ILLINOIS POLLUTION CONTROL BOARD

March 14,

1972

ENVIRONMENTAL PROTECTION AGENCY

v.

PCB 71-325

AIRTEX PRODUCTS,

INC., and

CITY OF FAIRFIELD

Opinion of the Board

(by Mr.

Kissel):

On February

3,

19’12 the Board entered an order against

Airtex and the City of Fairfield

in this case which reads

as

follows:

1.

That respondent Airtex Products,

Inc.

cease

and desist

from discharging any and all cyanide compounds from its opera-

tions at 407 West Main Street

in Fairfield,

Illinois

in viola-

tion of SWB—5 and Section 12

(a)

of the Environsnen.tal Protection

Act.

2.

That respondent City of Fairfield cease and desist from

accepting wastes

from the Airtex plant to its storm

sewer

system

in violation of Section

12(a)

of the Environmental

Protection Act.

3. That Airtex pay to the State of Illinois by March

1,

1972,

the sum of Eleven Thousand Dollars

($11,000.00)

as

a penalty

for the violations found in this proceeding.

Penalty payment

by certified check or money order payable to the State of

Illinois

shall be made to the Fiscal Services Division,

Illinois

Environmental Protection Agency,

2200 Churchill Drive, Spring-

field,

Illinois 62706.

4.

That Fairfield pay to the State of Illinois by March

1,

1972

the sum of One Thousand One Hundred Dollars

($1,100.00)

as

a

penalty for

the violations found

in this proceeding.

Penalty

payment by certified check or money order payable to the State

of Illinois shall be made

to the Fiscal Services Division,

Illinois Environmental Protection Agency,

2200 Churchill Drive,

Springfield, Illinois 62706.

The order was entered after

a

full hearing of the matters before

the Board.

4

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We now have received motions from both the City of Fairfield

and Airtex to stay parts of

the Board’s order.

In

a

letter

directed to the Board

the City requests

that the Board stay

paragraph

4 of the order because the City cannot pay the penalty

of $1100 imposed by the Board.

Its reason is that funds were

not appropriated

for this purpose for this fiscal year,

thus

funds are not available

to pay the penalty.

If indeed the City

has

no funds available at the present time

as it claims,

we,

of

course,would

stay the order until the funds could be budgeted

in the next fiscal year.

However, there must be

a myriad

of other situations where

a City must expend funds unexpectedly,

and it would seem

that

a contingency

fund of some kind would be

available for this purpose.

Also,

no other municipality

has raised this issue with the Board.

Therefore, before staying

the payment of the

funds until the next fiscal year,

we would

ask that

the Agency submit

a recommendation to the Board,

after review of the contention by the City as

to whether there

are funds available

to pay the penalty now.

Based upon that

recommendation and upon any additional evidence

the City wishes

to present on this subject,

we will make

a

decision on whether

to stay

the payment of the penalty by the City.

Airtex’s motion raises two points:

first,

it asks that we

stay that part of the order requiring

the payment of the penalty

pending appeal

of the Board’s original order,

and second,

that

we strike that part of the order which requires Airtex to

“cease

and desist”

from discharging

cyanide compounds generated

in its

operations.

As to the first

issue, we have consistently held

that we will grant

a stay of an order requiring the payment of

a money penalty, pending appeal of the Board’s

order.

But such

a

stay has been granted on the condition that the person against

whom the

order

is directed

files

a bond with the Board which

assures

the payment of the money penalty plus

5

interest on the

money from the

thte of the entry of the Board’s order,

if the

Board’s order requiring the person to pay

is upheld on appeal.

See Molex v.

EPA,

71-200, Opinion dated Jan.

31,

1972 and Agrico

Chemical

Co.

v.

EPA, 71—211, Opinion dated Jan.

31,

1972.

We will follow that Rule in this

case as well.

The second issue raised by Airtex related to the “cease

and desist” order entered by the Board against Airtex.

See

paragraph

1, Board’s order dated Feb.

3,

1972.

The major point

made by Airtex

is

that relief

in the nature of

a

“cease and

desist” order was

not sought by the Agency

in this case,

and

as

a result,

the imposition of this kind of relief was really not

before the Board.

To understand

this argument,

a brief review

of the issue

is necessary.

4

—

56

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The original complaint filed by the Agency alleged that

“on and after July

1,

1970” Airtex caused cyanides

and

cyanogen compounds to escape to the Fairfield

sewer system

in violation of the Act and certain regulations promulgated

thereunder.

The complaint asked that money penalties be imposed

against Airtex and asked for

“such further relief

that the Board

deems necessary.”

Had

the Agency not amended the complaint,

the general prayer for

relief that the Board deemed

“necessary”

would have been enough to give Airtex proper notice that

a cease

and desist order could have been entered against it.

However,

Agency, through

its attorney, did amend the complaint on

the date of the hearing

in two ways.

First,

it limited the

date of violations to May

4 and May

14,

1971 and second,

it

removed its request that a “cease and desist” order be entered

against Airtex.

The specific request was made

in the Agency’s

opening statement when the Assistant Attorney General, representing

the Agency said:

“.

.

.1 would at this time make

a motion to amend the

complaint that had been

filed herein to state that the

violations that are in question here were violations

that

occurred on or about May

4,

1971 and May

14,

1971 solely.

It

is not meant to be

a continuous violation for which we

would be asking

a cease and desist order

or anything of

this nature.”

(emphasis supplied)

see record, page

5.

The hearing officer properly granted

the Agency’s motion to

amend

the complaint,

and as of that time

the sole issue in

the

case revolved around violations

of the

law by Airtex on May

4

and May

14.

The issue of a continuous violation was not

then

a subject for the Board’s decision and

order.

Thus, Airtex

properly points out that the

Board should not have entered a

cease and desist order against Airtex.

To enter

a cease and

desist order after it was dropped from

the case violates

the

traditional legal principle

of giving the respondents adequate

notice of the complaint against them.

It can be amended that the

respondent did not enter proof in this point because he

felt

it was no longer an issue in the case.

This position is consistent with the fact

that Airtex

stated that the plating process which was

the source of the

contaminants alleged to have caused water pollution was closed

down and no longer operating.

We will,

therefore, expunge

paragraph

1 of the order of the Board entered on February

3,

1972.

Mr.

Dumelle dissents

in part.

4

—

57

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Upon motion of

the Respondents, and consideration of the

arguments and the record,

the Board hereby enters the following

order:

0

R D

E R

1.

The Agency shall determine upon investigation within

15 days whether

the City of Fairfield is able to pay

the $1100

money penalty assessed against it from the City’s funds in the

current fiscal year.

Upon receipt of such information,

and any

additional information

from the City of Fairfield within the

same

15 day period,

the Board shall make

such further order as

it deems necessary.

2.

Paragraph

3 of

the order of the Board entered in this

cause on February

3,

1972

is hereby stayed pending appeal of

the Board’s decision provided that within

15 days froM this date

Airtex files with the Agency a surety Bond guaranteeing payment

of the penalty with

5

interest if the Board’s order directing

the payment of

a penalty is upheld on appeal.

3.

Paragraph

1 of the order of the Board in this cause

is hereby expunged ab initio.

I, Christan Moffett,

Clerk of the Pollution Control Board,

certify that the Board adopted the above Opinion and Order this

/~/e’~?

day of March,

1972, by

a vote of

~—/.