ILLINOIS POLLUTION CONTROL BOARD
    August
    5,
    1976
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    Complainant,
    v
    )
    PCB 75—507
    COUNTY OF LAKE, DEPARTMENT OF
    PUBLIC WORKS,
    )
    Respondent.
    ORDER OF THE BOARD
    (by Mr. Goodman):
    This matter comes before the Board upon the July 12,
    1976
    Motion by the Environmental Protection Agency
    (Agency)
    to re-
    consider the Board Order of June
    18,
    1976 herein.
    In its Motion
    the Agency requests that the Board reconsider
    its finding that
    there was no proof of violation of
    Rule
    404,
    its
    Order
    imposing
    a penalty of $300.00 and its failure to specifically order the
    Respondent County of Lake, Department of Public Works
    (County)
    to
    cease and desist from violating the Act and the Rules.
    The Agency argues that the grab sample results entered as
    evidence
    in this case support a finding of violation of Rule 404
    when that Rule
    is construed with Rule 401(c) which calls for a vio-
    lation should any contaminant at any time exceed five times
    the
    numerical standards prescribed in Rule
    404.
    In support of its
    argument the Agency cites Environmental Protection Agency
    v.
    Fosdick
    Poultry Processors,
    Inc., PCB 74-196,
    16 PCB 183
    (March 26,
    1975).
    In that case the Board did find violation of Rule 404 through the
    five times limit of Rule 401(c)
    The Board is now of the opinion that a violation of the five
    times Rule is a violation of
    401(c)
    itself rather than Rule 404
    as
    23
    —
    223
    —2—
    construed with 401 (c).
    The prohibition is included within 401 (c)
    Rule 404 merely determines the levels at which
    401(c)
    is violated.
    Therefore, the Board hereby overrules our decision
    in Fosdick
    (supra)
    to the extent that it is inconsistent with our holding
    today.
    In this case Rule 401(c) was not mentioned in either the Com-
    plaint nor the Stipulation of Fact and Settlement Proposal filed
    May 17,
    1976.
    The first mention of Rule 401(c) was contained
    in the
    Agency’s argument subsequent to the hearing and the filing of
    the
    Stipulation.
    The Board finds that the County was prejudiced
    in
    its
    ability to answer the Complaint due to the lack of mention
    of Rule
    401(c)
    either in the Complaint itself or during the hearing.
    The
    Board,
    therefore,
    affirms
    its opinion that
    a Rule 404 violation
    cannot be
    found.
    The Board finds that the Agency’s arguments concerning
    the penalty imposed
    in this case are not persuasive and affirms
    its
    Order of June 18,
    1976 with respect to said penalty.
    For
    the
    reasons stated
    in Section
    (c)
    of the Agency’s Motion
    to Reconsider, the Board finds that a cease and desist Order is
    appropriate in this case.
    The Order in PCB 75-507 of June
    18,
    1976
    is hereby amended as follows:
    5.
    Respondent shall cease and desist from violating the
    Rules and Sections of the Act for which violations
    were found herein.
    IT IS SO ORDERED.
    I,
    Christan
    L.
    Moffett, Clerk of the Illinois Pollution Control
    Board, hereby ce tify the above Order was adopted on
    day ~
    ,
    1976 by a vote of
    ~
    ~
    Illinois Pollution
    rol Board
    23
    —
    224

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