ILLINOIS POLLUTION CONTROL BOARD
June 22, 1979
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
PCB 78—110
VILLAGE OF
FARINA,
a municipal
corporation,
and BROWN PRODUCE
COMPANY, an Illinois corporation,
Respondents.
Mr~.Reed Neuman, Assistant Attorney General, appeared on behalf
of Complainant;
Mr. Jack Johnston, Attorney at Law,
appeared on behalf of the
Village of Farina;
Mr. Oliver Brown appeared on behalf of Brown Produce Company.
OPINION AND ORDER OF THE BOARD
(by Mr. Young):
This matter comes before the Board on a Complaint filed
by the Environmental Protection Agency on April
20, 1978,
against Respondents, Village of Farina
(Village)
and Brown
Produce Company
(Company)
,
for constructing and operating a
pretreatment works since October, 1976 without the necessary
permits
in violation of Section 12(b)
of the Environmental
Protection Act and Rules
951(c)
and 953(a)
of Chapter
3:
Water Pollution Rejulations.
A hearing was held on July 13,
1978,
at which time the
Complainant and the Respondents presented their testimony
on this matter.
At the conclusion
of evidence,
the Complainant
moved to amend the Complaint by interlineation
to conform
with the proof adduced at the hearing.
The Amended Complaint
changed the allegations against the Village and the Company
from constructing and operating a pretreatment works to
construction and operation of a treatment facility in violation
of Section
12(b)
of the Act and Rules
951(a)
and 952(a)
of
Chapter
3.
Procedural Rule 326 allows the Complainant to amend its
Complaint to conform to the proof
in the matter
so long as,
“no undue surprise results which cannot be remedied by a
continuance.”
While the Village objected to changes being
made
in this manner,
the Hearing Officer properly provided the
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Counsel for the Village with an opportunity to make a motion
to continue this matter for further hearings.
In reply, the
Village submitted a letter dated July 18, 1978, to the Hear-
ing Officer which reiterated its objection to Complainant’s
amendment by interlineation and noted an error in the Hearing
Officer’s statement, dated July 14, 1978.
However, the
Respondent’s letter did not allege surprise as a result of
these changes, nor did it respond to the Hearing Officer’s
provision for further hearings.
Since no prejudice or surprise
was alleged, the Board will hereby accept Complainant’s motion
to amend the Complaint.
CR.
194-206.)
At the beginning of the hearing on July 13, 1978,
Complainant raised tb.e issue that neither Respondent replied
to Complainant’s Request to
Admit
Facts
and
Genuineness of
Documents within 20 days as required by Procedural Rule 314(c).
Complainant’s Exhibits #3 and #4
(return receipts) indicate
that
the Village
and
the Company received the pleadings in
question on
May
23, 1978.
After reviewing the requests
individually, the Board will delete Request for Admission,
Numbers 3 through 9 in Complainant’s Exhibit #1 to the
Respondent Company, and Request for Admission, Numbers 2
through 9 in Complainant’s Exhibit #2 to the Respondent
Village since these requests refer or relate to pretreatment
works subject matter which is inconsistent with the allegations
of the Amended Complaint.
For purposes of this proceeding,
Request Numbers 1,
2 and 10 in Exhibit #1 and Request Numbers
1, 11 and 12 in Exhibit #2 as received by the Company
and
the Village respectively will be deemed admitted.
(R. 16-25.)
The subject of this Amended Complaint concerns a sewage
treatment facility owned and operated by the Village of Farina
and
more particularly, a lagoon.
The new lagoon was constructed
near the Village
STP
by the Brown Produce Company on or before
September, 1976, and was conveyed to the Village of Farina on
or before April,
1977.
The sewage treatment plant consists of
two
primary cells, one receiving wastewater from the Company
and the other receiving wastewater from the Village.
Outflow
from the primary cells flow into a second and into a third
treatment cell before it is discharged to an
unnamed
tributary
of the East Fork of the Kaskaskia River.
CR.
31—33, 35-36;
Exh.
#7.)
The
new
lagoon was originally constructed on the Company’s
property to hold water for its
egg
processing plant.
The
record discloses no connection between the new lagoon and
the Village
STP
or any discharge to the waters of the State.
Furthermore, the lagoon supports no mechanical aeration
equipment.
According to Don Williams, a consulting engineer
for the Village, the lagoon was designed to receive strong
disinfectants and other effluents from the Brown Produce Company
34—42
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which
would disrupt the treatment processes
in the primary
cell receiving the Company’s wastewater.
(R.
35-36,
62,
69—71,
85—86, 113—14,
131—32.)
On October
7,
1976, Joseph Mahlandt,
a field inspector
for the Agency’s Collinsville Regional Office, visited the
Village sewage treatment plant and discovered a discharge
from the Company into the new lagoon at a rate of 10 gallons
per minute.
Samples of raw water from the Company were
determined to contain BOD
concentrations
of
7,600 mg/i and
total suspended solids co~centrationsof 2,100 mg/i while
contents of the laqoon were described as milky-yellowish
in
color.
On October 14,
1976, Mr. Mahlandt informed Mr. Brown
and others that construction and operation permits were needed
for the new lagoon.
(R.
38—40,
44—45,
60, 189.)
Oliver Brown claimed that the lagoon was not constructed
for the purposes of receiving wastewater
from the Company
plant, but occurrence witnesses testified that sewage was
occasionally discharged
to the lagoon from the Company.
On
return visit
in July,
1978, Joseph Mahlandt found the lagoon
to be a deep green color with a whitish scum on the surface.
(R.
60,
90,
113—14,)
While there
is much testimony in the record on whether
the new lagoon is a pretreatment or treatment works or a holding
pond,
the evidence
is clear that the construction and operation
of this lagoon was not authorized by any permit issued by
the Agency and therefore in violation of the Act and Board
rules
as alleged in the Amended Complaint.
The Board hereby finds the Brown Produce Company
in
violation of Section 12(b)
of the Act and Rules
951(a)
and
952(a)
of Chapter
3 for causing or allowing the construction
and operation of this lagoon without the necessary permits.
The evidence in this record is also sufficient to find the
Village of Farina in violation of Section 12(b)
of the Act
and Rule
952(a)
of Chapter
3.
Ownership of this lagoon with-
out an operating
perilit constitutes a violation of the Act
and Board regulations notwithstanding the Village’s lack of
control, care or maintenance over the lagoon.
In mitigation, the Village has presented testimony that
it
is currently see~ing funding to upgrade and improve its
treatment facility under the construction grants program.
At
the present time,
the Village has received approval from the
South Central Illinois
Regional Planning and Development
Commission and has been granted Step
I facilities planning
funding
by the Agency.
Prior to this action,
the Village had
sought
a permit for this new lagoon which was denied by the
Agency on May 23,
1977.
(R.
114,
161.)
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—4—
In considering Section 33(c)
factors
of the Act,
the
Board finds
that any construction or modification of a sewage
treatment plant without the necessary permits
is of questionable
value for controlling pollution or for improving or upgrading
the facility.
There
is no doubt that compliance with the
permit requirements before construction of the lagoon was
technically practicalle and economically reasonable.
Since notice of the violation, the Village has acted
in
good faith to bring the treatment facility under its ownership
into compliance with the provisions of the Act and Board
regulations.
At the present time,
the Village anticipates
including
the lagoon in its facilities plan to determine
whether the lagoon should be incorporated into its existing
facilities
or abandoned and sealed off permanently.
In accordance with Section 42(a)
of the Act,
the Board
will assess a penalty of $400.00 against the Brown Produce
Company for violations found herein as necessary to the
enforcement of the Act,
No penalty will be assessed against
the Village of Farina as present owner of the unpermitted
lagoon.
The Village shall
be ordered to cease and desist
any future use and operation of
this lagoon until permits
are obtained to operate the lagoon as a modification to the
treatment facility or until the lagoon
is properly incorporated
by permit into the upgraded treatment plant under the con-
struction grants program.
This Opinion constitutes the Boardvs findings of fact
and conclusions of law in this matter.
ORDER
1.
Respondent, Village of Farina,
is found to have caused
or allowed the operation of a treatment works modification
without an operating permit in violation of Section 12(b)
of
the Environmental Protection Act and Rule
952(a)
of Chapter
3:
Water Pollution Regulations.
The charge against the Village
of Farina alleging violation of Rule
951(a)
of Chapter
3
is
hereby dismissed.
2.
Respondent, Brown Produce Company,
is found to have
caused or allowed the construction and operation of a treat-
ment works modification without a construction or operating
permit in violation of Section
12(b)
of the Environmental
Protection Act and Rules
951(a)
and 952(a)
of Chapter
3:
Water Pollution Regulations.
Respondent, Brown Produce
Company,
shall be assessed
a penalty of $400.00 for violations
found herein.
Penalty payment by certified check or money
order payable
to the State of Illinois shall be made within
35 days of the date of this order to:
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Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Sprincffield, Illinois
62706
3.
Respondents, Village of Farina and Brown Produce
Company,
shall cease and desist from violations of the Act
and Board regulations as
found herein as
of the date of
this order.
4.
Respondent, Village of Farina,
shall close and seal
off the new lagoon from further use or operation until the
Village obtains the necessary permits from the Environmental
Protection Agency.
IT IS SO ORDERED,
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby ce~J~fythe above Opinion and Order
were adopted on the
~øl
day ~
,
1979,
by
a vote of
_______________
Christan L.
Mof
,
Clerk
Illinois Pollution Control Board
34—45