ILLINOIS
POLLUTION
CONTROL
BOARD
February
15,
1979
ENVIRONMENTAL
PROTECTION
AGENCY,
Complainant,
V.
)
P03
76—56
PCB
76—220
FOX
VALLEY
CREASE
COMPANY,
INC.,
)
CONSOLIDATED
Respondent.
ENVIRONMENTAL
PROTECTION
AGENCY,
Complainant,
v.
ANTOINETTE
ANDERSON,
d/h/a
FOX
VALLEY GREASE SERVICE,
Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Dumelle):
These
cases
concern the operation of
a rendering plant near
Huntley, Illinois.
A Consolidated Amended Complaint alleges
operation of
a wastewater treatment works without
a permit,
violation of the standard conditions of a permit to operate an
air poJ.lution source, and the emission of excessive odors.
Hearings were held at the Mcflenry County Courthouse on May 2,
May
9, June
3,
June
13, June
15,
June
17, July
1,
September
26,
October
17, October 24, and November
14,
1977;
and on April
20,
April
21, May
1,
May ii, and May 12, 178.
Count
I attributes the unpermitted operation of the
wastewater treatment plant to Respondent Antoinette Anderson
(Mrs.
Anderson) from January
1,
1973 until April
1,
1974.
Counts
rI—V allege a continuation of this practice as well as other
violations by Respondent Fox Valley Crease Company,
Inc.
(Fox
Valley)
from April
1,
1974 until January 31,
1977, the date the
Consolidated Amended Complaint was filed.
32—505
—2—
The
threshold issue in these cases
is whether the named
Respondents are responsible for the alleged violations.
The
rendering business was moved to its present site near Huntley
in late 1970 and early
1971
(R.
45).
The business had been
owned by Mrs.
Anderson’s late husband.
When it was moved,
the
decedent’s estate had not been distributed
(P.
4748).
Mrs.
Anderson stated that the business,
the buildings and the land
were left to her
(Ft.
48).
Her son,
Michael
Hopkins, said that
the business was left to his brother,
Mrs. Anderson,
and him
(P.
411).
The business was not incorporated into its present
structure until
April
1,
1974
(Ex.
14,
15,
par.
1).
During
the intervening period between her husband’s death
in 1970 and
incoporation
in
1974,
Mrs.
Anderson kept the hooks of the
business and ran it along with her two sons
R.
48,
412).
From this evidence it can he concluded that during the period
contemplated by Count
I of the Consolidated Amended Complaint,
Mrs. Anderson was at least one of the people responsible for
the operation of the rendering facility near Huntley.
The
admission of both Respondents shows that during the period
contemplated under Counts II—V, the responsible entity was Fox
Valley Grease Company,
Inc.
Ever since 1971 the wastewater
from the rendering plant
has been discharged through
a series of grease traps, to
a
ditch, and then to a lagoon located on the site
(Ft.
391,
691).
This wastewater comes from process discharges and floor
washing
(Ft.
393).
tlltimate disposal of the wastewater comes
from evaporation or percolation with no direct discharge to
any stream or sewer
(Ft.
692).
Rule 104 of Chapter
3:
Water
Pollution
of the Board’s Rules and Regulations defines
“treatment works” as
“those constructions or devices
...
used
for collecting
...
or disposing of wastewaters...”
This
lagoon clearly lies within the scope of this definition.
Former Rule 903(a)
of Chapter 3
(effective
until October 11,
1974) and the present Rule 953(a) both provide that “No person
shall
cause or allow the use or operation of any treatment
works
...
after December 31,
1972 without an operating permit
issued by the Agency.
.
.“
Since the Agency showed that neither
Respondent ever had a permit to operate a wastewater treatment
works
(P.
1226,
1325), violations of former Rule 903(a) and
present Rule 953(a) have been established.
In Count IV the Agency alleges that Fox Valley violated
standard condition #2 in an operating permit dated September
17,
1975
(Ex.
48).
Since this permit expired on September
2,
1977 and the standard condition cited
in the complaint
pertains only to grounds
for revocation,
this count must be
dismissed
as moot.
32—506
—3—
Count
V
alleges that Respondent Fox Valley violated
Section 9(a)
of the Act from March
17,
1975 until the date of
the Consolidated Amended Complaint (January 31,
1977) by
causing air pollution from the emission of odors.
The Board
has held that a person can be found to have caused air pollution
from odors if the following test is satisfied:
1)
Was there in fact an odor?
2)
Was the odor caused by Respondent?
3)
Did the odor result
in interference with the
lives,
environment, enjoyment of property,
etc.
of the citizens affected?
4)
Was such interference unreasonable, such unreasonableness
being measured,
in part,
by the criteria
in Section
33(c)
of the Act?
(See People
v. North Shore Sanitary District and
City of Highland Park
v.
North Shore Sanitary
District, P03 74—223 and 74—229 consolidated,
19 PCB 192, November
6,
1975.)
1)
There was a considerable amount of testimony to the effect
that there was
an intermittent offensive odor
in the vicinity
of the Fox Valley plant
(R. 146,196,234,299,327,631,898).
All
of this testimony came
from firsthand observations.
2)
The source of the odors was determined in
a number of
ways.
One witness indicated that
it smelled
like the odor
created when her mother used to fry hog intestines to make
soap
(Ft.
146).
Another witness recognized the smell as being
similar to “frying down the meat”,
a practice that was common
before refrigeration
(Ft. 899).
One woman recognized the odor
as the same smell
as the one she detected from the Fox Valley
Grease Blending Company in South Elgin, which was the predecessor
to the subject rendering facility
(Ft.
197).
Another witness
said she first noticed the same smell when a prior grease
rendering plant was located on the site of the present Fox
Valley site.
Since
the emissions from Fox Valley come from a
process of heating and dewatering grease,
fat, and bones,
the
similarity between that smell and the one described by these
witnesses is clear.
Some witnesses identified the source of the odors by
indicating the relative locations of their homes and Fox
Valley on Exhibit
6. The presence of odors was correlated with
the days that the wind blew from the direction of Fox Valley
(Ft.
158,203,232,300,343,329, 900).
One Agency employee traced
the odor as
he drove south from Huntley.
As he approached Fox
Valley he noticed the odor got progressively worse
(Ft.
631).
Another Agency employee identified offensive rendering odors
downwind from the plant
(Ft.
1115).
Other potential odor sources
in the vicinity were ruled
out as either different or from the wrong direction
(Ft.
152,154,205,223,
257,265,304,314,332,341,906).
32—507
—4—
3)
The most common interference with enjoyment of property
cited by witnesses was the fact that they were forced to go
indoors.
This resulted in the cancellation of outdoor
activities
(Ft.
239,258) such as picnics
(Ft.
302) or eating
outside
(Ft.
331)
or working with horses
(R.
315)
or tending
a
garden
(Ft.
155).
One witness had to go inside and turn on the
air conditioning
(Ft.
901).
Two
witnesses had to rewash
bedding which had been out to dry
(P.
209,907).
A couple
testified that both of them had been awakened on some summer
nights and that they had to get up to close the windows
(Ft.
239,
313).
On cross examination all these witnesses admitted
that the smell had never actually made them sick
(P.
165, 208, 324,
347,918).
4)
These interferences were had enough to cause some of the
residents to complain to Fox Valley
(Ft.
210,213,235,
312,337,349)
and others to local authorites
(Ft.
155,908).
All
of the Agency’s citizen witness stated that
the
odor had been
noticeable on many occasions over the past
few
years.
The
odor was described as “bad”
(Ft. 196),
“sickening”
(Ft.
208),
“pungent”
(Ft.
299),
and “sickening stench”
(R.
327).
One
witness said that the odor aggravated her asthma and caused
her to use an atomizer
(R.
154).
Respondents produced six witnesses to show that the odors
were not objectionable
(Ft.
13381377).
Their testimony was
properly excluded by the Hearing Officer because the Agency
was given no warning that these witnesses would be called.
The social
and economic value of
the Fox Valley plant
is
not well established in the record.
The plant recycles grease
from restaurants within
a
100 mile
radius and employs 12 truck
drivers
as well
as
14 operators at the plant
(Ft.
498,450,1387).
The value this plant
has
is
reduced by the
odors which interfere with the nearby residents’ enjoyment of
their property.
The area around the affected homes was described as
usually very quiet
(Ft.
146), very nice
(Ft.
898)
and “good
country air”
(Ft.
327).
Most of the surroundings are farm land
with some industries
(Ex.
6,
R.
49—51,147,332).
The residents
are accustomed to farm smells
(P. 163,205,216,266,323,346,918)
and don’t mind them. One witness said that
a similar smell
emanated from a prior rendering plant located on the same site
(Ft.
904).
Another witness said he knew Fox Valley was there
when he bought his house, but he did not know it smelled had
(R.
238).
Two witnesses identified the smell
from Fox Valley
as a common one many years ago when there was no refrigeration
(Ft.
899) and people made their own soap.
32—508
—5—
There are a number of odor sources
at the Fox Valley
plant.
The largest contributor
is the cooking process with
emissions occurring during loading
(P.
1122,1551) and
operation.
Odors were
also
observed from the expeller
(P.
1127,1534),
the perk pans
(R.1l22,1534) raw material
storage
(P.
1119,1534),
the wastewater lagoon
(Ft.
965,
986,
1532), the
hañimer mill, and the blow tank
(P.
1127).
A witness for Respondents stated that current technology
for control of cooker emissions consists of a condenser
followed by incineration of noncondensible gases
(Ft.
1534).
Both sides agree that all
odor
sources inside the plant could
he controlled by venting
to
a scrubber and maintaining
a
negative indoor pressure
(P.
1150,1535).
This second
alternative would control odors from
all high intensity
sources and would probably eliminate complaints
(Ft.
1142—1151,1557).
~lthough the wastewater lagoon
is an odor
source, it is probably not the cause
of complaints
(P.
1555).
Installation of
a scrubber/negative pressure system would
cost over $120,000
(P.
1537)
and would take at least eleven
months
(Ft.
1558).
This system is presumed
to he economically
reasonable because Respondents
have
not presented any evidence
of financial condition to rebut
this conclusion.
In
a case
involving odors,
the Illinois Supreme Court stated that the
complainant does not have the burden to prove
all of the
factors
in §33(c) of the Act (which includes economic
reasonableness)
Processing
and Books,
Inc.
et al
v.
P03, et al.,
64
Ill.
2d
68,
351
N.E.
2d 865,869
(l976).1
Section 31(c)
of the
Act places the burden on Respondents to
show that compliance would impose an arbitrary or unreasonable
hardship.
In another recent case involving odors, the Illinois
Supreme Court held that when economic feasibility is not an
issue, the complainant has the burden to show technological
practicality of compliance
(which the Agency has done here)
Wells
Manufacturing Comn~~1\rj~
PCB et al, _____Ill. 2d____
383
NE2C9
148
(1978).
Consequently the Board finds that Respondent has emitted
odors beyond the boundaries
of its property from March
17,
1975 until January 31,
1977 which have unreasonably interfered
with the enjoyment of life or property.
In order to rectify the violations alleged and proven in
Counts I-Ill,
Respondents must either obtain
a permit to
operate their wastewater lagoon or discontinue its use.
Before the Board can decide whether Respondents must cease and
desist from these violations,
it must consider the factors in
§33(c)
of the Act.
32—509
—6—
Respondents have attempted to obtain operating permits
which would allow them
to
continue to use the lagoon.
Their
most recent attempt, which was denied by the Agency,
is
chronicled
in Fox Valley Grease Company
v.
EPA, PCB 77—179,
30
PCB
87, April
27,
1978.
In that case the Board affirmed the
Agency’s denial.
The Board held that the Agency’s suspicions
that seepage from the lagoon might be causing pollution of
ground water were well
founded.
The record in this case
provides additional expert testimony which essentially expands
on the same evidence in that case.
The Agency contends that the soil
in the vicinity of the
plant site is too permeable for this sort of percolation
system
(R.
1272) and that the shallow groundwater could become
polluted
(Ft.
1283,1287).
The soil
is alleged to be too coarse
to filter chlorides,
sulphates,
and ammonia
(Ft.
1291,1293).
In the alternative,
if the soil were impermeable, pollutants
would migrate laterally through the soil
to
nearby surface
waters
(P.
1289).
Respondents countered with testimony to show that the
soil underlaying the lagoon was sufficiently impermeable to
prevent downward migration to the deeper aquifers
(P.
1662,1664,1673,
1718,1739).
Although some of the water would
reach shallow groundwater, Respondents contend
it would take
at least
3500 years to reach the Kishwaukee River
(Ft.
1652).
On rebuttal the Agency contended that the layers of
soil
in the area were not continuous
(R.
1784) and that the soil
borings
in the record did not controvert this conclusion
(Ft.
1788,1946,1952).
Even though impermeable clay layers exist,
they may contain vertical
cracks which would allow pollutants
to migrate down to the groundwater
(Ft.
1791,1809).
The Agency
calculated that water from the pond migrates to a well on the
Fox Valley site
in
40 days
(Ft.
1974).
If this well were to
stop pumping,
the lagoon water would reach a nearby drainage
ditch in 345 days
(P.
1977).
Respondents attempted to introduce additional evidence
challenging the Agency’s rebuttal.
The Hearing Officer
properly refused this testimony because Procedural Rule 318
does not provide for
a Respondent’s rebuttal without a showing
of good cause.
The Board agrees that no good cause was shown.
Based on the above evidence the Board concludes that
a
potential
for groundwater pollution exists.
The conclusions
drawn by both sides’ witnesses are based on data which they
either did not personally collect or which is not local to the
Fox Valley site. With more information either side may have
established its position more clearly.
At present the Board
can only conclude that the lagoon may be draining to the
groundwater.
By its nature, this drainage would cause water
pollution
(Ft. 1240,1259,1855).
32—510
—7—
As noted previously the social and economic value of the
Fox Valley plant is
not well developed.
The value the plant
has
is greatly diminished by unpermitted subsurface wastewater
disposal which may be causing groundwater pollution.
The suitability of the location of the wastewater lagoon
has already been discussed.
Even though
it has been there for
over
8 years,
it may be polluting groundwater which is being
used for home drinking water
(Ft.
1283).
The Agency contends
that the best method
for compliance
would be pretreatment of wastewater at the plant followed by a
discharge to the Village of Huntley sewer system and sewage
treatment plant
(Ft.
1247).
Exhibits 102(c)
and 102(e)
describe the systems which the Agency feels would be
acceptable.
In Exhibits
l02(a),(d) and
(f), the Agency has
outlined some acceptable treatment schemes which would result
in a surface discharge.
The Agency has concluded that
Respondents could receive permits
to dispose of
their
wastewater under either mode
(Ft.
1251,1856).
Another system
employing spray irrigation was also identified
Ex.
102(b).
The costs
for these systems are somewhat speculative.
The Agency’s cited costs do not include operation and
maintenance or the additional
expense which might accompany
the training and/or compensation of a certified operator.
The technical practicability of a surface discharge is
not questioned.
Whether or not this alternative
is
economically reasonable is
up to the Respondents to show.
Without any evidence of Respondents’ financial condition the
Board must assume that these costs could be undertaken.
Respondents have been pursuing the idea of connecting to
the Huntley sewer system
(Ft.
1450).
Respondents are faced
with three problems
(Ft.
1458):
1)
Pretreatment.
The Agency
has shown that pretreatment can be accomplished.
Respondents
have not shown that pretreatment would
he too expensive.
2)
Obtaining easements across intervening parcels of
land.
Although Respondents are confident that a connection will he
made
(R.
1512),
there is no way of assuring
if or when the
easements will be obtained
(R.
1506),.
3)
Finding
a point of
entry into the Huntley sewer system.
Presumably this problem
will not be solved until easements have been acquired.
Even though it is
apparent that Respondents will probably
eventually tie in to the Huntley system,
the Board cannot
conclude that this alternative
to
the present wastewater
lagoon is technically practicable.
However,
the record does
support the conclusion that a surface discharge system could
be installed.
The alternative of spray irrigation appears to
be available although there could be problems with land
acquisition, project operation,
and surrounding geology
(R.
1902).
32—511
—8—
Based
on this analysis a cease and desist order is
justified.
Without more information on the underlying geology
the wastewater
lagoon must
be
viewed as
a potential source of
ground water pollution.
This potential detracts from the
suitability of
its location and the value of the Respondents’
operation in general. Even though an immediate solution may
not be at hand,
the lagoon can be eliminated.
Since the Board has already reviewed the factors
in
§33(c) of the Act to determine that Respondents have emitted
odors which have unreasonably interfered with the enjoyment of
life or property, another review will not be necessary.
Respondents must cease and desist from these violations
as
well.
The issue now is how much time will be needed to abate
these violations.
Respondents have indicated that even though they don’t
think
it
is necessary,
all noncondensible gases are presently
being vented to the boiler for incineration while the cookers
are operating
(R. 403,407,488,490).
After
an internal
system
for handling citizens’ complaints has been instituted and no
complaints come
in while good housekeeping
is employed and the
present system is operating,
no further control will be
needed.
If after six months from the date of the Boards’
Final Order in this case,
the present system is still
inadequate,
Respondents will have one year to apply for the
necessary permits and install additional controls
(Ft.
1558).
The Board is aware of the fact that elimination of the
lagoon
may help to reduce citizens’ odor complaints
(Ft.
1539).
The wastewater
lagoon will probably be eliminated by
installation of a pretreatment system and connection to the
Huntley sewer
system.
Since the Board has concluded that this
alternative has not been established
as technically
practicable,
no order can be fashioned around
it.
Based on
its own experience in the installation of wastewater treatment
systems, the Board concludes that one year should give
Respondents adequate time to apply for the necessary permits
and install a surface water discharge system to replace the
existing lagoon.
It
is still
conceivable that Respondents
could obtain
a permit for the existing
lagoon.
In light of
the evidence in this record,
this alternative does not appear
likely.
The Board may assess penalties for violations of the Act
or the Rules whenever
it
is necessary to aid
in the
enforcement of the Act.
By their own admission, Respondents
have on occasion cut off the incineration which was part of
the odor control
system
(R.
1603).
On some occasions Agency
employees observed that the condenser and/or the incineration
system was not operating and that odors were being released
32—512
—9—
(Ft.
632)
or they were told by Respondents’ employees that the
system was not always operating
(P. 969,992,998,1118).
Even
though some
of these cutoffs were caused by malfunctions,
Respondents must accept responsibility for these emissions.
Coupling this responsibility with the extensive discomfort
caused by these
odors,
the Board finds that a penalty of
$2,000 for this unreasonable interference
is appropriate.
The Board cannot overlook the fact that Respondents have
continued to operate their wastewater treatment system without
a permit for over seven years.
Respondents’ claim that they
thought no permit was needed cannot he honored.
Fox Valley’s
predecessor, which was operated by Mrs. Anderson’s deceased
husband and then Mrs. Anderson, was penalized $1,000 by the
Board on October
14,
1971
(Ex.
1)
for failing to obtain
a
permit for this same lagoon.
An Agency employee testified
that he advised one of Respondents’ employees on February
19,
1971 that a permit was necessary.
Even though Respondents
attempted to obtain a permit in August,
1971
(R.
679),
November,
1971
(Ex.
32) and May,
1972
(Ex.
35)
and all
these
were denied,
no permit appeal was filed.
No
new permit
application was
filed until February,
1977
(Ex.
37).
During
this hiatus Respondents were notified that they were in
violation (Ex.
26,27)
and the Agency unsuccessfully attempted
to negotiate
a settlement
(Ft. 842844,849).
Although the Board
is aware of the difficulties Respondents have had,
a penalty
of $2,000 will be assessed because of the
length of time this
violation has been allowed to continue.
On November
1,
1978 Respondents moved the Board to
dismiss the Consolidated Amended Complaint in this case based
on Hearing Officer errors or in the alternative
for additional
hearings or to correct the record.
First,
the motion is
inappropriate since
cases are not dimissed because of actions
by one of the Board’s Hearing Officers.
Second the Hearing
Officer should instead
be commended for his ability to handle
such
a
lengthy and trying proceeding.
Third,
the Board has
already remanded this case for further hearings and provided
Respondents with adequate opportunity to present their
case.
Fourth, the motion fails to substantiate any of Repondents’
claims with anything more than merely conclusory remarks.
Consequently the motion shall be denied in all respects.
This Opinion constitutes the Board’s findings of fact and
conclusions of
law in this case.
ORDER
It
is the Order of the Pollution Control Board that
1)
Respondent Antoinette Anderson violated Rule 903(a)
of
Chapter
3:
Water Pollution of the Board’s Rules and
Regulations and Sections
12(a) and
12(b)
of the Act from
:32—513
—
10
—
January
1,
1973 until
April
1,
1974;
2)
Respondent Fox Valley Grease Company, Inc. violated
Rule 903(a) of Chapter
3:
Water Pollution of the Board’s
Rules and Regulations and Sections 12(a) and 12(b)
of the Act from April
1,
1974 until
October 11,
1974;
3)
Respondent Fox Valley Grease Company,
Inc. violated
Rule
953(a) of Chapter 3:
Water Pollution of the Board’s Rules
and Regulations and Sections
12(a) and 12(b)
of the Act from
October 11,
1974 until January 31,
1977;
4)
Count IV of the Consolidated Amended Complaint is hereby
dismissed;
5)
Respondent Fox Valley Grease Company,
Inc. violated
Section 9(a)
of the Act from on or about March 17,
1975
until January 31,
1977;
6)
Respondent Fox Val.ey
Grease Company,
Inc.
shall
immediately institute
a program of good housekeeping
and an internal system for responding to citizens’
odor complaints, and shall submit the program and
system to the Agency for approval;
7)
Respondent Fox Valley Grease Company,
Inc.
shall
apply for and obtain any necessary Agency construction
and operating permits and cease and desist all
violations of Section 9(a) of the Act within
18
months of the date of this Order;
8)
Respondent
shall apply for and obtain the necessary
construction and operating permits and shall
cease
and desist from further violations of Rule 953(a)
of Chapter
3:
Water Pollution of the Board’s Rules and
Regulations and Sections 12(a) and 12(b)
of the Act within
one year of the date of this Order;
9)
Within 45 days of the date of this Order Respondents
Antoinette Anderson and Fox Valley Grease Company
shall
forward the sum of $2,000, payable by certified
check or money order,
as
a penalty for the violations
cited in paragraph 1-3 of this Order,
subject to joint
and several liability,
to:
32—514
—
11
—
State of Illinois
Fiscal Services Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois
62706;
10)
Within 45 days
of the date of this Order Respondent
Fox Valley Grease Company,
Inc.
shall forward the
additional sum of $2,000,
payable by certified check
or money order,
as
a penalty for the violation cited
in paragraph
5 of this Order,
to:
State of Illinois
Fiscal Services Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois
62706;
and
11)
Respondents’ motion to dismiss amended consolidated
complaint based on Hearing Officer errors,
or in the
alternative for additional hearings conducted by
a different Hearing Officer to afford Respondents
a full and fair hearing
(which was denied Respondents
by the Hearing Officer), or
in the alternative,
to correct the record dated November
1,
1978
is hereby denied.
I, Christan L. Moffett,
Clerk
of the Illinois Pollution
Control Board,
hereby certify the above 0 inion and Order
were adopted on the
/:~
~
day of
________________
1979 by a vote of
___________—.
QtU~/a~7
~
fV014/J/41
Christan L. Moffet~,Clerk
Illinois Pollution Control Board
32—515
