to below obvious levels in violation of Section 12(a) of
the Act and Rule 403 of Chapter Three.
7. From July 1, 1972, until June 28, 1974, including certain
specified dates, Respondent operated its facility at a level below
(sic) 150 mg/l of BOD5 in violation of Section 12(a) of the Act
and Rule 404(a) pursuant to Rule 401(c) of Chapter Three.
8. From July 1, 1972, until June 28, 1974, including certain
speci~fieddates, Respondent, in operating its facility, failed to
maint~i-nthe effluent discharge at a level below 185 mg/i of sus-
pended solids in violation of Section 12(a) of the Act and Rule
404(a) of Chapter Three.
9. From July 1, 1972, until June 28, 1974, including certain
specified dates, Respondent, in the operation of its facility with
an untreated waste load of over 10,000 population equivalents
(P.E.), failed to keep the effluent below the 100 mg/i of BOD5 in
violation of Section 12(a) of the Act and Rule 404(b) pursuant to
Rule 401(c) of Chapter Three.
10. From July 1, 1972, until June 28, 1974, including certain
specified dates, Respondent, in the operation of its facility with
an untreated waste load of over 10,000 P.E., failed to keep the
effluent below 125 mg/l of suspended solids in violation of Section
12(a) of the Act and Rule 404(b) pursuant to Rule 401(c) of Chapter
Three.
11. From August 1, 1972, until June 28, 1974, including certain
specified dates, Respondent failed to maintain the effluent dis-
charged from its facility, at a level below 2000 fecal coliforms
per 100 ml of effluent in violation of Section 12(a) of the Act and
Rule 405 pursuant to Rule 401(c) of Chapter Three.
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12. From July 1, 1972, until June 28, 1974, including certain
specified dates, Respondent failed to maintain the effluent dis-
charged from its facility below 75 mg/i of BOD5, which is 2.5
times the standard in Rule 404(a), in violation of Section 12(a)
of the Act and Rule 404(h) of Chapter Three.
13. From July 1, 1972, until June 28, 1974, including certain
specified dates, Respondent failed to maintain the effluent dis-
charged from its facility below 92.5 mg/l of suspended solids,
which is 2.5 times the limits set out in Rule 404(a), in violation
of Section 12(a) of the Act and Rule 404(h) of Chapter Three.
14. From February 3, 1972, until June 28, 1974, Respondent
failed to submit operating reports containing all the required
information in violation of Section 12(a) of the Act and Rule 501
of Chapter Three.
15. From January 1, 1973, until June 28, 1974, Respondent
operated its facility without an Operating Permit in violation of
Sections 12(a) and 12(b) of the Act and Rule 903(a) of Chapter
Three.
16. From January 1, 1973, until June 28, 1974, Respondent
operated its treatment works without direct and active field super-
vision of a person who has been certified by the Agency as being
competent to operate such a facility in violation of Sections 12(a)
and 12(b) of the Act and Rule 1201 of Chapter Three.
A hearing was held in Rockford, Illinois, on October 8, 1974.
A Stipulation and Proposal For Settlement (Stipulation) was enter-
ed into evidence. No citizens attended the hearing. The State-
ment of Facts indicated that the Respondent purchased the facility
August 26, 1970, from its former owner at a cost of $175,000.
The facility was permanently closed because of financial difficulties
in August 23, 1974. The following Analyses of Grab Samples were
included in the Statement of Facts:
Total
Fecal Coliform Suspended
BOD
(colonies
Solids
Date Collected
(mg/l)
per 100 ml)
(mg/i)
May 1, 1974
470
530,000
220
March 28, 1974
240
—
480
February 21, 1974
1,000
200,000
50
January 17, 1974
>500
1,100,000
230
September 10, 1973
220
~.
100
110
July 24, 1973
350
2,000
140
June 5, 1973
340
120,000
330
February 27, 1973
620
42,000
220
January 4, 1973
310
~.
100
260
November 9, 1972
~>.230
z. 100
205
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185
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Total
Fecal Coliform Suspended
BOD
(colonies
Solids
Date Collected
(mg/i)
per 100 ml)
(mg/l)
September 21, 1972
,.240
~..
100
300
August 8, 1972
95
~.
100
270
June 22, 1972
240
150,000
75
May 16, 1972
~ 89
4.. 100
118
April 13, 1972
~328
100
167
March 8, 1972
,.253
45,000
368
January 25, 1972
216
~1,000
257
January 18, 1972
~234
19,000
120
January 12, 1972
,.l26
7,500
163
August 27, 1971
‘~87
45,000
420
June 22, 1971
363
8,500
56
March 22, 1971
225
49,000
170
March 16, 1971
261
110,000
150
March 6, 1971
378
290,000
150
February 23, 1971
204
150,000
82
February 10, 1971
—
100,000
113
January 27, 1971
142
42,000
120
December 22, 1970
123
56,000
43
December 1, 1970
245
17,000
125
November 18, 1970
119
45,000
104
October 26, 1970
—
11,000
176
October 14, 1970
101
61,000
180
September 8, 1970
155
78,000
208
Also included in the Stipulation, taken from Ex. 19, was the
following information:
“Said waste treatment facility had operated since August
26, 1970, at an average estimated daily influeht flow
when the poultry plant is operating of 112,000 gallons
per day with 3,800 milligrams of BOD5 per liter and
3,000 milligrams of suspended solids per liter.”
We interpret influent here to mean the water moving from the
processing facilities to the treatment plant.
The Analyses of Grab Samples alone does not establish
violations because the samples do not meet the 24-hour composite
sample requirement of Rule 401(c)
,
which states:
(c) Averaging. Except as otherwise specifically pro-
vided in this Part, compliance with the numerical
standards in this Part shall be determined on the
basis of 24-hOur composite samples. In addition,
no contaminant shall at any time exceed five times
the numerical standard prescribed in this Part.
The Agency argues that the second sentence of this Rule enables
us to find violations when the contaminant exceeds 5 times the
numerical standard, The standard under Rule 404(a) is 30 mg/i
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of BOD and 37 mg/l of suspended solids. Under Rule 404(b), the
iimita~ionis 20 mg/l BOD5 and 25 mg/i of suspended solids. The
standard under Rule 405 is 400 fecal coliforms.per 100 ml. The
Agency correctly interprets Rule 401 (c); the submitted evidence
is sufficient to establish violations of Rules 404(a), 404(b),
and 405 of Chapter Three. Violations of Rule 404(a) for sus-
pended solids occurred on 9 dates from August 8, 1972, until
May 1, 1974. No violations of BOD5 occurred during this period
because the wording in the Amended Complaint failed to give the
Respondent adequate notice of the nature of possible violations.
The Grab Sample data establish violations of Rule 404(b) for
suspended solids for 10 specific dates from August 8, 1972, until
May 1, 1974. Violations of BOD5 under Rule 404(b) occurred on 11
specific dates from September 21, 1972, until May 1, 1974. Rule
405 for fecal coliform was violated 5 times from February 27,
1973, until May 1, 1974.
The Agency argues that other violations under Rule 404(a)
can be found based on the language in Rule 404(h) by showing that
more than 5 of the samples exceeded 2.5 times the numerical limits
of Rule 404. Rule 404(h) reads:
(h) Compliance with the numerical standards in this
Rule 404 shall be determined on the basis of 24—hour
composite samples averaged over any consecutive 30—
day period.’~In addition, no more than 5 of the samples
collected shall exceed 2.5 times the numerical limits
prescribed by this Rule.
We disagree with the Agency’s interpretation. The word “samples”
in sentence two of Rule 404(h) means the 24-hour composite samples
referred to in sentence one of Rule 404 (h), not 5 of ~ samples
collected. We, therefore, find no violations of Rule 404(h) as
alleged in the Amended Complaint.
The Analyses of Grab Samples does establish violations of the
BOD, suspended solids, and fecal coliform standards during 1970,
1971, and early 1972. Under SWB-ll, background concentrations are
not relevant to determining a violation. Rule 1.08 par. 10(a)
and 11(b) of SWB—ll for BOD were violated on 15 specific dates from
September 8, 1970, until January 25, 1972. Rule 1.08 par. 10(a)
and 11(b) of SWB—li fc~suspended solids was violated on 17 specific
dates from September 8, 1970, until January 25, 1972. Rule 1.08 par.
10(a) and 11(b) of SWB-ll for fecal coliforms was violated on 16
specific dates from September 8, 1970, until January 18, 1972. All
these offenses constitute violations of Section 12(a) of the Act.
The Statement of Facts noted that since August 26, 1970, no
certified operator was at the facility in violation of Sections
12(a) and 12(b) of the Act and Rule 1.02 of SWB—2 and Rule 1201
of Chapter Three. No Operating Permit was received from the Agency
in violation of Sections 12(a) and 12(b) of the Act and Rule 903(a)
of Chapter Three. Respondent admitted not submitting monthly oper-
ating reports to the Agency since February 3, 1972, in violation
of Section 12(a) of the Act and Rule 501 of Chapter Three. The
photographs (Ex. 3 through 14) taken on January 11, 1972, and on
November 9, 1972, establish violations of the color and turbidity
standards of Section 12(a) of the Act, Rule 1.08 par. 10(b) (3)
of SWB-il, and Rule 403 of Chapter Three.
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The Stipulation establishes that at the time of purchase,
Respondent was not aware of any
pollution
problems, because the
prior owner had recently installed a lagoon, and a chlorination
and aeration system. The purchase agreement warranted that the
premises shall be placed in such a condition that the Sanitary
Water Board would issue it an operating license (Ex.l7). Attempts
were made beginning in 1971 to bring the facility into compliance.
Consulting engineers were contacted and a project completion
schedule was prepared by the engineering firm by September
1973 at a cost of $12,316.26. Total cost of the proposed water
treatment facility was estimated to be $80,000. The Agency re-
fused to issue a permit on July 15, 1974 (Ex. 20). The Statement
of Facts included, as Exhibits 21 through 26, Respondent’s tax
records from 1970 through August 1974,
which
indicated the follow-
ing taxable income:
Year
Taxable Income
1970
$15,007
1971
0
1972
0
1973
0
1974 (through August)
0
Financial problems in 1971 and in later years have resulted in no
taxable income for 1971, 1972, and 1973. Through August, 1974,
Respondent had an additional operating loss of $18,073. Respondent
has total retained earnings (profits) of $28,473, and therefore its
assets exceed its other liabilities by $28,473.
Respondent has violated the Act and regulations over a long
period of time. The facility has now permanently closed due to
serious financial difficulties unrelated to its pollution problems.
We believe that Respondent made some good faith efforts to achieve
compliance as evidenced by various Exhibits in the record. Based
on all these factors, only a nominal penalty will be assessed. It
would not further the purposes of the Act to impose a higher
penalty in this case.
This Opinion constitutes the findings of fact and conclusions
of law of the Board.
ORDER
IT IS THE ORDER of the Pollution Control Board that:
1. Respondent violated Sections 12(a) and 12(b) of the Act,
parts of SWB-2 and SWB-ll, and certain Rules of Chapter Three
from August 26, 1970, until June 28, 1974, at times and in the
manner as set out with more particularity in the Opinion.
2. Respondent pay a penalty of $500.00 for its violations
of the Act and regulations established in this Opinion. Payment
shall be by certified check or money order payable to the State
of Illinois, Fiscal Services Division, Environmental Protection
Agency, 2200 Churchill Road, Springfield, Illinois 62706. Pay—
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188
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ment shall be made within 35 days of the adoption of this Order.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
~Q~’
day of
______________,
1975., by a vote of
~to
~.
~°.
Christan L. Mof tt
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.
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