ILLINOIS POLLUTION CONTROL BOARD
October 18,
1973
CITIZENS FOR A BETTER ENVIRONMENT,
)
AN ILLINOIS NOT—FOR-PROFIT CORP.,
v.
LT. COLONEL WILLIS S.
ROSING,
)
AS COMMANDING OFFICER, JOLIET
)
ARMY AMMUNITION PLANT;
BRIG. GENERAL LAURENCE E. VAN BUSIcIRK,
)
AS COMMANDING OFFICER, UNITED STATES
)
ARMY AMMUNITION PROCUREMENT AND SUPPLY
AGENCY;
JAMES R. SCHLESINGER,
AS SECRETARY OF
)
*72-464
DEFENSE; and
UNITED STATES OF AMERICA,
FORMERLY
CITIZENS FOR A BETTER ENVIRONMENT,
an
)
Illinois Not-For-Profit Corporation
)
v.
JOLIET ARMY AMMUNITION PLANT,
)
UNITED STATES ARMY PROCUREMENT
)
AND SUPPLY AGENCY
and
)
UNIROYAL,
INC., Operating Contractors,
a New York Corporation
PHILLIP MILLER, FOR CITIZENS FOR A BETTER ENVIRONMENT
JAMES
R.
THOMPSON BY
JAMES
K.
TOOHEY, ASSISTANT UNITED STATES ATTORNEY,
FOR RESPONDENTS
OPINION AND ORDER OF THE BOARD
(BY
MR.
DUMELLE):
This proceeding was initiated by the filing of a complaint on
December 12, 1972 by Citizens for a Better Environment,
a citizens’
group, against Joliet Army Ammunitions Plant, United States Army
Ammunition Procurement
& Supply Agency, and Uniroyal,
Inc.,
Operating Contractor,
a New York corporation.
Uniroyal, Inc. was
dismissed as a party Respondent by our July 19,
1973 Order.
The
original complaint alleged violation of the Environmental Protection
Act and the Water Pollution Regulations by Respondent, Joliet Army
Ammunition Plant,
in the following particulars:
9—
501
1.
Since June 25,
1971, violation of Section 12(a)
of the
Environmental Protection Act by the discharge of contam-
inants into the environment
so
as
to cause,
or tend to
cause, water pollution.
2.
Since July
1,
1972,
the discharge into the waters of the State
of materials containing deoxygenating wastes
in concentrations
violating Section 404(b)
of
the Water Pollution Regulations
of the Pollution Control Board.
3.
Since October 11,
1972,
the discharge into
the waters of the
State of materials containing concentrations
of mercury in viol
tion
of Section 408(c) (1)
of the Water Pollution Regulations.
4.
Since March
7,
1972,
failing
to submit operating reports
in
violation of Section
501(a)
of the Water Pollution Regu-
lations.
5.
Since March
31,
1971,
failing to report utilization of
mercury
in violation of Section 501(b)
of the Water Pollu-
tion Regulations.
6.
Since July
1,
1972,
failing
to
file
a project completion
schedule with respect to discharges of iron,
lead,
oil,
total dissolved solids and pH in violation of Section
l002(b)(i)
of the Water Pollution Regulations.
Respondents Joliet Army Ammunition Plant
and United States Army
Ammunition Procurement and Supply Agency, represented by
the United
States Attorney for the Northern District of Illinois moved to
dismiss the complaint on the grounds of sovereign immunity, failure
to consent
to
suit,
and that the named Respondents were not
legal
entities and not subject
to suit.
Complainant ~filed an answer
to
the
motion to dismiss to which Respondents filed
a reply.
The motion to
dismiss was denied by our order of March
15,
1973.
Respondents filed
a motion for reconsideration, which was taken with the case by our
May 17, 1973 Order.
Hearing was held on the complaint on May 23,
1973,
at which time
the United States Attorney appeared specially on behalf of the Res-
pondents reasserting their position that
the Board lacked jurisdiction
to consider this complaint for reasons
above stated.
Although the
hearing proceeded purportedly with the Respondents making only a special
appearance, the Assistant United States Attorney actively participated
in cross-examination of the complainant’s witnesses.
While we deem
such
action improper
in the circumstances, we will not construe it
as
a waiver
of respondents’
special appearance.
On June
29,
1973,
complainant moved for leave to amend its complaint by designating the
parties Respondent
as follows:
-2-
9
—
502
Lt.
Colonel Willis
S.
Rosing
as Commanding Officer,
Joliet A~rmyAmmunition Plant;
Brig.
General Laurence
E. Van Buskirk,
as
Commanding Officer, United States Army Ammunition
Procurement and Supply Agency;
Mr. James
R. Schlesinger,
as &cting Secretary of Defense;
and the United States of American, Respondents.
Complainant also moved
to amend paragraphs
2,
3 and
4 of the
original complaint limiting the violations
asserted in those paragraphs
to
tl1e period between the commencement dates alleged in each paragraph,
respectively, and December
1,
1972,
and moved to delete paragraph
6
relative
to reporting on the utilization of mercury.
Oral argument was held before the Board relating principally to
jurisdictional contentions and sovereign immunity.
Complainant’s
motion
to amend
its complaint was granted without opposition by
Respondents.
Oitr Order permitting the amendment of the complaint and dis-
missing Uniroyal
as
a party Respondent was entered on July 19,
1973.
On July 25,
1973, complainant filed its amended complaint.
On
August
20,
1973,
Respondents filed a supplemental memorandum in support
of their motion
to dismiss.
Since by our order
of May 17,
1973, we have taken with
the case
the Government’s motion for reconsideration of our denial of its
earlier motion to dismiss
the complaint,
this subject will be re-
viewed de novo
in this Opinion and Order.
Jurisdictional issues
raised
:i.n
this proceeding
ar.e matters
of first impression and of
extreme importance and difficulty,
and have not been exhaustively
analyzed in any prior proceeding.
Briefly
stated,
we are confronted
with the following issues requiring determination,
all of which must
be resolved before violations
of the Environmental Protection Act and
the Water Regulations can be
considered:
1.
Does
the defense
of sovereign immunity apply to the
Respondents
in the context of the instant
case;
2.
If
the defense
of sovereign immunity is
initially avail-
able, have
the government and its instrumentalities
nevertheless expressly,
or by implication, waived the
defense
of sovereign immunity with respect to the subject
matter of the present proceeding and submitted to State
jurisdiction and compliance with State water standards.
3.
If sovereign immunity has been waived
is the Pollution
Control Board the proper forum for adjudication of the
issue presented in the complaint;
-3-
9—503
4,
If sovereign immunity has been waived and the Pollution
Control Board
is
a proper forum for resolution of the
issues presented,
are the parties Respondent designated
by
the ai~iendedcomplaint properly subject to the Board’s
jurisdiction in view of the fact
that the amendment to
the complaint did not occur until
after the hearing had
been completed.
While the defense
of sovereign immunity
is available
to
the
United States Government and its instrumentalities
in the first
instance,
such
immunity
can
be
waived
by
action
of
the
sovereign.
See
State
of
Washington
v.
Udail,
417
Fed.
2d,
1310
and
cases
cited.
California
v.
Davidson
3 ERC 1157 U.S.
Dist.
Ct.
Nor.
Dist.
Calif;
c~QuntYof Milwaukee
v. Veterans ~
U.S.
Dist.
Ct.
East.
Dist. Wis.
The immediate
issue therefore, i~
to
ascertain
whether
such
waiver
has
occurred
and
whether
conseii
suit has been effected.
The
Federal
Water Pollution Control
Act
Amendments
of
1972
contain provisions
cited by both
sides
to substantiate their res-
pective positions.
(Citations
and
section
numbers
will
he
as
coritaine’J
in
U.
S.
Code Service, FCA Ed.
Title
33 Navigation).
Section
1323 provides
in part
as
follows:
1323.
Federal facillities pollution control.
--
Each
department, agency or instrumentality of the executive,
legislative and judicial branches of
the Federal Government
(1) having jurisdiction over any property or facility,
or
(2)
engaged in any activity resulting,
or which may result,
in the
discharge
or
runoff
of
pollutants
shall
comply
with Federal,
State,
interstate
and local requirements respecting control
and
abatement
of
pollution
to
the
same
extent
that
any
person
is
subject
to such requirements,
including the payment of reason-
able
service charges.
The President may exempt any effluent
source of any department, agency or instrumentality
in the
executive branch from compliance with any such
a requirement
if he determines
it to be
in the paramount interest of the
United States
to do
so, except
that no exemption may be granted
from
the
requirements
of
section
306
or
307
of
this
Act
(33
USCS
~l3l6 or 1317)...
-4-
9— 504
No suggestion has been made that Presidential exemption has been
granted with respect to any of the effluent emissions complained of
in the present case.
Section 1365 provides as follows:
1365.
Citizen suits
-
(a)
Except as provided in subsection
(b)
of this section, any citizen may commence a civil action
on his own behalf
--
(1)
against any person
(including
(1) the United States,
and
(ii)
any other governmental instrumentality or agency to the
extent permitted by the eleventh amendment to the Constitution)
who is alleged to be in violation of
(A)
an effluent standard
or limitation under this Act
(33 USCS §~1251—1376)or
(B)
an
order issued by the Administrator or
a State with respect to
such
a
standard
or limitation, or
(2)
against
the
Administrator
where
there
is
alleged
a
failure
of
the Administrator to perform any act or duty under
this Act
33
UScS
§~ 1251—1376
which
is
not discretionary
with
the
Administrator.
The
district
courts
shall
have
jurisdiction,
without
regard
to
the
amount
in
controversy
or
the
citizenship
of
the
par-
ties, to enforce such an effluent standard or limitation, or
such
an order,
or to order the Administrator to perform such
Act or duty,
as the case may be, and to apply any appropriate
civil penalties under Section 309(d)
of this Act
33
USCS §1319,
(b)
No
action
may
be
commenced
-—
(1) under
subsection
(a) (1)
of this section
—-
(A) prior to sixty days after the plaintiff has given notice
of the alleged violation
(1)
to the Administrator,
(ii)
to the
State
in which the alleged violation occurs, and
(iii)
to any
alleged violator of the standard, limitation, or order;
or
(B)
If the Administrator or State has commenced and is
diligently
prosecuting
a
civil
or
criminal
action
in
a
court
of
the
United States, or a State to require compliance with
the
standard,
limitation
or
order,
but in any such action in
a
court
of
the
United
States
any
citizen
may
intervene
as
a
matter
of
right.
(2)
under subsection
(a)
(2)
of
this
section
prior
to
sixty
days after the plaintiff has given notice of such action to the
Administrator,
except that such action may be brought immediately
after such notification
in the case of an action under this sec-
tion respecting
a violation of sections 306 and 307(a)
of this
Act
33
USCS §~1316,
1317(a).
Notice under this subsection
shall be given in such manner as the Administrator shall prescribe
by regulation.
(c) (1) Any action respecting a violation by a discharge
source of an effluent standard or limitation or an order respect-
ing such standard or limitation may be brought under this section
only in the judicial district in which such source is located.
(2)
In such action under this section, the Administrator,
if not a party, may intervene as a matter of right.
—5—
9— 505
(d) The court,
in issuing any final order in any action
brought pursuant to this section, may award costs of litiga-
tion
(including reasonable attorneys’ and expert witness fees)
to any party, whenever the court determines such award is
appropriate.
The court may,
if
a temporary restraining order
or preliminary injunction
is sought, require the filing of a
bond or equivalent security in accordance with the Federal
Rules of Civil Procedure.
(e)
Nothing in this section shall restrict any right which
any person
(or class of persons) may have under any statute
or common law to seek enforcement of any effluent standard or
limitation or to seek any other relief
(including relief
against the Administrator or
a State agency).
(f) For purposes of this section, the term “effluent standard
or limitation under this Act”
33
USCS §~1251—13761 means
(1)
effective July 1,
1973, an unlawful act under subsection
(a)
of Section
301 of this Act
33
USCS
§ 1311;
(2)
an efflue-~
limitation or other limitation under section 301 or 302 of t~:Ls
Act
33
USCS §~1311 or 1312;
(3)
standard of performance urLLur
Section 306 of this Act
33
USCS
§ 1316
;
(4) prohibition, efflue
standard or pretreatment standards under Section 307 of this Act
33
USCS § 1317;
(5) certification under section 401 of this
Act
(33 USCS §134;
or
(6) permit or condition thereof issued
under Section 402 of this Act
33
USCS
§ 1342;
which is
in effec
under this Act
33
tJSCS §~1251—1316
(including a requirement
applicable by reason of Section 313 of this Act
33
USCS
§ 1323
(g)
For the purposes of this section, the term “citizen”
means a person or persons having an interest which is or may
be adversely effected.
(h)
A Governor of a State may commence a civil action
under subsection
(a), without regard to the limitations of sub-
section
(b) of this section, against the Administrator where
there is alleged
a failure of the administrator to enforce an
effluent standard or limitation under this Act the violation
of which is occurring in another State and is causing an adverse
effect on the public health or welfare in his State,
or is
causing a violation of any water quality requirement in his
State.
(June
30,
1948,
c.
758, Title V,
§505, as
amended.,
Oct.
18,
1972,
P.
L.
92—500,
§2,
§6 Stat.
888).
Complainant contends that Section 1323 constitutes
a waiver of
sovereign immunity and consent
to State jurisdiction
so far as
the
Federal Government and its installations are concerned.
This section
provides that each department,
agency or instrumentality of the
executive legislative and judicial branches
of the
Federal Government having
jurisdiction over any property or facility shall comply with State
requirements respecting control and abatement of pollution to the same
extent as any person
is subject
to
suchi requirements.
Certain provi-
sions
for Presidential exemption are provided which have not been
promulgated
in
respect
to
the matters here in contention
or the
facilities
involved.
Respondents
contend that Section 1365
limits
citizen
su:its
to only those violations specified in 1365
and that
in
any event,
any suit brought thereunder must he filed
in the United
States District Court.
—6—
An analysis of these
two sections does not persuade us
that citizen
suits
are
limited
to
the
violations
described
or
venue
provided
in
1365.
This
sectior
relates to suits
alleging violation of effluent standards
or
orders promulgated or issued pursuant to the Federal Act.
It does
not
purport
to
foreclose
or
limit the coverage and capabilities available under
1323.
Indeed, Section
(e) of 1365 states
as follows:
“Nothing in this
section shall restrict any right
which any person
(or class of persons) may have under any
statute or common law to seek enforcement of any effluent
standard or limitation or
to seek any other relief
~including relief against
the Administrator or
a State
agency)
,“
providing
a square recognition that 1365 does not foreclose citizen action
that would be available in the absence of 1365,
and includes those actions
available against the Federal Government and its instrumentalities pursuant
to 1323.
The totality of both sections manifests that
1365
is
an alter-
native and not an exclusive remedy for citizen suits
and that
1323
is
available
for the type
of
action
presently
before
us.
Accordingly, we do not view 1365
as
a limitation on the
provisions
of 1323 either with respect
to
the scope
of the complaint or the juris-
diction
of the District Court.
Since the action is not based on 1365,
whatever limitations specified therein relating
to District Court juris-
diction are not applicable.
CgU~xRi~~
Davidson
3
ERC
1157
was
decided
by
the
United
States
District Court, Northern District of California,
on January
19,
1971.
The
State
of California brought
an action
•for injunction and monetary
relief against
the Commanding
General of Fort Ord Military Reservation
alleging
that
the operation of the Fort polluted Monterey Bay by dis-
charging sewage near the beach,
Violation of applicable
California Water
Quality Standards had been previously asserted in a cease
and desist pro-
ceeding brought before the California Regional Water Quality Control Beard
which had issued a cease
and desist order after hearing in which represent-
atives
of
the Fort had an opportunity to appear pursuant
to State Code.
Because of
the Fort’s failure
to comply with the provisions
of the cease
and desist order,
an injunction proceeding was initiated
in the Superior
Court of California and removed
to the United States District Court.
The defense of sovereign immunity was asserted
by
the Fort pu~rsuantto
motion
to dismiss.
The motion to dismiss was denied,
the court holding on the
facts of the case,
that the defense
of sovereign immunity was not available.
The court addressed itself
to the then existing provisions
of the Federal
Water Control Act, which provided
(Sec.
466(i)):
“Each federal agency.. .having jurisdiction over any
real property or facility,.. .shall, consistent with
the paramount interest of the United States as deter-
mined by the President,
insure compliance with applicable
water quality standards and the purposes of this Act.
.
-7-
9
507
The court noted that this section mandated all Federal Agencies
to comply with applicable water quality standards which legis-
lative history made
clear included both State and local regula-
tions.
The Court observed that while
the President could permit
noncompliance,
no such action had been taken and lacking such
Presidential
action,
any discharge by Fort Ord
in violation of
state or local water pollution standards,
exceeds
the specific
limitation
found in the
466i and renders
it subject to suit.
The Court concluded that Defendant’s motion
to dismiss on the
grounds
that
the
action
was
an
unconsented
suit
against
the
sovereign
should
be
denied
citing
State
v.
Udall~
417
Fed.
2d
1310.
The
present
case
is
an
a
fortiori
application
of
the
requirement
of
Federal
facilities
to comply with local
regulation.
The language
of 1323
is broader and more inclusive than previous
Sec.
456i and
provides
that
all
departments,
agencies
and
instrumentalities
of
all
branches
of
the
Federal Government, executive,
legislative and
judicial,
engaged
in
any
activity
resulting
or
which
may
result
in
the
discharge
of
pollutants,
shall
comply
with
State
and
local
requirements respecting control of pollution to
the same extent
that any person is
subject
to such requirements.
No
clearer state-
ment
o:E the Congressional intent could be made.
No exemption
is
provided
except
by Presidential Action.
California
v. Davidson
stands
as
square
authority for the subjection of
a military faci-
lity to State regulation of
its pollution discharges on the basis
of
Sec.
1323,
To
the
same
effect,
see
County
of
Milwaukee
v.
Veterans Administration Center
5 ERC
1421, U.S.
1)ist.
Ct.
East.
Dist.
Wis.
requiring
the
Veterans
Administration
to
comply
with
county
air
regulations
pursuant
to
Sec.
1857(f)
of
the
Clean
Air
Act
containing
the
same
provisions
with
respect
to
requirement
of
Federal compliance with State and
local
regulations
as
in
Sec.
1323
of
the Water Amendments.
The opinion in
California
v.
Stastny
4
ERC
1447
(U~S. Dist.
Ct.
Cen.
Dist.
Calif.)
cited
by
hespondents does not discuss
the doctrine of sovereign immunity,
notwithstanding
its
reference
to
Sec.
1857
of
the
Clean Air Act.
No reason is suggested for its holding and we believe the doctrines
expressed in the Davidson and County of Milwaukee cases
are
apposite.
Based upon the foregoing analysis,
it
is our view that by
Sec.
1323,
the United States Government has waived sovereign
immunity and consented to suit with respect to the matters speci-
fied therein.
Since the instant case
is not brought for violations
or relief provided in 1365, but for violations
of State standards,
the provisions
limiting suit
to actions
in the I)istrict Court are
not controlling.
Sec.
1323 subjects all departments,
agencies or
instrumentalities of
the executive branch of the Federal Govern-
ment to the jurisdiction of the State with respect to all State
requirements relating to
the discharge
of pollutants “to the same
extent that any person
is subject
to
such requirements.”
Analysis
-8-
9 —508
of
this
section
leads
to
the
inescapable
conclusion
that
the
Federal Government has subjected itself to not only
the substan-
tive limitations set forth in any relevant statutes and regula-
tions, but also to
the procedural provisions contained in such
regulations.
Procedure before the Pollution Control Board
is an
inherent
part
of
the
pollution
control
program
of
the
State
of
Illinois
to
which
“any
person”
would
be
subjected
for
violation
of the relevant regulations and statutory provisions.
We point out
that the Federal Government
is
a “legal entity”
as defined in Section
3(i)
and
is
therefore
subject
to
the
Illinois Environmental Protection
Act
and
to
Board’s
Rules
and
Regulations.
The
fact
that
the Federal
Government
is
not
specifically
defined
as
a
“person”
in
the
Illinois
Environmental Protection Act,
Sec.
3(i),
is no longer relevant in
view of provisions of Sec.
1323 subjecting the instrumentalities
of the United States Government
to
the
coverage
of
the
Act,
irre-
spective of whether in the absence
of 1323,
they might not otherwise
be
so subject.
Accordingly, we view 1323
as
a waiver of sovereign
immunity and consent
to State jurisdiction for violations
of the
State
Regulations.
The
section
likewise
subjects
the
Federal
Government to the procedural
aspects of the State environmental
program to the same extent that any person is subject
to such
requirements.
California
v.
Davidson 3 ERC 1157.
We do not believe
the citations
of the government are persua-
sive in the face of this provision nor is the characterization of
the Joliet facility as
a Federal fort controlling.
While Article
I,
Sec.
8, Clause 17 of the United States Constitution may invest
Congress with exclusive jurisdiction under such facilities,
it is
by
a Congressional Act
that sovereign immunity is waived and sub-
mission
to the State Pollution Control Regulations
is effectuated
relative to pollution violations.
It should be noted
that the
facility in California v. Davidson was Fort Ord.
Clearly, the
language of Sectfon 1323 covers all instrumentalities of the
Federal Government and does no more than subject
the Federal in-
stallation’s pollutional discharge to State statutes and procedures.
This
in no way is
a relinquishment of authority over Federal
installations, but rather a submission
to state jurisdiction of
one limited aspect of the facility’s operation.
What
is complained
of
is the pollutional discharge by Respondent into the environ-
ment.
The effluents complained of while generated on the Federal
facility are creating their harm and damage to
the environment
“in the waters of the State of Illinois” and ultimately outside
of the Federal reservation.
What
is subject to control
is not
so much what takes place
on the reservation as
the impact of
such activities beyond the jurisdiction boundaries
of the
reservation.
This
is precisely the type of violation to which
1323 is designed to apply.
Nor are we persuaded that because
the Illinois Attorney
General elected to file
a proceeding against the same Respondent
in the United States District Court for violation of the Clean Air
Act that this constitutes
a recognition that
the present pro-
ceeding before the Pollution Control Board
is considered improper
by him.
Many proceedings
that
are cognizable by the Pollution
-9-
9— 509
Control Board in the first instance have,
at the election of
the Attorney General, been brought
in State or Federal Courts
in lieu of an administrative proceeding before the Board.
The
fact
that the Attorney Gemeral may have
a multiplicity
of options
as
to how he proceeds should not be construed as
a recognition
that any particular avenue of approach is unavailing.
Further-
more,
the case cited by Respondents
is
a suit for violation of
the Federal Clean Air Act for which Federal jurisdiction would be
more appropriate than before
a State administrative Board.
The
present case
is one involving violation of State standards with
respect
to which the Pollution Control Board has clear and un-
questioned statutory
authority.
We hold that the Board has
jurisdiction
to consider the complaint filed.
The last remaining jurisdictional question relates
to
the
status of the parties.
The
original complaint was brought against
Joliet Army Ammunitions Plant, United States Army Ammunition
Procurement ~ Supply Agency and Uniroyal,
Inc.,
Operating Con-
tractor,
a New York corporation.
By order of the Board entered
July 19,
1972,
the parties Respondent were changed to:
Lt.
Colonel Willis S.
Rosing,
as commanding officer
Joliet Army Ammunition Plant;
Brig.
General Laurence
E.
Van Buskirk,as
commanding officer
United States Army Ammunition Procurement and Supply Agency;
James
R. Schlesinger
as Secretary of Defense
United States of America.
This amendment occurred after hearing
on the original complaint.
We must
agree with Respondents that the
foregoing designation was
not a mere amendment of the complaint
to cause
it
to conform to
proofs
or the correction of
a misnomer.
New parties
were substi-
tuted for those originally complained against and the issue
that
must be resolved
is whether due process considerations mandate
their dismissal
as
no violations have been expressly asserted
against them until
after the hearing.
We
are constrained to hold that to
the extent Lt.
Col,Rosing,
Brig.
General Van Buskirk, and James
R.
Schlesinger, have been
designated
as parties respondent, the charges
against them must
be dismissed.
The amended complaint alleges that
these Respondents,
by their actions, have violated the statutory provisions
and regu-
lations
complained of.
Since they were not apprised of this
suit
until
after the hearing,
they must be dismissed.
Whether
they are
charged in
an individual or representative capacity
is not con-
trolling.
The Board’s order would be directed to them and they
have not had an opportunity
to respond to the charges
asserted.
However, we
do not believe
the same conclusion
is necessary so
far
as the United States of America is
concerned.
The original
proceeding was against the Joliet Army Ammunition plant
and the
United States Army Proc.
E~ Supply Agency.
These
agencies are
-10-
9—510
unquestionably facilities
of
the United States Government.
As
stated in Respondent’s brief, page
7
“.
.
.
(R)
regardless of the
character of the proceedings,
an action against an Agency or
department of
the United States
is,
in fact,
an action against
the United States.”
We feel
that
so far as
the change in plead-
:Lngs
is
concerned,
the United States of America has been before
the Board throughout the entire proceeding and has been repre-
sented by counsel.
All actions by way of motion and participation
in the case by the United States Attorney have been on behalf of
the United States of America.
Accordingly, we believe
that
the
United States
of America has been before the Board throughout
the entire nroceeding
and that the change in caption
is
not
prejudicial
to
it.
No due process questions arise by virtue
of
this change in designation,
so far as
the Government
is
concerned.
This
is particularly true
in view of the relief sought by the
complaint.
Complainants seek,
among
other things,
the entry of
a cease and desist order which could be directed against the
United States should we find the allegations of the complaint
proven.
It may be
that if such an order
is entered against
the
United States an ancillary proceeding would be necessary to
achieve enforcement,
at which time the Board’s order would be
directed to these
individuals specifically mandated with the
operation of the facility.
The last remaining issue
is whether in view
of
the special
appearance filed by the United States Government and the instru-
mentalities originally charged, and the failure of the Government
to
participate
in
the
hearings,
we
are justified in entering a
definitive order on this
state of the record should violations
be found.
Our original order of March 15, 1973 denied the
Government’s motion
to dismiss.
The Government moved for recon-
sideration.
Our order was that the motion be taken with the
case, manifesting a definite intention on our part that while
we would keep the matter
of sovereign immunity and jurisdiction
open for consideration, we intended that matter proceed to hear-
ing.
The Government
appeared specially at the hearing, but
elected not
to participate in the proceeding.
We believe
that the
Government has made
its election to stand on the jurisdictional
question in the face of
Complainant’s
proof.
Opportunity
was
given
to refute the allegations and evidence made by complain-
ants
at
a hearing in which the Government chose not to participate.
We believe on this
state
of the record, we may move forward for
a consideration of the merits
of the allegations by complainant
and a determination
as
to whether violations have taken place
as
charged.
The Joliet Army Ammunition Plant
is conceded by
all parties
to be
a facility of the United States of America.
Various forms
of ammunition, TNT and other explosives
are manufactured there.
-11-
9—
511
While Uniroyal,
Inc.
is alleged
to be the operating contractor,
the amended complaint asserts no violations
attributable
to it,
and
our inquiry will be directed entirely to the ammunition
plant facility as
a governmental agency.
The Environmental
Protection
Act
attaches liability to those causing
or allow-
ing pollutional discharges
(Sec.
l2a).
There
is no contention
that the government does not control the facility or does not
possess the capability
of limiting the activities occurring on
the reservation.
Accordingly,
such pollutional discharges
as
do occur are expressly attributable
to the United States of
America.
Complainant’s case
is premised essentially on the applica~
tion for permit
to discharge or work
in
navigable waters,
dat~H.
June
25, 1971 and amended in October,
1972 with respect
to
Outfalls
006,
007 and 008,
to reflect effluent measurements
based on water samples
taken July
27, August
3 and August
10,
1972
(Comp.
Ex.
2).
Complainant’s witness Bohner made an analysis of the permit
data with respect to the effluent discharge applicable
to each
outfall located on the subject property and tributary to
the
Des Plaines and Kankakee Rivers
(R.
113 and following).
His
methods of computation and analysis are reflected in the record.
A summary of his testimony
is graphically depicted in the
following chart:
-12-
9—512
CONSTI-
OIL
&
UENT
BOD
TDS
TSS
IRON
LEAD
~~(CURY
GREASE
pH
STATE
EFFLUENT
STANDARDS
14/L
Rule
20
R.404(b)
3500
R.408
27
R,404(b)
.20
R.408
0.1
R.408
0.0005
R.408ci
15.0
R.408
5—10
R,408
OUTFALL
Creek
Tributary
To River
~ax.4
Daily Av.
3 641
~
71fl”
~1da~,
Av
001
ackson
Despaixies~ines
36
21
~
1,200
1.133
1.300
0.004
QL.Q.Q2.._...
0.012
0.001
0.000
0
8.4
5.3
9.2
002
ackson
Desp~~ines
3
~
515
~
52
‘2’~”~’~’
1.003
2.500
0.005
0.048
0
0
5.2
15.7
003
004
005
Grant
Grant
Grant
Despia~i~esines
Desp.ainesines
~
Max.l6
~~!iA~3
~
2636
538
461
~-~-~—--—
1228
105
T’
66
~
74
1.617
1.100
0.900
~
0.733
0.044
0.013
0.005
0.025
0.019
0
0
0
0
0
~,,.
5.0
4.5
7.0
4.4
2.5
4.3/
006
Prai—
ne
Kankakee
Max.32
~
834
780
~~‘‘
230
3.100
1.507
0.170
0.110
0.00083
0.00038
1.0
1.0
.
007
rord~n
~2~l
Prai’-
Kankakee
Max.60
~
Max.l5
564
548
930
254
186
T7~~
1.400
0.900
8.000
0.170
0.120
0.170
0.00045
0.00254
0.0195
1.0
~
1.0
-
008
ne
Kankakee
658
4.200
0.130
0,00658
1.0
COMMENT
002
TSS Max. t’ounds
per day 5567 Av/ prunds
2375 per day.
003
TDS Max P/d 1796, Av P/d 987
TSS 117
37
004
TSS Max P/D 5727 Av. P/D 2416
005
BOD Max P/D 1204, TSS Max P/D 5066
Av. P/D
2027Av. P/D 202 pH violation
006
Mercury violation potential
007
Mercury violation potential
008
Mercury violation
In addition,
the evidence of witness Denning
(Compl Ex.
6)
evidences characteristics of turbidity particularly
in Grant
Creek.
From
the
foregoing
evidence, uncontested by the govern-
ment,
it
is manifest that complainant has established its burden
of proof with respect
to water pollution,
deoxygenating waste
and mercury violations
alleged in the complaint.
Water pollution
violations are established
by
the
quantities
of
BUT)
and
suspended
solids discharged daily into the tributaries of the Kankakee and
Des Plaines
Rivers.
Complainant’s witness Bohner
(R.
141)
testified
to
the
following
maximum
and
daily
discharges
of
BUD,
TDS and TSS in pounds per day into the Kankakee and Des Plaines
River:
DAILY
MAXIMUM
DAILY AVERAGE
BUD
1205
424
TDS
1796
987
TSS
17562
7286
In addition, Complainant’s witness Denning of the Illinois EPA
testified to his observations of Grant
Creek below Respondent’s
discharge observing excessive turbidity and high discoloration
(Complainant’s Ex.
6)
and noting that there were no other dis-
charges
into Grant Creek than those of Respondent.
It was his
belief that the pink
discoloration
was attributable
to Alpha TNT
(Complainant’s
Ex.
8) manufactured and discharged by Respondent
upstream from
the point
of discoloration.
We
believe
that
the
average daily discharges
o:F
BOl) and suspended solids
are of
a
sufficient magnitude
and character, which when coupled with the
turbidity
and discoloration above stated,
constitute violation
of
Section
12 (a)
of
the
Environmental
Protection
Act
in
the
causing
or
allowing
the
discharge
of
contaminants
so
as
to
cause
or
tend
to
cause
water
pollution
as
therein
defined,
The
Board
finds
that
Respondent’s
BUD
discharge
from
Outfall
007
are
in
excess
of
the
limits
found
in Section 404(a).
Additionally,
the Board
finds
that suspended solids discharged from all
o:F Respondent’s
outfalls except 001 exceed the limit
of Section
404(a)
.
Complainant
did not allege
a violation of Section 404(a),
therefore,
the Board
cannot find a violation of Section 404(a).
However,
the Board
finds
that such discharges
in excess of Section 404 (a) cause or
tend
to
cause water pollution and thus constitute
a violation of
Section
12(a)
of
the
Environmental
Protection
Act.
Complainant
in paragraph
4 of the Amended Complaint alleges
that Respondent has discharged deoxygenating wastes
in violation of
Section
404(h) which regulates effluents with an untreated waste
load
of
10,000
population
equivalents
(PE)
or
more
subject
to
certain
exceptions.
While
the discharge from Outfall 007 is
in violation
of Section 404(a),
it has not been shown to be
in violation of 404(b) be-
cause
Complainant
has
failed
to
prove
it
represents
a
waste
load
14-
.9
—
514
of 10,000 PE.
Respondent’s Outfalls
002,
004, and 005 discharge
in
excess of 10,000 PB
of suspended solids per day and therefore are
subject to Section 404(b); but Complainant failed to allege
a violation
of Section 404(b)
as
to suspended solids.
For these reasons the
allegations found in paragraph
4 of
the Amended Complaint are not
proven.
Mercury discharges from Outfall 008 are greatly in excess
of
relevant limits constituting violation of Section 408(c) (1),
and
sustain the allegations of paragraph
5
of the Amended Complaint.
While not subject
to express regulatory limits
since the parameters
are not measured in pounds, but rather in mg/l,
it
is, nevertheless,
noted that witness Bohner testified that Respondent’s plant dis-
charges
an average
of
7,268 pounds of suspended solids and a maximum
of 17562 pounds of solids each day
(R.
142).
Complainant’s Exhibit
10
substantiates paragraph 6 of the Amended Complaint, which
asserts
that Respondent has failed to comply with Section 501(a)
requiring the filing of operating reports.
Furthermore, the
above summary of effluent data confirms that Respondent
is dis-
charging concentrations of suspended solids,
iron,
oil, dissolved
solids,
lead and
pH
in concentrations exceeding the limits of
Section 408, which require
the filing of a project completion
schedule.
No schedule has been filed.
The Board finds
this
to
constitute
a violation of Section l002(b)(i).
From the foregoing,
it will
be
seen that Respondent, Joliet
Army Ammunition Plant,
a
facility
of
the
United
States
Govern-
ment has violated the relevant statutory provisions and regu-
lations
as
asserted in the complaint.
Obviously,
the objective
of this proceeding
is not to impose
a monetary penalty but
to
assure compliance.
In addition, evidence of the alleged violations
is premised almost entirely on data furnished by Respondent.
We
will direct that Respondent, United States Government,
in the
operation
of
the
Joliet
Army
Ammunition Plant,
cease and desist
the
continuing
violation of the statute and regulations,
found to
have
been
violated
in
this
proceeding.
This
Opinion
constitutes
the
findings
of
fact
and
c~nclu-
sions
of
law
of
the Board.
ORDER
IT
IS
THE
ORDER
of
the
Pollution
Control
Board
that:
1.
Respondents,
Lt.
Colonel
Willis
S.
Rosing,
Brig,
General
Laurence
E.
Van
Buskirk
and
James
R.
Schlesinger,
are
discharged
from
the
complaint.
2.
The
United
States
of
America,
in
the
operation
of
its
Joliet
Army
Ammunition
Plant,
shall
on or before December 1,
1973,
cease
and
desist
from
violation
of
the
following
statutory provi-
sions
and regulations:
-15-
a.
Section 12(a)
of the Environmental Protection Act
with respect to the causing or allowing
of the discharge
of
effluent
so
as
to
cause or tend
to cause water pollution.
b.
Section 408(c)(i)
of the Water Pollution Regulations
respecting
discharges
of mercury in concentrations
in violation
of said section.
c.
Section 501(a)
of the Water Pollution Regula-
tions
requiring the filing of operating reports.
3.
The United States of American,
in the operation of its
Joliet Army Ammunition Plant, shall file
a Project Completion Schedule
in compliance with Section 1002
of the Water Pollution Regulations,
within 120 days from the date of this Order.
Mr. Henss dissents.
I, Christan
L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Order was adopted on the
/5’IPJ
day of October,
1973 by a vote
of
~./—
/
c2X~
~
~
Christan
L. T~ffe?t/~lerk
Illinois Pol1ution~Control Board
-16-
9—516
