ILLINOIS POLLUTION CONTROL BOARD
September
6,
1972
ENVIRONMENTAL PROTECTION AGENCY
v.
)
#71—365
CITY OF URBANA
Opinion of the Board
(by Mr. Currie)
This case,
like EPA v.
City of Champaign,
*71-5lC
(Sept.
16,
1971), concerns municipal responsibility for
alleged pollution of the Boneyard,
a drainage course tra-
versing the cities of Urbana and Champaign.
As in the
Champaign case,
we hold among other things that certain
polluted conditions have been brought about by discharges
into the Boneyard from storm sewers owned and controlled
by
the City and require the City
to take action to discover
and if practicable abate the sources of
such discharges.
Third-Party Respondents.
The City brought in the Urbana.and Champaign Sanitary
District,
the Saline Branch Drainage District, and the
University of Illinois as third-party respondents, alleging
that a full resolution of the controversy required their
participation because of the jurisdictional and contractual
responsibilities of the first two with respect to
the.
Boneyard and because of alleged contributions by the Univer-
sity to the sewers in question.
As the case progressed,
however,
neither the Environmental Protection 2\gency nor the
City made any claim for relief against any of these third
parties or introduced evidence that established that any
of the three was responsible for the violations charged against
the City.
The third—party complaints must therefore be
dismissed.
Legal Defenses.
Urbana raises a number of legal defenses that we deem
to be without merit.
The contentions that the complaint was
not served in accordance with the Civil Practice Act,
that
it improperly seeks punitive damages, and that it was brought
in the name of the wrong party we reject for reasons given
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331
—2—
in the Champaign case,
above.
We do not find the complaint
impermissibly vague; it alleged specific dates and places
along with
the specific provisions
of the law and regulations
claimed to have been violated; discovery was available to
provide any desirable particulars.
Cf. the Champaign case,
above.
The constitutional challenges to the Board’s statutory
authority
to determine violations of the law and regulations
and to the water pollution standard itself we rejected in
Champaign and in earlier decisions
and reject here for the
same reasons.
The Alleged Permit Violation.
The
facts respecting one of the alleged violations are
uncontested.
About July
1,
1971,
the City constructed
a
lift
station
to
carry
dry-weather
flow
in
one
of
its
storm
sewers
into
an
interceptor
tributary
to
the
Sanitary
District’s
sewage treatment plant without obtaining
a permit.
See,
e.g.,
July 7,
pp.
137—40.
EPA contends that
a permit was required
under section 12(b)
of
the
.~nvironmental Protection Act
because the
lift
station was “designed to prevent water
pollution”
and
of a
“type designated by Board regulations,”
and under section
12(c)
because its installation would
“increase the quantity or strength”
of
a
“discharge of
contaminants into the waters.”
The City inconsistently argues that although the purpose
of the installation was
“to prevent the constituents in the
dry weather flow of an urban storm drain from eventually
entering the Boneyard Ditch,”
it was not “designed to prevent
water pollution” because there is no proof that the flow
pumped by the lift station “contains constituents which would
cause pollution.”
(Brief,
p.
9)
.
The basis
for this position
appears to be that no permit
is required for the construction
of pollution control equipment unless
there
is actual proof
that the discharge
to be controlled itself violates the
law.
We do not so read the requirement.
Equipment “designed
to prevent water pollution” means pollution control equipment,
plainly and simply;
it includes any device meant
to limit the
discharge of contaminants.
Any other reading would destroy
the purpose
of the law to subject such equipment
to prior Agency
scrutiny in order to assure that
it will accomplish its
purposes without causing countervailing problems of its own.
But it
is not enough for liability under section 12(b)
that pollution control equipment was installed without
a
permit;
it must also be shown that the equipment was of
a
type designated by Board regulations.
The Board was given
discretion to limit the workload on the Agency and on those
installing such equipment by denominating those classes of
equipment for which
a permit would he required.
The Agency
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332
—3—
points to Rules and Regulations
SWB-l,
preserved in effect
by section
49(c)
of the statute, which prescribe design
criteria for certain pollution control facilities and re-
quite the subtuission of plan documents for their construc~.ion
in connection with the permit function.
It was the clear
implication of this regulation:(see SWB—l’s Statement of
Policy)
that permits were required, as the statute then
made quite clear
(Ill.
Rev.
Stat.
ch.
19,
section 145.11
(1969)), for the classes of equipment there described, which
included such items as sewers,
sewage treatment works, and
sewage pumping stations.
The City does not dispute that this regulation adequately
designated the types of equipment for which permits were
required under section
12(b)
of the present statute, but
contends that the put~pin question is not a pumping station
within the meaning of SWB-1,
on the ground that
the pre-
scribed specifications for pumping stations are inapplicable
to the type of pump here in question:
“The City is incapable
of constructing a pump station to comply with the present
regulations affecting sewage lift station.”
Plainly the
rule was drafted with other types of pumps in mind, but the
Introduction expressly contemplates the possible need for
“deviations” in particular unforeseen cases; we think the
regulation
is broad enough to indicate that the pump here
installed required a permit.
This makes it unnecessary for
us
to pass upon the EPA’S further contention,
to which the
City does not respond, that a pernit was required because the
pump increased the flow to the sewage treatment plant and
therefore to the water to which the plant discharges.
The
importance of these questions for the future is greatly
minimized by the new regulations specifying with somewhat
greater clarity those classes of facilities for which permits
are now required.
PCB Regs.
Ch.
4, Rule 901.
In sum, we find the City violated section 12(b)
of
the
statute by installing the pump without a permit.
Because
a municipality
is involved, because from the record it appears
the City acted in complete good faith, because of the uncer-
tainty of the old rules,
and because the intent
of
the in-
stallation was to reduce pollution, we see no need to
impose money penalties for this offense.
We shall order
the
City to apply now for the permit in order that the
Agency may determine whether or not to allow the installation
to remain.
Allegations of Pollution.
The more central allegations of the complaint relate to
polluted conditions
in the Boneyard itself.
Paragraph 5
alleges that on August 3,
1971 the City allowed the discharge
of wastes from its Broadway Avenue sewer, causing water
5
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333
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pollution in violation of section
12(a)
of the statute.
Paragraph
6 alleges the same thing with regard to the Coler
St. Arch on July 21, 1972.
Paragraph
3 charges that discharges
from
the
Coler St. Arch on July
8 and August 3,
1971 violated
both
§ 12(a)
and Rule 1.05(d)
of Rules and Regulations
SWB—l4, which forbids concentrations in streams of toxic
substances
in concentrations exceeding
“one-tenth of the
48—hour median tolerance limit, for fish,” except in areas
“immediately adjacent to outfalls” and in streams or sag—
ments designated by the Sanitary Water Board
(or by its
successor,
the EPA)
“to be unsuitable for sustaining fish
and aquatic
life.”
No such designation has been made for
the
B oneyard so far as the record reveals.
There are a number of questions that must be answered
in order to determine the City’s liability under these
charges.
The Existence of Pollution:
Bacteria.
Pollution andviolation of the fish-related water quality
standard the Agency bases upon evidence of two types of
contamination in the Boneyard and traceable to the sewers
in question:
bacteria and ammonia.
With regard to the
former the exhibits establish,
as recited in the Agency’s
brief, that on August
3 the Coler St. discharge contained
2,030,000
fecal coliforms per 100 ml, clearly indicating
a potential for pollution, but a rather low downstream
bacterial level attributed by the Agency to the favorable
effects of
“a subsequent chlorine discharge.”
Since the
violation alleged has to do not with an
effluent standard
prescribing maximum discharge limits but with conditions in
the receiving stream, we cannot find
a violation on this
basis unless we take the position that a discharge of this
strength would “tend”
to cause pollution.
A related issue
is presented by evidence of an extremely high discharge
level of Boradway on August 3
(11,750,000), downstream
130,000, and upstream 200,000, indicating the stream was
already polluted before it received the additional bacteria
(EPA exs.
9,
11,
12).
We do not find it necessary to resolve t~iesequestions,
however,
since a considerable actual adverse effect on
the stream as the result of July
8 fecal coliform discharges
from the sewer in question was amply proved.
See EPA
Exhibits
1,
2, and 3, showing
a discharge of 3,260,000
f.
coil per 100 ml; upstream concentrations of 56,000; and
downstream of 148,000.
Similar results were obtained on
July 21, at Coler Street.1
As indicated by EPA witness
1.
Discharge 870,000, upstream 14,300, downstream 91,000
(EPA Exs.
13,
14,
15,
16)
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—5—
Hutton,
fecal
coliforms are the standard indicator of
fecal contamination;
such high fecal coliform counts suggest
the presence of harmful bacteria constituting a hazard
to human health
(July
7,
p.
120).
We think bacterial
pollution of the Boneyard as
a result of discharges from
Coler St.
sewer has been shown.
Ammonia
The ammonia violations alleged present a more difficult
question.
The exhibits are clear that on both July
8
and August
3 stream concentrations of ammonia were signi-
ficantly raised by discharges from the sewers in question.
On the former date upstream ammonia was 1.2 mg/l, down-
stream 3.2, and the discharge 21
(Ex.
1,
2,
3);
on the
latter the respective values were 0.45,
6.5 to 7.6, and 11
to 20
(Exs.
4-8).
The City asks us to hold that the
downstream samples were taken too near the outfall
to
qualify under the exception in Rule 1.08 for areas
immediately adjacent to the outfall;
the Agency disagrees.
To the extent that the violation is based upon the statutory
prohibition of water pollution,
as we held in Champaign
this defense
is inapplicable; the mixing zone concept applied
only to certain regulations,
as no regulation can repeal
the statutory ban on causing actual water pollution.
See EPA v. City of Champaign,
above.
The City further points out that the only proof as to
the
harmful
nature
of
the
observed
ammonia
concentrations—-
the
key
to
both
the
statutory
and
rule
violations--was
that
such
levels
would
be
toxic
to
fish
if
they
persisted
for
48 hours
(July
7,
pp,
86—99)
,
whereas
the
samples taken
showed only that the levels were present at the instant
the samples were taken.
Statutory water pollution,
for
present purposes,
is defined as rendering the waters
“harmful
.
.
.
to fish”
(section 3(n)).
It is arguable,
and the City contends, that this requires a showing that
the concentration complained of existed for long enough
to be harmful.
There is some force to this argument, al-
though in the context of this case it might impose
a very
considerable impediment
to the establishment of the Agency’s
case since it would suggest continuous sampling for a
period of
48 hours.
Perhaps proof that such a high concen-
tration existed should be taken, consistent with
the
statutory purpose, either to establish that the discharge
causing such levels tended to cause pollution, or to shift
the burden of proof to the respondent
to show the condition
did not persist.
One purpose of the
“tend to cause” pro-
vision clearly was to allow incipient pollution to be abated
before it actually causes harm.
5
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335
—6—
Similarly, while EPA urges that it is sufficient under
Rule 1.05 to show that a concentration one tenth of that
~ruichwould be toxic if it
lasted 48 hours existed for a
single
instant,
the
City
attacks
such
a
construction
on
the
ground
that
it would impose an unreasonably strict standard
that could not have been contemplated in drafting the pro-
vision.
The City’s position is that sampling must continue
long enough to show that the time-concentration relation-
ship is such
to expose a fish over 48 hours to as great
a weight of the toxic material as would be represented by
one tenth of a tolerance limit held steady over the entire
period.
Once again such a construction would present signi-
ficant proof problems for the Agency.
These questions of interpretation are presented to
us for the first time in this case, in which they compete
for our attention and that of the parties with
a multitude
of other difficult and important questions.
We are hesitant
to attempt their resolution, wich would have precedential
import going far beyond this case, without the opportunity
for further argument and consideration.
We do not think
in view
of our resoltuion of other issues here presented,
that it
is necessary for us
to decide them today, since
we would enter the same order on the basis of bacterial
pollution regardless of our decision with respect to ammonia.
We specifically call the Z~gency’sattention to
the.
question of the relation between concentration and time both
under the statutory water pollution section and under the
provision respecting 48—hour tolerance limits in Rule
1.05, which has been carried forward in our new regulations
(PCB Regs.
Ch.
3, Rule 203(h).
We invite the proposal of
a clarifying amendment to the regulations that would to
the extent possible both permit surveillance and enforce-
ment without undue sampling burdens and at the same time
tailor the prohibition of toxic materials to some per-
centage of the actual dose required to cause harm.
Protected Nature of the Boneyard
One of theCity’s prime contentions
is that, ,whatever
the condition of the Boneyard,
the law does not cover it
because the Boneyard is not a “water” of the State as defined
in section
3(o)
of the Act and because only “waters” are
protected against pollution.
Tha language of the Act is of
no help to this position,
since it defines waters as
“all
accumulations of water, surface and underground, natural and
artificial,
public and private.”
The legislative purpose
evidently was to sweep very broadly in defining the waters
subject to statutory protection.
We have recognized,
of
course that the statute does not -intend to prevent pollution
in sewers whose function it
is to carry wastes to the point
of treatment,
and we have insisted upon proof in cases involving
5
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336
—7—
borderline situations that the alleged stream is really
that and not a part of the sewer system.
EPA v.
Koppers,
Inc.,
#71—41 (June
23,
1971).
In the present case the City’s argument that the Bone-
yard
is not protected is based not upon any facts indicating
that it was created as
a part of a waste—carrying system but
on evidence that man has altered the channel so as to
improve its ability to carry off stormwater
(July
8,
pp.
193—95,
222-32).
It is quite clear that at one time the
Boneyard was an ordinary creek, providing natural drainage
for rainwater in the Champaign-Urbana area.
We do not think
the law allows a stream to be deprived of all protection
against pollution simply by the construction of concrete beds,
intermittent covers, and sheet pilings.
If it did the
law would proivde no protection against the transformation
of fine streams into festering open sewers.
We see no
indication that
a result so wholly out of line with the
statutory purpose of the Environmental Protection Act was
intended.
And, needless to say,
as we said in Champaign,
the
fact that the Boneyard is already polluted is
a reason for
cleaning it up, not for declaring it devoid of statutory
protection.
We hold the Boneyard is a “water” protected by
section
12(a)
against pollution.
The City’s Ownership.
That the City owns and controls •the Broadway sewer it
essentially concedes
(July
7,
p.
133).
Much
is made,
though,
of the fact that
the actual outlet through which the Coler
Arch discharge takes place seems to be owned by the Sanitary
District (July
7,
p.
135).
We do not see how this in any
sense exonerates the City.
For the City acknowledges that
it owns the sewers that bring waste into the Arch for dis-
charge to the Boneyard
(id.,
p.
136);
no evidence is there
to suggest any plausible alternative source for the materials
discharged from the Arch other than the City’s sewers.
Exfiltration from a Sanitary District interceptor into the
Boneyard, given as a possibility by the City
(July
8,
pp.
235-36), would not explain the clearly shown discharge from
the arch itself.
And the Champaign case made clear, as
Urbana itself contends in its pleadings against the third
parties
it
brought
into
this
case,
that
those
who
discharge
contaminants
into
someone
else’s storm sewers can be held
liable
for
pollution
caused
when
those
contaminants
reach
the
stream.
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The Contract with
the Sanitary District.
The City relies by way of further defense upon a court—
approved contract vesting the Sanitary District with plenary
authority over the Boneyard.
The operative paragraph
indicates that the Sanitary District “accepts full and complete
responsibility for the improvements and maintenance of the
the boneyard and its existing open tributaries, and it agrees
to provide and keep in repair an adequate system of storm
water drainage therein and to correct any unsanitary and un-
healthful conditions existing therein.”
(City Ex.
5,
p.
3).
At first glance we thought it was the City’s contention
that by this contract it had arranged for the District to
police discharges into its sewers and therefore shifted
responsibility for any pollution in this case to the District.
We held in Champaign that the owner of storm sewers has
the obligation to police them
to prevent the controllable
discharge of improper materials
into them, but we can con-
ceive of the possibility that
a municipality might wish to
contract for someone else to provide this service and that
such an arrangement might be conducive to more efficient
division of functions among various municipal governments.
But upon oral argument Urbana disclaimed any such contention
here.
The evidence is clear that nobody but the City
polices its sewers
(July
7,
p.
137; July
8, pp. 191—92);
the agreement relates to maintenance of the Boneyard itself,
and the City remains responsible, by its own admission be-
fore the Board,
for policing its sewers.
The City’s Obligations.
Urbana argues,
as did Champaign,
that because it did
not generate any of the wastes that may have caused pollution
but only transported them it cannot be held responsible for
anything that might have come through its sewers.
We held
to the contrary in Champaign and reaffirm that holding here.
The City’s fears that we may be imposing an impossible
standard of assuring the absolute purity of discharges
that it cannot completely control are refuted by the lan-
guage of the Champaign case,
spelling out the scope of an
owner’ s responsibility:
To hold that the City has an obligation jo take
affirmative action to limit the pollution attributable
to material flowing through its sewers, however, does
not necessarily make the City an “insurer” that no such
pollution will ever occur.
.
.
.
We think the City,
by undertaking to carry storm waters from lands within
its borders, assumed a certain duty to avoid unnecessary
pollution as a result.
.
.
.
We believe this principle
is embodied in the statutory term “allow”
(citing
cases)
.
.
.
.
It is the City’s obligation to do what
5
—
338
—9—
it can to prevent others from discharging in-
appropriate materials into its sewers.
.
.
.
It is
not enough to take action after an instance of creek
pollution has been brought to the City’s attention;
the City must not only correct what it knows
about,
it must also make an effort to find out what needs
correction.
It must police the creek itself to deter-
mine its condition;
it must police the sewers to deter-
mine any illegal sources of pollution;
it must then
take corrective action, which may include the filing of
complaints with this Board as well as local remedies.
Urbana,
like Champaign, has taken certain steps to
eliminate improper discharges
to its storm sewers tributary
to the Boneyard and has achieved some significant success.
It is reported that dry weather flow at the Coler
St. arch
has been reduced 75
in
a year;
that Broadway has no illegal
connections and a leak there has been repaired a broken
sanitary tile and disconnected horticultural drains that
contributed contaminants to the storm sewer
(July
7,
pp.
141—48; July
8,
pp. 237—53,
263—64,
284).
As in the case
of Champaign, however, we find on sufficient explanation of
the sources of the pollution found in the present case
and no indication as
to whether or not the bacterial contam-
ination found in 1971 has been eliminated.
We therefore
hold Urbana has not fully satisfied its obligation to trace
and to eliminate if practicable all sources of pollution through
its sewers.
As
in Champaign, we think no purpose would be
served by
a money penalty against the City at this time.
ORDER
1.
The City of Urbana shall, by March
6,
1973,
submit to
the Board and to the Agency a report containing the
following:
(a)
A description of the condition of the Boneyard
and,
to the extent reasonably determinable, the
sources of its pollution;
(b)
A description of steps taken by the City in the
intervening period to deal with cases of
pollution of the Boneyard;
(c)
A detailed program designed to clean up and improve
the quality of the water in the Boneyard within
a reasonable but fixed period of time,
to the
extent practicable and to the extent adverse
conditions are caused by discharges through the
City’s storm sewers.
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339
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2.
The third-party complaints against the University of
Illinois, the Urbana-Champaign Sanitary District and
the Saline Branch Drainage District are hereby dismissed.
3.
The City of Urbana shall promptly apply for a permit
for the installation of the lift station at Sewer No.
4689.
4.
Upon receipt of
the report required by paragraph
1
of this order the Board shall take such further
proceedings as may be appropriate.
I, Christan Moffett, Clerk of the Pollution Control
Board1,
certify that the Board adopted the above Opinion this
~
day of September,
1972 by
a vote of
4’~c~
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