ILLINOIS POLLUTION CONTROL BOARD
August
21,
1980
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Complainant,
v.
)
PCB 79—240
CARGI.tJL, INC.,
Respondent.
ALICE NUSBAUM, ASSISTANT ATTORNEY GENERAL, APPEARED FOR THE
COMPLAINANT;
PERCY ANGELO, APPEARED FOR RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.D.
Dumelle):
On November 14,
1979, the Illinois Environmental Protection
Agency
(Agency) filed this enforcement action against Cargili,
Inc.
(Cargill), alleging violations
of Section 12(a)
of the
Environmental Protection Act
(Act)
and Rules
403,
404(a),
401(c) and 601(b)
of the Illinois Pollution Control Board
Rules and Regulations, Chapter
3:
t~aterPollution
(Water
Rules).
Hearings were
held
on May
19 and
20,
1980.
Keith Long
(as an adverse witness), Robert Taylor
Paul Murphy and John
Raevuori testified for the Complainant.
Keith Long testified
for the Respondent.
No members of the public attended.
At all times pertinent to
the Complaint
in this case,
Cargill has owned and operated a plant located at Cottage
Avenue and Lake Marion Road in Carpentersville,
Kane County,
Illinois, which manufactures synthetic alkyd and polyester
resins
(R.202,204—5).
Furthermore,
at all pertinent times
Cargill has operated a stormwater and spill prevention containment
system on its Carpentersville plant grounds.
Although Cargill
has no process waste discharges
(R.206-7),
its seven acres
of grounds, five of which are either blacktopped or roofed,
do result in run—off (R.208—13)~
This is collected and channelled
to the underground rainwater detention system which involves
three tanks of approximately 60,000 gallons total capacity.
The runoff
is directed through an uncterflow—overflow
arrangement.
The first stage removes materials which are
lighter than water and float to the surface where they are
removed with an API skimmer.
Materials heavier than water
-2—
col lect
at
the
bottom
of
the
second
stage
and
are
removed
at
regular
intervals.
There
is
also
some
settling
in
the
third
and
final
stage.
This
part
of
the
system
discharges
to
a
line
leaving
the
Cargill
grounds
(R.218—20)
and
finally
discharges
to
a
24—inch village
storm
sewer
line
and
into
the
Fox
River
(R.35).
The
storawater
system
also has a fourth tank which is
used solely as a holding tank.
ift
the event of spills on the
plant grounds, the spilled material can be diverted to the
holding tank.
The API
skimmer
also discharges to this tank.
Materials collected in the
tank
are either reclaimed or hauled
by a licensed hauler (R.210—12).
Complainant alleges first
that
Cargill
has
violated
Water Rule 403 and Section 12(a) of the Act by discharging
an effluent into the
Fox
River of obvious color, ordor and
turbidity.
Complainant’s witnesses Robert Taylor and
John
Raevuori, both Environmental Protection Specialists with the
Agency, gave testimony supporting these violations.
Mr. Taylor
testified that on April
11, 1978, he observed a discharge
from the 24—inch tile to the Fox River which was slightly
turbid and
had
an odor (R.43—44).
Mr. Raevuori testified
that on April 13, April 26,
and
May 29, 1979, he observed a
greyish-white discharge at the same location with some turbidity
and
a plastic—type odor (R.106—7,
122—3
and
147).
He further
testified that on ~pril 26, 1979, he observed water flowing
through
the
manhole following Cargill’s stormwater system which
had
the same coloration and odor as that observed discharging
into the
Fox
River
(R.131).
Finally, he testified
that
on
April
26, May 3, and, May 29, 1979, he observed water flowing
across the Cargill plant grounds into a stormwater catch basin
which seemed to be of about the same volume as that which
was
being discharged into the
Fox
River
(R.130).
Mr. Keith Long,
Cargill Plant Superintendent at the time told
him
that the
flow was caused by a leak in Cargill’s fire prevention system
and was causing a flow through the stormwater system (R.136—7
and 225—6).
Respondent presented little to rebut this testimony.
While
it is true
that
there
are
other contributors to the
24—inch
storm
drain
(R. 219),
their
contribution to the discharge
at
pertinent
times
is
only
conjectural,
while
there
is
competent
evidence
to
show
that
some,
if
not
all,
of
the
discharge
was
from Cargill.
Further,
even
if
others
did
contribute
to the discharge, that would not eliminate the violations
based upon samples taken on Cargill’s plant grounds at the
manhole following the stormwater system on April
26
and
29,
1979
(R.130—2 and 152—4).
Given the admission that the discharge
was
caused
by
a
leak
which
persisted
front
February
to
August
of 1979
(R.245 and 360),
it
is
reasonable
to
assume
that
the
discharge was continuous.
—3—
Therefore, the Board finds that Cargill violated Water
Rule 403 and Section 12(a) of the Act by discharging water
into the Fox River with obvious levels of color, odor and
turbidity on the dates alleged.
Complainant alleges secondly that Cargill has violated
Water Rules 404(a) and 401(c) and Section 12(a) of the Act
by discharging an effluent of greater than five times the
30 mg/l standard of BOD5.
Mr. Raevuori testified that he took samples of the discharge
from the 24—inch tile to the Fox River on April
13,
April
26,
and May
29, 1979.
Laboratory analysis of these samples showed
a BOD5 level in excess of 150 mg/l
(Comp.
Exs.
1,2 and 5).
He further testified that on April
26 and April 29,
1979,
he took samples of the effluent entering the manhole on Cargill
property which follows the stormwater system.
Analysis of
these also showed BOD5 levels in excess of 150 mg/l
(Comp.
Exs.
3 and 6).
Respondent relies on the same rebuttal testimony as above,
and the Board again rejects it,
for the same reasons.
Therefore,
the Board finds that Cargill violated Water Rules
404(a) and
401(c)
and Section 12(a)
of the Act.
Finally, Complainant alleges that Cargill has violated
Water Rule 601(b) and Section 12(a) of the Act by not taking
all reasonable measures to prevent any spillage of contaminants
from causing water pollution.
There is some evidence to support these violations.
Mr. Raevuori testified that on April
26, 1979,
he noticed about
20 gallons of solidified material on the ground in the drum
storage area (R.127—9).
On May 29, 1979,
he noticed a dark,
oily stain near the process building which appeared to be
left by spilled material
(R.150).
However, as the Respondent
points out, there was no evidence that any spilled material
had ever reached the stormwater system (R.174).
Further,
on cross—examination Mr. Raevuori testified that the stain
could have been left by material that was cleaned up
(R.173).
Cargill rebutted this with considerable testimony concerning
its spill prevention and control program.
This includes
diked storage and catchment areas,
detailed operational procedures,
training programs and spill clean-up and prevention procedures
(R.311—17).
Without more evidence as to the spills causing water
pollution, the Board cannot find that Cargill violated Water
Rule 601(b) or Section 12(a) of the Act with respect to spills.
It
is, therefore,
unnecessary for the Board to consider
Respondent’s claims of res judicata or double
jeopardy.
—4—
Finally, Complainant argues that a penalty of at least
$10,000 should be imposed
against
Cargill to insure that Cargill
is not permitted to gain economically by its violations of
Board Rules and the Act,
and,
therefore,
to aid in the enforcement
of those rules and the Act.
Under Section 33(c)
of the Act,
the Board must look at
specified factors bearing upon the reasonableness of the
discharges in imposing any penalty.
~fliilethe discharge
appears to have been continuous during the period of the
leak in the fire prevention system, the volume was slight
(between
4 and 2& GPM by various witness),
There is
no testimony as to any adverse impact on the Fox River.
Further, while it is clearly not an unreasonable hardship
on Cargill to upgrade their system, Cargill apparently believed
there was no reason to do so until this action was brought.
Throughout the record the Agency agrees that Cargill
representatives were co—operative and responsive to the Agency.
They are presently making plans
to implement improvements
to their system
(R,274—5),
Also,
they have already rehabilitated
their fire protection system at a cost of $55,000
(R.263).
Finally, the plant,
which certainly has social value,
is in a basically industrial area of Carpentersville and is
surrounded by other industrial property (R.202—4).
Therefore,
the Board finds that no penalty would be
appropriate
in this case,
Because of this, the Board will
not set aside the hearing officer~srulings on motions to
compel answers to interrogatories which
go to the penalty,
for there has been no prejudice.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in this matter.
ORDER
1.
Respondent Cargill,
Inc.
is in violation of Rules
401(c),
403 and 404(a) of the Illinois Pollution
Control Board Rules and Regulations, Chapter
3:
Water Pollution,
and Section 12(a)
of the Illinois
Environmental Protection Agency Act.
2.
Respondent Cargill,
Inc.
shall cease and desist
further violations of those Rules and that part
of the Act of which they have been found in violation
in
(1), above.
3.
Respondent Cargill,
Inc.
shall, within 90~days
of the date of this Order,
submit an acceptable
—5—
plan to the Agency to bring its stormwater system
into compliance,
and shall include a schedule for
the completion of various stages of said plan.
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
was ~dopted on the
~
day of
__________,
1980 by a vote
of~.O_.
Christan L.
Mof
Clerk
Illinois Pollution Control Board
