ILLINOIS POLLUTION CONTROL BOARD
January
6,
1972
ENVIRONMENTAL
PROTECTION AGENCY
v,
)
PCB 71—259
CITY OF MONMOTJTH
Mr. Prescott E. Bloom,
Special Assistant Attorney General for
the Environmental Protection Agency
Mr. Bufford W.
Bottle, Jr., City Attorney,
for the City of Monmouth
OPINION OF
THE
BOARD
(by Mr. Dumelle)
This enforcement action was filed on September
3,
1971.
In
its complaint the Environmental Protection Agency
(EPA) alleged that
the City of Monmouth (Monmouth)
owned and operated a sewage lagoon
which accepted wastes discharged by Wilson Packing Company
(Wilson)
and that the sewage treatment facilities were operated in such a
manner so
as to create obnoxious odors causing air pollution in
violation of Section 9(a)
of the Environmental Protection Act.
Further
the complaint alleged a continuous violation.
Although no commence-
ment of the duration was averred it can be fairly said that the
allegation relates from the first alleged date through the date of
the hearing.
By order of the Hearing Officer on November
2, 1971 the complainant
was granted leave to amend its complaint as to the particular days
on which it was averred that the respondent caused or allowed the
emission of
odors so as
to cause air pollution.
The 2~gencyenumerated
May 11, 1967,
September 15, September 17, September
23, September 29,
1970, and June
17,
1971 as specific dates of violation.
The City of Monmouth filed an answer to the complaint on
November
2,
1971 in which it denied the substantive allegations of
violations of the Environmental Protection Act.
At the same time
Monmouth filed a motion to dismiss alleging
(1) that the Environmental
Protection Act was unconstitutional because it was violative of
the due process sections of the Illinois and U.S. Constitutions,
(2)
that the Act was unconstitutional because it provided for the
imposition of fines and other punishments without allowing for
3
—
345
a trial by
jury,
(3)
that the amended complaint specified
a
violation of
the Act on
a date before the Act was effective,
(4)
that the complaint was defective because the facts were predicated
on “information and belief” without such
a premise for an action
being provided for by the Environmental Protection Act,
and
(5)
that the complaint and Environmental Protection Act purported to
subject
a local public entity to
a fine or loss of property in
violation of
the Local Governmental and Gov~rnmentalEmployees
Tort Immunity Act
(Ill.
Rev.
Stat.
ch,
85, ~ 1-101 to 10—101).
Nonmouth’s contention of invalidity as to the allegation of
violation for May
11,
1967 is well
taken.
There can be
no violation
of the Environmental Protection Act before July
1,
1970, the allega-
tion pertaining
to May
11, 1967 is therefore stricken.
Of course,
there
could
be
a
violation
of
pre—existing
regulations
or
the
former
Air
Pollution
Control
Act
but
that
is
not
what
was
alleged
in this
case.
Except
for
allowing
that
portion
of
Monmouth~s
motion
as
a
motion
to
strike,
our
ruling
on
the
Cityrs
move
to
dismiss
is
to
deny
the
motion.
The
first
two
contentions
in
the
Motion
to
dismiss
are
untenable
and
must
fail
on
the
basis
discussed
at
length
in
the
Board’s
Opinion
in
EPA
v.
Granite
City
Steel,
PCB
70-34,
(March
17,
1971).
Nothing
in
the
Environmental
Protection
Act
precludes considera-
tion of
a
complaint
averred
on
“information
and
belief”.
No
valid
objection under the environmental statute can be made to allegations
of fact on information and belief.
The Illinois Local Governmental
and Governmental Employees
Tort Immunity Act has
no application to the instant facts.
The opera-
tive section of that act states that
“Nothing in this Act affects
the right to obtain relief other than damages against a
local public
entity...”
(Ill.
Rev.
Stat.
ch.
85,
~ 2—101, emphasis added).
A hearing was held in Monmouth on November
22 ar~d23,
1971.
At that time counsel for the EPA and Monmouth entered into
a five
page stipulation which provided a comprehensive background
to. the
situation.
In substance
the stipulation related that the City of
Monmouth,
the County
seat of Warren County,
has
a population of
11,500.
It is surrounded by farming areas, where
cattle, hogs and
corn are raised in large quantities.
In 1966 Agar Packing Company
built a slaughter house and
a
large packing plant within the city
limits
of
Monmouth,
toward the north end of
the city,
and developed
a successful business employing some 300 people.
Agar was
succeeded by Wilson—Sinclair, who bought the business
in 1968.
Wilson
is presently the largest employer in Monmouth with approximately
370 employees.
About 1965,
the packing company
(Agar and later Wilson)
entered into
a written contract with Monmouth to have its sewage
—
34~
disposed of by the city in a sewage treatment plant constructed and
maintained by
the city.
Starting in 1967 odors developed,
and
complaints began to be received by
the City and
the State Sanitary
Water Board.
At
the hearing Mr. Kenneth Merideth, an Environmental Control
Engineer
for the EPA testified that he inspected the lagoon area on
September
23,
1971 and detected the odor typical of hydrogen sulfide
in the area
(R.24,
Comp.
Ex.
1).
Miss Gail Pepper,
a sanitarian for the EPA testified
to visiting
the lagoon area on September
16,
1970 and observing paint discolora-
tion apparently caused by hydrogen sulfide fumigation
(R,39-44).
She noted that what had been applied
as white paint had turned in
part to yellow—brown
(R.44).
She stated further, however,
that she
did not sense any hydrogen sulfide odor while speaking to several
persons at their residences, who had complained to the EPA
(R.4l-42).
Mr. Dwight Brass, another engineer
for the EPA, visited the
Monmouth lagoon site on June
17,
1971 and detected a very strong
odor characteristic of hydrogen sulfide (R.5l-59).
The odor was
also detected by Mr. Brass at the Dorman residence about
a half
mile north of
the lagoon
(R.59).
At another residence at which
Mr. Brass interviewed a complaining party, the odor was
not detected
on that same
day.
The latter house was approximately an eighth of
a mile from the lagoon
(R,60).
Mr. Willard Sloss,
a building contractor who
lives within
a
quarter of
a mile of the lagoon, stated that the presence of odor
was
a fairly constant, continuing presence,
“most any day or night
or month or week”
(R.66).
Mr.
Sloss could not pin the specific pre-
sence of odor to any of
the particular dates stated in the complaint
(R.69-70).
He did state that the odor at his residence on November
11,
1971 was an obnoxious one which awakened him
(R.70).
Mr. Gerald Fischer,
a farmer who
is also
in the livestock
commission buisness and maintains a place of business about 960
feet from
the lagoon site
(R.75-76), testified as to the lagoons
emissions’
discoloring effect on white paint
(R.79—82).
He stated
that he painted
a portion of a building
two years ago with
a
sulfide resistant formulation and that the paint discolored
to
a
bluish-purple
(R.79—Bl).
He also testified to the general presence
of the odor of rotten eggs
(R.8l-82).
He stated further that he
felt that the odor adversely affected his asthmatic condition
(R.82—
83)
.
When the odor comes
he has
to leave the area
(R.83)
.
Mr.
Fischer stated that the odor was present at his place of business
on the morning of the first day of the hearing
(R.85).
3
347
Mr. William Kinkaid,
a
former employee of Mr. Fischer who
lived
on
the
Fischer premises for more
than 15 years, about 1000
feet
from
the
lagoon,
described
the
odor
as
worse
than
rotten
eggs
(R.87).
He
stated
that
the
odor
would
make
you
sick
to
your
stomach
and
caused
a
headache
(R.87-90).
He
also
testified
that
the
odor
made
him
retch
(R.91),
Mr.
Kincaid
further
told
of
white
paint
turning
to
a
yellowish-brown color
(R.88).
He
stated
that
he
left
his
enployment at the Fischer place because of the odor
(R89—90).
Mr. Fred
King,
a part time employee of the Fischer sale barn,
lives about
250 feet away from the lagoon
(R.95),
He testified of
experiencing
a suffocating odor which
he found to be obnoxious
(R.
96).
He also testified as
to observing the discoloration of white
paint since
the lagoon has been operating
(R.97).
He noticed that
the woodwork inside his house around the windows was stained as well
as the exterior painted surfaces.
He said the odor was worst when
there was no wind at all
(R.99)
Mr. Merle Day
lives about 250—300
feet from
the northwest
corner of
the lagoon
(R.lOl).
He described the odor as “rotten
eggs that have probably been rotten
a couple of
times over”
(R.l02).
His wife and children have gotten sick
to their stomachs from the
odor
(R.l03-l04).
He described the odor
as
a pervasive, generally
present odor
(R.104)
.
Through Mr. King several photographs
of
his house taken on August
19,
1971 were introduced.
They showed
severe discoloring of exterior white paint of the type expected
from hydrogen sulfide fumigation
(R.l09—lll,
Comp.
Ex.
3—9).
Mrs. Helen McMahon lives one-half mile north of the lagoon
(R.
113).
She described the odor
as generally present and obnoxious.
She told of seeing her white-painted house turn brownish-black
overnight in August, 1971
(R.
118,122—124).
She also stated that
wallpaper
and books inside
the house turned
a brownish color
(R.120),
Mr. Harold Dorman lives approximately
a half—mile north of
the lagoon
(R.l25).
He stated that he has kept
some record of the
incidence of odor at his residence since October of 1970
(R.l26).
Between October
30
and November
28, 1970 he detected odor
19 of
30
days.
Between December
22,
1970 and January
24,
1971 he smelled
the characteristic odor on 27 of 34 days.
Between June
30 and
August 1,
1971 he noted the odor on 25 of 32 days.
Between August 29
and November
17,
1971 he recorded the incidence of odor on 53 of
81 days
(R.l26-l28).
He described the odor by saying it stinks and
is
“as rotten a smell as
I have ever smelled”
(R.l28).
Other witnesses,
including some called by the City, testified
to detecting the rotten egg odor up to a mile from the lagoon
site
(R.231,
236,
247,
252).
3
—
348
At the end of the complainant~scase counsel
for Monmouth made
a
motion
to
dismiss
for
failure
to
prove
their
case
(R.l40).
We
deny
the motion.
Mr. John McLaughlin,
a Consulting Civil Engineer, who
is
Monmouth’s present consultant
as well as the engineer who designed
the lagoon treatment system
(R.l4l-l43)
outlined the history
of the facility.
The lagoon system was designed
to treat the wastes
from a hog kill and packing plant operation of
3,000 hogs per day
with
a HOD load of 8100 pounds per day
(R.l44).
The treatment facility consists of
a
three
cell waste stabili-
zation system.
The first cell
is an anaerobic digestion pond
while
the second and third cells
are aerobic
(R.l44).
The system is
a
common
and
economical
one
in
the
meat
packing
industry
(R.l45).
The
cost
of
the
original
construction of the lagoons was $105,000
(R.l45).
The
first
cell
is
275
feet
square
and
15
feet
deep.
The
second
and
third
cells
are
about
48
acres
each
and
5
feet
deep.
The
total
volume
of
water
in
the
three
cells
is
117
million
gallons
(R.l46).
After
the
third
cell
the
effluent
is
discharged
to
Markham
Creek
(R.147),
Monmouth
received
a
letter
from
the
Sanitary
Water
Board
in
August,
1966,
shortly
after
the
system
began
operation,
in
which
the
City
was
advised
that
an
objectionable
odor
condition required
attention
and
correction
(R.l47,
148,
Resp.
Ex.
1).
Monmouth
subse-
quently
attempted
to
create
a
cover
of
paunch
manure
over
the
first
cell
(R.l48—l49).
Mr.
McLaughlin
suggested
that
the
hydrogen sulfide generated in
the anaerobic digestion could be
rendered
harmless
by
(l)
containing
and capturing the gas and burning it or
(2) oxidizing the H7S by
exposing it to an aerobic environment
(R.l50).
Several met1~odsof
eliminating the H~Sodor problem have been tried in the past.
Re-
circulation from the third to the first cell was tried as
a way of
creating
an
aerobic
environment
at
the
top
of
the
first
cell
to
oxidize
the
H2S
(R.l50—15l).
Next
aeration
of
the
top
of
the
lagoon was
tried
(R.l5l).
The
Sanitary
Water
Board
issued
a
permit
for
each
of
Monmouth’s
attempts
to
deal
with
the
odor
problem
(R.151).
The first permission was granted in May,
1968
(R.
152,
Resp.
Ex.
15).
Early in 1967 it was learned that hog’s blood had been discharged
to the lagoon system for more than a year.
It was estimated that
more
than 500,000 gallons of blood had been diverted
to the treatment
facilities
(R.
158—159,
Resp.
Ex.
3)
.
The added BOD load, with
blood having a BOD content in the range of 20,000
-
40,000 mg/i
undoubtedly contributed
to the poor and inadequate performance of
the lagoon system
(R.
159-161).
Sometime after discovery, before
Nay,
1967,
the blood discharge was terminated.
The performance of
the lagoon improved significantly thereafter
(R.
160—163,
Resp.
Ex.
4,
5,
6).
~3—348
A further letter from the Sanitary Water Board
to Monmouth
in March,
1968 reiterated
the existence of the H2S odor in the area
without recommending any solution to the problem
(R.
164—166)
.
In
January,
1969
the Sanitary Water Board advised Monmouth of the
persistence of the odor problem and recommended again
that
a cover
be established on the lagoon
(H. 166-168).
Through the years
the
City has worked cooperatively with the Sanitary Water Board
in
attempting to abate the odor problem
(R.
169).
In the last three or four months Monmouth has
introduced
enzymes
into
the wastes both at the packing plant
and in the first
lagoon cell
in an added effort to break
down the biological wastes
without generating hydrogen sulfide
CR.
172,
249)
.
The enzyme treat-
ment has been recently augmented with the installation
and opera-
tion of four aerators
to create
a faculative lagoon
in which the
bottom would be anaerobic and the upper layer would be aerobic
(H.
172—173)
.
The enzymes were stopped being put into
the system
on the first day of the hearing
(November
22,
1971) when the contract
with Mapco ran out
(R,
251).
The enzyme addition was only partly
successful,
it did not adequately relieve
the problem
CR.
251)
Odors still persist
(R.
252).
What remains to be tried
is
to physically cover the first
cell
and incinerate
the H2S gas collected under the cover
(H.
175)
It
is estimated that
a
cover will cost about $55,000
CR.
175—176)
Agents of Monmouth have recently inspected a cover installation
in either Greenfield, Michigan or Greenville, Mississippi.
The
Mayor of Monmouth testified
to having observed
a nylon reinforced
polyurethane material used to cover
a lagoon
in Greenville, Missi-
ssippi
(R.
255—258)
.
The Mayor stated that the city is committed
to the use of the covering material
for the first cell
CR.
258)
Starting
the day after
the hearing the Mayor stated that certain
bacteria would be introduced into
the lagoon to work on the hydrogen
sulfide
CR.
260)
.
This is part of the City’s plan to correct the
situation.
The Mayor stated that the engineering for
the cover and
incineration equipment is underway
(R.
263) but no plans or other
documents were introduced to delineate the specific plans.
No
specific timetable for accomplishment of the incineration was pro-
posed.
The Mayor stated he could give no more precise schedule
beyond saying that
the planning may take
60
to 90 days
CR.
263).
In controlling the H2S odor problem in this case by incineration
Monmouth must consider
if they are creating an objectional SO2
problem.
From the state of the record we cannot ascertain
the
precise volume of H2S generated per day.
In any event,
it seems
safe to assume that tie quantity will not be so large as
to preclude
the consideration of incineration
to control the odor nuisance.
Beyond that, on
the instant facts it would appear to be an attractive
trade-off
if Monmouth can substitute an SO2 problem for the present
FI2S problem.
We should add for the benefit of future parties before
t~eBoard
that apart from the testimony of the strength and character
of the odor as perceived by the senses it would not only be helpful
but necessary in some cases to have an estimate of
the quantity of
the pollbtant which is generated on the record.
3
—
350
The record contains much evidence of hydrogen sulfide
fumigation continuing on
a somewhat regular basis
in recent years.
It
is
clear
that
the
odors
from
the
treatment
facilities
constitutç
air pollution
as contemplated by
the Environmental Protection Act.
An air pollution nuisance exists in the area around the
lagoon,
which
is of varying intensity and geographical extent,
due
to the
obnoxious odors emanating from the lagoon.
That the lagoon emissions
unreasonably interfere with
the enjoyment of life
is
a proposition
Tell founded
on this record
The City of Monmouth has not done everything that it could do
to improve
the operation of the facilities and eliminate the
odor nuisance.
The history of this problem has not been charac-
terized by inaction but the City and the packing company have simply
not done enough.
The odors have persisted
through
the
years,
from
the
commencement
of
the
lagoon’s
operation in 1966.
Five years
is
simply too
long
a time to not abate the environmental insult of
prevalent and persistent
H2S odors.
Even now, where is
the City’s
positive step by step program for abatement?
The City has said that
they will install
a cover and incinerator, but when?
Important
aspects of
the problem’s solution are undeveloped on the record.
Apart from the instant case we know of another severe H2S problem
in Illinois which~is well on its way to being
solved.
In
a
variance
request
by
Texaco,
Inc.
in
Salem,
Illinois
we
considered
a situation in which 3,000 pounds per day of H2S was
being emitted
into the atmosphere.
Control down to 6.5 pounds per
day was effected by
a system which oxidized the H2S
to elemental
sulfur by exposure to dissolved air in the presence of
a nickel
chloride catalyst
(I’CB 71—235, October
14,
1971;
See also PCB
70—29,
February
17,
1971).
The lagoon treatment facility is for the packing plant’s
wastes only,
the city’s residents are served by
a separate pre-
existing sewage treatment plant
in use since
1932
(R.267)
.
The
City in this case
is
in effect holding the bag for the packing
industry;
it
is
a surrogate respondent.
Nonetheless it is the City
that we must
focus our attention on in this case.
They in turn
will
have
to deal with the industry.
They may want to consider an
1
Air
po1lution~J~
defined
in
Section
3(b)
of the Act:
(b)
“Air Pollution”
is the presence
in the atmosphere of one or
more contaminants
in sufficient quantities and of such
characteristics and duration as
to be injurious to human,
plant or animal life,
to health,
or to property or to
unreasonably interfere with the enjoyment of
life or property;
A contaminant
is defined
in Section 3(d);
(d)
“Contaminant”
is any solid,
liquid,
or gaseous matter, any
odor,
or any form of energy, from whatever source.
—
3S~
industrial waste ordinance
as
a method of generating the funds re-
quired to deal with
the problem.
We will order Monmouth to act within six months
to abate
the
odor nuisance which has been continuing for five years.
Neither
the presence of the odor nor the means of controlling it are new
things.
We
are not unmindful of the state of this record which
is
deficient on
the questions of construction schedule and cost of con-
trol facilities.
We are therefore requiring Monmouth to submit
detail affidavits by February 15,
1971 estimating
the cost of
the
needed correctives and delineating a firm schedule for their installa-
tion.
Further we will enter
a cease and desist order relating to
the detectable emissions of hydrogen sulfide which shall take effect
six months from date.
That is to say,
if the city has not solved
the problem six months from date
(and have not applied for and
received relief from such order from this Board)
they will have
to shut down the hydrogen sulfide generating operation i.e.
the
treatment lagoon.
We will not allow
the further operation of
a
treatment facility which is
so demonstrably
inadequate
as
to
regularly and seriously affect the daily
lives of the close—in
residents.
The remaining issue
is the question of
a money penalty.
(See
EPA v
City of Marion,
PCB 71-25, October
28,
1971;
EPA
v. City of
East St.
Louis,
PCB
71—26, July
8,
1971).
The Agency has asked
for the maximum penalty of $10,000 plus $1,000 per day
for
a
continuing violation.
We are not prepared to go
so far at this
time.
We will impose
a penalty in the total amount of
$2,000
and trust that
this sanction together with
the prospective cease
and desist order and other parts of this order will serve
to com-
pletely abate
the existing nuisance.
This Opinion constitutes the Board’s findings of
fact and
conclusions of law.
3—352
ORDER
The
Board
having
considered
the complaint,
answer,
transcript
and
exhibits
in
this
proceeding hereby enters the fo1lowinc~order:
1.
The
City
of
Moninouth
shall
cease
and
desist
from
causino
air
pollution
due
to
the
uncontrolled
emission of hydrogen
sulfide odors within six months from date.
2.
The City of Monmouth shall by February
15,
1972 submit to
the EPA complete plans,
specifications
and schedule detailing
the
program
of
covering
the
lagoon
and
incinerating
the
hydro-
gen
sulfide.
With
the
exception
of
the
specifications
and
any
engineering
blueprints,
the
Board
shall
receive
6
copies
of
all
of
the
foregoing materials
by
February
15.
3.
The
City
of
Monmouth
shall
submit monthly reports, commencing
on
March
15
and
continuing
for
3
months
thereafter,
to
the
Board
and
the
EPA
detailing progress
to date on their program
to
abate
the
odor
nuisance.
4.
The
City
of
Monmouth
shall
pay
to
the
State
of
Illinois,
on
or
before
February
15,
1972,
the
sum
of
Two
Thousand
Dollars
($2,000.00)
as
a
penalty
for
violations
of
the Environmental
Protection
Act
found
herein.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the
Board
adopted
the
above
Opinion
and
Order
thas
~
day
of
January,
1972
by
a
vote
of
~y—
C
C
~77
~
Christan
L.
Moffet~~lerk
Illinois Pollution Control Board
3
—
353
.
.