ILLINOIS POLLUTION CONTROL BOARD

September 26, 1973

ALTON BOX BOARD COMPANY,

Petitioner,

v.

)

PCB 73—140

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ORDER ON PETITION FOR RECONSIDERATION

C

by Mr. Henss)

On September 12, 1973 Respondent Environmental Protection

Agency filed Petition for Review with the Appellate Court for

the Fifth District of Illinois. At the same time, the EPA also

filed Petition for Reconsideration with this Board. Alton Box

Board has filed Cross Petition for Review. The appeals removed

the jurisdiction of this Board and for that reason, if no other,

we would be compelled to deny reconsideration (Brehm vs.

Piatrowski, 409 Ill. 87)

However, with one exception, the Petition for Reconsideration

is also inadequate

when considered on its merits. The EPA grossly

misreads the record and the Board Opinion of August 9, 1973 in

cLder to make its argument for reconsideration.

The Agency is wrong in stating that our Order will allow

Alton Pox to violate the water quality/dissolved oxygen standard

for t~n Mississippi. The record indicates that the dissolved

oxygen standard is not being violated at this time. The program

we ha approved is designed to reduce BOD and therefore improve

the cii~so?vedoxygen of the River to a higher level. If the Record

is correct, Alton E3ox can not deplete the oxygen content of the

Mississippi below the Standard unless the Company violates the

terms of the program approved by us.

From this record we can conclude that one water quality

standard--the color standard--is being violated. The photographs

and evidence show a dark colored effluent which is called ublack

liquor”. This is caused by the use of wood chips in the

Petitioner’s process. A key part of the program, however, is to

eliminate the use of wood chips and this in turn should abate

this black liquor effluent.

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It was the Agency, not Petitioner, which failed to intro-

duce evidence on essential parts of the case. Alton Box intro-

duced the only evidence regarding the effect of its effluent

on the Mississippi. The EPA introduced none, It was Dr. James

Irvin, Petitioner’s witness, who said: Toxicity of the waste would

not be a problem (R. 270) the BOB discharge would not have a

significant effect on the Mississippi (R. 273) and that three

areas of the River provided a high re-aeration capability, i.e.

spiliway at Lock and Dam #26, turbulent area at Chain of Rocks,

and confluence of the Mississippi with the Missouri. It was

Petitioner’s witness who said the discharge of 2.5 tons per day

of susmended solids was “rather insignificant” (R. 276) when

compared to suspended solids carried by the Mississippi ranging

from 88,000 to 359,000 tons per day.

Our Opinion shows that we seriously questioned some of these

contentions by Alton Box Board Company. However, they stand

unrebutted in the Record.

The Environmental Protection Act in Section 37 and Section

33 provides that. ~‘after due consideration of written and oral

statements, the testimony and arguments that shall be submitted at

the hearing.. .the Board shall issue and enter such final Order,

or make such final determination, as it shall deem appropriate

under the circumstances.” We have done so. Our decisiOn is

clearly supported by the Record. If the Agency is concerned that

our decision in this variance case may have some effect on the

enforcement case which is pending then it snould have introduced

its evidence in this particular proceeding. Under the Statute, we

were not able to delay the ruling or consider matters which were

not a part of the record. If the variance does have an effect on

the prosecution case it is limited to BOB and suspended solids

since we considered only those two pollutants.

During oral argument uefore the Board, Alton Box requested

that it be given permission to amend the Petition by interlineation

to request a variance from Section 405 of the Water Pollution

Regulations. The Board gave permission for this amendment but

Alton Box failed to

follow through and make the amendment as it

had requested leave to do. A review of the record reveals that

there is no evidence which would justify variance from Section 405.

If appeal had not been commenced

and our jurisdiction thereby

removed, we would modify the ODinion by removing the Section 405

variance from paragraph 1 of our Order. Under the circumstances

we can not, and we will leave consideration of that issue to the

Appellate Court.

Petition for Reconsideration is denied.

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—3.-

I, Christan L. Moffett,

Clerk of the Illinois

Pollution

Control Board, hereby certify the above Order on Petition for

Reconsideration was adopted this ~

day of

1973 by a vote of

~.

to______

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