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.

 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

h’

~l(I(Ii

i(~lll1

orulilt

 loll.

The

Aquncy

recol

vud

Lids

letter

 Janu~iry 2,

9/4

 huL did

not respond.

 On January

1974

the

Agency

wroLe

Respondents

notifying them that the permit application was denied.

Mr.

McGee

again

phoned

the

Agency

and

was

informed

that

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

—

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.

h~ hO~lr(1

‘

S

~IdOl)Lifl(J

~

mu

011

cOllecru

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

—

659

—6—

photochemical smog is not

the

only

adverse

result

organic

emissions.

Rules

205(a),

(b)

(c)

and

(d)

 for example, apply to all volatile

organic

materials

light

 of testimony about

such

installations

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

Los

Angeles

smog.

addition,

 if local odor

nuisances exist,

 205(b)

and

(c)

 call for control

all

organic

materials.

The major purpose of these regulations is for control of

photochemical

oxidants.

addition

odor

causing

organic

emissions

were

included

local

odor

nuisance

exists,

this case no such facts were presented to the Board.

Complainants

have

not

alleged

that

the

fans

themselves

are

emission

source.

Complainants

have

stated

that

not

their

contention

(B.

27,

Brief

2).

The

Board

notes

that

the

fans

are

covered

 the exemption provided by Rule 103(i) (2)

Chapter

Exemptions.

permit

required

the

following

classes

emissions:

(2)

air

conditioning

ventilating

equip-

ment

not

designed

remove

air

contaminants

generated

released

from

associated

equipment.

The

Board

finds

 there is insufficient evidence to show that

the

odor

chicken

manure

indicia

itself

organic

material

regulated

the

Chapter

 Regulations.

The

allegation

violation

Rule

103(b)

(2)

Chapter

re in ti

the

ch I

ckcri

houses

is;

(Ii sm

The parties

involved

have

stipulated

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

—

660

—7—

Respondent

whose

burden

produce

such

information,

Processing

and

Books,

Inc.

Pollution

 Control Board,

64

 Ill.

68,

351

N.E.

2d.

865

(1976).

The

Board

will

consider

what

information

does

have.

First

the

character

and

 degree of

injury to, or interference with the protection of the health,

general

welfare

and

physical

property

the

people

must

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

spread

disease.

The

Agency’s

permit

system

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

detriment

the

community.

There

are

facts

presented

this

case

concerning

the

suitability

 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.

Respondents

 iolation of Rule

103(h~(2’

 ci Ci

r

 applies

 to their

incinerators

3.

 Respondents

3th

i ~

s

 pc.raCty of $500 within

days

sytent

shall

 be by

certified

 ~eeh

 cone

 a ocr payable to:

State

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