ILLINOIS POLLUTION CONTROL BOARD
November 11, 1971
FLINTKOTE CO.
)
)
v.
)
*
71—68
)
)
ENVIRONMENTAL PROTECTION AGENCY
)
Mr. Edward Benecki, for Plintkote Company
Mr. Delbert D. Ilaschemeyer, for the Environmental Protection
Agency
Opinion and Order of the Board
(by Mr. Currie):
Flintkotc’ cperates a felt nil
in Mt. Cannel, at which
pulpwood and waste paper are made into felt Lor ultimate
manufacture into roofing materials.
Waters used in the process
accu~tulateconsiderable quantities of oxygen-demanding solid
cont~mJisants,
the
largest of which z!re removed by screening before
the discharge to the Wabash River of that portion of the effluent
(perhaps 1/3) which is not reused
(R.
226-32).
The discharge is
quite considorable:
The amended petiticn gives the results of
sampling on March 3,
1971 as indicating a DOD of 583 parts per
million,
cOD
of 1,654, and suspended solids of 754, in an average
flow of 350,000 gallons per day.
Rules and Regulations SWI3—9, adopted
in final form in 1968,
prescribe a maximum BOD of 40 ppm and suspended solids of 45.
The company concedes that
“we
have since 1968 known we were in
violatien of tile standards”
(R.
415).
Flintkote was notified in
1968 that its deadline for compliance was July, 1970
(R.
408);
we view this notification as in effect the grant of a variance
allowing discharges
in excess of regulation limits
unt.il July,
1970, on condition that the inter.m dates of the rcgulation for
submission
of
plans
18
months
in
advance
and
the
award
of
construction
contracts
12
months
in
advance
be
met.
Preliminary
talks
on
the subject of discharging company wastes
to
the
City’s
sewers
seem
to
have
begun
in
early
1968,
whcm
the
City told ?lintkote it
would
“try
to
ascertain
whether
we
cou3.d
accept then”
(11.
288).
flintkote adviced the Sanitnry Water roard
that the City was studyilig the ?robl~
(:~.
405) and hired.~s
consultant
whose
October
1968
rerost g;catcd
U-sat
tffc
ccxt;:ar~,‘a
waste
was suitable for biological treatnont but that “the trenendous
hydraulic load and the contaminants
iii
it would ju3t make it almost
impractical
fox
the
city
to
c~cea~tI I
~Lther4’:
pretreatment.”
Then,
having
decided
that pretreatment and discharge to the
city
for
final
treatment
was
the
answer,
the
company
seems
to
have
left
the
question
of
its
compliance
entirely
up
to
the
City
for quite some time.
As the General Manufacturing Manager
testified,
“then we have a gap in here.
.
.
.Even before that
from 6/21/6 8 until 11/4/70 no communication with any ageney
or governmental body”
CR.
409).
The Mayor testified that after
his January letter promising to study the problem “I don’t believe
that we had any
official
meetings
or
anything
like
that
during
1968”
CR. 294).
When the Citt got around to making its promised
study
is
discussed
below.
It
is clear that Flintkote did nothing
until
1971
to
stimulate the City to action.
Moreover, the company
concedes that it did not comply with the specific conditions of
the Sanitary Water Board’s letter setting its timetable with re-
gard to the filing of periodic progress reports and
pretreatment
plans
(R. 454).
On
November
4,
1970,
the
Agency
warned
Flintkote
that
immediate action should be taken, since the discharge continued
greatly
in excess of regulation limits
CR.
409).
At that point
serious negotiatIons with the City began, with an unsuccessful
meeting in February 1971 and with the City’s May 19 oral agree-
ment in princinl.e, confirmed by letter in June, to accept for
treatment a flow of not over 500,000 gallons per day containing
up to 864 ppm BOD and 960 ppm sus:ended solids
(R.
412).
At the
time of the hearing in late Septenber no contract had yet been
signed, apparently bscause of a aisagreemcnt
over
the
definition
of
surges that must be prevented by pretreatment
CR.
417)
•
Since
then we have received a copy of an October 28 letter from the
company to the Agency stating that, after adequate pretreatment
is provided, the City has agreed to accept not over 3600 pounds per
day of BOD and 4000 pounds per. day of suspended solids, at flows
not to exceed 425 gpm, 25,000 gal/hr, and 500,000 gpd.
But the signing of a contract will by no means put an end to
Flintkote’s unlawful discharge, for the City is in no position
to take flintkote’s wastes in the near future.
The present
municipal treatment plant provides only primary treatment,. although
SWB-9 required secondary tc be provided by July 1, 1970, a fact
of which the City was admi.ttedly notified in September,
1967
(R.
249A-249B).
The City hired
a consultant (the same firm hired
by Flintkotc)
to prepare a study of what was needed to comply with
SWB-9; this study, requested before discussions with Plintkote and
not providing for treating the company’s waste, was received in
April 1968 and reccamencted that a million-dollar secondary plant
be built
CR.
300).
Upon receiving this report the City admittedly
put it on the shelf; without so much as asking the Sanitary W4ter
Board for an extension or other variance, the City decided that
“We coultln’t in good conscience try to sell that program to
the residents of thi:~city” bacause City officials believed the
referendum for necessary
bonds would not pass
CR.
254).
“So,
frankly,” the Mayor testified,
“we didn’t take any action as far
as meeting the July 1,
1970 date”
CR.
302).
3—32
The city next appeared in January, 1971, when it was sent
a’ letter bt the Agency threatening to bring it before the Board
for failure to comply with SWB—9
CR.
257).
Only then, and after
the February meeting with Flintkote noted above, did the City
for the urn
time authorize a study of what facilities would be
needed to enable the City to accept and treat Flintkote’s wastes,
the study it had agreed to make in January, 1968
CR. 286-87).
This study recommended a larger plant for a cost of $2,000,000.
The consultant testified that if design began October 1 of this
year, it would take about five months;
that obtaining permits
would require up to 90 days thereafter, advertising for bids
and awarding contracts two more months, and construction 19 to
24 months more, so that compliance with the July .1970 require-
ments would be achieved some time between February and August
of
1974
(R.
315—19).
In this unhappy, situation the issue before us is an
unfortunately narrow one:
whether or not to grant Flintkote a
further variance, as requested in its petition of March 31, 1971
and later amended, to allow a continued discharge with impunity
during the construction of the City’s secondary plant.
The
question of money penalties is not before us
,
for the Agency
flatly stated in the pte-hearing conference that if such matters
arose a separate proceeding would be filed
CR. 24-25).
The
question of the City’s compliance with its own schedule is likewise
not before us, since the hearing officer denied the Agency’s
motion that the City should he made a party
CR. 46).
We think
the motion should have been granted, since an order binding Plintkote
alone would not assure that the company would meet its schedule,
the bulk of the work having to be done by the City.
But in light
of our disposition of the case as a whole we thinx no purpose
would be served by ordering the City made a party no~i.
The requested variance must be denied.
A variance is a shield
against prosecution;
the record here indicates that Flintkote has
.unreasonably and inexcusably brought about
a four—year delay in
meeting its obligations under the pollution laws, and it is not
entitled to be protected against prosecution with its risk of
money penalties.
In cases in which a petitioner has presented
a tardy but otherwise adequate compliance program, we have on
occasion granted a variarcc to the limited extent of approving
the program for the future, either imposing as a condition of the
variance the requirement that penalties be paid for ~astviolations
(e.g., Marquette Chnent Co. v. EPA,
* 70-23, JaA.
6, 1971), or
reserving the question of such penalties for a separate proceeding
(Chicago—Dubuque Foundry Co. v. EPA,
* 71-309, October 14,
1971).
In the present case,
however, this course
is precluded by the fact
that thc~company. has not yet presented a satisfactory compliance
program.
The program is deficient in several respects.
First, there
is no assurance, hecause the City was not a party, that it
will
perform
its
obligations oven
no’s;
an
order
bindinq
Flintkote
alone
would
leave
open
the
çc$sib~iit:
of
a
d~t.nse
~y
the
cc:~~.tarzy
in
the event that the City’s plant as not ready oven in 1974.
Second,
it is not at all clear from the record that
the’ City can adequately
treat Flintkote’s wastes at th2 le~’olat ‘ghic’h
it pro~ostes
to
accept them.
The consultant made ctaar that
.1.968
DO.’) and su~~.c~utrtcd
3—fl
solids levels of 642 and 900 p~mrespactively must be reduced
before the City could handle them, for they are much greater than
ordinary sewage and their contribution about 1/3 of the total expected
plant load
CR.
320, 330—31,
445).
Yet the city has agreed to
accept up to 500,000 gpd at BOD of 864 and SS of 960, both of which
are greater than the 1968 levels found objectionable
CR. 335).
We cannot tell from the October 28 letter that this problem
has been surmounted.
Third, while the company promises some
pretreatment in order to eliminate surges that would tax the city
beyond the limits agreed upon, its plans for pretreatment are
entirely too vague.
In the testimony there was no description
of the type or size of the facilities to be provided, except
that there might be some sort of retention pond and improved
screening
or
other
provision
for
trash
collection
(fi.
449),
and there was no schedule for designing, constructing, or
completing them.
The October 28 letter recites that atolding
pond is to be installed to control surges and “to assist in settling
some
solids”.
The capacity of this pond is to be either
50,000 or 100,000 gallons, depending on which attachment one
reads.
But ‘ae have no indication as to whether this pond will be
adequate to s~ttisfyeither the city, the Agency, or the Board,
or as to when it is to be built.
Fourth, we are not convinced
that the best that can be
done even today is to put up with the
presont discharge until some indefinite time in 1974.
It is not
clear why so muon time is reguared for the City’s work to be
done; it is not clear that Flintkote could not do the job faster
on its own Cc!. GAP Corp.,
* 71-11, Supplementary Opinion September
16,
1971);
it is not clear thnt t!ic ~itu~tioncanaot be alleviated
by
the
interim or permanent use of package
treatment
facilities
or that interim relief might net be afforded by prompt construction
of primary treatment or pretreatment facilities.
Fifth, the
arrangement seems to contemplate that the federal government will
pay a fat portion of Pintkote’s
share of the proposed City plant,
since flintkote is to use 1/3 of the capacity while paying only
$145,000 out of a total of two million
CR.
269).
Our reading
of the federal regulations does not afford much cause for confidence
in such a result, and the financing plans for the program there-
fore appear insufficient.
Thus Flintkote has submitted no adequate program on which we
could base the grant of even that limited type of variance which
leaves the !‘CtitiOnet open to possible penalties for past delays.
Moreover, we think it would be inappropriate to separate the issues
of
program
and
of penalty in a case like this one, since penalties
could conceivably be cumulative until the date of ultimate
compliance.
The variance
is
denied.
The
Board
will
entertain
additional
proceedings hased either upon further petitions by the company’
oa- by the City or upon such ccvrlaint~as may be fi led by the
Agency.
There is much evidence, as we requested, on the issue of
hardship if the plant were required to close.
Today’s order does
3—34
not close the plant; it merely refuses to grant a shield against
prosecution and thus leaves the company in the same position it
has been in .since its compliance deadline passed.
What sanctions
the Board
might
impose
can
be
determined
only
in
further
proceedings
and in light of all relevant factors, including the hardship
that a shutdown would inflict.
Flintkote’s motion to keep confidential certain~detailed
cost and production figures only remotely relevant to the issue
of pollution is granted on the company’s evidence that disclosure
could be competitively harmful.
This opinion constitutes the Board’s findings of fact,
conclusions of law, and order.
I,. christian Moffett, Acting Clerk of the Pollution Control Board,
certify that the Board adopted the above Opinion and Order this~
day of
/~
,..
•
‘.
,
2971.
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3—s