ILLINOIS POLLUTION CONTROL 

BOARD

May 30, 1972

ENVIRONMENTAL PROTECTION AGENCY

v.

)

72—26

VILLAGE OF 

LAKE

ZURICH     

)

DOUGLAS T, MORING, Assistant Attorney General, appeared on behalf

of the Environmental Protection Agency

MURRAY

CONZELMAN and JOSEPH M. SIKES appeared on behalf of the

Village of Lake Zurich

OPINION OF 

THE

BOARD (by Mr. Lawton):

Complaint was filed by the Environmental Protection Agency

against the Village of Lake Zurich, a municipal corporation, respond-

ent, alleging that respondent in the operation of its Northwest

Sewage Treatment plant, on certain specified dates, caused water

pollution in violation of Section 12(a) of the Environmental Protec-

tion Act and that since January 21, 1971, violated Rules and Regula-

tions SWB-14, Rule 1.03 and Rule 1.08. Specifically, the complaint

charges that in the operation of respondent4s sewage treatment plant,

contaminants were discharged on dates alleged so as to cause water

pollution of the waters of Illinois including Grassy Lake, Flint

Creek and the Fox River in violation of Section 12(a) of the Act,

and that since January 21, 1971, respondent discharged substances

that settle to form putrescent and objectionable sludge deposits detri-

mental to bottom biota; discharged fluids, substances, wastes and

sewage containing floating debris, oil and scum in amounts sufficient

to be unsightly or deleterious; and discharged fluids, substances,

wastes and sewage producing color, odor and other conditions in such

a degree to cause a nuisance, all in violation of Rule 1.03, paragraphs

(a), (b) and (c) of 

SWB—14;

and that since January 21, 1971, respond-

ent failed to provide substantially complete removal of settleable

solids, removal of floating debris, oil, grease, scum and sludge

solids, and removal of color, odor and turbidity to below obvious

levels in violation of Rule 1.08, paragraph 10(b), (1), (2) and (3)

of SWB-14. 

The

Agency requests the entry of a cease and desist

order, and the imposition of penalties in the maximum statutory amount,

—

637

and that the Board take such 

further action as may be necessary to

abate said violations pursuant to Section 46 of the Act.

The complaint makes no assertion that respondent has failed to meet

prescribed BOD and suspended solid levels or that the sewage treatment

plant construction program is not being complied with, all as provided

SWB—14.

Respondent filed a special and limited appearance and motion to dis-

miss, asserting that the cause was moot because the Environmental Pro-

tection Agency had issued respondent a construction permit, that the pro-

visions for notice by mailing violate constitutional due process require-

ments, that the Environmental Protection Act constitutes an invalid dele-

gation of legislative and judicial authority to the Pollution Control

Board, that all actions under the Act 

must

be filed by the Attorney

General or by the State?s Attorney, that the Pollution Control Board lacks

power to assess money penalties and that 

the

complaint fails to allege

any continuing violations of any act, rules or regulations, or the

threat thereof, or the lack of an adequate remedy at law.

We find all of the contentions wholly lacking in merit. Obviously,

the

granting

of a permit to correct violations 

in no way moots an en-

forcement

or penalty action based on the violations a11eged~ The provi~

sions

for notice by mailing are based on the procedural rules 

of the

Pollution Control Board, the authorization of which is expressly granted

by the 

statute.

(Environmental Protection Act, Section 26). No reason

suggests itself why due 

process is lacking, particularly since respon-

dent received notice and participated in the hearing. Arguments as

to

our delegated authority and power to assess penalties have been answered

many times in our past opinions and need not be elaborated here.

(See

EPA v. Granite City Steel Company, PCB 70-34, March 17, 1971; EPA

v.

Modern Plating Corp., PCB 70-38, May 3, 1971),

The Ac~ expressly pro-

vides for the filing of enforcement actions before the Board by the

Environmental Protection Agency. (Environmental Protection Act, Sec-

tion 4(e)).

Lastly, the complaint adequately pleads violations of the

Act and regulations and is not defective

as

a pleading.

We find respondent to have caused water pollution and

to

have vio-

lated effluent and stream criteria

with 

respect

to

odor and color,

We

assess a penalty in

the

amount of $100.00 for the unwarranted discharge

of

sludge

from 

the lagoon into the receiving stream on February

14,

1972,

constituting violations of SWB-14 with respect

to

both effluent and stream

freedoms and Section

12(a) 

of the Act.

The

penalty

is

nominal in con-

sideration of

the

construction program which respondent has already em-

barked upon and because of the absence of proof of other substantial,

continuing and flagrant violations.

Our order will direct respondent

to proceed with its construction program pursuant to the time schedule

provided, all as will be 

more fully set forth below.

—

638

The Village of Lake Zurich lies partly within the Des Plaines

River water shed and partly within the Fox River water shed. 

Two

sewage treatment plants serve the Village, the Southeast facility

being within the Des Plaines River water shed, and the Northwest waste

water treatment plant, the

subject matter of 

the

present proceeding,

being within the Fox River water shed. The Northwest water treatment

plant discharges

into Flint Creek, a tributary of 

the Fox River.

The Northwest plant, a trickling filter operation, was originally

constructed in the 1920’s and was improved in 1967 by the addition

of a tertiary stabilization

pond having 3 million gallons of storage

capacity as an adjunct to the primary clarification

and secondary

trickling filter waste water treatment plant. Postchlorination is

provided for the effluent as received by the polishing lagoon. The

design capacity of the plant is .5 mgd and serves approximately

4,000 people. (Res. Ex. 11, R. 138).

Agency witnesses at the hearing consisted of residents whose

homes are contiguous with Flint Creek, a biologist who testified to

the character of the biota above and below the discharge from the

plant, and Agency personnel who testified to various tests that had

been conducted in the stream and of the effluent in the vicinity of

the plant.

Respondent’s witnesses consisted of personnel involved

in the sewage treatment plant construction and modernization program

presently being implemented by the Village, as well as Village of f i—

cials charged with 

the operation of the sewage treatment facility.

The

evidence of the witnesses living 

the proximity of the

stream,

while 

manifesting the

presence of odor emanating from it, was not

probative of the source of the odor. The evidence indicated that

effluent from septic tanks was likely to find its way into the stream

because of the clay character of 

the

strata contiguous with the 

stream

making septic tank percolation unsatisfactory and runoff likely.

These witnesses were unable to establish that the sewage treatment

plant or 

the

conduct of the Village were the cause of the odors de-

tected. On the other hand, 

exhibits

introduced by the Agency did

establish

that the sewage plant discharges had an adverse effect on

the biota 

and caused odor and discoloration in the stream. A com-

parison of analyses of organisms taken on June 16, 1971 disclosed

the presence of organisms upstrear~from the plant and their absence,

with

one exception, below the point of discharge. The evidence

showed that the organisms remaining below the discharge and not

affected were pollution tolerant, strongly suggesting that the dis-

charge did eliminate those organisms not pollution tolerant. (EPA

Exs. 3 

and 4, R. 31—35)

Inspection made and samples taken on June 7, 1971, disclosed

that the stream was “very clear” upstream from the plant whereas 20

feet downstream of the outfall, the stream was foamy, turbid and

discolored. (EPA Exs. 17 and 

19).

Tests taken on June 9, 1971~

showed the stream clear upstream whereas observations made on the

—

63c~

same day in the vicinity of the lagoon outfall again showed the

stream to be foamy, turbid and discolored and possessing a slight

odor. Similar characterizations were found the same day 700 feet

downstream from the plant outfall. (EPA Exs. 20, 21 and 22).

Observations made on May 19, 1971 disclosed that downstream the

water was visibly discolored and foaming and greenish gray in

color whereas upstream the water was clear. (EPA Ex. 24). On

February 14, 1972, an inspection of 

the

plant was made by Agency

personnel when 

the

lagoon was being drained to enable cleaning.

On that occasion, the sludge contained in the lagoon was discharged

directly into the receiving stream which effluent was characterized

as “black and foul smelling”. On being advised of the violations

being committed, plant personnel partially abated the discharge, but

the black discharge continued until later in the day, Samples

taken in the vicinity of the point of discharge disclosed high

suspended solids (188) and BOD (85) readings. 

(EPA Ex. 36). An

Agency report made on this occasion (EPA Ex. 42) notes the stream

to

be very

discolored from the lagoon, the discharge “black as

coal”, 

and the

presence of 

heavy

septic odor. Inspections on

April 5, 1972 (EPA Ex. 58) disclosed noticable discoloration 300

feet downstream whereas’ on the 

same

day

the

flow upstream was clear,

From the foregoing evidence, it is abundantly clear that by the im-

pact on the biota, respondent has caused or allowed water pollution

as defined in the Act and has violated SWB—14, Rule 1.03, with

respect to color and odor in such a degree as to create a nuisance,

and has permitted the discharge of substances harmful to aquatic

life, in violation 

prescribed ~‘streamfreedoms”,The events and

circumstances above described also manifest a violation of SWB-14,

Rule 1.08, paragraph 10(b) (3) with respect to effiuent~criteria pro-

hibiting 

the

presence of color and odor. The evidence 

does 

not dis~

close 

the

presence of settleabie solids or 

floating debrxs. While

our newly enacted regulations with respect to effluent c~m~eiia ~nd

water quality standards do not require

compiet~on 

of tert~arv fec:i:~

ties before December of 1973, water pollution has been pronibire~ ff~

many years and basic primary treatment has been designed

to

elio~

the various of fences of which respondent is guilty. (See Spr:rgt:~elJ

Sanitary District v. EPA, PCB 70-32),

However, the Village is pursuing

a program which

will ~

prove its entire sewage treatment process and, if completed witni~

the time limits represented, will satisfy the requirements of te~

tiary treatment with a BOD of 4 and a suspended solids 

limit of 5,

by February of 1973, well before the time limits prescribed by

Regulations Chap. 3, Part IV~.. Sec.

404.T~~bond issues have been

passed by the Village, one in the amount of $400,000, and a second

of $700,000 enabling expansion of the sewage treatment facilities

by the addition of a 300,000 GPD activated sludge facility and

— 640

contact stabilization unit, and

the modification of the primary and

secondary filters of the existing plant.

(Res. Ex. 11, p. 5).

The

stabilization pond 

is to be developed as a multi-cell and aeration

facility for improvement of the effluent into the Flint Creek tribu-

tary. The entire projected flow as developed is to receive mixed

media tertiary filtration prior to discharge into the stream, 

The

stabilization pond is being retained to balance any wet weather flow

that may develop. The modernization and expansion is in conte~np~at~on

of an extensive program of infiltration reduction to be co~~ted

t.he Village. The holding pond for secondary effluent prior to

tertiary 

filtration assures

improved operation of 

the mixed media

filters.

Construction of the improvements and expansion of the

~orthwest

water treatment plant commenced on February 15, 1972.

The

program 

contemplates the operation of the tertiary holding pond

and

aerators by May

20,

1972~ The sludge bed

addition is 

he com-

pleted by Sep~ermber 15, 1972, The contact stabilization unit is

to be in operation 

by November 15, 1972.

The tertiary filters will

be in operation by February 1, 1973. (Res, Exs. 10, Il and 

12, R. 144).

If the foregoing program is carried to completion on the dates pro-

posed,, the Village of Lake Zurich will be in compliance

with the

newly established Pollution Control Board regulations with respect

to the tertiary and advanced treatment ten months before

the

dead-

lines prescribed.

(See Illinois Pollution Control Board

Rules and

Regulations, chap. 3, Water Pollution, Part IV, Sec. 404). The

program appears to be a good one and we will direct its completion

in the

manner and within 

the

time limits proposed. Because of the

observed instance of sloppy operation in discharging sludge from the

laqoon into the receiving stream,we assess a penalty in the 

sum of $100.00

We find respondent to have caused water pollution 

by~causing

a discharge

having an adverse effect on the biota in violation of Sec. 12(a) of

the Act and to have violated SWB-l4 with respect to odor and color,

both in violation of the stream and the effluent standards. We will

direct the Village to complete the implementation plan for the North-

west Sewage Treatment Plant and to meet the dates stated by it for

completion. Improvements of the plant as proposed should eleminate

all future violations of the character found as well as those asserted.

This opinion constitutes the findings of fact and conclusions

of law of the Board.

— 641

ORDER

IT IS

THE

ORDER of the Pollution Control Board that:

The Village 

of Lake Zurich shall abate its pollutional

discharge from the Northwest Waste Water Treatment Plant

by complying with the following construction program for

the improvement and expansion of the Northwest Waste

Water Treatment Plant as provided in Respondent’s Exhibits

11 and 12 filed herein:

(a) The tertiary holding pond and aerators shall be

completed as of this date.

(b) The secondary holding pond shall be in operation

by July 1, 1972.

(c) The 

sludge

bed addition shall be completed by

September 15, 1972.

(d) The contact stabilization 

unit shall be in operation

by Novemb’er

15, 1972.

(e)

The

tertiary filters shall be in operation by

February 1, 1973.

2. Penalty in the amount of $100.00 is assessed against the

Village of Lake Zurich 

for violation

of Rules 1.03 and

1.08 of SWB—l4 and Section 12(a) of the Environmental

Protection Act. Payment shall be made to

the~State 

Illinois and sent to the Environmental Protection Agency,

Fiscal Services Division, 2200 Churchill Drive, Spring-

field, Illinois 62706, within thirty—five days from the

entry 

this 

Order.

I,

~ristan

Moffett, Clerk of the Pollution Control Board,

certify ~at the

above Opinion and Order was adopted by the Board

this ~~ay

of

1972, by a vote of 

to ~

— 642