ILLINOIS POLLUTION CONTROL BOARD
August
5,
1976
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v
)
PCB 75—507
COUNTY OF LAKE, DEPARTMENT OF
PUBLIC WORKS,
)
Respondent.
ORDER OF THE BOARD
(by Mr. Goodman):
This matter comes before the Board upon the July 12,
1976
Motion by the Environmental Protection Agency
(Agency)
to re-
consider the Board Order of June
18,
1976 herein.
In its Motion
the Agency requests that the Board reconsider
its finding that
there was no proof of violation of
Rule
404,
its
Order
imposing
a penalty of $300.00 and its failure to specifically order the
Respondent County of Lake, Department of Public Works
(County)
to
cease and desist from violating the Act and the Rules.
The Agency argues that the grab sample results entered as
evidence
in this case support a finding of violation of Rule 404
when that Rule
is construed with Rule 401(c) which calls for a vio-
lation should any contaminant at any time exceed five times
the
numerical standards prescribed in Rule
404.
In support of its
argument the Agency cites Environmental Protection Agency
v.
Fosdick
Poultry Processors,
Inc., PCB 74-196,
16 PCB 183
(March 26,
1975).
In that case the Board did find violation of Rule 404 through the
five times limit of Rule 401(c)
The Board is now of the opinion that a violation of the five
times Rule is a violation of
401(c)
itself rather than Rule 404
as
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—2—
construed with 401 (c).
The prohibition is included within 401 (c)
Rule 404 merely determines the levels at which
401(c)
is violated.
Therefore, the Board hereby overrules our decision
in Fosdick
(supra)
to the extent that it is inconsistent with our holding
today.
In this case Rule 401(c) was not mentioned in either the Com-
plaint nor the Stipulation of Fact and Settlement Proposal filed
May 17,
1976.
The first mention of Rule 401(c) was contained
in the
Agency’s argument subsequent to the hearing and the filing of
the
Stipulation.
The Board finds that the County was prejudiced
in
its
ability to answer the Complaint due to the lack of mention
of Rule
401(c)
either in the Complaint itself or during the hearing.
The
Board,
therefore,
affirms
its opinion that
a Rule 404 violation
cannot be
found.
The Board finds that the Agency’s arguments concerning
the penalty imposed
in this case are not persuasive and affirms
its
Order of June 18,
1976 with respect to said penalty.
For
the
reasons stated
in Section
(c)
of the Agency’s Motion
to Reconsider, the Board finds that a cease and desist Order is
appropriate in this case.
The Order in PCB 75-507 of June
18,
1976
is hereby amended as follows:
5.
Respondent shall cease and desist from violating the
Rules and Sections of the Act for which violations
were found herein.
IT IS SO ORDERED.
I,
Christan
L.
Moffett, Clerk of the Illinois Pollution Control
Board, hereby ce tify the above Order was adopted on
day ~
,
1976 by a vote of
~
~
Illinois Pollution
rol Board
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