Petition for review of order of Pollution Control Board.
PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Petitioner, Archer Daniels Midland Corporation (ADM), appeals from an order of the respondent, Illinois Pollution Control Board (Board), which found it to be in violation of certain provisions of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1001 et seq.) and of regulations promulgated thereunder. The Board imposed a fine of $40,000.
The case proceeded on a complaint of the Illinois Environmental Protection Agency (EPA), which, after amendments, contained seven counts, all of which related to ADM's discharge of contaminated storm water. Process waste water is not involved. All of the alleged violations stemmed from what in the record is called ADM's West Plant.
The ADM West Plant is located in the far northeastern section of Decatur and is located upon approximately 25 acres of land. The facility is a soybean extraction plant, a corn germ extraction plant, and a vegetable oil refinery. Products manufactured there include soybean oil, soybean meal, corn germ meal, and corn oil.
A small stream meanders from the area of the West Plant into Lake Decatur, the municipal reservoir of that city, which is about two miles south of the plant. At its southern terminus just before emptying into Lake Decatur the stream has been dammed to create what is called Homewood Fishing Club Lake, an artificial body of water covering about two acres to a depth of five to six feet. The Homewood Fishing Club was incorporated in 1914 and about 16 residences have been erected around its lake. The record discloses that approximately 30 persons lived there at the time of the hearing. The area between the ADM West Plant and the Homewood Fishing Club is heavy industrial, containing among other things railroad rights of way, railroad switching yards, and a public high school. It is the contamination of this stream and the Homewood Fishing Club Lake which is at issue here.
The complaint alleged that on six named occasions, July 20, 1975; June 20, 1978; June 30, 1978; July 1, 1979; January 7, 1979; and July 28, 1979, ADM permitted effluents from its West Plant to be discharged into the stream thus contaminating the Homewood Fishing Club Lake; other allegations were that a fish kill had occurred as a result of the contamination for which the Board ultimately charged ADM $1,008; and that at various times during the period involved, the last being between April 10, 1981, and September 20, 1981, ADM had violated the provisions of its National Pollutant Discharge Elimination System (NPDES) permit.
In the record ADM did not seriously contest the violations; rather it contended that they were the result of accidents, that the pollution came from the intervening territory between it and the Homewood Fishing Club Lake, and that no feasible solution to its problem existed.
As has been indicated, only storm water is involved in this case. ADM's storm water becomes contaminated when rain flushes spilled raw grain or processed grain products into its storm water collection system.
Several witnesses explained how ADM's storm water collection system operated. Rainfall is collected at the West Plant by storm sewers located in various areas throughout the plant, which themselves hold 300,000 gallons. In 1975, flow from these sewers entered a wet well containing multiple pumps. In dry weather, flow to the wet well was pumped to a process water treatment facility. Following treatment, flow from the process water treatment facility discharged into the system of the Sanitary District of Decatur. In wet weather, storm water was pumped to a 200,000 gallon tank referred to as a storm water clarifier. The tank was originally designed to clarify the water that it held. Overflow from the clarifier would discharge into the Homewood tributary. This system did not operate according to design, and the function of the clarifier was changed to that of a retention tank in 1976. A "first flush" system was then employed. The first water to drain from the plant during a rain is generally the most polluted. Under the first flush system, the clarifier retains as much of this initial storm water as its capacity will allow. The collected water is then discharged to the process water treatment system. Whenever overflow or bypassing of the storm water clarifier occurs, the water is discharged into the Homewood tributary. A one-inch rain was estimated to generate approximately 700,000 gallons of storm water run-off.
In 1975, ADM's West Plant was issued its first NPDES permit for discharge of contaminated storm water. The NPDES permit included a schedule for compliance calling for construction of facilities to achieve compliance with effluent limitations by June 30, 1977. On June 18, 1980, the EPA reissued an NPDES permit for the West Plant with an effective date of July 18, 1980. Effluent limitations and monitoring conditions for discharging contaminated storm water were specified in the reissued NPDES permit. pH was to be maintained between 6.0 and 9.0. Limitations were placed upon various contaminants including Biochemical Oxygen Demand (BOD), suspended solids, and oil and grease. Monitoring results were required to be recorded by ADM on separate monthly Discharge Monitoring Reports and submitted quarterly to the EPA.
BOD is a measure of the oxygen removal effect that decaying organic matter has on water. Organic material such as soybean meal and soybean oil is high in BOD and has an adverse effect on water quality as it decomposes. Bacteria in the water respond to organic matter by utilizing it as a food source. When excessive amounts of organic matter are present in the water, the bacteria utilize oxygen at a rapid rate as they feed, depleting or even eliminating the oxygen supply available for other aquatic life.
ADM conceded that on five separate instances it discharged contaminated effluent into the Homewood tributary.
On July 20, 1975, the clarifier tank overflowed for several hours as a result of a 2 1/2 inch to 3 inch rainfall. After this incident ADM employed its first flush system.
On June 22, 1978, the first flush of a heavy rain drained directly into the Homewood tributary. ADM was in the process of installing larger and more efficient pumps to the holding tank at the time the rain began. As a result, ...