ILLINOIS POLLUTION CONTROL BOARD
November
1, 1973
ENVIRONMENTAL PROTECTION AGENCY
)
)
vs.
)
PCB 73—85
ALLIS-CHALMERS CORPORATION,
a
Delaware corporation, qualified
)
to do business in Illinois, and RYDER
)
TRUCK RENTAL,
INC.,
a Florida
)
corporation qualified to do business in)
Illinois
)
OPINION AND ORDER OF THE BOARD
(by Dr. Odell):
Respondent Allis-Chalmers Corporation, owns and operates
a diesel oil fuel depot in the Village of Carol Stream,
Du Page
County,
Illinois.
Respondent Ryder Truck
Rental,
Inc. owns
certain trailer trucks leased to Allis—Chalmers and services
such trucks at Respondent’s fuel depot.
Complaint was filed by
the Environmental Protection Agency on March 2,
1973, against
the Respondents alleging that:
1.
Allis-Chalmers on August 25, August 26, September
7,
1972,
and on other dates operated and controlled its fuel depot
in such a manner as to violate Sections 12(a) and 12(d)
of the
Environmental Protection Act (hereinafter called Act) and operated
and controlled said depot in such a manner as to violate Rules
203(a),
402, and 403 of Chapter Three:
Water Pollution Regulations
of the Illinois Pollution Control Board
(hereinafter called Chapter
Three).
Contaminants were deposited into a drain at the diesel
oil fuel depot.
The contaminants ran from the drain pipe into an
unnamed tributary of Klein Creek and finally flowed into Klein
Creek in violation of the Act and Chapter Three.
2.
Ryder Truck Rental,
Inc.,
on August
28 and September
7,
1972,
and on various other dates used the fuel depot in such
a manner as to violate Sections 12(a) and 12(d)
of the Act and
used the depot in such a manner as to violate Rules 203(a),
402,
and 403 of Chapter Three:
Water Pollution Regulations of the
Illinois Pollution Control Board.
Ryder Truck Rental,
Inc.
participated in the discharge of contaminants into the drainage
9
—
697
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facility on the Allis—Chalmers property.
These contaminants
flowed into
an unnamed tributary of Kelin Creek and finally into
Klein Creek
in violation of the Act and Chapter Three.
A
hearing was held on July
9,
1973.
The Respondent Allis-
Chalmers was represented by counsel Ronald
R.
Huntley, and the
Respondent Ryder Truck Rental,
Inc. was represented by Counsel
John
R. Whitman.
At this hearing the following Stipulation of
Facts was entered.
Allis-Chalmers Corporation maintains a parts
distribution facility at Carol Stream,
Illinois,
the premises
mentioned in the Complaint.
From this location, trucks are dis-
patched and deliver parts to various destination points.
These
trucks were leased to Allis-Chalmers by Ryder Truck Rentals, mo.
pursuant to
a Truck Lease and Service Agreement.
Under this
agreement Ryder maintains and fuels these trucks on the Allis-
Chalmers property at Carol Stream,
Illinois.
On Friday, August
25,
1972,
heavy rains occurred at Carol Stream and surrounding
areas, resulting in emergency flood conditions.
Such flood
conditions existed at the Allis-Chalmers facility until Sunday
night, August 27.
Because of the torrential rains, water had
got into the underground fuel storage tanks existing on the Allis-
Chalmers facility.
The presence of this water in the underground
fuel tanks was unknown to Allis—Chalmers on Sunday evening, August
27,
1972.
During the day of August 27,
Ryder began to receive
reports that dispatched trucks were malfunctioning on the road and
the origin of
the difficulty appeared to be the presence of water
in the gas tanks.
At 1:00 a.m. Monday, August 28,
an employee of
Ryder Truck Rentals entered the Allis-Chalmers premises and dis-
covered that recently fueled trucks, soon to be dispatched, had
significant amounts of water in their gas tanks.
To prevent
damage to four trucks, the Ryder employee completely emptied the
fuel and water admixture into
a drainage basin in
the center of
the truck parking area.
The employee took such action at his own
initiative, without consulting with either Ryder or Allis-Chalmers.
A total of 400 gallons of diesel oil was drained into the catch-
basin.
The drained
fuel went into the unnamed tributary of the
Klein Creek and finally was discovered
in the Klein Creek on
September 7,
1972.
Allis—Chalmers learned of the discharge on
Monday afternoon, August 28.
Despite immediate unilateral efforts
to absorb the “scum” by Allis—Chalmers,
the oil was infact present
in Klein Creek on September
7,
1972.
On that date,
an investigator
of
the Environmental Protection Agency visited the Allis-Chalmers
facility and received the full cooperation of Allis-Chalmers.
It
is
not claimed by the EPA that any animal, vegetable,
or underwater
life was damaged by Ryder or Allis-Chalmers.
Allis-Chalmers had
never before experienced a diesel oil spill or discharge on the
premises.
Allis—Chalmers offered $1000 as an appropriate penalty.
Ryder
Truck, Inc. offered $2500.
The Agency recommended that the Board
accept the penalty offers made, but the Stipulation of Facts and
Agreement was not made contingent upon the acceptance by the Board
of these offers.
9
698
—3—
We find both Respondents guilty of violating Sections 12(a)
and 12(d)
of the Act.
We find further that both Respondents
violated Rules 203(a)
,
402,
and 403 of Chapter Three.
In assess-
ing a reasonable penalty we are guided by various factors
enunciated in past Board opinions.
First,
a past history of good
faith compliance in operating
a facility may operate to mitigate
the penalty.
See EPA vs. City of Marion,
#71—25, #71-225;
2 PCB
701,
706
(October 28, 1971).
Second, when the impact of the
violation is nil or minimal, the penalty need not be as severe.
See Freeman vs. EPA #71—78;
2 PCB 709,
711
(October 28, 1971).
Third,
the deliberateness of the violation is an important factor
in assessing the penalty.
See EPA vs. CPC International,
Inc.,
#71—338;
5 PCB 541,
545
(October
3,
1972).
In
a particular case, mitigating factors may be more than
offset by aggravating factors which tip the scales towards a
more severe penalty, rather than a less severe one.
Furthermore,
ailfactors do not carry the same weight,
so that the Board’s
imposition of a penalty is not determined by simply adding up the
numbe~rof factors on each side.
Rather,
the facts and circumstances
of eath particular case determine the balance
to be struck.
The Board concludes that a penalty is proper in this case
but that it should not be
severe.
Neither temporary nor lasting
harm has been done
to the environment.
The difficulty was caused
by an unexpected flood in a situation which the employee believed
that he had the responsibility to act quickly.
The Stipulation
of Facts
indicates that Allis-Chalmers has no history of violations.
There was nothing in the facts concerning this point as to Ryder.
The penalty to Ryder, however, should be more severe because
it is
directly accountable for the actions of its employees.
Neither
Respondent is guilty of deliberate violation of the Act, and the
degree of fault is an important factor in assessing
a penalty.
See EPA vs. CPC International,
Inc.
#71—338;
5 PCB 541,
545
(October
3,
1972).
This Opinion constitutes the finding of fact and conclusions
of law by the Board.
ORDER
1.
Respondents must cease and desist from these violations
of the Environmental Protection Act and the Pollution Control
Board’s Water Pollution Regulations of Illinois.
Precautions to
be taken shall include the distribution to all employees who
regularly work at the facility of
a written memo indicating what
procedures shall be followed in the future to avoid the pollution
of Klein Creek and its unnamed tributary when an admixture of
diesel and water
is found in the trucks’
tanks or elsewhere on the
premises.
A copy of such instructions prepared by Allis-Chalmers
9—
699
—4—
shall be
filed with the Agency not later than 60 days after the
Board’s Order.
2.
Respondent Allis-Chalmers shall pay to the State of
Illinois by December
31,
1973,
the sum of
$1000 as a penalty for
violations found in this proceeding.
Respondent Ryder Truck
Rental,
Inc.
shall pay to the State of Illinois by December 31,
1973,
the sum of $2500 as
a penalty for violations found in this
proceeding.
Penalty payment shall be by certified check or money
order payable to the State of Illinois, Fiscal Services Division,
Illinois Environmental Protection Agency,
2200 Churchill Drive,
Springfield,
Illinois 62706.
I, Christan L. Moffett, Clerk of the Pollution Cont~olBoard,
certify that the above Order was adopted on the
I
day of
______________
1973,
by
a vote of
~
to
~
/~)~
Christan
L. Moffett,
CIe~rk
Illinois Pollution Cortt~ro1Board
9—
700