ILLINOIS POLLUTION CONTROL BOARD
    May 27, 1982
    CARGILL, INC.,
    Petitioner,
    v.
    )
    PCB 81—37
    ILLINOIS ENVIRONMENTAL PROTECTION
    AGENCY,
    Respondent.
    MS. PERCY
    L.
    ANGELO AND MS. PRISCILLA P. WEAVER;
    MAYER, BROWN
    AND PLATT,
    APPEARED ON BEHALF OF CARGILL,
    INC.
    MR. PHILLIP
    R. VAN NESS, STAFF ATTORNEY, APPEARED ON BEHALF OF
    THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.
    OPINION AND ORDER OF THE BOARD
    (by J.D. Dumelle):
    This matter comes before the Board upon a
    March
    5,
    1981
    petition for review filed by Cargill,
    Inc. concerning certain
    conditions of its NPDES Permit No,
    IL 0051977 issued by the
    Illinois Environmental Protection Agency (Agency)
    on February
    6,
    1981,
    for Cargill’s Carpentersville plant in Kane County.
    Hearing was held in Carpentersville
    on June
    11,
    1981.
    Cargill
    filed its brief with the Board on July 23,
    1981,
    and the Agency
    filed
    its brief on August 26, 1981.
    The Board adopted an Interim
    Order on October 8,
    1981 requesting briefs on certain issues
    relating to the characterization of the Cargill storm water
    collection and spill control system
    (system) and whether an NPDES
    permit is required for that system.
    The Agency filed
    its brief on
    November 18,
    1981 and Cargill
    filed its brief on November 23,
    1981.
    On May 20,
    1982 Cargill filed a response to Board discussion
    of May 13, 1982 and on May 26, 1982 the Agency filed a response to
    that filing.
    While these submissions are not generally provided
    for under the Board’s procedural
    rules, they were considered.
    The Cargill plant and system are fully described in the
    Board’s Opinion and Order in PCB 79—240
    (39 PCB 358; August
    21,
    1980).
    These facts have, apparently, remained unchanged
    and will not be repeated, except as necessary for decision.
    The threshold question in this appeal
    is whether an NPDES
    permit is required for this system’s discharge to the Fox River.
    The
    Agency contends that the record in this matter “clearly
    47-127
    —2—
    discloses the presence in Cargill~sdischarge of untreated and
    treated flows containing waste substances for which standards have
    been established by the Board in Chapter 3”
    (Ag. Br.
    p.2).
    Since
    that is true, the Agency argues, the influent to the Cargill. system
    is wastewater and the system must,
    therefore,
    be considered a
    treatment works requiring an NPDES permit.
    Cargill,
    on the other hand, argues that the system is
    not a treatment works “because it does not treat ‘wastewater’”
    (Carg.
    Br. p.2).
    Therefore, no NPDES permit should be required.
    Under Rule 901 of Chapter
    3, an NPDES permit is required
    for “the discharge of any contaminant or pollutant into the
    waters of the State from a point source.”
    There is no dispute
    in this case that the discharge
    is to waters of the State
    from
    a point source.
    The question then becomes whether “contaminants”
    or “pollutants” are discharged.
    Section 12(f) of the Act mandates that the Board not require
    an NPDES permit for any discharger who is not required to have a
    permit under the Clean Water Act.
    The Clean Water Act require-
    ments for NPDES permits are presented in 40 C.F.R.
    122.51 and
    require a permit for the discharge of any pollutants from a
    point source into waters of the United States
    See
    also 33
    U.S.C.A.
    §1342(a)(1).
    Since the Board’s definition of
    “Pollutant” in Rule 104 of Chapter 3 tracks the federal definition
    of “Pollutant” under the Clean Water Act
    (33 U.S.C.A.
    §1362(b)
    and
    40 C.F.R.
    122.3),
    the question is reduced to whether pollutants
    are discharged.
    As defined in Rule 104,
    “Pollutant”
    in relevant part is an
    industrial waste.
    In turn,
    “Industrial Waste”
    is defined, in
    relevant part,
    as any “wastes resulting from any process of
    industry, manufacturing,
    trade, or business.”
    Therefore,
    under the
    facts of this case an NPDES permit can only be required
    if material
    discarded from the plant operations is discharged along with
    stormwater runoff.
    That question is not, as the Agency
    suggests,
    answered by simply showing that the discharges have violated
    Board standards.
    It is answered,
    rather, through a determination
    of the origin of the various components of the discharge.
    It is undisputed that the Cargill discharge contains no
    process wastes.
    While the Board
    found such wastes were previously
    discharged by Carç~illin PCB 76—125,
    Cargill instituted a program
    to seal overflows from holding tanks which contained such waste,
    and have apparently ended such discharges.
    The record indicates that the discharge in this case includes
    iron
    (at an unspecified low level), phenols
    (at a maximum observed
    or expected level of 0.04 mg/l), BOD
    (at a maximum observed or
    expected level of 75-100 mg/i), COD ~at a maximum observed or
    expected level of 200
    rng/l) and Suspended Solids
    (at a maximum
    47-128
    —3--
    observed or expected level of 70—80 mg/i)
    (Pet.
    Ex.
    9 pp.11—
    6 and 7).
    The record contains little evidence as to the origin
    of contaminants in the system’s discharge.
    Keith Long, Cargill’s
    environmental coordinator, did testify that some of Cargill’s raw
    materials contain trace phenols as contaminants which “come off of
    the petroleum extraction stage”
    (R.
    85), but there
    is no showing
    that those same phenols are discharged through the system.
    He
    also testified that rainwater, especially in a highly industrial
    area,
    as
    is the case around the Cargill plant, will have “some
    sort of COD level”
    (R.
    93).
    Based on this record, the Board cannot find that material
    discarded from the plant operations was discharged along with
    stormwater runoff.
    The contaminants may well simply result
    from rainwater running over roofs and parking areas picking up
    contaminants from fallout of non—localized air emissions, natural
    debris and cars which use the area.
    Under these facts the
    necessity of an NPDES permit has not been established and the
    appeal
    of its conditions
    is thereby mooted.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    Proceedings in PCB 81—37 are hereby dismissed.
    IT IS SO ORDERED.
    I. Goodman dissented,
    I, Christan L.
    Moffett,
    Clerk of the Illinois Pollution
    Control Board, hereby certify that the above Opinion and Order
    were adopted on the ,~2y~—
    -
    day of
    ~
    ,
    1982,
    by a vote of
    ~/—/
    .
    ~
    I.
    ~
    ~
    i~-
    Christan L. Moffett,~’C~d~
    Illinois Pollution Control Board
    47-129

    Back to top