ILLINOIS POLLUTION CONTROL BOARD
September 6, 1979
ALLAERT RENDERING,
INC.,
)
Petitioner,
v.
)
PCB 77—334
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Mr. John L.
Parker, John L.
Parker
& Associates,
Ltd., appeared
for the Petitioner;
Mr. Dennis Fields, Special Assistant Attorney General, appeared
for the Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Young):
Allaert Rendering,
Inc.
(Allaert),
Petitioner herein,
seeks a variance from Sections 12(a),
12(b)
and 12(d)
of the
Environmental Protection Act
(Act), and Rules 601,
901(a),
902(a),
903(a),
951(a)
952(a),
953(a) and 1201 of Chapter
3:
Water Pollution of the Board’s Rules and Regulations.
The original Petition for Variance was filed December
14,
1977,
and would allow the Petitioner
to continue the discharge
of waste water from Petitioner’s facility into an unpermitted
lagoon until the effluent is diverted to a municipal sewer
system.
Amendments to the petition were filed on November
6
and
16, 1978, revising the schedules for completion and
implementation with final diversion and compliance by December
15,
1979.
Petitioner has waived the right to decision within
90 days pursuant to Section 38 of the Act until October
4,
1979.
Motion was made on December
14, 1977, to consolidate the
Petition for Variance with an enforcement proceeding,
EPA v.
Allaert Rendering, Inc., PCB 76—80, which had been filed March 19,
1976.
The Environmental Protection Agency filed an objection to
the proposed consolidation and moved to strike the variance pro-
ceeding on December 28,
1978.
On January
5, 1978, the Board
denied both motions.
Pursuant to a Board Order of February 16,
1978, the Agency then filed a Recommendation on March
3, 1978,
that the variance be denied.
Hearing on the variance petition was held on November
8,
1978,
in Rock Island,
Illinois.
Hearings on the enforcement
action
(PCB 76-80) were held at the same location on November
8 and
9,
1978.
The parties stipulated that the entire record
35—303
—2—
of the enforcement case, EPA
V.
Allaert Rendering,
Inc.,
PCB
76-80, be incorporated into the variance proceeding.*
The
enforcement record includes a lengthy transcript of 496 pages
and numerous exhibits submitted by both parties.
The Board
notes
that the Order of January
5,
1978, which denied con-
solidation, did not produce a single, complete record in this
variance hearing w~iichhad been intended by the Order.
Petitioner’s brief was filed May 29, 1979;
Respondent’s brief
was filed June
5,
1979.
Ailaert Rendering,
Inc.
is an Iowa corporation, incor-
porated in April 1974,
is licensed in Illinois and
is the
continuation of a sole proprietorship dating back to 1940
owned by Wilbur Aliaert located on the same 40-acre site
near the Village of Carbon Cliff, Hampton Township, Rock Island
County, Illinois and in the same facilities.
Paul W. Allaert
was manager of the plant from 1971
to 1974 and has been Vice-
President and General Manager of the corporation since 1974
as
well as
a director and owner; he has served
in various capacities
at the plant since 1945.
Petitioner operates a rendering plant
which processes animals, meat scraps, bone and restaurant grease
to recover tallow,
grease, oil and hides.
The plant processes
approximately 30,000—40,000 pounds of material per day;
the pay-
roll was approximately $225,000 and about 20 persons are currently
employed by Petitioner.
(Pet.
3—4; Enf.
R.
62-64, 456—460;
C.
Exh.
#1).
The plant discharges an average of 29,750 gallons per day
with concentrations of BOD5 at 318 mg/i,
suspended solids at
221 mg/i,
and oil and grease at 193 mg/i
(Pet.
5).
In the permit
application
(C. Exh.
#1),
raw strength of the discharge is given
as BOD5
-
468 mg/i,
suspended solids
-
329 mg/l,
and oil and
grease
-
193 mg/i.
The Agency reports
(Rec.
5)
the following
analysis of three arab samples taken July
7,
September
8 and
November
18, 1975,
at the point of discharge to the lagoon:
BOD
(mg/i)
TSS
(mg/i)
Fecal Coliform
(per 100 ml)
990
352
58,000,000
(est.)
490
180
200,000
430
280
1,500,000
Waste water from processing operations and from clean-up is
discharged to three-one thousand gallon septic tanks which serve
as grease traps and remove some suspended solids; grease is
removed from the septic tanks daily.
Discharge from the three
tanks goes into
a 1500 gallon septic tank and thence through
a
grease trap into
a lagoon.
(Pet.
4-5; Enf.
R.
70—74,
80-84,
227—228)
*The transcript from the variance proceeding will be cited
herein as the Variance Record
(Var.
R.) and the transcript
of
the enforcement action as Enforcement Record
(Enf.
R.) because
the transcripts are not consecutively numbered.
35—304
—3—
Paul
W. Allaert testified that the establishment has
been in the same area doing
basically
the same thing since
1919.
The plant
“is approximately half a mile or one mile
from the Village, ~qhich is situated with homes.
There are
several
farms
adjacer.t to the area.”
The eastern boundary
of the property
is the Rock River
(Enf.
R.
123—124).
The
process building is located 1000—2000 yards west of the
Rock River during normal river
flow;
the three-one thousand
gallon septic tanks are about 15 yards east of the process
building; the 1500 gallon septic tank is approximately
45
to
40 yards east of the building; the lagoon lies east of
the 1500 gallon septic tank;
from the western part of the
lagoon to the eastern part of the lagoon is an estimated
1000 yards
(Enf.
R.
68-69;
C. Exh.
#5).
The record does not
indicate the surface area of the lagoon nor the volume of
waste water contained therein.
The facility is located in a
flood plain; previous to the construction of a dike in 1973
the Rock River occasionally flooded the site and on at least
one occasion reached approximately one—eighth to one—quarter
of
a mile west of the processing facility
(Enf.
R.
99—100,
140);
on May
9,
1978, the lagoon system was observed to be
inundated by the river
(Enf.
R.
166-167).
The record indicates that no permits have been issued by
the Agency for the construction or operation of the existing
waste
water
treatment
facilities
(Erif.
R.
81-84).
Petitioner
submitted
a permit application on February
10,
1976, which
was denied by the Agency on March
4,
1976.
Grounds for Agency
denial
(C.
Exh.
#2)
are
as
follows:
“The information submitted is not adequate to show
that the proposed infiltration lagoon will not
cause pollution of the groundwater in the area.
In view of the high strength of this waste and
the high groundwater table
in the area,
we suggest
that you contact the Illinois State Water Survey
for advice regarding the suitability of the area
for this type of system and an effective system
of groundwater monitoring wells.”
Over one year later, Allaert submitted additional information
in support of the permit application including a copy of a
letter from the Illinois State Water Survey;
a report of a
recently drilled well on the site;
laboratory analysis done
on water samples from three wells on the site; soil boring
logs;
laboratory test data and a location diagram for the
proposed infiltration lagoon;
and,
a well location map
(C. Exh.
#3).
On June
8,
1977, the Agency again denied the
application;
the denial letter
(C. Exh.
#4)
is as follows:
35—305
—4—
“Allaert Rendering,
Inc.
Carbon
Cliff,
Il.
61239
Gentlemen:
This Agency has reviewed your Application for Permit
and the supporting documents for the subject project
which were
received on March 15,
1977.
This Agency
must deny the permit for this project for the follow-
ing reasons:
Sections 12 and
39 of the Environmental Protection
Act prohibit the Agency from issuing
a permit for
any facility which would threaten, cause or allow
the discharge of contaminants which might cause or
tend to cause water pollution in Illinois, Section
39 of the Act also requires an applicant to submit
proof to the Agency that the proposed facility will
not cause
a violation of the Act or of the Regulations
of the Illinois Pollution Control Board.
In addition to the above cited Sections of the Act,
the permit application does not fulfill the require-
ments of Rule
962, Chapter
3, Water Pollution
Regulations
of the Illinois Pollution Control Board.
The following information, clarification or corrections
must be provided for us to complete our technical
review and are to be considered specific reasons why
the Act and Charter
3 Regulations will not be met:
1.
The information submitted is not only not adequate
to show that the proposed facilities will not cause
pollution of groundwater but
it seems to show that the
potential
for groundwater pollution from the proposed
facilities
is quite high.
The Illinois State Water
Survey’s October
27, 1976 letter states that the
available data indicates that the potential for
polluting the groundwater is high.
Your consulting
engineer believes that the Survey’s letter constitutes
only a generalized report on the soil conditions
in the area because the letter does not identify the
“available data”
referred to in the letter.
The
letter appears to be quite clear
in stating that the
available data indicates that the glacial materials
in the area are less than 25 feet thick with an
underlying creviced formation.
Since the soil borings
on the Allaert Rendering,
Inc. property show that the
glacial material is
4 to
8 feet thick with underlying
creviced limestone,
it would appear that the State
Water Survey’s assumptions are valid for the Allaert
property and we agree with their opinion that the
potential for groundwater pollution from the proposed
facilities is high.
35—306
—5—
2.
Although your consulting engineer states that
he
is aware of no specific information concerning
the site which shows that Allaert’s existing
treatment system causes groundwater pollution,
the submission contains no information regarding
how much,
if
any,
of Allaert’s wastewater
is
presently reaching the groundwater.
The sub-
mission states that no contamination has been
found
in the Allaert wells or the Carbon Cliff
wells but absolutely no information is presented
which would indicate that any groundwater
contamination caused by the Ailaert facilities
would show up in any of the wells mentioned.
3.
Your submission refers to Section 212 F of
this Agency’s Division of Public Water Supplies
“Technical Policy Statements” dated January 13,
1975 and states that the “Technical Policy
Statements” only require
a distance of 150 feet
from sources of pollution such as leaching sewage
disposal pits to wells and therefore the proposed
facilities
at Allaert Rendering,
Inc.
should be
accepted as submitted since there are no wells
within 150 feet of the proposed facilities.
Your
submission conveniently fails to mention that the
proposed infiltration-percolation system is
designed to discharge wastewater into a creviced
limestone formation and that Section 212 F of the
“Technical Policy Statements” states that caution
is urged regarding the location of structures in
areas where creviced limestone may be disturbed
because pollution may be expected to travel for
great distances.
Based on the information we have available, we
must conclude that the area where you propose to
build your infiltration-percolation system is
unsuitable for such a system because of the
creviced limestone formation in the area and we
suggest that you consider some other wastewater
treatment alternatives.
The Agency will be pleased to re-evaluate your
permit application on receipt of your written
request and the necessary information and
documentation to correct or clarify the
deficiencies noted above.
The revised
application will be considered filed on the date
that the Agency receives your written request.
35—307
—6—
If you have any questions about this denial of
your application or need any additional infor-
mation concerning Agency requirements, please
contact Environmental Protection Engineer
Charles
W.
Feilman,
who
may be reached at the
telephone number and address shown above.
Very truly yours,
William
H. Busch, Manager
Permit
Section
Division of Water Pollution Control”
Petitioner’s corsulting engineer Meyer testified that no
percolation tests were run and that no testing of the soil or
rock was done because
“we had no standard to relate that
number to”
(Enf.
R.
444-445).
Petitioner’s consulting engineer
Karlovitz testified that there was nothing
in the first permit
application to indicate how much soil was under the lagoon;
the type of rock under the lagoon;
the permeability of any
rock under the soil; what the bedrock was composed of;
the
presence or absence of fissures, cracks or crevices in the
rock;
the amount or strength of waste water moving through
the ground; the direction of groundwater flow;
and whether
or not waste water from the facility reaches the river or
pollutes
the
groundwater
(Enf.
R.
233-241).
In
relation
to
the second permit application, Mr. Karlovitz testified that
the application indicates that dolomite rock
(sic)
was located
under the facilities;
that soil borings indicated limestone,
weathered limestone and highly weathered limestone at from
4
to 7.8 feet;
that the depth of the limestone was not given or
the type of material underlying the limestone;
that there was
nothing to indicate whether or not the limestone under the
facility or in the vicinity was creviced,
cracked or fissured;
and, that there was nothing to indicate the direction of ground-
water flow
(Enf.
R.
242—251)
The petition presented a tentative schedule for compliance
which was modified by later amendment;
final diversion of
waste water to the Village
of Carbon Cliff is
scheduled for
December 15, 1979.
Petitioner’s Vice-President and General
Manager testified concerning the schedule;
the plant site was
annexed to the Village of Carbon Cliff January 31, 1978;
the
property was zoned heavy industrial; arrangements have been
made with the Village to receive waste water from Petitioner;
a schedule for accomplishing the diversion
to the Village
has been prepared and adopted as
a firm and positive company
commitment; and,
that the cost of annexation
is $7,000
(Var.
R.
16-21).
Mr. Karlovitz gave testimony regarding the
35—308
—7—
process changes and equipment necessary to the connection
to the Carbon Cliff sewer; basically the waste water is to
flow to
a new mechanical catch basin where grease and solids
are removed; then to a flow—measuring station; through
a
lift station consisting of
a concrete structure and two
pumps;
and thence through approximately 3,300 feet of force
main to the Carbon Cliff sewer
(R.
24-25).
The estimated
cost of construction is approximately $120,000 broken down
as follows:
Lift station, $30,000; flow monitoring station,
$10,000; mechanical catch basin, $30,000;
force main,
$30,000;
and, contingency $10,000
(Var.
R.
27).
Petitioner’s Vice-
President and General Manager testified that after connection
is made to the Village sewer, the present pond system “is
going to be bulldozed over, and we are going to plant crops”
(Enf.
R.
130).
When questioned regarding disposition of the
waste water in the lagoon after connection to the Carbon Cliff
sewer,
he replied,
“I know it can be pumped;
and if we have
to
pump it into our new system,
it will be going into the municipal
system
(Enf.
R.
138).
Petitioner’s consulting engineer Karlovitz testified that
there were several technically feasible alternatives to
compliance including connection to the Carbon Cliff sewer
system,
a non-aerated lagoon followed by chlorination, an
aerated lagoon followed by chlorination,
a biodisc system,
an
activated sludge treatment plant, a trickling filter treatment
plant,
a physical chemical treatment plant and an infiltration—
percolation system
(Enf.
R.
252-254).
The costs of the
alternative treatment systems as estimated by the consulting
engineer
(Enf.
R.
273-278)
in 1975 are as follows:
Compliance Alternative
Capital Costs
0
& M*
Non-aerated Lagoon
258,000
35,000
Aerated Lagoon
92,000
23,000
Biodisc
76,000+
22,000
Activated Sludge System
76,000+
30,000+
Trickling Filter System
76,000+
30,000+
Physical Chemical Treatment
System
76,000+
30,000+
Infiltration—Percolation System 65,000
11,000
Connection to Carbon Cliff**
120,000
11,000
*Annual operation and maintenance cost.
**l977 cost estimate
The witness
testified that the estimated costs had increased
in excess of
30 percent since 1975
(Enf.
R.
277).
35—309
—8—
Petitioner refused to answer certain interrogatories
relative
to the financial records of the Petitioner;
the
Hearing Officer ruled that evidence regarding economic
reasonableness be excluded
(Var.
R.
26)
.
Petitioner offered
to disclose
“if we could do it under proper protective order
sanctions”
(Var.
R.
11)
.
Petitioner had filed April
25,
1978,
an application for non-disclosure
in PCB 76-80 which was
denied by the Board on May 12,
1977, with a finding that
a
blanket grant of non-disclosure
for all financial records
was not justified.
During the enforcement hearing,
the
Petitioner made an offer of proof
(Enf.
R.
131)
regarding
the introduction of evidence on economic reasonableness;
the offer is rejected by the Board and the order of the
Hearing Officer is affirmed.
Even if the evidence were
admitted,
figures reporting
“net income”, with nothing more,
are of very questionable value in establishing the economic
condition of
a corporation or individual.
In a variance proceeding,
Olin
Corporation
v. Environ-
mental Protection Agency,
PCB 72-253,
5 PCB 131 at 132;
the
Board
(by Mr. Parker)
said:
“
We note that information on market shares and
fiscal projections and payout is exactly what
we on the Board
(and the public)
have to weigh
in these proceec~ingsfor variances.
If the costs
are confidential then the public is really
excluded and we have repealed the Act’s intent.”
In a later Order in the same case,
the Board
(by Mr.
Lawton)
said at 5 PCB 384:
“The overall thrust of
the Environmental Protection
Act is
to stimulate and welcome public participation
and give assurance to the maximum possible extent
that the basis for all Board decisions
is not only
set forth
in the opinions but available
for public
scrutiny and consideration.
Variances,
by their
very nature, are premised on arbitrary or unreasonable
hardship resulting to the applicant as
a result of
the enforcement of the Board’s rules.
This,
in
virtually every
case,
is a matter of economics
to
which such matters
as profit and loss,
cash flow,
product cost, manufacturing overhead,
sales data
and related subjects are relevant.
To deprive
public observation of these subjects could deprive
the public of comprehending the basis on which our
decisions are rendered.
Accordingly,
we are
reluctant to enter non—disclosure orders except in
instances where the subject matter
is clearly within
the protected categories and the likelihood of harm
35—310
—9—
is both severe and reasonably certain.
The
arguments made by Olin for non-disclosure would
be available to every petitioner
in a variance
case where the manufacturing process and
competitive sales position were involved.”
The regulations of the Pollution Control Board requiring
permits
for the construction and operation of waste water
treatment facilities were adopted March
7,
1972, and became
effective April
16,
1972.
A permit application was first
submitted on February 10,
1976.
The record indicates that
the Petitioner was informed of the permit requirements at
least as early as January
20, 1975
(C. Exh.
#6) when he was
sent
a copy of Chapter
3 of the Pollution Control Board Rules
and Regulations.
Section 39 of the Act provides that it shall be the duty
of the Agency to issue a permit upon proof by the applicant
that the facility shall not cause a violation of the Act or
the regulations
of the Board.
Rule 962 of Chapter
3 provides
that the Agency shall not grant any permit unless the applicant
submits adequate proof that the facility will be constructed,
modified or operat2d so that it will not cause a violation of
the Act or the regulations or has been granted a variance.
Rule 962 further provides that the permit not be issued unless
the facility either conforms to the design criteria promulgated
by the Agency under Rule 967 or is based on such other criteria
which the applicant proves will produce consistently
satisfactory results.
The Board finds that the supporting information submitted
with the Petitioner’s permit applications of February 10, 1976
and March
11, 1977 was not sufficient to prove that
a violation
of the Act or the regulations would not occur
if the permit was
issued.
There simply is no information in the record to
adequately inform the Board of the geological
formation under
the lagoon.
Thorough knowledge of the geologic conditions
is
essential
to the understanding of the natural plumbing system
within it.
Nothing is known of the primary porosity of the
underlying formation and even formations having low primary
porosity may afford appreciable secondary porosity because of
fractures such as joints,
faults and other openings.
Solution
of carbonate rocks such as
limestone and dolomite by water may
greatly increase the secondary porosity.
No information was
submitted on any monitoring information from a downslope well.,
between the lagoon ~nd the Rock River; instead,information was
submitted from wells located west of the lagoon,
away from the
river.
The Board finds nothing to indicate that denial of the
Petitioner’s permit applications was arbitrary or unreasonable.
35—311
—10—
Additionally, the Board
is most reluctant to grant
variances from permit requirements and has stated:
“The permit requirements are an absolutely
essential part of the State’s pollution control
program; viewing them as loose
or avoidable
technicalities can lead to a breakdown
in the
entire program and it
is therefore our opinion
that dates
for the submission of permit
applications
and for the possession
of approved
permits should not be extended or relaxed except
in the most unusual or extraordinary circum-
stances.”
Armak Company
v.
Environmental
Protection Agency, PCB 72—414/PCB72-4l5
(consolidated),
6 PCB 661 at 663.
The Board does not find such circumstances in the record before
it in this case.
The record indicates a number of technical alternatives
to compliance were available to the Petitioner in 1975.
Reviewing the cost estimates submitted to the record by
Petitioner’s consulting engineer,
the Board finds the costs
substantially similar to the costs of the compliance alternative
selected by the Petitioner.
No evidence was submitted in support of the request for
variance from Rules
601 and 1201 of Chapter
3 of the Board’s
rules and regulations.
Further, the Board is without authority
to grant a variance from the provisions of the Act
(Ill.
Rev.
Stat.,
ch.
111 1/2,
§ 1035).
(See Currie, Illinois Pollution
Law Enforcement,
(1975)
(70 Northwestern
L.
Rev.
389;
408—409,
468, Note
95).
Accordingly,
the petition for variance from
Rules
601 and 1201 and Sections 12(a),
12(b)
and 12(d)
of
the Act will be dismissed.
The petition for variance from Rules
901 (a)
,
902 (a)
,
903 (a)
951(a),
952(a)
and 953(a) of Chapter
3 of the Board’s rules and
regulations will be óenied.
After consideration of the applicable Section 33(c)
criteria
of the Act as discussed in the foregoing,
the Board finds
Petitioner has not sustained his burden of proof, no basis
on
which to allow a grant of the variance requested and further
finds that any hardship visited upon the Petitioner
is largely
self imposed.
This Opinion constitutes the findings of fact and con-
clusions of law by the Board in this matter.
35—312
—11—
ORDER
1.
The Petition for Variance of Allaert Rendering,
Inc.
from Rules
901 (a)
,
902 (a)
,
903 (a)
,
951 (a)
,
952(a) and 953 (a)
of Chapter
3:
Water Pollution,
of the Pollution Control
Board Rules and Regulations,
is hereby denied.
2.
The Petition for Variance of Allaert Rendering,
Inc.
from Rules
601 and 1201 of Chapter
3:
Water Pollution, of
the Pollution Control Board Rules and Regulations,
is hereby
dismissed.
3.
The Petition for Variance of Allaert Rendering,
Inc.
from Sections 12(a),
12(b) and 12(d)
of the Environmental
Protection Act is hereby dismissed.
IT IS SO ORDERED.
Mr. Werner dissented.
I,
Christan
L.
Moffett,
Clerk
of the Illinois Pollution
Control Board, hereby
e~tifythe above 0 inion and Order
were adopte4~n the
________
day of ~
by a
Christan L.
Moff
lerk
Illinois Pollutio
ntrol Board
35—313
