ILLINOIS POLLUTION CONTROL BOARD

July

12,

1979

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 78—130

CITY OF JOLIET,

a municipal

corporation,

R3s1ondent.

Mr. William Blakney, Assistant Attorney General, appeared for

the Complainant;

Mr. Nicholas

E.

Sakellariou, Assistant Corporation Counsel,

appeared for the Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr. Young):

This matter comes before the Board on

an Amended Complaint

filed by the Environmental Protection Agency on July

11,

1978,

alleging that the City of Joliet’s East Side Sewage Treatment

Plant was

in violation of its NPDES permit and Sections 12(a),

12(b)

and 12(f)

of the Environmental Protection Act and Rules

901 and 910(f)

of Chapter

3:

Water Pollution Regulations.

In

Counts

I and II, the Amended Complaint alleged that the East

Side Plant exceeded its NPDES permit limitations

for BaD5 and

total suspended solids

(TSS)

for the months of February and

March,

1978.

Count

III charged

that the Respondent failed to

report February and March excursions within

5 days as required

by its NPDES permit and in Count IV the Complainant alleged

that the Respondent filed a false report to the Agency in

violation of the terms of its NPDES permit and Rule

910(f)

of Chapter

3.

On August

9, 1978, the City of Joliet filed a Motion to

Dismiss and submitted an Affirmative Defense attached to an

Answer

to Complaint.

In the pleading entitled

“Motion to

Dismiss,” the Responcent admitted to violations of the terms

in its NPDES permit and stipulated that the February,

1978

Discharge Nonitoring Report

(DMR)

and the February,

1978

Sewaqe Treatment Works Operation Report

(SOR)

,

which were

sent to the Agency’s Maywood office contained erroneous

data.

Respondent claimed this action should be dismissed because

the report submitted to the Maywood. office was

an unofficial

report that did not constitute

a violation of Rule 910(f)

of

Chapter

3.

On August 14,

1978,

the Agency responded with an

Objection to Motion to Dismiss and a Motion to Strike the

Affirmative Defense.

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—2—

Count IV of the Complaint alleges that the Respondent

submitted

a false Discharge Monitoring Report in violation of

Rule 910(f)

of Chapter

3 and the terms of the Respondent’s

NPDES permit and requests that the Board impose

a penalty

pursuant to Section

42(a)

of the Act.

Rule

910(f)

imposes no duty on the Respondent;

the

rule contains a delegation of authority to the Environmental

Protection Agency to establish recording,

reporting, monitor-

ing and sampling requirements in NPDES permits and requires

that the Agency include such requirements

as conditions

in

the NPDES permit issued to a holder.

Knowing submission of false information under any permit

or term or condition thereof

is

a Class A misdemeanor under

Section

44 (a)

Section 44 (b) provides that it

is

a criminal

offense for any person knowingly to violate subsection

(f)

of Section 12 or any provision of any regulation, standard

or filing requirement adopted. under Section

13(b)

or Section

39(b)

,

or any NPDES permit issued under the Act, or term or

condition thereof.

Any person convicted of

such violation

may be fined not more than $25,000.00 per day and an individual

convicted may be sentenced to imprisonment not

to exceed one

year.

Section

44(c)

provides that it

is

a criminal offense

for

any person to knowingly make a false statement

in

a report

required by the terms of an NPDES permit.

Any person convicted

of such violation shall be fined not more than $10,000.00

and,

in addition, any individual convicted of such violation may

be

sentenced to imprisonment not to exceed six months.

Section

44(e)

provides that a corporation may be held responsible for

any Section

44 offense;

44(f)

defines the term “person” to

include both the definition in Section

3(j)

of the Act and

Article

5 of the Criminal Code.

Section 44(g)

provides that

any action under Section 44 be conducted in accordance with the

code of Criminal Procedure,

adopted. August 14,

1963,

as amended.

Despite the fact of the Board finding that the allegation

of

a violation of Rule 910(f)

is not proper here,

filing of

a false report is ~ violation of the Act and actionable under

Section

44.

Because the Board has no jurisdiction under

Section

44, Count IV of the Complaint must be dismissed and

we hold that the submission

of

false information or false

reports under the Act or our regulations is actionable only

through the provisions

of Section 44.

Accordingly, Count

IV

is hereby dismissed.

The Board will

defer the matters raised in Respondent’s Affirmative Defense

to be discussed with the evidence

in mitigation.

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—3—

The City of Joliet owns and operates the Joliet East

Side Sewage Treatment Plant which is authorized

to discharge

a design flow of 22.5 MGD with an effluent quality of

20 mg/i

BOOr and

25 mg/l total suspended solids to the Hickory Creek

ups~ream from the DesPlaines River.

The discharge limitations

are contained with other effluent limitations and monitoring

and operational requirements

in NPDES Permit IL0022519 which

was issued to the Respondent on June

30, 1977,

by the USEPA.

(Complainant’s Exhibit A)

In testimony at the hearing,

the City of Joliet revealed

that both comminuters had experienced mechanical breakdowns

and had problems with its settling tanks

in its treatment

system during

a period extending from January through March,

1978.

The comminuters were out of service

for these three

months while both were being repaired at a foundry

at

a cost

of $18,000.

During this period,

the City of Joliet implemented

interim measures which included increasing the sewage flow rate

at its East Side Plant causing significantly higher BOD~and

total suspended solids effluent levels.

The revised February

DMR submitted to the Agency on April

7,

1978,

indicated that

the BOI)5/TSS effluent concentrations were 24.1 mg/l and 138.5

mg/i respectively.

(Complainant’s Exhibit C,

Respondent’s

Exhibit

#2)

While the City cf Joliet implemented interim measures

to

reduce the

impact of the mechanical

failures, the record dis-

closes that the Respondent made no affirmative effort

to contact

or inform the Agency of the casualty.

Information in the record

indicated that the East Side Plant exceeded the limitations of

its NPDES permit early

in February,

1978.

However,

the Respondent

did not submit

a report to

the Agency about this excursion until

April

4,

1978,

when it responded to an Agency Compliance Inquiry

Letter.

(Complainant’s Exhibit F, Respondent’s Exhibit #2).

The CiLy of Jolict stipulated that

iL exceeded its effluent

limitations

in

its NPDES permit during February and March,

1978

and that it failed to report the excursions within the 5-day

limitation as required by its NPDES permit.

(R.

6—7, Complainant’s

Exhibit

#1, Responses

4-9).

In view of these admissions and

the evidence

in the record, the Board finds the City of Joliet

in violation of Sections

12(a),

12(b)

and 12(f)

of the Act

and Rule

901 of Chapter

3,

for discharge of effluent in con-

centrations exceeding the terms of the NPDES permit and for

failing

to report the casualty

in violation of the terms and

conditions

of its NPDES permit.

Before considering the penalty provisions of the Act, the

Board will review Respondent’s case

in mitigation pleaded in

its Affirmative Defense and submitted as testimony during the

hearing.

The recoru indicates that the Respondent worked

diligently and expended a sizable amount of money

to correct

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—4—

the mechanical failures and implement interim measures to

minimize the extent of the casualty.

However,

the City of

Joliet failed to notify the Agency or outline the problems

and the proposed remedial action

in writing until April

4,

1978.

This conduct is in direct violation of Respondent’s

NPDES permit, Attachment B, General Condition

#9 on page

10.

(Complainant’s Exhibit A).

In defense of its failure to comply with the permit

requirements, Respondent’s Superintendent

of the East Side

Plant claimed that he

did. not know of the notice requirements

at the time of

the excursion.

The record also indicates that

Respondent’s Superintendent neglected

to submit the January

and February DMR’s until April

7,

1978,

because of his mis-

interpretation of an Agency letter.

The Board realizes that

honest mistakes do occur, but such failures to comply with

explicit requirements of the permit will not constitute a

defense to the resulting omission.

(R.

36,

51-54)

In considering this case in light of Section 33(c)

factors,

the Board notes that the violations

of the permit effluent

limitations were the result of mechanical failures

in two

identical devices;

such simultaneous failures are not normally

anticipated.

However, the Respondent

is also in violation of

its NPDES permit requirements for failing

to comply with the

reporting requirements.

The social and economic value or

the suitability of the site are not

in question in this case.

Although compliance with the NPDES permit requirements as

to

notice arc technically practicable and economically reasonable,

the Respondent did not promptly report any casualty or excess

discharges of pollutants to the Agency

as required by

the permit.

These practices are not only potentially damaging to the

effective operation of the NPDES permit program and the Water

Quality Monitoring Program but prevent the Agency from providing

an appropriate response to alert downstream users and public

water supplies of potential hazards resulting from such dis-

charges.

In view of our findings,

the Board finds that

a penalty

for violation

of

the effluent limitations

in this case

would

not

aid

in

the

enforcement

of

the

Act.

Flowevcr,

the

Board

will

assess

a

penalty of

$500.00 against

the

Respondent

to

ensure that the reporting requirements will be followed

in

the future.

This Opinion constitutes

the Board’s findings of fact

and conclusions of law in

this matter.

ORDER

1.

Respondent, City of Joliet,

is found

to

be

in

violation

of

SectionE

12(a)

,

12(b)

and 12(f)

of

the

Environmental

---

—5—

Protection Act and Rule

901 of Chapter

3:

Water Pollution

Regulations for discharging effluent in February and March,

1978, from the Joliet East Side Sewage Treatment Plant in

violation of the applicable NPDES permit and for failing

to

report such discharge as required by the terms of the permit.

2.

The charge against the Respondent, City of Joliet,

alleging violation of Rule

910(f)

of Chapter

3

is hereby

dismissed.

3.

lEn accordance with this Opinion, Respondent, City

of

Joliet,

shall pay a penalty of $500.00 within 35 days of this

Order.

Payment shall be by certified check or money order

payable to:

State

of

Illinois

Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield,

Illinois

62706

IT IS

SO ORDEREr.

I, Christan L. Moffett,

Clerk of the Illinois Pollution

Control Board, here~ycertify the abo e Opinion and Order were

ado~~~

/r~ ~

-

day of

___________,

1979, by

a vote

Illinois Pollution

1

Board