ILLINOIS POLLUTION CONTROL BOARD
April 29, 1982
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Complainant,
v.
)
PCB 78—50
NORTH SHORE SANITARY DISTRICT,
)
an Illinois Municipal Corporation,
)
Respondent,
MR. DENNIS R. FIELDS, SPECIAL ASSISTANT ATTORNEY GENERAL, APPEARED
ON BEHALF OF THE COMPLAINANT.
MR. M.R. CONZELMAN; CONZELMAN, SHULTZ, SNARSKI AND MULLEN; APPEARED
ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J.D. Dumelle):
On February 2, 1978 the Illinois Environmental Protection
Agency (Agency) filed a five—count complaint against the North
Shore Sanitary District (District). The complaint was amended
twice: on July 25, 1978 adding Counts VI—XV and on May 1,
1979 adding Counts XVI—XXVI, On December 4, 1980 the Board
granted an Agency motion to dismiss Count V. Ten days of
hearings were held between November 9, 1979 and March 25, 1981,
at which members of the press and public appeared. The Agency
filed its closing brief on January 20, 1982. The District
filed its closing brief on January 29, 1982.
The complaint alleges improper operation of the District’s
Gurnee Sewage Treatment Plant (STP) which is located on the
Des Plaines River within the Village of Gurnee in Lake County
and which began operation in April of 1976 (R.832—833).
These operations began prior to completion of the STP’s sludge
transfer pumping station which was to pump the sludge to
Waukegan for processing (R,835 and see Compl. Ex. No.31).
Until completion, the sludge was to be transported to Waukegan
by truck.
COUNT I
In Count I the Agency alleges that in late January of
1977 operational difficulties led to a discharge of solids
into the Des Plaines River which resulted in accumulations of
sludge in violation of Rule 203(a) of Chapter 3: Water Pollution,
and Section 12(a) of the Environmental Protection Act (~ct),
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Section 12(a) generally prohibits water pollution while Rule
203(a) states that waters of the State shall be free “from
unnatural sludge or bottom deposits,” among other things.
The District does not seri’:~uslycontend that it was not
responsible for the solids discharge and the resultant accumu-
lations of sludge in January of 1977. While the District does
make a fleeting effort to establish that the source of the
sludge was unknown (R.108—110), according to the District’s
own calculations, 434,540 pounds of suspended solids were
discharged during January and February of 1977, more than
263,000 pounds in excess of allowed discharges (see Compl.
Ex.3). In a report prepared for the District, William F4itsch,
Ph.D. states: ~The solids formed shoals and deposited in the
channel meanders... The most significant deposits occured (sic)
in a 7200 foot stretch from the plant discharge to the Route
120 bridge southwest of Gurnee~” (see Compl. Ex.4,p.1.)
The Board finds that the District violated Section 12(a)
of the Act and Rule 203(a).
COUNT II
In Count II the Agency alleges that from March 8, 1977
and intermittently thereafter the District discharged “obviously
turbid” wastewater into the Des Plaines River in violation
of Rule 403 and Section 12(a1 of the Act. The only evidence
tending to show such violation is a statement by Richard
Springer, an Environmental Protection Engineer for the Agency,
that on June 27, 1977 he observed water in the Des Plaines
River near Route 120 which “had a poor visual quality” (R.99),
and Complainant’s Exhibit 19, an Inspection Report prepared by
Mr. Springer concerning his March 8, 1977 inspection. In that
report
he
states:
While collecting the effluent sample I noticed
that there was an overflow from only the eastern
half of the post—aeration chlorine contact tank
facilities. The west post—aeration tank was just
being filled up (was recently taken out of service
for cleaning and modification) and it’s contents
were quite dark and turbid. However, after
the
aerator was turned on and the system became equa-
lized it’s visual quality began improving.
At the time of my visit, the plant secondary
effluent appeared to be of a better quality than
the chlorinated effluent, which was turbid and
contained large visible solids.
The Board notes that the river observation was considerably
downstream of the District~sdischarge point, and that no proof
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was presented that the poor visual quality resulted from the
District’s effluent. Further, Gene Lukasik testified on behalf
of the District that he examined the District’s effluent on
March S and that it was not obviously turbid (R,926-927).
while the inspection report is somewhat vague and ambiguous,
it does indicate a specific observation of turbid chlorinated
effluent which when balanced against Lukasik’s more general
observation (he makes discharge observations “on a daily basis”)
is sufficient to support a finding of a violation of Rule 403
and Section 12(a) of the Act. However, there is no proof of
anything more than an isolated violation and no penalty, there-
fore, will be imposed for this violation.
COUNT III
In Count III the Agency alleges that the District “caused
or allowed the discharge of deoxygenating effluent into the
Des Plaines River to contain dissolved oxygen at levels below
those required by Rule 203(d)” in violation of that Rule and
Section 12(a) of the Act. As the District points out, Rule 203
is a water quality standard, not an effluent standard. Therefore,
any such discharge violation must be pursuant to Rule 402, which
was not alleged. Further, the Agency has not even briefed this
issue.
The Board, therefore, finds that the Agency has faile~1
to prove the allegations of this Count.
COUNT IV
In Count IV the Agency alleges that the District caused
the death of fish and other aquatic life worth $692.18 through
the discharge of deoxygenating wastes in violation of Section
12(a)
of the Act and that the District is, therefore, liable
for that amount pursuant to Section 42(b), There is no question
that a fish kill of that extent occurred on or about June 27,
1977 (see Compl. Ex.24), and the Board has already concluded
in Count I that •the District violated Section 12(a) of the Act
by discharging unlawful quantities of suspended solids, a
deoxygenating waste. The question becomes one of whether that
discharge caused the fish kill.
The District contends that the only opinion expressed
as to causation was that of Dr. Chambers, an expert witness
presented by the District, who indicated that the District
“had nothing to do with it” (Resp. Br., Jan, 29, 1982, pp.4—5).
However, that position overstates the case. Dr. Chambers in
fact testified that the District discharge “was not directiy
ff~j~ons1blefor the fish kill” (R.233, emphasis added). It
was his opinion that the fish kill was “caused by low dissolved
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oxygen in the water,” the low water level and high temperature
(R.229—230). He also stated that his opinion as to the District’s
lack of responsibility was premised upon a failure to find any toxic
substances or organisms which could have been “causal agents”
(R.232—2330)
The Agency, however, does not allege that toxic substances
or organisms caused the kill. Rather its position is in agree-
ment with Dr. Chamber’s conclusion that the cause was low
dissolved oxygen concentrations. Gary Erickson, a biologist
with the Department of Conservation testified that the materials
on the bottom of the river (the sludge) would take up the oxygen
and could cause fish to be killed (R..151). While it is true
that no expert testimony was directly expressed by any Agency
witness concerning the specific cause of the June 27 fish kill,
a report made by Harvey Brown, also a Department Biologist, on
the date of the kill, notes that:
Near the upper limit of the kill, above route 120
bridge, one sucker was observed “gulping” at the
surface. A dissolved oxygen test was made below
Route 120 with a result of 1.0 parts per million
reading. Water temperature at this point was 80
degrees Fahrenheit and pH was 7,4. Downstream
station #3 (below route 176) the dissolved oxygen
reading was 2.2, water temperature 80 degrees Fahren-
heit, and pH 7.6, The bottom of the stream contained
a large quantity of black mucky sediment and had a
sewer odor. This condition was most evident at the
upper three stations.
Based upon the testimony and exhibits cited, the Board
finds that the June 27 fish kill was a result of low dissolved
oxygen levels, which in turn were caused by a combination of
high temperature and deoxygenating wastes and exacerbated by
the low flow conditions. The question then becomes whether
the District’s discharges earlier in the year were the “cause”
of the fish kill pursuant to Section 42(b). Clearly, there were
several “causes.”
The District had little or no control over the river level
and temperature, such that it could be found to he responsible
only if the deoxygenating wastes discharged by the District
were a substantial factor in causing the kill, Based upon the
location of the kill downstream of the Gurnee STP (Cornpl.
Ex. 24), the lack of other such kills in the absence of sludge
deposits (R.), the depression of oxygen levels in the area
of those deposits (Compl. Ex.23 and R.151-155), and the failure
of the District to show any significant contribution to the
deoxygenating wastes from other sources discharging to the
affected portion of the Des Plaines River, the Board finds
that the District was a significant factor in causing the fish
kill and is, therefore, responsible for payment of the value
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of the fish killed (as calculated in Compi. Ex.24).
COUNTS VI-XV
Counts VI through XV deal with the District’s failure to
File reports in a timely fashion and various other matters
all of which are required by the District’s NPDES Permit No.
IL0035092 (Compl. Ex,1). The District argues that the Board
is without jurisdiction to enforce these requirements due to
the holding in Citizens ForABetter_~y
V._EPA
(596
F2d 720, Seventh Circuit, January 26, 1979), Therein, the
Court did in fact hold that the approval of I1:1.inois’ NPDES permit
program by the Administrator of USEPA was improper because
of USEPA’s failure to have adopted rules for public participation
at the time of approval. However that decision does not remove
the Board’s jurisdiction to enforce NPDES permits in that the
issuance of mandate was stayed by Order of May 30, 1979 and
that stay has been continued on several occasions since then.
It appears that since the Administrator has now repromulgated
the approval (46 Fed. Reg. 24295; April 30, 1981), the mandate
will never issue and the Illinois NPDES permit program will
maintain its continuity.
Therefore, the Board finds that it does in fact have
jurisdiction to consider these allegations.
COUNTS VI, X AND XVIII—XXI
The Agency alleges in these Counts that the District
has failed to submit reports regarding the control of industrial
users (Counts VI, XVIII and XIX) and daily monitoring reports
(DMR’s; Counts X,XX and XXI) in a timely manner. The District
admits these violations (R.934—936 and R,67—68 and 972, respect-
ively) and simply offers an explanation for the lack of timeliness.
The explanation only goes to the penalty, not to the violation.
The Board, therefore, finds that the Agency has proven violations
of Rules 501 and 901 as well as Sections 12(a),(h) and (f)
of the Act as alleged in these Counts.
COUNTS XI—XIII, XXV AND XXVI
In these counts the Agency alleges that the District
violated its NPDES permit and State limitations for biochemical
oxygen demand (BODç; Counts XI and XXVI) and ammonia-nitrogen
(NH~-N; Count XI1II, The Agency presented DMR’s (Compl. Ex,7)
to ~stablish these violations and the District has not contested
the fact that these limitations were exceeded. Again, it
has simply offered an explanation that goes to mitigation of
any penalty assessed and does not constitute a defense to the
allegations.
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Therefore, the Board finds that the District has violated
Rules 901 and 404(f)(ii) and Sections 12(a),(b) and (f) of the
Act as alleged in these Counts.
COUNTS VIII, XVI AND XVII
In Counts VIII, XVI and XVII the Agency alleges that the
District failed to monitor for certain parameters as required by
its NPDES and State permits. However, Penny Bouchard, the coordi-
nator for industrial waste for the District, testified that
the District did in fact monitor for these parameters on a
weekly basis (R,960), and her testimony is uncontradicted.
While these reports were not filed in a timely manner, due
to the fact that the Agency’s forms did not include space for
this data, the data was submitted upon request (R,960—962),
While the District technically violated the filing require-
ment, that was not alleged.
The Board, therefore, finds that the Agency has failed to
prove the allegations contained in Counts XVI and XVII.
COUNTS XIV AND XXIV
In Counts XIV and XXIV the Agency alleges that the District
violated its oil and grease effluent limitations under its
NPDES and State permits. Again, these allegations are supported
by the DMR’s showing excessive discharges of oil and grease
during November and December, 1977, as well as March of 1978.
The District contends, however, that the testing procedures
which were required by the Agency and USEPA were simply wrong
and resulted in artificially high values.
Frederick Winter, Chief Chemist for the District, testified
that the Standard Method used by the Agency was in error, that
he modified it and obtained correct results (R,989-991). Further,
he unsuccessfully attempted to discuss this modification with
the Agency (R.991—995). He also testified that the District
was later approved by the Agency for wastewater analysis which
included approval of the modification, and that the District
has not been shown to violate these standards under the modified
procedures. The Agency has not rebutted these facts,
Therefore, the Board finds in this case that the Agency has
failed to prove the allegations of Counts (XIV and XXIV),
COUNTS XV, XXII AND XXIII
In each of these Counts the Agency alleges that the District
failed to submit timely reports of non—compliance regarding
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violations
of BOD5, 55 and NH -N standards which the Board
has found above. Complainant~s Exhibit 16, which includes
all reports of non-compliance filed during the relevant time
period fails to include reports of these violations, Again, the
District does not dispute the facts but simply offers an expla-
nation which does not serve as a defense.
The Board, therefore, finds that the Agency has proven
violations of Rules 501 and 901 and Sections 12(a),(b) and (f)
of the Act.
COUNT VII
In Count VII the Agency alleges that the District has
failed to enact an effective industrial waste ordinance.
However, H. William Byers, General Manager and Chief Engineer
of the District, testified that Respondents Group Exhibit No. 27
is a copy of the
District’s original industrial waste surcharge
ordinance which was enacted in 1971 and amendments to it (R,957).
He also testified
that the ordinance was approved by the USEPA in
1975 (R,958 and see Resp. Gp. Ex,28) and that over
one million
dollars has been collected under it (R.957), The Agency, on the
other hand, has failed to produce any contrary evidence.
The Board, therefore, finds that the Agency has failed
to establish the violations alleged in Count VII.
COUNT IX
In Count IX the Agency alleges that the District violated
its NPDES permit requirement to operate its facility in an
optimum fashion as indicated by the STP’s discharge of an
excessively high residual chlorine concentration. The District,
however, presented testimony to rebut this allegation.
Mr. William Franz, the Gurnee STP Superintendant, testified
that the STP was to have been built with an on—line chlorine
analyzer which used the titration method (R,966), However,
that apparatus was inoperative, and until it could be made
operational a HAC-Little color comparator—type kit was used
(R,966). Mr. Franz further testified that that kit gave
inaccurately high readings and that it has since been replaced
with an Ainpreometric Titrator which gives more accurate results
and which shows the STP’s chlorine residual discharge to be
within limits (R.967-968). Results with the new equipment are
about half of the results with the old equipment (R.970). He
finally testified that the plant was being run in an optimal
fashion (R,967),
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Again, based upon the lack of Agency testimony to rebut
this, the Board finds that no violation has been proven under
Count IX.
PENALTY
The Board must next determine what penalty, if any,
should be assessed for the violations found by the Board in
this proceeding. Despite the Board’s findings of violation,
the District has offered evidence in mitigation which is
properly considered in determining any penalty.
Count I: M~ile the Board has found that the District
discharged unacceptably high levels of solids, the District
contends that this resulted from operational problems associated
with the start-up of the STP and that all that could have been
done to minimize and correct the problem was done (R.834-905).
The Agency contends that the problem was foreseeable and could
have been handled better.
The Board finds that the Agency has done little more than
demonstrate that one can see with greater clarity with the
advantage of hindsight. The Board, therefore, finds that a
penalty would not aid in the enforcement of the Act. While the
District may have made some questionable decisions, there is no
real proof that it acted irresponsibly or that the imposition of
a penalty would result in a better response should such problems
arise in the future.
Count II: The Board has found, as stated earlier, that no
penalty is appropriate.
Count_IV: The Board has found that the District caused
$692.18 worth of fish to die due to its improper discharge.
While no penalty was found to be appropriate in Count I for the
discharge, the District is not relieved from responsiblity
for the harm caused to the fish by its discharge. Pursuant
to Section 42(b) of the Act, the District will be ordered to
pay that amount to the Wildlife and Fish Fund.
Counts VI,X and XVIII-XXIII: The Board has found that the
District failed to file DMR’s, industrial user and non-compliance
reports in a timely fashion, The District contends that the user
reports’ requirement is impossible to comply with due to the
lack of timely availability of necessary information (R.935—940).
With regard to the DMR~s and non-compliance reports, the District
contends that the requirements are overly burdensome and that
the time was better spent working on plant operations (R.973).
However, as the Agency points cut, there is no showing
that the District ever requested a modification of those
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requirements or a variance from this Board, These are the
proper
channels for remedying such problems. The District’s
unilateral decision to ignore State requirements cannot be
condoned, and the Board finds that a penalty is necessary to
encourage the District to follow proper procedures, and will
order
that the District pay a penalty of $1,000, While it is
certainly true that the taxpayers will ultimately pay this fine,
that too may aid in the enforcement of the Act, for the taxpayers
will quickly tire of paying higher taxes to pay the penalties
assessed against those responsible for violating the Act.
Counts XI-XIII,XXV and_XXVI: The Board has found that the
District discharged BOD
,
SS and NH -N at levels above thei.r
standards. The Distric~, however, ~resented uncontradicted
testimony that these violations resulted from a nitrification
problem that arose during December of 1977 and January through
March of 1978 (R,979), The STP had been designed for single—
stage nitrification and operated satisfactorily until the
weather turned cold (R.979). The testimony also shows that the
District took all steps that it could to remedy the problem
on a short—term basis and finally installed two-stage nitrifi—
cation, which apparently remedied the problem (R,980-985).
Thus, the question of imposing a penalty for these violations
is nearly the same as in Count I, and the Board again finds that
a penalty is not justified to aid in the enforcement of the
ACt.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter,
ORDER
1. The North Shore Sanitary District is found to have
violated Rules 403, 404(f)(ii), 501 and 901 of Chapter
3: Water Pollution, and Sections 12(a),(b) and (f)
of the Act,
2. It is hereby ordered that the District shall, within
45 days of the date of this Order, pay the amount
of $692.18 payable to the Wildlife and Fish Fund; and
that
3. The District shall, within 45 days of the date of
this Order, pay a penalty in the amount of $1,000,
payable to the State of Illinois, which is to be
sent to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois 62706
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IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
was~adopted on the
day of
_________
,
1982 by a vote
~
Christan L. Moff
9
Clerk
Illinois Pollutio~ ntrol Board
46—176
