ILLINOIS POLLUTION CONTROL BOARD
February 3
,
1977
PEOPLE OF
THE
STATE OF ILLINOIS
)
and the ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainants,
v.
)
PCB 75—189
PROCESSING AND BOOKS,
INC.,
an
)
Illinois Corporation, and
NATIONAL MELLODY FARM
FRESH
EGGS
)
COMPANY, an Illinois Corporation,
Respondents.
Mr. James Dobrovolny, Assistant Attorney General, appeared on
behalf of Complainants.
Mr. Lewis Clarke and Mr. Clayton
P. Voegtle appeared on behalf
of Respondents,
OPINION AND ORDER OF THE BOARD
(by Dr. Satchell):
The original complaint in this matter was filed on May 2,
1975 with the Clerk of the Pollution Control Board
(Board)
by
the People of the State of Illinois
(People)
,
represented by
the Attorney General, William J.
Scott.
An amended complaint
w~sfiled on August 20, 1975 by the People and the Environmental
Protection Agency
(Agency).
This amended complaint alleges that
Respondent, National Mellody Farm Fresh Egg Company, owns and
Respondent, Processing and Books,
Inc., operates
a facility for
theproduction
of eggs, including but not limited
to two incin-
erators and sixteen chicken houses, each of which contains
approximately 21,000 chickens, which
is located on the east
side of Butterfield Road, near the Village of Mundelein, County
of Lake,
State of Illinois;
that beginning on March
1,
1973
and continuing everyday of operation through the date of filing
Respondent has operated its incinerators without having first
obtained operating permits from the Agency
in violation of
Rule 103(b) (2)
of the Chapter
2: Air Pollution Regulations
(Chapter 2); and that each of the chicken houses located at
24
—
655
—2—
Respondents’
egg producing operation causes the concentration
of large quantities of organic material which
is
e!nitted
through numerous exhaust fans, thereby constituting existing
emission sources as defined by Rule 101 of Chapter
2 and in
violation of Rule 103(b) (2)
of Chapter
2.
A hearing was held in this matter on October 19,
1976
in Waukegan, Illinois.
At the hearing the parties intro-
duced a stipulation of fact with which all parties
agreed.
This stipulation outlines the procedural aspects of the case.
This proceeding was stayed on June 18, 1975 by the Appellate
Court Second District, pending the final disposition of
PCB 72-148, a case involving the same parties and the same
facility.
The Illinois Supreme Court vacated the Order of
the Appellate Court on June
27, 1975.
Rehearing was denied.
On July
15, 1976 Complainants filed a Request for
Admissions of Fact pursuant to Procedural Rule 314.
Respon-
dents filed a Response
to Request for Admission of Fact on
August
31,
1976.
Complainants point out in their brief that
this
is not a timely filing and under Procedural
Rule 314
would generally be deemed as admitted.
However, Respondents
point out that Complainants did not object to the filing of
the late response until after the hearing.
More than seven
weeks went by from the filing of the Response to the hearing
date.
The Board agrees with Respondent
in this matter.
Al-
though the filing was late sufficient time was available for
Complainants to prepare their case.
It would also be unfair
to go through the hearing process with Respondents not having
sufficient notice that the facts had been deemed admitted
against Processing and Books, Inc.
The Board must also rule
on three offers of proof made by the Attorney General in this
case
(R. 12—19, 39—41,
43,
44).
The Board will allow this
testimony to remain a part of the record;
it is necessary to
the development of Complainants’ case as set forth
in the
amended compiainL.
The parties have also stipulated to the facts of this case.
Ownership and the location of the facility are as set out in
the complaint.
The chicken houses have been in operation since
at least April 13, 1972.
Each of the chicken houses is approxi-
mately 360 by 40 feet in size and house approximately 21,000
chickens.
Cages in the chicken houses are used to house the
chickens, eight to a cage, elevated three feet from the floor.
Under each row of cages in the chicken houses
is a manure trough
built into the concrete floor.
Underneath the center of each
24
—
656
—3—
of the chicken houses
is a large manure holding pit.
The
holding pit underneath the center of each chicken house is
forty-five feet long, fifteen feet wide and ranges
in depth
from nine feet at the shallow end to twelve feet at the deep
end.
Chicken manure drops through the bottom of the afore-
said cages into the manure trough.
The manure
is mechanically
scraped by a chain scraper into the manure troughs starting
at each end of each manure trough and scraping through the
manure trough towards the center of the building where
it
drops through an opening approximately twelve inches across
the manure troughs into the holding pits underneath the cen-
ter of the building,
This process occurs twice a day.
The manure collects in the holding pits until the pits
are emptied, the frequency of which varies, but would generally
be between ten days and three weeks.
The manure when pumped
out of the holding pits
is pumped into a mobile tank and towed
by a tractor which transports it to the point of disposition
for the manure to be emptied from the tank.
The frequency of
the pumping operation varies with the operation of the farm,
weather and other factors,
It is stipulated that to ventilate the chicken houses fans
have been installed, thirty in some houses, fifteen in others.
The difference
in fans
is one of size.
The total capacity for
each chicken house is approximately the same.
The fans are
activated by thermostatic controls which are governed by the
temperature inside the chicken houses.
The thermostatic con-
trols determine the number of fans operating
at any one time
as well as the frequency of operation.
The stipulation states that until the manure is agitated
or disturbed there
is little or no odor.
During pumping covers
are placed on the openings in the manure troughs; the openings
otherwise remain uncovered.
it
is stipulated that from May 1,
1973 until
the filing of
the amended complaint Respondent has operated these chicken
houses without operating permits from the Agency.
Respondent also employs two incinerators,
as stipulated,
to dispose of approximately 100 chickens which die daily
in
the normal course of operation.
These chickens are placed in
oneof the incinerators which are made by Shenandoah Manu-
facturing Company.
The incinerators are fitted with after
burners that are intended to eliminate emissions
of extra
odors, gases and particulates.
24
—
657
—4—
The agreement states tnat during July 1973,
Leonard
PcGee, Respondent’s
attorney, cued
the Agency requestinc
:~ermitapolication forms
for the incinerators.
During
July
1973,
Mr. McGee spoke with an Agency employee,
Mr.
Stella, who indicated in that conversation that Shenandoah
Incinerators had not,
as yet, been approved and that only
one application had been received.
Mr. Stella also indi-
cated that
if the Agency needed more technical information,
then the Agency would deal directly with the manufacturer.
Thereafter the proper forms were received by Respondent on
July
25,
1973,
Respondents prepared the permit application
forms for the construction of new incinerators which the
farm intended to purchase as replacement for the existing
incinerators, which had no permits.
The Agency received
the application on October 11,
1973.
Shenandoah Manufacturing notified Respondents that they
did not believe a permit could be issued for the existing
incinerators, but that permits could be obtained
for the new
incinerators
for which Respondents were applying for con-
struction permits.
The farm cannot operate without the daily
use of the incinerators.
Therefore, the farm constructed the
new incinerators and disposed of the old incinerators.
The stipulation states
that on November
27,
1973,
the
Agency wrote directly to Shenandoah requesting further informa-
tion for the incinerators on Respondents’
property and stating
if
the information was not supplied within thirty days the
application would be denied.
Respondents also received
a
copy of that letter.
Shenandoah wrote the Agency on Decem-
ber 12,
1973 requesting identification of the model number
of
the incinerator in question.
The Agency responded by
calling Shenandoah on December
21, 1973 and Shenandoah said
they would try to submit the data by December
26,
1973.
On
December 27,
1973 Respondents wrote the Agency requesting an
extC~nS~()n of
f~iTflC~
ror
iniShill(J
I
h’
~l(I(Ii
I
i(~lll1
ml
orulilt
loll.
The
Aquncy
recol
vud
Lids
letter
on
Janu~iry 2,
9/4
huL did
not respond.
On January
3,
1974
the
Agency
wroLe
Respondents
notifying them that the permit application was denied.
Mr.
McGee
again
phoned
the
Agency
and
was
informed
that
if
the
manufacturer
were
to submit further test data,
the Agency
could reconsider the application without the necessity of a
new filing.
Shenandoah indicated new test results would
be
sent to the Agency.
The Agency received a copy of this
letter.
After the filing of the initial complaint herein,
Shenandoah
informed Respondents that the incinerators would not meet the
Agency’s requirements.
Shenandoah did have other models that
would
meet
these
requirements.
Respondents
applied
for
24
—
658
—5—
construction permits
for new incinerators which they intended
to purchase which the Agency approved March 10,
1976.
New
incinerators were constructed and an operating permit applied
for from the Agency.
An operating permit was approved for the
new incinerators on May 12, 1976.
Both parties agreed that
from April
1,
1973 to the filing of the amended complaint
Respondents had allowed operation of the incinerators without
operating permits from the Agency.
The People and the Agency assert that Respondents’
chicken
houses,
as an entire unit, are emission sources for organic
substances.
Complainants base their case on the fact that
there is
an odor around the chicken houses——an indicia of
emissions
(R.
18,
19).
An environmental protection engineer
from the Agency stated that manure was clearly organic material
(P..
41).
The Board finds that Complainants have failed to
show any substantive evidence that the chicken houses emit
organic material.
Rule 201 of Chapter
2 defines organic
material
as:
Any chemical compound of carbon including
diluents and thinners which are liquids
at
standard conditions and which are used as
dissolvers, viscosity reducers or cleaning
agents, but excluding methane, carbon monoxide,
carbon dioxide, carbonic acid, metallic car-
bonic acid, metallic carbide, metallic carbon-
ates, and ammonium carbonate.
Complainants have made no laboratory analysis of the chicken
manure
(P..
49).
There has been no showing of the quantity
or type of emission.
It has not been shown that chicken
manure
is a compound of carbon or that it has been used as a
dissolver, or a viscosity reducer or a cleaning agent.
1
~
I
h~ hO~lr(1
‘
S
~IdOl)Lifl(J
~
mu
011
cOllecru
l
ll()
0~~dl1
Ic
rnaterid
emission
standards, R7l—23,
4 PCB 298,
336,
337
(1972)
the Board stated:
Rule
205: Organic Material Emission Standards
serves both to achieve and maintain compliance
with the federal air quality standard for photo-
chemical oxidants
(0.08 ppm for one hour not more
than once per year,
36 Fed.
Reg.
22385, Nov.
25,
1971)
and to prevent local nuisances.
Not all the provisions of Rule 205, however,
are limited to reactive materials,
since
24
—
659
—6—
photochemical smog is not
the
only
adverse
result
of
organic
emissions.
Rules
205(a),
(b)
(c)
,
and
(d)
,
for example, apply to all volatile
organic
materials
in
light
of testimony about
such
installations
as
oil
refineries.
These
provisions are designed to require the use
of
equipment that is already in use at numerous
facilities
even if there
is no substantial risk
of
Los
Angeles
smog.
In
addition,
if local odor
nuisances exist,
205(b)
and
(c)
call for control
of
all
organic
materials.
The major purpose of these regulations is for control of
photochemical
oxidants.
In
addition
odor
causing
organic
emissions
were
included
if
a
local
odor
nuisance
exists,
in
this case no such facts were presented to the Board.
Complainants
have
not
alleged
that
the
fans
themselves
are
an
emission
source.
Complainants
have
stated
that
is
not
their
contention
(B.
27,
Brief
2).
The
Board
notes
that
the
fans
are
covered
by
the exemption provided by Rule 103(i) (2)
of
Chapter
2.
Exemptions.
No
permit
is
required
or
the
following
classes
of
emissions:
(2)
air
conditioning
or
ventilating
equip-
ment
not
designed
to
remove
air
contaminants
generated
by
or
released
from
associated
equipment.
The
Board
finds
there is insufficient evidence to show that
the
odor
of
chicken
manure
is
an
indicia
or
is
itself
an
organic
material
as
regulated
by
the
Chapter
2
Regulations.
The
allegation
of
violation
of
Rule
103(b)
(2)
of
Chapter
2
n
re in ti
on
to
the
ch I
ckcri
houses
is;
(Ii sm
j
The parties
involved
have
stipulated
to
the
fact
that
Respondents
did
not have the necessary permits
for the
operation of the two incinerators
(Stip.
12).
The Board
finds that Respondents’
incinerators do need permits under
the Regulations and Respondents are
in violation of Rule
103(b) (2)
of Chapter
2 for their failure
to have the neces-
sary permits.
Prior to determining what penalty if any is
necessary the Board must consider the factors of Section
33 (c)
of the Act.
Those factors were not specifically addressed by
24
—
660
—7—
Respondent
whose
burden
it
is
to
produce
such
information,
Processing
and
Books,
Inc.
v.
Pollution
Control Board,
64
Ill.
2d
68,
351
N.E.
2d.
865
(1976).
The
Board
will
consider
what
information
it
does
have.
First
the
character
and
degree of
injury to, or interference with the protection of the health,
general
welfare
and
physical
property
of
the
people
must
be
considered.
No actual damage was shown at the hearing con-
cerning Respondents’
failure to obtain the proper permits;
however,
there is potential for damage or interference with
the health and welfare of the general public.
An improperly
run incinerator used for chickens could cause odors, attract
vectors
or
spread
disease.
The
Agency’s
permit
system
is
there
to provide expertise and prevent such unfortunate occurrences.
Although there were some communication problems between Respon-
dent,
the Agency, and the manufacturer, a three year delay in
obtaining
a
permit
is inexcusable.
The nature of Respondent’s facility would generally allow
it
a positive social and economic value.
The farm is twelve
hundred acres,
a thousand of which are used to raise corn
(R.
75,
76).
At the time of the hearing Respondents had 300
to 400 head of hogs which were being fattened for market
(B.
76).
They also have hackney show horses,
the chicken
operation, and turkeys for a few months each year
(P..
76)
Obviously the end products of these operations are a social
and economic necessity.
The value is diminished
if in the
qrowth process the
environmental
degradation
is
a
detriment
to
the
community.
There
are
no
facts
presented
in
this
case
concerning
the
suitability
of
the location of the facility.
On this
basis the Board must assume the location is not an issue.
Clearly
it is technically and economically practicable
for Respondents to obtain permits for their ipcinerators
as they have already done
so.
The Board does note that
had
Re~pondunl
taken qren tier care nnd made
i
uqu
i
ries
to
the manufacturer and
the
Agency when they purchased lucia—
erators
in 1973 that the purchase of new incinerators
in
1976
may
not have been necessary.
The Board finds that although Respondents
are now in
compliance that they have been dilatory and careless
in com-
ing into compliance.
In mitigation the Board finds that in
this case Respondents acted in good faith purchasing incin-
erators from their previous supplier.
At the time of the
purchase the Board’s Air Pollution Rules had been recently
put into effect, April 14,
1972;
thus,
some confusion would
be expected.
Respondents should not be penalized because
24
—
661
neither the Agenc~ no
c m
u~act’rerhad sufficient data
to allow the required penuts.
however, the failure to
actively follow
the pLobLc~sot
tacit
permit
application
resulting
in an enreasorcue cc ~y nandates
a penalty to
aid in enforce~ent.
A ocr~at5
$~00wthl
cc assessed,
This constitutes th~ isara
a
indinas of fact and
conclusions
of law
i
~
It
is the order at
t~
Fec’
~
n hontrol Board that:
1.
The al1ec~atrnr of
‘soicion of Rule 103(b) (2)
of
the Chapter
2. A
Po~utn
egulations
in
rela-
tion
to
the
~r
or. hcu~
)f Lhe Respondents,
Processir
-.
ar
In
erA hational
Mellody
Farm
Fres~ ggs Company,
i
da~nissed.
2,
Respondents
~o
f
d
t~
be
i
r
iolation of Rule
103(h~(2’
ci Ci
.
r
2
a
r
applies
to their
incinerators
3.
Respondents
3th
i ~
s
pc.raCty of $500 within
35
days
of
t
ra
a
sytent
shall
be by
certified
~eeh
cone
a ocr payable to:
State
o~
~
.1
c
Enviro~~
~~enc~
otec
Iron
Agercy
Fiscal
cer~i’
.‘~
th
iston
2200
Crarchii
Roab
Springiield
l1Iin~1s
62706
Mr. James Young concurred,
I, Christen L
Moftett, Clerk of the Illinois Pollution
Control Board, hereby c~rtitythe a1~ove~Oprnionand Order
were adopted on the
~
day
of~Ji~,
1977 by a
vote of
~
erk
Illinois
Po1lution~
ntrol Board
24
—
662