ILLINC~ISPOLLUTION CONTROL BOARD
September
6, 1979
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 76-80
ALLAERT RENDERING,
INC.,
Respondent.
Mr. Dennis Fields,
Special Assistant Attorney General, appeared
for the Complainant;
Mr. John Parker, John L. Parker and Associates,
Ltd.,
appeared
for the Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr.
Young):
This matter comes before the Board on a six-count Complaint
filed by the Environmental Protection Agency
(Agency)
on March 19,
1976, against the Respondent, Allaert Rendering,
Inc.
(Allaert)
alleging violations of
the water pollution provisions of the
Environmental Protection Act and the Chapter
3 regulations.
The
Complaint charged Allaert with constructing and operating a waste
treatment works without the necessary permits required by Board
regulations, with depositing contaminants on land causing a water
pollution hazard, with improperly constructing its treatment plant
in violation of the spill and malfunction provisions of Rule 601
and with operating the treatment works without a certified operator.
In particular,
the Complainant raised the following issues in the
six counts of the Complaint as follows:
1.
Allaert caused or allowed the construction or modification
of its treatment works without
a construction permit from April
16,
1972, until March
19, 1976,
in violation of Rule 901(a), renumbered
951(a)
of Chapter
3:
Water Pollution Regulations
(Chapter
3)
and
Section 12 (a) and 12 (b)
of the Environmental Protection Act
(Act).
2.
Allaert operated its treatment works from April
16,
1972,
until March 19,
1976, without an operating permit in violation of
Rule 902(a), renumbered 952(a) of Chapter
3 and Sections 12(a)
and
12(b)
of the Act.
3.
Allaert operated its treatment works f~omDecember
31,
1972, until March 19, 1976, without the necessary permits, in
violation of Rule 903(a),
renumbered
953(a)
of Chapter
3 and
Sections
12(a)
and 12(b)
of the Act.
35—28 1
—2--
4.
Allaert operated its treatment works from July
1,
1970, until March
19, 1976,
by depositing contaminants on land
in such
a manner and in such
a place to cause a water pollution
hazard,
in violation of Section 12(d)
of the Act.
5.
Allaert operated its treatment works from April 16,
1972, until March 19,
1976,
in violation of the malfunction
and spill provisions of Rule 601 of Chapter
3 and Section 12(a)
of the Act.
6.
Allaert operated its treatment works without a certified
operator from June 27,
1973, until March 19,
1976,
in violation
of Rule
1201 of Chapter
3 and Section
12(a)
of the Act.
Hearings were held for this enforcement action on November
8 and
9,
1978,
in Rock Island,
Illinois after which evidence
was received in a variance proceeding, Allaert Rendering,
Inc.
v.
EPA, PCB 77-334
(September
6,
1979)
concerning the same parties.
In PCB 77-334, a petition for variance was filed December 14,
1977,
by Allaert for relief from those provisions
of the Act and Board
regulations which were the subject of this enforcement action.
Specifically, Allaert sought a variance from Sections 12(a),
12(b)
and 12(d)
of the Act and those Board rules which required a con-
struction permit for a new or modified facility
901(a),
renumbered
951(a),
an operating permit for a new or modified facility
902(a),
renumbered 952(a),
and an operating permit for an existing treat-
ment works
903(a),
renumbered 953(a).
Furthermore, Allaert
sought a variance from the statutory prohibition against depositing
contaminants on land,
to operate
its treatment facility without a
certified operator as required by Rule 1201 and to relieve its
facility of the Rule 601 requirements regarding maintenance and
prevention of spills.
On September
6,
1979,
the Board rejected
Allaert’s request from the aforementioned relief.
The record in this matter includes
a transcript of 496 pages
and numerous exhibits submitted by the Agency and the Respondent.
On January
22,
1979, the Complainant filed its Brief with the
Board which was followed by Respondent’s Brief,
dated March 30,
1979.
On April 19,
1979,
the Complainant filed a Reply Brief.
During the hearing, the parties raised numerous objections, motions
and requests for reconsideration which are considered
in the
following paragraphs.
Pursuant to an interlocutory appeal order, dated September
29,
1977, the Board allowed the Agency and the Respondent
to submit
briefs regarding the scope of discovery in this enforcement pro-
ceeding.
The Complainant appealed an order of the Hearing Officer,
dated June 16,
1977, which required the Agency to produce a permit
file pertaining to
tI’e Fox Valley Grease Company,
Inc.
and ordered
the deposition of ~i1liam
H.
Busch, then Manager of the Permit
Section and Darryl
P. Bauer,
then an Agency permit engineer who
had reviewed a permit application submitted by Fox Valley Grease
Blending,
Inc. who is not a party
in this action.
After due
consideration,
the Board reversed the Hearing Officer’s order on
35—282
—3—
October 13,
1977,
on the basis that the inquiries were not
material
to the issues arising from the Complaint.
It is Respondent’s contention that the denials of its
permit applications submitted by Allaert on February
10,
1976,
and on March 11,
1977, were arbitrary and unreasonable.
During
the hearings and in Respondent’s Brief, Allaert has claimed that
the permits were wrongfully denied because the Agency had
established no criteria or guidelines
to determine the parameters
considered
in design and evaluation of an infiltration—percolation
system.
According to the Respondent,
the records and the
deposition requested during discovery
are necessary to review
the propriety of the Agency’s standards and guidelines
in the
permit review and in the permit denial process.
Since the October 13,
1977, Order on this matter, the Board
has considered at length the problems in structuring discovery
for the review of permit denials pursuant to Section 40 of the
Act.
In Oscar Mayer
& Co.
v. EPA,
PCB 78-14,
30 PCB 397
(June
8,
1978)
,
the Board denied that applicant’s request for all
material and depositions
of all Agency personnel who participated
in the determination which resulted in denial of applicant’s
permit.
In reviewincr the permit denial,
the Board found that
Agency procedures,
criteria and activities pertaining
to the
permit decision—making process were not material
to the
Petitioner’s burden of proof in such a proceeding which is
limited to a showing of compliance with the substantive require-
ments of the Act based solely upon the permit application and
supporting documentation as such may have been submitted
by the
applicant.
A successful Petitioner in a Section 40 proceeding,
after verifying the facts of
its application, must persuade the
Board that the activity in question will not cause a violation
of the Act or Board regulations.
In response, the Agency may
contest
the facts in the application or argue applicable law
and regulations, or
“it may choose to do either or it may choose
to present nothing.”
The action of the Agency in the denial of
the permit is not the issue;
the issue is simply whether or not
in the sole judgment of the Board, the applicant has submitted
proof that if the permit is issued, no violation of the Act or
regulations will result.
Propriety of this Board procedure
was
reviewed and upheld by the Appellate Court, Third District in
SCA Services,
Inc.
v.
PCB and EPA, ____Ill.App.3d
,
389 N.E.
2d
953
(May 16,
1979).
Although Allaert Rendering,
Inc. did not formally petition
for review of the Agency’s permit denials pursuant to Section 40
of the Act, because of Allaert’s
claim that Agency permit denial
was arbitrary and unreasonable, the Board has reviewed the
sufficiency of the permit applications and the Agency’s denials
in this matter.
35—283
—4—
Section
39 of the Act provides that the Agency shall issue
a permit on proof by the applicant that the permitted activity
will not cause
a violation
of the Act or Board regulations.
Applicant’s burden may he facilitated by showing
that its
system meets specific Agency guidelines;
however, the ultimate
decision to grant or deny the permit must turn on whether the
information submitted by the applicant proves compliance with
the Act and Board regulations.
In this case, Allaert submitted its permit application on
February
10, 1976,
which was denied by the Agency on March
4,
1976.
The initial application failed to disclose the type and
permeability of the rock under the infiltration-percolation
system, the strength of the wastewater moving through the ground,
the actual soil and bedrock conditions
under the system and the
direction of the groundwater flow.
The application did contain
general soil information from the U.S.
Department of Agriculture
which indicated that during the spring season, the groundwater
in the vicinity of the infiltration-percolation system was
present from zero
to three feet below the surface.
(R.
234-51;
C. Exh. Nos.
1,
2 and 4).
Approximately one year later, on March 11,
1977,
Beling
Engineering Consultants
(Beling) submitted supplemental infor-
mation on behalf of Allaert in response to the permit denial.
In place of standards,
Beling engineers claimed that Addendum
No.
2 of the Ten States Standards, essentially a ground disposal
wastewater system, was used to develop criteria for the
infiltration-percolation system.
The supplemental information
in Respondent’s second application included a letter from Mr.
James Gibb, Associate Engineer,
Illinois State Water Survey,
dated October 27,
1976; soil borings and map logs;
a well
location map; and lab analyses data on wells
in the vicinity
of Respondent’s treatment facility.
(R.
264—67;
C. Exh.
No.
3).
Addendum No.
2 of the Ten States Standards has established
certain other criteria for the design of ground disposal waste-
water systems which
is not included in the information provided
by the Respondent.
Allaert’s permit applications fail
to
include such necessary geological information as the bedrock
structure of the receiving lagoon,
the character and thickness
of
surficial soil and glacial deposits
and, especially for lime-
stone, information about the solution openings and the sinkholes
as recommended by Addendum No.
2.
Hydrological data required
by the Ten States Standards in addition to high water table data
includes information on the direction of the groundwater movement,
chemical analyses of the groundwater quality and at least one
groundwater monitoring well must be located in the direction
of the movement.
The recommended standards also require soil
maps and data on the soil thickness of the area to be subjected
to treatment.
Addendum No.
2 also indicated that disinfection
before discharge was necessary and design controls are appropriate
to prevent runoff frcm entering or leaving the site.
35—284
—5—
While the permit applications contained obvious deficiencies,
their supplemental information does disclose a presence of
dolomite bedrock under the glacial material in the vicinity of
the receiving
lagoon,
a structure which
is highly susceptible
to fracture.
Soil Boring Log Nos.
1 through
7 also disclosed
that weathered and highly weathered limestone is evident at or
near Respondent’s property under a 3.5 to 6.5 foot layer of
predominantly silty clay.
The ISWS letter suggested that,
“Available data indicates a potential for polluting both the
unconsolidated and bedrock units
is high.”
On June
8,
1977,
the Agency denied the Respondent’s second permit application.
(C. Exh. Nos.
3 and 4).
Having reviewed the permit applications and the Agency
denials,
the Board finds that the Agency clearly stated in its
letters that the information not only failed to show that
Respondent’s
treatment system would not cause a violation of
the Act, but also the material contained
in the application
indicated that the potential for water pollution is quite high.
(C.
Exh. Nos.
1 and 3).
The Board will affirm its October
13, 1977 Order regarding
the scope of discovery.
Furthermore, the Board finds nothing
to indicate that the Agency’s responses to the obvious
deficiencies
in the permit applications were arbitrary or
unreasonable.
Moreover, without reference to any consideration
of the Agency’s action in denying the permit applications, the
Board
finds that Allaert did not provide sufficient proof in
the application and supporting information that the Act and
regulations would not be violated
if a permit was issued.
The
remaining questions regarding permits, whether Allaert obtained
the necessary permits before constructing and operating its
treatment facility, will be considered later in this Opinion.
On April
7,
1977, because of repeated failures of the
Respondent to comply with discovery orders, the Hearing Officer
imposed sanctions under the authority of the Board Procedural
Rules,
Part 7,
and entered an order which prohibited the
Respondent from introducing any evidence relating to the issue
of economic reasonableness and any evidence relating to facts
that would have been disclosed by Respondent’s compliance with
the Hearing Officer’s order of February
2,
1977.
At hearing,
Respondent requested that the Hearing Officer reconsider the
order
of April
7,
1977;
the request was denied.
On April
25, 1977,
Allaert filed an Application of Non-
disclosure with the Board pursuant to Section
7 of the Act and
Procedural Rule 107
to limit disclosure of all financial records
from 1970
to 1976 to only Board members.
On May 12,
1977,
the
Board
found Respondert’s application to exempt all financial
35—285
—6—
records from public disclosure unjustified and denied the
application without prejudice.
At the conclusion of the
November
9,
1979,
enforcement hearing, Allaert submitted
under an offer of proof, the “Application for Nondisclosure”
for identification as Respondent’s Exhibit No.
7 with the
stated intention
to “comply with Section
7 of the Act.”
Hearing Officer refused to admit this exhibit into evidence.
The Respondent also submitted under an offer of proof,
testimony
by Paul Allaert concerning what he believed were reasonable
alternative control technologies in light of the financial
condition of Allaert Rendering,
Inc.
(R. 39—45,
475,
479-81).
In reexamining Respondent’s Application for Nondisclosure,
the Board will consider the procedures prescribed
for evaluating
nondisclosure applications in Procedural Rule 107 and the Opinion
in Olin Corporation v. EPA, PCB 72-253,
5 PCB 131,
132
(August
10, 1972).
In adopting Procedural Rule 107,
the Board was mindful
of the statutory mandate of Section
7 of the Act requiring
public hearings and providing that all documents
(files,
records and data)
be open to the public.
Since limiting the
review of material “not subject
to disclosure” seriously affects
the public nature of any Board proceeding,
the Board is obliged
to limit and narrowly define the scope of exceptions of the
public information rule and subject applications for nondisclosure
to close scrutiny.
To qualify any material for nondisclosure status,
the
material must not only meet specific criteria for an exception,
but also the application for nondisclosure must contain the
following:
1.
Identification
of precise material,
or parts of
material for which nondisclosure is sought;
2.
Indication of the particular nondisclosure
category into which the material falls;
3.
A concise, verified application stating the
reasons for requesting nondisclosure.
rn this respect, Allaert’s application has failed to satisfy
the requirements of Procedural Rule 107 and thereby
the mandate
of Section
7 of
the Act in the following manner:
First, Respondent has failed to identify the precise material
or parts thereof
to Le withheld from the public.
The Board finds
that Respondent’s blanket request for exemption for all financial
records, including income tax returns, income statements and
balance sheets for the years 1970 through 1976 is overly broad;
such material cannot be withheld from public scrutiny on the
bare contention that they are highly confidential.
35—286
—7—
Second,
the Respondent has denominated “all financial
records”
as falling within the “confidential data” and “trade
secret” exception on the naked, generalized statement that the
“information
is considered highly confidential by Respondent.”
Furthermore,
the Respondent fails to distinguish what material
the law would recognize as a “trade secret” and which material
is believed to be “confidential data.”
Third,
the Agency advances compelling arguments that if
the Board were to allow the nondisclosure of all Respondent’s
financial records to any except the Board, the Complainant
would be precluded from the effective cross-examination of
the records and from assessment of Respondent’s financial status
through the independent audit of an accountant.
(R.
133-34).
After reviewing these findings,
the Board will affirm its
May 12, 1977, order denying nondisclosure.
Furthermore,
the
Board will affirm the Hearing Officer’s April
7,
1977, order and
uphold his decision
to exclude the Application for Nondisclosure,
Exhibit No.
7
from the record.
Respondent’s persistent failure
to comply with the Hearing Officer’s discovery orders and the
Agency’s request for disclosure of financial records will,
in
accordance with Procedural Rule 701(c), disqualify all Respondent’s
evidence
in this record concerning economic reasonableness.
In other preliminary motions, Respondent moved to vacate
Complainant’s interrogatories filed with the Board on September
22,
1978, dealing with updating matters
in the enforcement
action,
clarifying specific contentions
in the variance case
and serving as
a final submission of Complainant’s request
for Respondent’s financial records.
An order from the Hearing
Officer, dated September
22, 1978,
followed the interrogatories
which required Respondent
to answer the interrogatories and
produce the documents on or before October
9,
1978.
It is the
Respondent’s contention that the issuance of the Hearing Officer’s
order on the same day as the filing of the interrogatories
violated the service requirements for interrogatories
of
Procedural Rules 305(c),
308(c)
and 313(c).
In Respondent’s
estimation, the Hearing Officer is precluded from submitting an
order setting the response date until after the eleven days
allowed under the Procedural Rules for service and response.
Anything less,
according
to the Respondent, will effectively
preempt Respondent’s right to oppose the interrogatories.
After
reviewing
this matter at hearing,
the Hearing Officer granted
Respondent’s motion.
While the Board need not consider further
the consequences of Respondent’s failure to submit financial
records during the discovery proceeding,
the Board will not
question Hearing Officer’s decision to vacate the order so
long
as the Complainant was not prejudiced by this decision.
(R.
45-
56)
35—287
—8—
Exhibits received into evidence for the Complainant and
the Respondent included Complainant’s Exhibit Nos.
1 through
7,
8A through 8H,
9A through 9C, 10,
11,
13 and 14(1—13) and
Respondent’s Exhibit Nos.
4 and
5.
The offer of the Application
for Nondisclosure, Respondent’s Exhibit No.
7,was denied by the
Hearing Officer.
(R.
475).
During the hearings, Respondent objected to Complainant’s
Exhibit Nos.
2,
4,
6,
7,
BA through 8H,
9A through
9C, 11,
13
and 14(1-13).
Complainant contested the admissibility of
Respondent’s
Exhibit
Nos.
4 and
5.
After reviewing the
objections
to the admission of the exhibits,
the Board will
sustain the decisions
of the Hearing Officer regarding the
exhibits of the Complainant and the Respondent, with the
exception that the photographs identified and admitted as
Exhibit Nos.
8B and 8C will be excluded from evidence on the
basis that the record fails to show whether the photographs
were
a true and accurate portrayal of the subject matter.
(R.
154—55)
On Complainant’s motion to exclude witnesses,
the Board
finds
that it is within the discretion of the Hearing Officer
to determine whether or not to exclude the witnesses in the
interest of fairness, provided that the ruling precedes any
testimony of witnesses.
(R.
59).
Respondent’s motion to
quash subpoenas served upon Henry Mayer, William Karlovitz
and Earl Beling
(deceased)
is moot since both Mr. Mayer and
Mr. Karlovitz were present at the hearings.
(R.
31—37).
Finally, the Board will deny Motion for Summary Judgment
submitted by the Respondent because the Agency failed to produce
a Mr. Gerald M. Kehoe for these hearings.
Since the record
discloses that Mr. Kehoe is no longer an employee of the Agency,
the Agency was under no burden to produce the witness.
Accord-
ing to Procedural Rule 315 (a),
the Respondent should have sub-
mitted a motion to the Hearing Officer or to the Board to issue
a subpoena for attendance of a particular witness at these
hearings.
(R.
487—90).
The subject of this enforcement action concerns Allaert
Rendering,
Inc.,
an Iowa corporation incorporated in April,
1974, which
is the continuation of a sole proprietorship owned
by Wilbur Allaert dating back to 1940.
Since April,
1974,
Allaert Rendering,
Inc.
has operated the rendering plant on
a portion of a one hundred acre parcel known as Allaert Acres
and owned by Wilbur Allaert near the Village of Carbon Cliff,
in Rock Island County, Illinois.
Paul W. Allaert has been
Vice President and General Manager since 1974 and has served
in various capacities
at the plant since
1945.
(R.
62—64,
456—
60;
C.
Exh.
No.
1).
35—288
—9—
In view of the evidence in the record disclosing that
Allaert Rendering,
Inc.
“has been a corporation since April
of
1974,” the Board will interpret this testimony to mean that
Allaert Rendering,
Inc. did not exist as a corporate entity
until April 30,
1974.
For purposes
of this enforcement action,
the Board will limit the scope of the complaint period from
April
30,
1974, until March 19,
1976, the date of the filing
of the Complaint.
Evidence occurring outside this time frame
will
be excluded unless
it proves germane to matters of
aggravation or mitic~ation, in considering Section 33(c)
factors,
or as evidence of the continuous nature of the violation.
(R.
62)
The rendering plant in question processes approximately
50,000
—
60,000 pounds
a day of
fallen animals, restaurant
grease,
scraps and bones
in cookers and presses designed to
separate grease and oil from the animal solids.
Well water
used to trap oil and grease vapors from the cooking process
is collected with the clean—up waters containing such residues
as dead animal cuttings,
hair and bone before the wastewater
is discharged to Allaert’s treatment
system.
The rendering
plant effluent averages
29,750 gallons per day with concentrations
of BOD5
at 468 mg/l,
suspended solids at 392 mg/l and oil and
grease at 193 mg/l.
The Allaert process wastewater and
associated clean—up waters
are discharged to three—l,000 gallon
septic tanks arranged in parallel before emptying into one-l,500
gallon septic tank.
This primary treatment system,
installed
between
1973 and 1975,
is designed to separate and remove the
grease and oil from the wastewaters and
to reduce odors, suspended
solids and BOD.
Effluent from the 1,500 gallon septic tank is
passed through
a final grease trap before it
is discharged
to
the receiving lagoon.
Constructed in the
fall of
1973, the
receiving lagoon is
located within the flood plain of the Rock
River.
(R.
68—72,
82—83,
99,
184,
326, 482;
C. Exh. No.
1).
Allaert Rendering,
Inc.
installed the existing treatment
system over a period beginning in the fall,
1973 through 1975
without construction permits and discharged to the system with-
out
an operating permit.
In 1973—74, the three—l,000 gallon
septic tanks were installed followed by the 1,500 gallon septic
tank
in 1974-75.
The receiving lagoon,
denominated an infiltration-
percolation system, was also constructed in the fall,
1973,
without
the benefit of percolation test or other studies to
determine the effectiveness of Respondent’s infiltration—
percolation system to filter and absorb contaminants before
reaching and mixing with the groundwaters.
According to the
record,
the Respondent,
in excavating the receiving lagoon,
removed six feet of top layer exposing the limestone bedrock.
(R.
75—76,
83—84,
88—89, 110—11,
223,
364,
382;
C.
Exh. No.
3).
35— 289
—10—
The record also indicates that the Agency first became
aware of the Allaert treatment system through an Agency sewage
treatment survey conducted at Respondent’s rendering works on
November 14, 1974.
Subsequently, the Agency sent Allaert a
letter,
dated January
20,
1975, which provided the Respondent
with a copy of the Water Pollution Regulations of Chapter
3
and informed the same of the need for a construction and
operating permit.
A follow-up investigation on May 14, 1975,
disclosing
no efforts toward compliance, prompted the Agency
to write
a letter,
dated July
18, 1975, warning the Respondent
of the need for permits
for a second time.
(R.
200—12,
328-35,
342;
C.
Exh. Nos.
6 and 7).
In response to the Agency inquiries, Allaert contacted
Beling Engineering Consultants on or before July,
1975,
to
conduct a study on Allaert’s existing facility and to prepare
a report recommending necessary facility improvements.
On
February
10, 1976,
the Respondent submitted a permit application
prepared by Beling requesting approval of Allaert’s infiltration--
percolation system which claimed no discharge
to surface waters.
The application proposed to modify the existing facility by
constructing berms
to the 25-year flood elevation and fencing
in the treatment system.
As indicated above, the Agency denied the permit application
on March
4, 1976.
Additional materials were submitted
in
Respondent’s second permit application, dated March
11,
1977.
However,
the Agency also rejected Respondent’s supplementary
permit application on June
8,
1977, because of the inadequacy
of the information and the potential
for water pollution from
Respondent’s treatment facility.
(R.
247,
426—27;
C.
Exh. Nos.
1,
2,
3 and 4).
Based on this evidence and other testimony and exhibits
pertinent to the alleged violations, the Board will review the
charges alleged in the Complaint.
WATER POLLUTION
Counts
I,
II,
III, V and VI allege that the Allaert treat-
ment works are in violation of Section
12(a)
of the Act which
reads:
No person shall cause or threaten or allow the discharge
of any contaminants into the environment in any State
so as
to cause or tend to cause water pollution in
Illinois,
either alone or in combination with matter
from other sources, or so as
to violate regulations
or standards adopted by the Pollution Control Board
under this Act.
35—290
—11—
During the time frame pertinent to this Complaint period,
the record shows that Larry Marques,
a former Agency inspector
currently with the Illinois Department of Public Health, visited
Allaert Rendering,
Inc.
and inspected its treatment works on
three different occasions, November 19,
1974, May 15,
1975,
and November 19, 1975.
On the last date, Mr. Marques took
photographs depicting the conditions of the Allaert treatment
works which, with a sketch of the surroundings, were admitted
into evidence as Exhibit No.
11, the sketch and Exhibits Nos.
13 and 14, photograph location map and photographs 1-13,
respectively.
On Mr. Marques’
first and second visits to the Allaert
treatment works,
in addition to inspecting the receiving lagoon,
Mr. Marques discovered a trench originating at or near the lagoon
which extended “as
far as
I could see”
in the direction of the
Rock River.
Since the stated purpose of these visits was to
inform Respondent of the need for a permit, the witness did not
follow the trench to its termination point, nor did the witness
observe an actual discharge to the Rock River on either occasion.
(R.
324,
329,
332,
336).
In other evidence derived from conversations with Mr. Paul
Allaert on November
19, 1975,
Mr. Marques learned that the trench
was originally excavated from the pond to the river to drain the
area so that the pond could be enlarged.
However,
at the time
that Mr. Marques observed the termination point of the trench
on November 19,
1975,
400 to 600 feet
(sic)
of
the lower portion
near the river and the upper segment of the trench near the
receiving lagoon had been filled in.
According
to conversations
during the November, 1975,
inspection, the ditch had been filled
in approximately four months before the inspection or by July,
1975.
(R.
315,
324;
C. Exh. No.
13).
Since
this occurrence witness stated that he had no
personal knowledge nor evidence of samples of any wastewater
discharged from the Allaert treatment works
to the Rock River,
the Board finds the evidence patently insufficient to support
a finding that Respondent caused or allowed a discharge to
the surface waters of the Rock River in violation of Section
12(a)
of the Act.
(R.
325,
326,
329).
Turning our attention to other evidence in Complainant’s
case-in-chief,
alleging water pollution violations
to surface
and groundwaters, the Board has discovered that the record,
taken as
a whole, will not support a finding of
a causal
connection between Allaert’s discharge and any actual environ-
mental harm.
The record supplies no information concerning
the concentration of contaminants
in the receiving lagoon,
provides
limited data on conditions under the lagoon in question
and merely suggests the direction of the groundwater flow from
the lagoon toward the Rock River.
The Board finds no evidence
in the record to support the allegations that the Respondent
caused or allowed water pollution.
35—29 1
—12--
Section 12(a)
of the Act further authorizes the Board
to protect the waters of Illinois from serious threats
to
the environment from water pollution.
It is clear that in-
clusion of the word “threaten”
is intended to allow the Board
to act before water pollution seriously affects the environ-
ment.
The Act permits the Board in considering “threaten”
violations
of Section
12(a)
to entertain evidence of actual
violation, testimony pertaining to persistent
or continuing
violations and also evidence of potential violations with a
reasonable likelihood of occurrence.
Without this authority,
“the Board could only lock the stable after the horses have
been spirited away.”
Springfield Sanitary District v.
EPA,
PCB 70-32,
1 PCI3 181
(January 27,
1971); EPA v.
Ayshire Coal
Company, PCB 71—323,
1 PCB 415
(April 25, 1972); EPA v. James
McHugh Construction et al., PCB 71—291,
4 PCB 511
(May 17,
1972)
In considering the threat to surface waters,
the evidence
indicates that the lagoon was constructed in 1973 without berms
or other
flood control measures on the flood plain within 1,000
-
2,000 yards of the Rock River.
Since the record does disclose
that the receiving lagoon is the repository of highly contaminated
wastewater,
this evidence alone supports a finding of a Section
12(a)
violation which threatens surface waters in the vicinity.
(R.
68,
482;
C.
Exh. No. 1).
The Allaert rendering facility discharged approximately
30,000 gallons per day to the unprotected ground in the
Rock
River
flood plain where the receiving lagoon is currently
located.
On cross—examination,
Paul Allaert conceded that the
entire processing facility had been flooded in 1973, before
the construction of the receiving lagoon.
The record also
discloses that in May,
1978,
the receiving lagoon was inun-
dated by Rock River flood waters.
The May,
1978 inspections
also revealed evidence of discharge solids on the land between
the receiving lagoon and the Rock River.
Based upon this
evidence
in the record,
the Board finds the operation of the
Allaert treatment system has threatened and will continue to
pose a serious threat
to the surface waters within the vicinity
of the Rock River.
(R.
99,
151,
165,
187—88,
482;
C. Exh. Nos.
8B,
8D,
BE and 9C).
In considering evidence pertaining to the threat of ground-
water contamination,
the Board
finds
that the receiving lagoon,
denominated an infiltration—percolation system, was constructed
and operated without permits
in the fall of 1973 and also with-
out the benefit of percolation tests
or other studies
to determine
the effectiveness of the system.
While the Respondent claims
that there is no known discharge from its treatment facility,
Allaert ignored evidence,
as disclosed by the record, which
indicated the following:
35—292
—13—
1.
The excavation of the receiving lagoon caused the
removal of six feet cf top layer of silty loam exposing the
bedrock;
2.
Groundwaters in the vicinity of the receiving lagoon
rise during the spring months of the year from zero to three
feet below the ground;
3.
The bedrock in the vicinity of the receiving lagoon
consists of weathered or highly weathered limestone from 3.5
to 6.5 feet below the soil layer.
(C. Exh. Nos.
1 and 3).
Accordingly,
the Board
finds that the highly contaminated
wastewater collected in the Respondent’s receiving lagoon
threatens the groundwater directly under the site and in the
vicinity of the receiving lagoon with water pollution in
violation of Section 12(a)
of the Act.
CONSTRUCTION AND OPERATING PERMITS
Counts
I,
II and III allege that Allaert has caused or
allowed the construction and operation of
a new, modified or
existing treatment works without the necessary permits in
violation of Rules
901(a),
902(a)
and 903(a),
renumbered 951(a),
952(a) and 953(a), respectively, of Chapter
3 and in violation
of Sections
12(a)
and 12(b)
of the Act.
Rule 104 of Chapter
3 defines “treatment works”
as
“those
constructions or devices
.
.
.
used for collecting, pumping,
treating or disposing of wastewater
.
.
.
.“
Since Respondent’s
facility described
as an infiltration-percolation system was
intended
to treat the wastewater discharged by the Allaert
rendering facility,
the system clearly
falls within the scope
of “treatment works,”
and therefore,
becomes subject to the
aforementioned Part IX requirements regarding construction and
operating permits.
The Board regulations requiring permits for the construction
and operation of wastewater treatment facilities were adopted on
March
7,
1972, and became effective on April
16,
1972.
Respondent
was formally informed of the permit requirement on January
20,
1975,
by an Agency letter which was accompanied by a copy of
Chapter
3:
Water Pollution Regulations which includes
the
permit regulations.
However, the Respondent did not submit its
initial permit application until February 10,
1976.
In this case,
the Agency has proved that permits were never
applied for and never issued by the Agency prior to construction
of the receiving lagoon in 1973, or before the installation of
35—293
—14—
the three—l,000 gallon and the 1,500 gallon septic tanks or the
grease trap over
a period from 1973 through 1975.
Nor were the
necessary permits obtained before the operation of the system.
Furthermore, Respondent’s submission of permit applications on
February 10,
1976, and also on March 11,
1976, were properly
denied by the Agency on the basis that the permits failed to
show that the installations combined with the proposed improve-
ments, a 25—year flood berm and fencing, would not cause
violations of the Act or Board regulations.
(R.
75-76,
84,
222—23,
364—65;
C.
Exh.
Nos.
3,
4 and 6).
The Board hereby finds that since the Respondent was never
issued
a construction or operating permit during the time frame
of this Complaint, violations of the aforementioned Part IX
Rules of Chapter
3 and of Section 12(b)
of the Act have been
established.
WkTER POLLUTION HAZARD
Count IV alleged that the Respondent’s operation created
a water pollution hazard
in violation of Section 12(d)
of the
Act from July
1,
1970,
until March 19,
1976.
In accordance with
a finding of violation of Section 12(a)
which “threatens” water pollution,
proof of a Section
12(d)
violation need not include evidence of actual water pollution,
since both provisions of the Act are intended to correct potential
water pollution threats and hazards before actual harm has
occurred.
EPA v. Ayshire Coal Company,
PCB 71-323,
4 PCB 415
(April 25, 1972); EPA v.
James McHugh Construction Company,
PCB 71-291,
4 PCB 511
(May 17, 1972).
In each case,
however,
proof must be sufficient to show that the material in question
either threatens water pollution or creates
a water pollution
hazard.
In this matter,
to the extent that the Respondent has
deposited approximately 30,000 gallons per day of wastewater
containing high concentratior~of contaminants during periods
of this Complaint,
and to the extent that the receiving lagoon
was constructed
in 1973 within the flood plain of the Rock River
without effective
flood control measures, the Board finds that
this evidence,
in and of itself,
establishes that Respondent’s
discharge to its receiving lagoon creates
a water pollution
hazard within the meaning of Section
12(d)
of the Act.
(R.
97—
99, 165;
C.
Exh. No.
1).
Since the scope of this complaint period extends from April
30,
1974, until March 19, 1976,
the evidence of flooding from
the Paul Guse inspections on May
9 and 15,
1978,
is limited
to
proof of the continuing nature of the violation.
The record
35—294
—15—
also indicates that Larry Marques took photographs and made
visual observations of the conditions of the Allaert treatment
works on November 19,
1975.
However, after reviewing this
evidence, the Board finds that the Marques’ observations and
photographs, absent samples and laboratory analyses of the
suspected materials,
falls
far short of proving that a water
pollution hazard existed on the day in question.
(R.
151,
152,
311-13;
C.
Exh. Nos.
BA,
8D and 8E, 9A,
9B and 9C,
14(1,
2,
3,
5,
6,
7 and 8).
MALFUNCTION AND SPILL REQUIREMENTS
Count V charged Allaert with violations of the Rule 601
malfunction and spill requirements which provide as follows:
(a)
Malfunctions.
All treatment works and associated
facilities
shall be so constructed and operated
as
to minimize violations of applicable standards
during such contingencies
as flooding,
adverse
weather,
power failure, equipment failure,
or
maintenance,
through such measures
as multiple
units, holding tanks, duplicate power sources, or
such other measures as may be appropriate.
(b)
Spills.
All reasonable measures,
including where
appropriate the provision of catchment areas,
relief vessels, or entrapment dikes,
shall be
taken to prevent spillage of contaminants from
causing water pollution.
Provisions
in this part are intended to impose upon the
operator of the treatment works
a duty to reduce,
if not eliminate,
the threat of malfunctions or spills which cause or contribute
to water pollution.
In adopting Rule 601 in January
6,
1972,
the Board stated that reasonable measures should be taken to
ensure that systems do not unreasonably threaten water pollution.
In the Matter of:
Effluent Criteria,_et al., PCB P.70—4,3 PCB 401,
420
(January
6,
1972).
Having reviewed the record, the Board finds that the con-
struction and the operation of Respondent’s treatment works with-
in the flood plain of the Rock River without protective
berrns or
other flood control r~easuresand the excavation of the receiving
lagoon to bedrock,
indicates a conscious disregard on the part of
Allaert for reasonable control measures to prevent malfunctions
and spills.
(R.
88—89,
97—99,
110,
165)
During the period of this Complaint, the record shows that
Respondent completed construction of its treatment works without
concern for the permit requirements.
In its permit application,
35—295
—16—
dated February 10,
1976,
its proposed improvements,
a 25-year
flood berm and fencing cannot be considered reasonable remedial
measures for a receiving lagoon constructed in the fall of 1973.
For purposes of this alleged violation,
it also indicates that
Respondent has failed to consider reasonable measures to prevent
malfunctions due
to flooding or adverse weather or to guard
against spills.
Since it
is unnecessary to show proof of actual pollution
within the complaint period for a Rule 601 violation,
the Board
finds sufficient evidence in the record to hold the Respondent
in violation of Rule 601 of Chapter
3 and in violation of the
provisions of Section 12(a)
of the Act which,
“threaten
.
the discharge of any contaminants into the environment
.
.
.
so
as to violate regu1~tionsor standards adopted by the Pollution
Control Board under this Act.”
CERTIFIED OPERATOR REQUIREMENTS
Count VI alleged that Respondent operated its treatment
works without
a certified operator in violation of Rule 1201 of
Chapter
3 and Section 12(a)
of the Act.
Evidence advanced
in support of this allegation is limited
to the testimony of Mr. Charles Feliman, Manager of the Permit
Section in the Agency.
Mr. Feliman testified that at some time
prior to the hearings he telephoned Mr. Bob Voss, Operator
Certification Specialist
in the Agency,
to inquire whether the
Respondent Allaert Rendering,
Inc. had a certified operator
running its treatment works.
Mr. Fellman was told that Allaert
had no certified operator under its employment.
(R.
378—82).
While this evidence is admissible under Procedural Rule
320(A), the Board will not afford such evidence the same
weight as
the testimony of an operator certification specialist
during the hearing or his affidavit.
The Board hereby finds
that this singular statement challenged by the Respondent can-
not support
a finding of violation of Rule 1201 against the
Allaert Rendering,
Inc.
ALLAERT’S EFFORTS TOWARD FACILITY IMPROVEMENTS
The record indicates that,
in response to Agency inquiries,
Allaert contacted Beling in July,
1975,
to conduct a study on
Allaert’s existing facility and to prepare a report recommending
the necessary facility improvements.
According to the limited
evidence in the record,
the Beling report recommended that:
35—296
—17—
1.
Allaert connect to a municipal sewer system and reclaim
the land currently supporting the infiltration-percolation
system; or
2.
Allaert should expand or complete its infiltration-
percolation system.
(R.
426—27,
432).
Although the record is silent concerning the Respondent’s
legitimate efforts
to “expand or complete”
its treatment system
beyond the proposed installation
of fencing and a 25-year flood
berm of its permit applications, Paul Allaert conducted
negotiations with the City of Silvis “some years back” concern-
ing the availability of
a sewer extension from Allaert to the
City of Silvis.
At the time negotiations were conducted, the
City was
in the process of purchasing
land for a new sewage
treatment plant.
However,
the Respondent claimed that the City
of Silvis recommended that it would be better if Allaert
connected with the City of East Moline.
(R.
127—28).
It was not until October,
1978,
that Allaert could begin
serious negotiations
to direct its wastewater
to the East Moline
regional sewage treatment plant via
a newly—completed
sewer
extension constructed by the Village of Carbon Cliff.
By
January,
1979, Allaert had entered into an agreement with the
Village of Carbon Cliff to annex
the rendering works into the
Village as
a prerequisite for acceptance of the rendering plant
wastewater.
(R.
127-28).
Mr. Allaert also retained Beling to construct the sewer
extension to the Carbon Cliff sewer system.
According to current
plans, Beling intends
to install a sewer extension to the Carbon
Cliff sewer system that will transport wastewater from the Allaert
septic tank system to the Carbon Cliff sewer system after grease
and solids have been removed from the wastewater.
Once completed
and operational,
the Respondent has stated that receiving lagoon
will be bulldozed over and the land will be used to plant crops.
The cost of this sewer extension is estimated at $120,000 and
the anticipated date of completion
is December 15,
1979.
(R.
128—
30,
276).
After reviewing the evidence in this part with other evidence
in the record,
the Board finds that
it cannot distinguish a sus-
tained program for compliance with the Act and Board regulations
until the recent flurry of activity after connection with the
Carbon Cliff sewer system became available.
Furthermore, the
Board concludes that the Respondent’s tardy and incomplete permit
applications and its belated proposal to install fences and a
25-year flood berm do not qualify as serious
efforts towards
compliance.
35—297
-18--
SECTION 33(c)
FACTORS AND REMEDIES
Section
33(c)
of the Act requires the Board to consider
all
facts and circumstances bearing upon the reasonableness of
the discharges or the deposits before the Board may impose the
remedial provisions of the Act for violations
alleged and proven
in the proceeding.
In this case, alternative treatment systems
are presumed to be economically reasonable since the Respondent
has refused
to submit financial records during discovery at the
Agency’s request and pursuant to Hearing Officer order.
How-
ever, apart from the issue of economic reasonableness,
the Board
will review the four criteria of Section
33(c)
of the Act in
determining the reasonableness of Respondent’s conduct.
The character and degree of the violation in this matter
must be considered in light of the findings in this Opinion.
The Respondent has claimed that there have been no ill effects
as a result of the discharge of its wastewater and to his
knowledge
its treatment system has caused no water pollution.
Respondent’s consulting engineers claim no pollution to ground—
water
in the vicinity of the receiving lagoon solely on the basis
that laboratory reports
from nearby wells indicate no pollution.
(R.
120—21,
247).
In considering Respondent’s claims in light of the findings
of a water pollution threat and a water pollution hazard and the
violations of the permit, malfunction and spill requirements
of
Chapter
3, the Board believes that the Allaert treatment works
in its current condition poses a real threat to the surface and
groundwaters in the vicinity of the rendering works.
Of equal importance are the permit violations found in
Counts
I,
II and III which seriously affect the efficient
operations
of the water pollution permit programs
(NPDES permits
and construction, modification and operation permits)
that are
designed to protect the public from injury or interference with
health and property.
It is well established that the permit
systems adopted by the Board are essential
to the proper manage-
ment of the water as well
as the air and the solid waste control
programs of this State.
Whenever necessary,
the Board must use
its penalty provisions and appropriate injunctive relief to
ensure compliance.
EPA v.
Joliet, PCB 78-130,
PCB
(July 12,
1979); EPA v. Time Chemical, Inc., PCB 75—291,
19 PCB 386,
387
(December
4,
1975); EPA v.
Chenoa Stone Co.,
PCB 75-152,
19 PCB
659,
660
(January 14,
1976).
The Respondent has submitted
evidence
concerning the render—
ing works
and its social and economic value to the community;
however,
this will not excuse the Respondent’s rendering plant
from the continuous and persistent violations
of the State’s
water pollution and permit regulations which are also designed
to protect individuals
in the vicinity of the rendering facility
and water uses downstream from the site.
35—298
—19—
The Board has reviewed the suitability of the Allaert treat-
ment system to the area in which it is located in prior parts
of this Opinion and also in the Opinion dealing with the variance
proceeding, PCB 77-334, and agrees with the Agency that the
construction of the treatment works
to bedrock and its location
within the flood plain poses
a serious, continuing threat to
the surface and groundwaters which diminishes
the social and
economic value of Allaert Rendering,
Inc.
Despite the refusal
by Allaert to produce financial records
pursuant to discovery orders, the Respondent made numerous offers
of proof during the hearings in an attempt
to induce the Board
to consider testimony concerning the financial condition of
Allaert Rendering,
Inc.,
the net income figures of Paul Allaert
from 1970 until 1976 and testimony of Paul Allaert regarding
economically reasonable treatment alternatives.
The Board is,
however, not persuaded by these offerings.
The record clearly
shows the Respondent had ample opportunity to comply with the
Hearing Officer’s orders both before the Board Order denying
Respondent’s Application for Nondisclosure and afterward.
(R.
131,
133,
136,
141,
469,
477—79).
The cost of alternative compliance measures as estimated
by Beling engineers were accepted into evidence and tabulated
in the PCB 77-334 Opinion on the basis of treating 30,000
to
40,000 gallons of wastewater per day.
The figures are as
follows:
Cost Data
Compliance Alternative
Capital Costs
0
& M~
1975
Non-aerated Lagoon
258,000
35,000
1975
Aerated Lagoon
92,000
23,000
1975
Biodisc
76,000
22,000
1975
Activated Sludge System
76,000+
30,000+
1975
Trickling Filter System
76,000+
30,000+
1975
Physical Chemical Treatment
System
76,000+
30,000+
1975
Infiltration—Percolation System
65,000
11,000
1977
Connection to Carbon Cliff
120,000
11,000
*Annual operation and maintenance cost.
(R.
267—77)
In assessing the estimates by the Respondent’s consulting
engineers
in comparison with the current costs of diverting
Respondent’s wastewater to the Carbon Cliff sewer system, the
Board concludes that certain technological alternatives available
to Allaert in 1975 are substantially similar
in construction,
operation and maintenance costs
as the current Allaert compliance
program which contemplates completion by December 15,
1979.
Accordingly, the Board
finds
no evidence in the record
to dispute
the holding that compliance with the water pollution
35—299
—20—
requirements of the Act and Board regulations was not technically
practical and economically reasonable
for the Respondent
as
early
as the Beling report in 1975.
Since
the Respondent has taken nearly five years
to devise
and implement a competent compliance plan,
the Board must assess
a penalty of
$3,000 as the minimum necessary to ensure future
compliance with the Act and Board regulations;
$750 for the
violation of 12(a)
of the Act,
$750 for violation of Rule 601
and $1500
for violation of the construction and operation permit
regulations.
Furthermore, the Board will require that the
Respondent post a bond of $127,000 pursuant to Section 33(b)
of the Act as assurance that the Respondent shall do the follow-
ing:
1.
Allaert shall complete the proposed plan to divert
its wastewater
from its existing treatment facility to the
Carbon Cliff sewer system as contemplated in the plan on or
before December
15, 1979;
and
2.
Allaert shall remove the standing water
in its re-
ceiving lagoon on or before December
31, 1979.
The Respondent, Allaert Rendering,
Inc., shall cease and
desist from further violations of the Act and Board regulations
on or before December
15, 1979.
This Opinion constitutes
the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
Respondent, Allaert Rendering,
Inc.,
is found
to have
violated Section 12(a)
of the Environmental Protection Act
by discharging wastewater into a receiving lagoon which threatens
the surface and groundwaters
of the State with water pollution.
2.
Respondent, Allaert Rendering,
Inc.,
is found to have
caused or allowed the construction and operation of its treatment
works without the necessary permits from April
30, 1974, until
March 19,
1976,
in violation of Rule 901(a), renumbered 951(a),
902(a),
renumbered 952(a),
and 903(a), renumbered
953(a) of
Chapter
3:
Water Pollution Regulations and Section 12(b) of
the Environmental Protection Act.
3.
Respondent, Allaert Rendering,
Inc.,
is found
to have
violated Section 12(d)
of the Environmental Protection Act by
discharging wastewater into a receiving lagoon creating
a water
pollution hazard to the surface and groundwaters of this State.
35—300
—21—
4.
Respondent, Allaert Rendering,
Inc.,
is found in
violation
of the malfunction and spill requirements of Rule
601 of Chapter
3:
Water Pollution Regulations and Section
12(a)
of the Environmental Protection Act.
5.
Count VI alleging that the Respondent operated its
treatment works without a certified operator in violation of
Rule 1201
of Chapter
3:
Water Pollution Regulations and
Section 12(a)
of
the Environmental Protection Act is hereby
dismissed.
6.
Respondent, Allaert Rendering,
Inc., shall,
by
certified check or money order payable to the State of Illinois,
pay a civil penalty of $3,000.00 within 35 days of the Order
which shall be sent to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois
62706
7.
Respondent, Allaert Rendering,
Inc., shall cease and
desist from violations of the Act and Board regulations herein
found on or before December
15,
1979.
8.
Respondent, Allaert Rendering,
Inc., shall, in accordance
with Section 33(b)
of the Environmental Protection Act, post a
performance bond in a form satisfactory
to
the Agency in the
amount of $127,000 as assurance that the Respondent shall complete
the following:
A.
Allaert shall complete the proposed plan to
divert its wastewater
from its existing treat-
ment facility to the Carbon Cliff sewer system
on or before December 15,
1979,
the date con-
templated
in the plan;
and
B.
Allaert shall remove the standing water
in the
existing receiving lagoon by pumping to the
Carbon Cliff sewer system on or before December
31,
1979,
or as soon as practicable thereafter
in accordance with a schedule to receive the
wastewater negotiated with the Village of
Carbon Cliff and approved by the Illinois
Environmental Protection Agency.
IT IS SO ORDERED.
Mr. Werner dissented.
35—30 1
—22—
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opnion and Order were
adopt~jon the
~f”4
day of~
1979,
by a vote
Christan L.
Moffe
erk
Illinois Pollution
rol Board
35—302
