ILLINOIS
POLLUTION
CONTROL
BOARD
May
8,
1975
ENVIRONMENTAL
PROTECTION
AGENCY,
)
Complainant,
)
v.
)
PCB
74—213
)
SPINNEY RUN FARMS,
)
Respondent,
SPINNEY RUN
FARMS,
Petitioner,
V.
PCB
74—347
ENVIRONMENTAL
PROTECTION
AGENCY,
I
Respondent,
Mr.
Jeffrey
S.
Herden,
Assistant
Attorney
General,
and
John
T.
Bernbom,
appeared
on
behalf
of
the
Environmental
Protection
Agency;
Mr.
Harold
W.
Klingner,
appeared
on
behalf
of
Spinney
Run
Farms.
OPINION
AND
ORDER
OF
THE
BOARD
(by
Mr.
Dumelle):
An
enforcement
action
of
the
Environmental
Protection
Agency
(Agency)
and
a
petition
for
variance
filed
by
Spinney
Run Farms (Spinney) were consolidated.
The cases were
consolidated for the purpose of
incorporating
by
reference
testimony
had
in the earlier hearing, PCB 74-213, and will
be considered together in this Opinion.
This Opinion explains
the Order in PCB 74—347 issued April 10,
1975.
Spinney
Run
Farms operates a milk processing and bottling
plant on Route 63 north of Libertyville in Lake County,
Illinois.
Equipment at the plant includes bulk milk storage
facilities, pasteurizing and bottling apparatus, cooling
equipment
and
a wastewater
treatment
plant.
Respondent’s
wastewater
treatment
plant
consists
of
holding tanks, grit chamber, aeration tank,
settling tank,
chlorine
contact
tank,
and
a
sludge
holding
tank.
The
treatment
plant has a design capacity of 8,600 gallons per
day
for
the
treatment
and
disposal
of
wastewater
generated
during
the
milk
processing
operation,
general
cleansing
of
the milk processing plant environs,
and
waste
produced
by
plant
employes.
Effluent
from
the
waste
treatment
plant
16—MS
—2--
is discharged to
a community tile which empties into the Des
Plaines River.
The Agency alleges,
in
a complaint originally filed
June
7,
1974 and amended October, 1974,
‘that
Respondent
in
the operation of its waste treatment plant, has:
1. caused
or allowed the Des Plaines River to be of an unnatural color
or turbidity
so as to be harmful to plant or aquatic
life,
in violation of Section 12(a)
of the Environmental Protection
Act and Rule 203(a)
of the Water Pollution Regulations;
2,
caused or allowed its effluent to be
in a turbid, odorous or
“milky color condition”
in violation of Section 12(a)
of the
Act and Rule
403 of the Regulations;
3.
caused or allowed
from April
1,
1973 to January
1,
1974 its effluent to exceed
30 mg/l of BOD5
and
37
mg/I of suspended solids in violation
of Section 12(a)
of the Act and Rule 404(a)
of the Regulations;
4.
caused or allowed since January
1,
1974 its effluent to
exceed
4
mg/I of BOD5 and
5
mg/l of suspended solids in
violation of Section
12(a)
of the Act and Rule 404(f)
of the
Regulations;
5~
caused or allowed its effluent to exceed
400 fecal coliforms per 100 ml in violation of Section 12(a)
of the Act and Rule 405 of the Regulations;
and
6,
failed
to have
a properly certified operator employed at its sewage
treatment plant,
in violation of Section 12(a)
of the Act
and Rule 1201 of the Regulations.
Hearings were held on this matter on August 1,
S.eptember
10, and September 24,
1974,
On
September 23,
1974, 3~l/2
months after the complaint was originally filed,
Respondent
filed a petition for variance with the Board,
Specifically,
Spinney Run Farms requested relief from Rules 203(a),
403,
404(a),
404(f)
and 405 of the Water Pollution Regulations
and consequently Section 12(a)
of the Act until such time as
its treatment plant could be expanded and until its effluent
could be diverted to the North Shore Sanitary District
(NSSD)
treatment plant presently under construction at
Gurnee.
A hearitig on this petition was held on November
12,
1974,
Spinney Run Farms was previously before the Board in
another
consolidated
enforcement
and
variance proceeding,
PCB
72-185
and
PCB
72~327,
respectively.
On July
12,
1973
we entered an
Order
imposing
a
penalty
of
$2,000
for
water
pollution violations of the Act, Water Pollution Regulations,
and its predecessor the Sanitary Water Board Regulations.
The violations found in that proceeding are substantially
16
—546
—3—
the same as those alleged here
-
involving general water
quality, turbidity,
BOD
,
suspended solids,
fecal coliform,
and failure to have a c~rtifled plant operator.
The Order
also granted a variance from Rules 403,
404(a) and
405
of
the Water Pollution Regulations from October
30,
1972 to
March 30,
1973.
Although that variance ended before the
date of the Order, Spinney Run Farms had indicated a compliance
time schedule whidh allowed for completion
of its intended
treatment plant expansion within the time frame of the
variance,
Spinney Run Farms proposed a $100,000 expansion
of its treatment plant
from a hydraulic loading of 15,000
gallons per day to 60,000 gallons per day
by installing
new pumps; a new aeration basin with mechanical aerator,
a
new clarifier with mechanical sludge removal equipment,
a
horizontal multiplex filter for tertiary treatment, and
aerobic digester and drying beds,
and alteration of the
aeration tank to a chlorine contact basin,
Consideration
was also given to the planned expansion of the NSSD’s Gurnee
plant,
and we approved the ultimate goal of discharging the
Spinney Run Farms’
effluent to the Gurnee interceptor sewer.
In the instant case, Agency engineers visited the dairy
on three occasions,
Mr. Michael Hermesmeyer was denied
entrance to the treatment facility on August 28,
1973 because
he lacked a hard hat,
However, he was able to observe a
septic odor
CR.
11).
Two samples were gathered for him by
Mr. John Eleck, engineer for Spinney Rum Farms.
The first
sample was taken from the effluent man-hole immediately
following the final clarifier tank,
The second sample was
taken from the outfall to the Des Plaines River.
Bleck
indicated several other discharges are connected to the
tile.
Although the discharge at this point was milky white
and discolored the river
2 to
3 feet from the bank and 20
feet downstream, no dead fish or toluene odors were noticed.
Mr. Hermesmeyer made a second visit on October
11,
1973,
at
which time he took another sample from the same man—hole,
Mr. James Mikolaitis, another Agency engineer, made a third
visit on January
8,
1974.
He observed that a gas-chlorinator
had been installed in the treatment plant, and he collected
an effluent sample from either the same man—hole or the next
one following.
The sample
was described as “milky white,
very turbid,
and
(it) had
a
slight odor”
CR.
38).
He also
stated that Bleck told him the plant was overloaded and was
being washed out, which would result in the wastewater being
substantially untreated
CR.
39).
Laboratory analyses (admitted
as EPA Exhibit) revealed the following results:
16—547
—4—
EFFLUENT AT MANHOLE
AUG.
28
OCT.
11
JAN.
8
BOD5
70
(150
)260
Total Suspended Solids
120
750
490
Fecal Coliform
6,000
181,000
300
DISCHARGE FROM TILE
AUG.
28
BOD5
>120
Total Suspended Solids
170
Fecal Coliform
180,000
In
addition to
these
results, Mr. Bleck
also prepared his
own
reports
as required by the Agency.
These reports
(admitted
as EPA Exhibits
4-23)
cover
a
period from August to December,
1973,
and describe
the final effluent to he turbid, occasionally
milky,
and indicate BOD and suspended soLids concentrations
in excess
of the
ReguI~tions.
These exhibits and
the unrefuted testimony of Agency
engineers
clearly
prove
the alleged
violations.
Rule 203(a)
This Rule reads
in
full as follows:
(All waters of
the
State shall meet the following
standards):
(a)
Freedom from unnatural sludge or bottom deposits,
floating debris, visible oil,
odor, unnatural
plant or algal growth, unnatural color or turbidity,
or matter in concentrations or combinations toxic
or harmful to human, animal, plant or aquatic life
of other than natural origin.”
Respondent argues that it is the Agency~sburden to prove
the effluent
is
toxic or harmful to some form of life.
This argument relies on a reading of Rule 203(a) which
qualifies each enumerated freedom by the toxicity requirement.
We disagree with this interpretation.
A review of our
Opinion explaining this regulation
(In The Matter of Effluent
Criteria, R 70-8, March
7,
1972)
indicates that these enumerated
freedoms are to be read
in. the disjunctive;
only the last
clause
-
matter other than those enumerated
-
relates to
toxicity.
The Opinion described the purpose of Rule 203(a)
as preserving “the existing requirements for freedom from
nuisance”
(page 4).
Those existing requirements were contained
in Rule 1.03 of the Illinois Sanitary Water Board Rules and
—5—
Regulations,
SWB-l2, which separately listed four sentences,
only the last of which related to toxicity to some form of
life.
The relevant words in the first three sentences were
“objectionable”, “unsightly”,
“deleterious”,
and “detrimental”
to legitimate uses”.
Although the Agency engineer on August
28, 1973 indicated that no dead fish or toluene odors were
noticed, the evidence as to the milky color of the river is
sufficient to make out a violation of Rule 203(a),
In
addition, Respondent’s own engineer,
in describing
a photograph
of the river at the
tile
discharge,
(Respondent’s Exhibit
20, Number
7)
explained that the
picture
indicated the
“discoloration caused from the discharge
of
our
effluent
into the River”
CR.
325) (Emphasis added),
Rules
403,
404(a),
404(f),
and 405
In Respondent’s Brief it is admitted that the effluent
does not currently meet the standards of these Rules.
In
response,
Spinney Run claims:
1.
As long as discharge is
to the River,
it will infrequently violate Rule
403 whenever
a plant
“upset” occurs.
Upsets are described as “shock
loadings to the treatment plant”.
(V.
54)
2.
That given
the present technology, achievement of the BOD~-and suspended
solids standards of Rule 404(a)
(30 mg/l and 3~mg/l respectively)
applicable before December 31, 1973 was unlikely,
3.
That
achievement of the stricter standards of Rule 404(f)
(4 mg/I
and 5 mg/l respectively) applicable after December
31, 1973
was impossible.
4.
And that Rule 405
is violated only once
a week when a portion of the plant influent is by-passed
because of hydraulic overloading.
These defenses will be
discussed shortly in connection with the variance petition.
That Spinney Run Farms actually violated these standards,
however,
is undisputed.
The Agency laboratory reports and
Spinney Run Farms’ own reports are sufficient proof in this
regard.
Rule 1201
On the first day of hearings, Spinney Run stipulated
that it had not had a properly certified operator employed
at its sewage treatment plant since July 13, 1973
CR.
71),
In defense of this, Spinney Run introduced evidence indicating
this its consulting engineer, Mr. Bleck
(who had also designed
the treatment plant) was technically qualified
CR.
358-60),
but as a result
of Agency inaction was
never notified when
to take his qualification examination.
Mr. Bleck submitted
his application for Certificate of Competency to the Agency
on February 24, 1971
(Respondent Exhibit 21), but except for
one telephone call
(concerning several questions regarding
the application and a request for a copy of his contract
with Spinney Run) on June
7,
1971,
he never heard from the
16
—
549
—6—
Agency again in this matter
(R.
357).
Although the Agency
could have been more helpful, the fact remains that the
burden was upon Spinney Run to make sure its operator was
properly certified.
Considering the same violation was
alleged in the previous action before the Board
(although it
was dismissed since no evidence was offered) Spinney Run
should have been well aware of its obligation,
Respondent’s
Brief
further argues that under the Sanitary Water Board’s
Rules and Regulations
(SWB-2)
the requirement of a written
examination pertained only to sewage treatment plant operators
as opposed to industrial waste treatment plant operators.
Regardless of the relative merits of this argument, we need
only note that the Board’s own regulations, Chapter
3,
superseded SWB-2.
Under Rule 1204 the Agency has the discretion
to adopt and promulgate all procedures reasonably necessary
to perform its duties and responsibilities ~regarding certification,
On March 10,
1975,
subsequent to the hearings and
filing of briefs in this case,
Spinney Run filed a Supplemental
Brief.
The Agency filed a Motion to Strike,
on March 11,
1975,
on the grounds that the brief was based on information
and evidence outside the record,
The only additional information
included in the brief was the amount of money spent in the
two proceedings and an assertion that Mr. Bleck, Spinney
Run’s engineer, had finally received his operator’s certificate
from the Agency without any additional documentation having
been filed,
Since we do not find these assertions controlling
in our decision we find the Motion to Strike is moot,
Petition for Variance
Spinney Run states as the reason for seeking a variance
its inability to comply with the stringent standards of Rule
404(f) and the lack of adequate technology to attain those
standards.
It was asserted that a higher degree of BOD
loading in dairy wastes made it harder to treat than municipal
waste
CR.
270).
In support of this Spinney Run offered into
evidence as Respondent’s Exhibit 10 the Federal Environmental
Protection Agency Regulations for the “Dairy Products Processing
Industry Poii~tSource Category”.
These federal guidelines
contain the following standards for fluid milk processing
plants:
Daily Maximum
30-Day Average
1977
BOD
337.5
135
Toth Suspended Solids 550
202
1983
BOD5
74
37
Total Suspended Solids
92.5
46.3
16 —550
—7—
These standards compare to Spinney Run’s present average of
140 to 150 BOD
and 70 to
80 total suspended solids.
Mr.
W.
James Harper w~ohelped perform research for the Federal
guidelines, appeared as an expert witness and testified as
to Spinney Run’s above average performance in waste
treatment.
The industry
average of BOD
influent load
is
2,000 mg/I
while Spinney Run achieves
Lsoo
mg/l
(V.
24).
It is noted
that the 98% reduction anticipated by the 1983 Federal
standards,
by means of tertiary treatment, would still only
bring Spinney Run down to
a level of
26 mg/l BODE well above
the standard of Rule. 404(f)
(V.
28).
Mr. Harper~suggests
that further reduction can be obtained by in~plantcontrol
involving an entire refurbishing of the plant at an estimated
cost of $250,000
(V,
31).
Although Mr. Harper describes
Spinr..ey Run’s performanoe. as above average,
he also indicated
that the system whereby raw waste was bypassed from the
•treatment plant to avoid an “upset” was an inefficient means
of treatment which should be eliminated,
An equalization
tank at the head of the treatment plant could accomplish
this, but he did not think there was sufficient land to
install one adjacent to the facility
(V.
52 to 55).
Spinney Run now proposes an expansion of its present
treatment plant at a cost of $200,000
(Respondent’s Exhibit
16;
R.
305 to
311;
V,
105).
This expansion would involve
virtually the same program as that propos.ed in the earlier
proceeding and upon which we relied in granting the requested
variance.
In fact the description of the proposed expansion,
appearing in paragraph nine of the present variance petition,
is an exact repetition of the language appearing in paragraph
five of the first variance petition.
The only difference
between the two proposals is that the first one indicated a
completion date of December 31,
1972, while the present one
indicates a completion date of December,
1975,
The record
does not explain Spinney Run’s failure to go forward with
the original expansion.
The present proposal does not include any in—plant
controls as mentioned by Mr. Harper.
Spinney Run expects to
achieve thereby
a BOD~between
50 and 100 mg/I
(V.
84),
It
still intends to achi~vecompliance with Rule 404(f)
by
diversion of its effluent to the NSSD’s new Gurnee plant
once that plant’s tertiary treatment is in operation.
Mr.
Bleck,
Spinney Run’s engineer believes compliance is impossible
without such diversion
(V.
79).
In
describing the expansion
proposals
(R. 304
to 311), however, Bleck voiced an inconsistent
position,
indicating an expected overall efficiency of 99.7%
and a final effluent of
4 mg/i BOD5 and 1 mg/i suspended
solids
(R.
308)
Respondent’s President and General Manager, Raymond
16 —551
—8—
Alderman, testified that denial of
a variance would work a
hardship on his company.
Gross sales for Spinney Run for
the year ending July
1,
1974 amounted to over $9.9 million
dollars.
Pretax operating profit was approximately $150,000
(V.
69).
A project including treatment~plantexpansion,
in—
plant controls, the reverse osmosis operation,
and operating
expenses was estimated at a total cost over $500,000 which
amount Respondent’s Vice President,
Cameron Farwell, testified
would be difficult to finance
CV.
68).
He did indicate,
however,
that financing for the $200,000 plant expansion was
available
(V.
73).
We recognize that a full compliance with the Regulations
would impose a financial burden on Spinney Run.
We also
recognize that the standards of Rule 404(f)
are stringent,
but they are intended to insure enhanced water quality in
the State.
The Federal guidelines are not controlling.
Although Spinney Run repeatedly maintained that the standards
for BOD and suspended solids were unattainable, its engineer
also described an expansion program which purported to meet
these prescribed standards.
Its expert witness assessed the
program as reasonable but could not fully evaluate it for
lack of information
(V.
40).
He did indicate,
though, that
compliance with Rule 404(f)
“might be achievable relatively
soon
if
we were willing to pay the cost of getting it done”
(V.
47)
Although we reject the notion that full compliance
is
technologically impractical, we find that to impose such a
burden
at
this late date
--
when diversion of Spinney Run’s
effluent to
the
Gurnee treatment plant is
‘so close
-—
would
be economically unreasonable,
The record indicates that
diversion can be accomplished by October, 1976.
The pre-
treatment plant proposed by Spinney Run should be adequate
to reduce its effluent to levels acceptable for such diversion
CV,
80).
It is doubtful that any more rigorous plan to
further improve the quality of the effluent could be accomplished
before that date,
For
this reason we grant the requested
variances from Rules 203 (a)
,
403 and 404
(f)
until September
22,
1975,
subject to the conditions set out in
full
in our
previously issued Order
of April
10,
1975,
As petitioner
failed
to proceed
with its pretreatment plant
as originally
proposed in the earlier case, we are hesitant ~
grant the
variance for the full length of time requested.
Should
Spinney Run be able to
show sufficient progress in constructing
the facility an extension of the
variance upon proper application
would be appropriate.
Finally, the certificate of acceptance as required in
our Order of April
10, 1975 should be addressed to the Water
Division of the Environmental Protection Agency, rather than
to the Air Division as contained therein.
16
—
552
—9—
Penalties
Spinney Run Farms is adjudged to have violated all
sections of the Act and Regulations as alleged in the Agency
complaint.
In arriving at this determination we have duly
considered all factors set out in Section
33 of the Act.
We
find substantial interference
with the, general welfare of
the people
in the nature and quantity of the pollutants
involved.
The social and economic value of the dairy is not
such as
to
warrant’ the extent of this pollution,
Similarly
we find that the quantities involved are patently unsuitable
to the waters of the State,
Moreover,
we have consistently
held that any priority of location does not constitute a
permit to pollute.
Finally, we have rejected the notion
that it is technically impracticable or economically unreasonable
to reduce the discharges.
Rather, we have granted the
variance in consideration of the pending diversion to the
Gurnee treatment plant in order to avoid the duplicated cost
and effort which would be rendered unnecessary after such
diversion,
We note that the considerable reduction in pollution
made possible by Spinney Run’s proposed pretreatment plant
could have, and should have been accomplished by 1973,
as
anticipated by our previous Order,
We recognize that it is
of.ten cheaper to pollute than to comply with regulations.
When a polluter has failed to take advantage of
a previous
variance, we need necessaril.y rely on strict enforcement and
a substantial monetary penalty to assure deterrence from
such
a policy.
For this reason we feel that a penalty of
$8,000 for the violations found herein are justified..
It is the Order of the Pollution Control Board that:
1,
Spinney Run Farms pay to .the State of IllinoiS,
within 45 days of the date of this Order, the sum of $8,000
as a penalty for the violations
of Section 12(a)
and Rules
203(a),
403,
404(a),
404(f),
405 and 1201 of the Regulations
found in this proceeding.
Penalty payment by certified
check or money order shall be made payable
to:
Fiscal
Services,
Illinois Environmental Protection Agency,
2200
Churchill Road,
Springfield,
Illinois
62706.
2,
The Order of April 10, 1975
is modified to
substitute the Water Pollution Control Division as the recipient
for the certificate of acceptance.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Order were adopted on th
~~~day
of May,
1975 by a vote of
/
Christan L. Moffett,
k
Illinois Pollution C n
ol Board
16—553
