ILLINOIS POLLUTION CONTROL BOARD
    February
    3,
    1972
    ENVIRONMENTAL PROTECTION AGENCY
    v.
    )
    #
    PCB 71—319
    HOLLAND ICE CREAM
    & CUSTARD CO.
    Larry Eaton,
    Attorney for the Environmental Protection Agency
    Max
    E.
    Reynolds,
    Appearing
    for
    Holland
    Ice
    Cream
    &
    Custard
    Co.
    OPINION
    & ORDER OF
    THE
    BOARD
    (
    by
    Mr.
    Currie):
    The respondent processed dairy products near Taylorville
    (R.
    9-10).
    It was charged by the Agency with various violations
    concerning
    its liquid wastes.
    We
    find certain charges proved
    and others not,
    as indicated below.
    Milky wastes from the processing plant are fed to
    a
    holding tank that equalizes rates
    of flow and thence to
    aeration and settling tanks
    in which
    sortie oxidation and
    settling take place.
    The effluent passes over
    a weir
    into
    a
    private sewer leading ultimately to the South Fork of the
    Sangamon
    River
    (R.
    10—11,
    18,
    21—23).
    Paragraphs
    (a)
    and
    (b)
    of the complaint allege that
    this effluent caused
    pollution
    of the stream
    in violation of
    section 12(a)
    of the Act and caused violations of
    the water
    quality standards of Rules and Regulations SWB-14 with respect
    to nuisance conditions such
    as color, odor,
    and objectionable
    sludge deposits.
    But no evidence was introduced as
    to the
    condition of the stream that was alleged to have been polluted,
    and such proof
    is necessary on these charges.
    See EPA v.
    John
    P. LaForge Co,
    #70—39
    (April
    28,
    1971).
    Paragraphs
    (a)
    and
    (b)
    fail for complete want of proof.
    The evidence
    shows effluent concentrations of both oxygen
    demand
    (ODI)
    and suspended solids on one occasion
    (March
    29,
    1971)
    of no less than 1400 mg/l
    (R.
    48)
    ,
    which
    is seven times
    the strength of raw sewage and grossly in excess of any effluent
    standard.
    But no violation of
    the standards
    for BOD or suspended
    solids was alleged,
    and we cannot therefore find such a violation.
    3
    —~
    587

    Paragranh
    Cc)
    charges
    a failure to obtain certification
    of treatment plant operators
    (SWB-2)
    and
    to submit monthly
    operational reparts
    (SWB—6)
    .
    No evidence was introduced
    as to
    the certification
    count,
    so we cannot find
    it proved.
    The
    company’s
    answer stated that
    it had applied
    for operator
    certification
    in March
    1971 but had received no reply.
    It
    may he implicit that the operator was not previously certified,
    but we
    think
    it incumbent on the Agency
    to offer better proof
    than
    such an inference,
    It should be sufficient
    to warn
    the company that
    it may risk serious penalties
    in
    the future if
    it does
    not have
    a certified cperator.
    The failure
    to file
    any reports over
    a considerable period was both proved
    (R.
    40)
    and admitted
    (letter
    of
    Nov.
    10), and we
    find
    a violation
    of
    SWB—6.
    The company’s general manager has ordered that reports
    be
    submitted from now on.
    Paragraphs
    (d)
    and
    Ce)
    charge
    a failure
    to remove color,
    odor,
    or turbidity
    to below obvious
    levels
    (SWB—l4,
    Rule
    10(b) (3))
    and to operate
    its treatment works
    up to design
    efficiency
    (id.,
    Rule 11(c)).
    Both these allegations were
    proved.
    An Agency inspector testified that when he visited the
    plant
    on March 29,
    1971 the overflow notches in
    the final weir
    were partially clogged,
    so that the velocity of the effluent
    through
    the remaining notches was increased and large particles
    of waste were carried into
    the sewer that
    leads
    to the river.
    The effluent, he testified, was turbid
    (R.
    34—38).
    This testimony
    was not
    refuted.
    The company conceded
    that its equipment was
    not adequate
    to meet present standards
    (R.
    7,
    69;
    letter
    of
    Nov.
    10);
    testified that it had diverted stormwater away from
    the treatment plant
    to stop overloads
    CR.
    17,
    23—25);
    and
    committed
    itself to bringing itself into compliance
    (R.
    8;
    letter of Nov.
    10)
    .
    The failure to comply earlier was attributed
    to
    lack of money,
    to
    the preoccupation of the general manager
    with other matters such as putting
    an end to large business
    losses,
    and to the
    fact that
    “attention
    was not called to...
    the whole water pollution program until,
    let’s
    say,
    1971”
    (R.
    75-76).
    None of these justifies
    the violations.
    The company
    is required
    to find out about
    its water pollution problems,
    and admits to being ‘very aware”
    of them now for about
    a year
    (R.
    68).
    Thus we
    find
    the company has failed to file reports required
    by
    SWB—6,
    to meet the color and turbidity effluent standards
    of SWB—l4,
    and to operate at design efficiency under
    SWI3-l4.
    The record
    is strangely silent as to what we should do
    about
    it.
    The complaint asks for money penalties up to the
    maximum authorized
    and
    for an order
    to cease violations.
    The
    Agency’s closing argument simply asked us to get the company
    3
    583

    into compliance
    as quickly and completely
    as
    is possible
    (R.
    87-88).
    The company
    in
    a letter that was deemed an answer
    to the complaint
    (R.
    5)
    in effect sought
    a variance to permit
    it to stay in business while correcting
    its problems.
    The evidence
    in support of this variance request
    is that
    the
    ~mpany
    has employed
    a
    consulting firm that was
    to begin
    December
    2,
    1971
    to analyze
    the effluent and prescribe
    a solution
    (R.
    69-71).
    The company’s preference,
    shared by the City
    of
    Taylorville,
    is
    to connect to the municipal sewers, but the
    local Sanitary District refuses to take additional
    lcads
    for
    fear of an overload,
    and apparently
    this solution depends upon
    the construction
    of an additional municipal plant
    (R.
    70,
    79-86;
    letter of Nov.
    10)
    ,
    which we point out, might conflict
    with federal and state policies against the proliferation
    of
    small plants.
    If
    this idea
    falls through,
    the company
    is prepared
    to build its
    own treatment plant to meet the applicable
    standards
    (R.
    72).
    In
    the absence
    of’ a firm program for compliance, we cannot
    enter
    a definitive order, either
    a variance, see York Center
    v.
    EPA,
    # 72-7
    (Jan.
    17,
    1972)
    ,
    or an order to cease and desist,
    see EPA
    V.
    Chicago Housing Authority,
    #71-320
    (Dec.
    9,
    1971).
    We shall order the company,in accord with
    its own promises,
    to submit to the Agency and to
    the Board by March
    1,
    1972
    a firm program for achieving compliance
    in the shortest
    practicable time.
    Upon receipt of that program,
    and of the
    Agency’s response within 20 days thereafter,
    we shall determine
    what additional order
    to enter, including the question of
    money penalties,
    and
    the possibility of an immediate cease-
    and—desist order
    in the event of
    an unsatisfactory program.
    ORDER
    1.
    Holland
    Ice Cream
    & Custard Co.
    (Holland)
    shall operate
    and maintain its wastewater treatment plant so as
    to achieve
    the best treatment consistent with design limitations.
    2.
    Holland shall submit monthly operational reports to the
    Agency in accord with applicable regulations.
    3.
    Holland shall submit to the Board and to the Agency, on
    or before March
    1,
    1972,
    a firm program for achieving
    compliance with
    all applicable requirements respecting
    its
    discharge of liquid wastes.
    Such program shall provide for
    compliance in the shortest practicable
    time.
    3
    589

    4.
    The
    Agency
    shall
    file
    with
    the
    Board
    and
    serve
    upon
    Holland,
    within
    20
    days
    after
    receipt
    of
    the
    program
    specified
    in
    paragraph
    3
    of
    this
    order,
    a
    response
    containing
    its
    recommendations
    respecting
    the
    program
    and
    respecting
    a
    further
    order
    by
    the
    Board.
    5.
    Upon
    receipt
    or
    default
    of
    the
    report
    and
    response
    required
    by
    paragraphs
    3
    and
    4
    of
    this
    order,
    the
    Board
    shall
    take
    such
    further
    action
    and
    enter
    such
    further
    order
    as
    may
    be
    appropriate,
    and
    jurisdiction
    is hereby retained
    for
    that
    purpose.
    6.
    Holland’s
    letter
    of
    November
    10,
    1971,
    construed
    as
    a
    petition
    for
    variance,
    is
    hereby
    denied
    for
    want
    of
    a
    firm
    compliance
    program.
    I,
    Christan
    Moffett,
    Clerk
    of
    the
    Pollution
    Control
    Board,
    certify
    that
    the
    Board
    adopted
    the
    above
    Opinion
    and
    Order
    of
    the
    Board
    this
    ~‘
    day
    of
    ,
    ,
    1972
    by
    vote
    of
    ~
    .
    ~
    3
    590

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