ILLINOIS POLLUTION CONTROL
BOARD
August 29, 1974
)
ENVIRONMENTAL
PROTECTION
AGENCY
)
)
)
v.
)
PCB
74-Si
)
)
ALTON
BOX
BOARD
COMPANY
)
and
J
LACLEDE
STEEL
COMPANY
)
)
)
)
ENVIRONMENTAL
PROTECTION
AGENCY
)
)
)
v.
)
PCB 73-61
)
)
ALTON
BOX
BOARD
COMPANY
)
)
ALTON BOX BOARD COMPANY
)
)
)
v.
)
PCB
74-5
)
)
ENVIRONMENTAL
PROTECTION
AGENCY
)
MR.
KARL
HOAGLAND,
HOAGLAND,
MAUCKER,
BERNARD
~
ALMETE~,appeared
on
behalf
of
Alton
Box
Board
Company;
MR.
WILLIAM
MCALPIN
and
JOSEPH
WYERICIC,
LEWIS,
RICE,
TUCKER, ALLEN ~
CHUBB, appeared on behalf of LaClede Steel Company;
MR.
DELBERT
NASCHBMEYER
AND
MR.
HENRY
HANDZEL,
ASSISTANT
ATTORNEY
GENERALS,
appeared
on
behalf
of
the
Environmental Protection Agency
OPINION
OP
THE
BOARD
(by
Mr.
Dumelle):
13— 301
On July 18,
1974,
the Board entered an Order approving
an Amended Settlement Stipulation which terminated the above
three cases.
Due to the exigencies
of time,
the Board did not file
an Opinion accompanying the previously issued Order pursuant to
Procedural Rule 408.
Alton operates
a papermill and LaClede operates
a steelmill;
both located in Alton,
Illinois,
Alton was granted a variance
from certain Water Pollution Regulations while
it proceeded to
build
a treatment facility to comply with the
BOD and suspended
solids standards applicable to the Mississippi River discharges,
Alton v, EPA~PCB
73-140
(August
9,
1973).
The record of this pre-
vious proceeding was incorporated into the record of the current
proceedings by the parties pursuant to Procedural Rule 321(d)
(Stipulation and Agreement filed by Alton and the Agency, page
3),
On January
2,
1974, Alton filed
a petition to extend the previously
granted variance, PCB 74-Se
LaClede has two pending variance proceedings seeking variances
from the Water Pollution Regulations pertaining to its discharges
(PCB 72-425 and PCB 72-SOS),
On February 9, 1973,
the Agency filed an enforcement action,
PCB
73-61,
charging Alton with numerous violations of the Environ-
mental Protection Act
(Act)
and Water and Air Pollution Regulations
allegedly caused by Alton~sdischarge of inadequately treated water
effluents and air emissions from its boiler facility.
On January 29,
1974, the Agency filed an enforcement action,
PCB 74-51,
alleging Alton and LaClede with jointly or severally
causing or allowing the discharge of hydrogen sulfide
(H2S)
so
as
to cause air pollution in violation of the Act.
These cases were consolidated by Order of the Board on May
2,
1974.
Two days of hearings were held,,
The
first hearing on May 28,
19
74 resulted in numerous citizens~complaints about problems caused
by H2S
(R,
4,
8,
9,
10,
11,
13,
14,
and 15),
In addition,
the
citizens present objected to the lack of or inadequacy in the
public notice concerning the public hearing
(R.
3,
4,
6,
7,
10,
16,
17,
20,
21, and 25).
The parties were unable
to work out and
present the proposed settlement
so the hearing was continued until
June
7,
1974
(R,
25),
On the second day of hearings, the parties
presented the agreed stipulation and two citizens testified.
One
citizen testified about the strong acid odors
and the other citizen
testified to paint discoloration and alleged health effects of
the H2S emissions
(R.
12-14,
14-17).
Alton Box Board Company
(Alton), LaClede Steel Company
(LaClede),
and the Environmental Protection Agency
(Agency) presented
the
Illinois Pollution Control Board
(Board) with
a Settlement Stipula-
tion on June 11,
1974.
In the variance proceeding filed by Alton
13— 362
-3-
(PCB 74-5).
the decision due date of June
20, 1974 was waived
until June
27, 1974,
On June
27,
1974, the Board orally indicated
disapproval of the Original Settlement because the settlement did
not provide for the payment of
a penalty for violations of the
Act and Board Regulations; because the settlement required Alton
and LaClede to reimburse the Agency for witness expenses; and
because of other unanswered questions.
Because Alton has agreed to “directly” discharge its waste
effluent to the Mississippi River and because Alton
is proceeding
according to the project completion schedule which forms the basis
of the previously granted variance,
the Board granted Alton
the requested variance extension subject to the same conditions
specified in the original Board order in PCB
73-100,
Before approving the Settlement Stipulation presented by
the parties,
the individual Board Members
twice conveyed their
disapproval of the proposed settlement stipulation to the three
parties present during Board discussion.
The original settlement
stipulation was not
approved
by’ the Board for two principal
reasons.
The first of these dealt with the agreement by Alton
and LaClede to assume the $26,000
in costs incurred by the Agency
through the contracting with an environmental consulting engineer
and an expert witness.
The Board notes
that these expenses were
incurred by the Agency in developing
a procedure to quickly
abate
the H7S problem in the Alton area.
Alton has implemented
the engineering plan and thus has apparently assumed the benefits
of the Agency’s obligation (Stipulation, page
78),
However, the
Board does not find that the conditioning of the granting of
a
variance,
or proposed termination of an enforcement order, should
be based upon the assumption of
an Agency obligation by the
party petitioning for the variance request or the respondent
in
an enforcement action,
The parties rectifj,ed this by substituting
a supplemental settlement stipulation on July 8,
1974,
This
supplemental stipulation deleted reference to the assumption of
the Agency liability of $26,000,
The second area of concern was the failure of Alton and
LaClede
to agree
to
the payment of
a penalty for what appeared
to be substantial environmental insults,
The Board, while not
making any findings concerning the allegations in the two enforce-
ment actions,
filed on behalf of the Agency (EPA
v,
Alton
PCB
73-61
and EPA v, Alton and LaC1e4,~, PCB 74-51), pointe
out
at
the June 2YThleeting
that the apparent facts and testimony
presented to the Board in support of the proposed stipulation
did not warrant the termination as proposed by the parties,
The
Board noted with approval that the parties have taken action
to
abate the H~)Sproblem,
However,
it
is the
legal duty of
a
person to take~thenecessary steps
to abate
a nuisance if
they are the party
at fault.
This resulting abatement action
could serve
as
a mitigating circumstance but does not
excuse
13
—
363
The second supplemental stipulation did not provide for the
payment
of
any penalty,
The
Board Members again indicated
their
disapproval of the settlement,
Alton again waived
the
90-day
decision
period.
in
support of the Board~sview to twice reject the settlement
of
the
enforcement
action,,
the Board noted that
205 instances of
citizen
complaints
during
the months
of
June through September,
1973
regarding
H,,S
emissions were submitted as
Exhibit
40
to
the
proposed
sett1ement~ Numerous citizens
testified regarding paint discolora-
tion
allegedly caused by
ii
S.
A minister testified
as
to
what he
alleged
were
H,,S
paint
dis~oiorations
on
his
newly
repainted
church
(R,
4)
,
The
Agency
consulted
with
a
paint
manufacturer
who
allegedly
identified
H2S as
the
cause
of
the
paint
discoloration
in the Alton
area
(Exl’iibit
42),
A
citizen
testified
regarding
an
alleged
outbreak
of
respiratory
ailments
which
occurred
last
winter
(R.
2,,
17)
,
She
also
testified
as
to the alleged
inter-
ference
with
her
~health
which
was
caused
by
the
F.,S
emissions
(R.
2,
16)
The
Agency
monitoring
allegedly
detehted
levels
of
H~S aporoaching
8
ppm
zn
the
vicinity
of
Alton’
s
clarifier
(Exh~bit
48)
The
renort
of
tue
bnv:Lronmental
Health
Resource
Center
on
F12S
recommends
a
health
related
air
quality
standard
of
0,015
pplS
.for
H,,S
(Stinulation
Exhibit
46).
The
odor
threshold
for
whlc~
H2S
becomes
detectable
is
0,0005
ppm~
The
Agency
has
curported
monitoring
data.
which
allegedly
shows
Alton
to
have
caused
violations
of
the
Act
and
both
Water
and
Air
Pollution
Regulations
(Exhibit
39
40,
42.
43,
44,,
~
48)
.
A.ll
of
these
allegations,
taken
with
others
not
detatled
in
thee
Opinion
appear
to
present
evidence
of
substantial
viola”
tions
~
Act
and
applicable
Board
regulations.
The
Board,
in rejecting the Settlement of the
proposed
enforcement
cases,
follows
previous
Board
actions
taken
it.
the
following
cases
in which settlements were
rejected;
Pack~ging Corporation
of
An~rzca~
EPA
PB
‘~1-3b2, ~-O
,
~
~:meri,T~*
72-10,
5-91,
Order August
~,
pinion
ugust
:Ls,
V.
Ra~mond
I
eterseri and Petersen
Sand
arid
Gravei~
The
Board was
created
under
the
Environmental
Prbtection
Act
to
ihsure
the
existence
of’
a
forum
made
up
of
individuals
with
special expertise to hear environmentally related cases,
The
Board
has
a
duty
in
ruling on proposed settlements to insure
that
the
proposed
settlement
fairly
represents
the
people
of
Illinois,
Section
2(b)
of
the Act states:
13—
364
$
“It is
the purpose of this Act, as more specifica ly
described in later sectionp
te establish a unifica
state-ibid~prograr supplemei’tei by private remedies
to restore, protect and enhance the qualtty of the
environnent, and to assure flat adverse eftects upon
the environment ar°fully considered and borne by those
who cause them
‘
The Board must insure tiat the citizer
-
interests ate adequateiv
represented
and
that the adverse effects upon th~environment are
fully considered
and
borne Ly those who cause tnen
Accepting the
proposed original or firs
alternati c settlement vould not 1-ave
adequately
in the Board s irird
pr uçted the ci’izens of
di
State no
coaplie~
tn
‘c.
dirocti
fouui n Secti”i L’b.,
u
the Act
Or July 1/
1974
the partie: ftied a secord ~mendedSett1~
ment Stipulation thicfi formed the basis of the Board s determ~na
tion
This settlement
st çulatio
on ained an agreente~t‘y
Altor and LaClede to jointly and sevaraily pay
30,000 to the
State Fish
ard Game Fund
The Board accep in
ti-is as
amourti
ig
to a sufficient penalty to
thc
tel tio4 alleged is tie two
enforce.’en
actions.
Pa me
t tc
“
e Fish
and
G.m
Fund
cas
approved because of the siLnifxca
det rj.oration cau ed b
the
combined disclaxaes o
indu
S.j.
tas e on
quattc hf
ii’
the Miss ssippi kive
as apparen” ty )g°ncyph tographs
and
mon
torirg data
The hydrogen sulfide
H 5- jro~le3rh~caemanated at
least is part from the irouAdner
f Plto”
s and
LaClede
5
industrial waste
and
from flton a
tar
if
ier and .Judge laooor
con titu ed a public health pr
flex
‘rich
eigied nea fly i
the Boards determinatior
o a ‘ep
t e se tiement.
The pa ‘-ie
represe ted to the Boad
hat failut
‘o appr ye v-ould res 1
is
up
o 30 days of case trial.
wi-i
I- w uld hate
frkel
a great Je
1 o~
time
to reach final B’avd action
\ltor aid LaClede represanted
to the Board
hat tiey ~ovsdbe un tlhing to undertaPe th
propo.ed
project to allevia e the
!-
S hcaith problcw absent of Board
acceptance of the settleme&t.
In the event a hearing would
have been held,
such a~~ndustrialpolicy
wou’d
possibly have
justified a much greater penaLty this
that agreed to.
Is
previously stated in this opinion
it
is the legal duty to
abate a public
healti-
hazard
even
in the absence of a Board
Order to do so.
Final rejection of the settlement by this
Boád
would only have subjected the residents of Alton to further
environmental and health insults of grave proportions-
Thus, because the parties presented the Board with a program
which should result in the correction of a problem which has and
may
in
the
future present a significant public health
and
environ-
mental hazard, because Alton
and
LaClede agreed to pay the
$30,000,
and
because Alton presented a viable continuing program
to upgrade its waste treatment facility, the Board decided to
approve the Mended Settlement Stipulation.
13—3
-6-
The Board notes
that in
the
previously granted variance decision,
the Board held that Alton discharged to the Mississippi River through
an industrial ditch, not to waters
of the State which were tri-
butary to the Mississippi River,
Therefore,
the Board held that
the
20 rng/l BOD,
and
25
mg/I
suspended solids limitation were
applicable to Alton’s discharge
(Alton v.
EPA, PCB 73-140
at 9-18
and 19, August
9,
1973),
This wa?
emise
upon the presentation by
Alton that the discharge was discharged directly to the Mississippi
River through an industrial
channel
(R,
184, 185, PCB 73-140),
In the previous proceeding, Mr. Bauer testified that, “the overflow
(from the clarifier)
goes directly to the Mississippi Rivers?
(R,
184, PCB 73-140),
Enclosed in ExhibIt 37,
attached to the
Stipulation, was
a letter from the District Army Corps of Engineers
to the Chairman of the Illinois Pollution Control Board stating that
the twin 60’s, which were the discharge point through the Mississippi
levee, were closed early in 1973.
The following actions were taken
by the Corps at this structure prior to and during the 1973 spring
flood;
a)
a metal plate was installed over both 60-inch culverts
at
their river
terminus on January 27,
1973;
b)
a metal plate was
installed
over
the upstream 60-inch culvert
at
its landside terminus
on February 24,
1973;
c)
an inflatable pipestopper
(rubber pig)
was
installed h~tweenthe gate-well structure and landside terminus
of the upstream pipe on March 6,
1973; and
d) during the periods
April 6-8,
1973,
steel sheet piling was driven through both 60-inch
culverts between the gate well and their riverside terminuses
(Alton Exhibit
37)
Thus,
at the time of the hearings in PCB 73-140 and the date
that the Board granted the original variance, Alton’s discharge
was not directly to the Mississippi River but instead was impounded
behind the levee,
This impoundment area backed up some
7,200 feet
upstream to the Wood River Drainage District Alton pumping station
where it was pumped over the Mississippi levee
(Exhibit 38, page
7).
The current projection
is that during “the months of January through
June,
the new twin 60’s being constructed by the Corps, which are
supposed
to drain the impoundment area during the periods of low
flow in the Mississippi River, will be closed
25
of the time and
duriiig the month of April will be closed approximately 50
of the
time (Exhibit
47, page 6),
This will cause the impoundment of
any discharge into the impoundment area and the eventual co-mingling
of
this impounded discharge with drainage waters at the Alton
pumping station,
Because of this information,
the Board finds that
its previous ruling that Alton discharged directly to the Mississippi
River is
of
no precedential value.
The original decision that
Alton discharged directly to the Mississippi River was correct
based upon the information presented at the original hearing
in PCB 73-140,
However, this new information pTesented regarding
the closing of the twin 60’s does not support
a determination
13— 366
-7-
that Alton disc,harges directly to the Mississippi River,
There-
fore,
the Board,
as agreed by Alton, conditioned the granting
of an extension of the variance to Alton on the condition that
Alton discharge its effluent, by means of
a pipe over
a levee,
to the Mississippi River,
This Opinion constitutes the Board’s findings of facts
and conclusions of law,
I, Christan
L, Moffett, Clerk of the
Illinois Pollution Control
Board, hereby certify the above Opinion was
adopted
on the ~~~day
of August,
1974 by a vote of __________________________
ristan
,
o
ett
er
Illinois
Pollution
o trol Board
13
—
367