PETITION for review of order of Pollution Control Board.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a final order entered by respondent-appellee, Illinois Pollution Control Board (Board), finding certain violations by petitioner-appellant, Allaert Rendering, Inc. (Allaert), of the Illinois Environmental Protection Act (Act) and of regulations promulgated thereunder. Allaert operates a rendering plant which recycles and reprocesses restaurant grease, scrap bones and fallen animals into useful byproducts such as animal feed and fertilizer. The alleged violations of the Act concern Allaert's wastewater treatment system.
On March 19, 1976, the Illinois Environmental Protection Agency (Agency) filed a complaint before the Board containing six counts charging Allaert with violations of the Act and regulations promulgated thereunder from April 30, 1974, to March 19, 1976. The first three counts charged Allaert with constructing and operating its wastewater treatment system without the permits required by the Act and the Board Rules and Regulations. The fourth count alleged that Allaert deposited contaminants on land so as to create a water pollution hazard in violation of the Act. The fifth count alleged that Allaert operated its treatment works in violation of the malfunction and spill provisions of the Act. The sixth count, alleging Allaert operated its treatment works without a certified operator, in violation of the Act, was dropped.
An enforcement hearing was held on November 8 and 9, 1978, and on September 6, 1979, the Board adopted an opinion holding that Allaert was guilty of the first five counts of the complaint and dismissing the sixth count. The Board ordered Allaert to pay a civil penalty of $3,000, to divert its wastewater facility from its existing treatment facility to the Carbon Cliff, Illinois, sewer system, to drain the lagoon it was using as its treatment facility, and to post a performance bond in the amount of $127,000 as assurance that Allaert would do the above.
Allaert's first issue on appeal is whether or not the Board's decision is contrary to the manifest weight of the evidence. Allaert contends that the Agency failed to prove that Allaert violated section 12(a) of the Act.
"(a) Cause or threaten or allow the discharge of any contaminants into the environment in any State so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from other sources, or so as to violate regulations or standards adopted by the Pollution Control Board under this Act." Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1012(a).
The Board found Allaert guilty of threatening to discharge contaminants into the environment so as to cause or tend to cause water pollution. Allaert argues that since the Board found that Allaert had not actually caused any water pollution, the Board was precluded from finding that Allaert threatened to pollute. We disagree.
In 1973, Allaert excavated a lagoon on a field, down to the bedrock, to receive the wastewater discharged from its rendering plant at the rate of approximately 30,000 gallons per day. This wastewater is contaminated with suspended solids, oil and grease. The wastewater is first discharged into three 1,000 gallon septic tanks and then into a 1,500 gallon tank. After passing through the final tank the water passes into the lagoon where it percolates into the ground. This method is termed an "infiltration-percolation" system and is intended to reduce the concentration of contaminants. The plant and its wastewater system are located in the flood plain of the Rock River, and the lagoon has on occasion been completely inundated by floodwaters.
Allaert's contention that the Agency failed to prove Allaert's lagoon threatened pollution rests on two premises — (1) that the Agency failed to show the lagoon system contains highly contaminated wastewater, and (2) that since the Rock River didn't flood the lagoon during the time covered by the complaint, the Agency failed to show any threat. Neither premise is correct.
• 1 In considering Allaert's initial premise, we find sufficient evidence on which the Board could find the wastewater in the lagoon to be highly contaminated. In February 1976, Allaert applied to the Agency for an operating permit for its system. In this application, Allaert stated that samples of the wastewater taken from the lagoon contained high levels of contamination. Further, Allaert's consulting engineer, William Karlovitz, testified unambiguously that the water tested and reported in the permit came from a pipe which discharged into the lagoon after it left the final septic tank. Allaert presented no evidence at the hearing which cast doubt on the correctness of the information in its permit application or Karlovitz' testimony. In view of such evidence, the Board could properly find the lagoon contained highly contaminated water.
• 2 Allaert's second premise is equally unsupportable. Allaert contends that because no flooding took place during the time specified in the complaint, the Agency failed to prove any threat to the surface waters in the area. This argument ignores the fact that evidence was introduced showing that the Rock River did in fact flood the area containing the lagoon in 1973 and again in 1978. These floods are more than sufficient to show that there was a threat that flooding could occur during the 1974 to 1976 period specified in the complaint. Simply because flooding did not actually occur does not mean that there wasn't a definite danger of flooding and resultant contamination.
• 3 Appellant's reliance on City of Des Plaines v. Pollution Control Board (1978), 60 Ill. App.3d 995, 377 N.E.2d 114, and Rocke v. Pollution Control Board (1979), 78 Ill. App.3d 476, 397 N.E.2d 51, is misplaced. Both cases are distinguishable on their facts. In both cases, the court held that the project hadn't been started and there was no way of telling whether or not the project threatened to pollute in contravention of the Act. In the instant case, the combination of highly contaminated water sitting in a lagoon which has in fact flooded twice in six years demonstrates a definite danger of pollution. Therefore, the Board's finding of a threat of pollution to surface water was not against the manifest weight of the evidence. ...