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