BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY
v.
)
#70—18
CONTAINER STAPLER CORPORATION,
)
FEDERAL WIRE MILL CORPORATION,
and CITY
OF HERRIN
OPINION OF
THE
BOARD
(BY MR.
LAWTON):
Complaint was filed by the Environmental Protection Agency
against Container Stapler Corporation, Federal Wire Mill Corporation
and the City of Herrin alleging in Paragraph
1 that on August
4 and
5,
1970,
the corporate Respondents caused
and allowed water pollution
by discharging contaminants into
the City of Herrin Sanitary Sewer
System in violation of Section
12(a)
of the Environmental Protection
Act
(“Act”)
and Regulation SWB-5
of the Illinois Sanitary Water
Board, continued
in effect
by
Section
49(c)
of the Act.
Paragraph
2 alleges that
the City of Herrin caused and allowed
water pollution by discharging contaminants and increasing
the quan-
tity
or strength of contaminants
into the waters
of the State of
Illinois,
in violation
of Sections
12(a)
and 12(c)
of the Act,
and
Regulation
SWB—5 aforesaid.
The complaint asks for
the entry of an
Order directing all Respondents
to cease and desist the causing and
allowing of water pollution and the assessment
of penalties against
each Respondent in the amount of $10,000 for each violation,
plus
$1,000
a day
for each day
such violation shall have been shown to have
continued.
Section
12(a)
of the Act provides that no person shall:
“Cause or threaten or allow the discharge of any
contaminants
into
the environment
in any state
so as. to
cause or tend
to cause water pollution
in Illinois, either
alone or in combination with matter from other sources,
or so as
to violate regulations or standards adopted by
the Pollution Control Board under
this Act.”
Section 12(c)
of the Act provides
that no person shall:
“Increase the quantity or strength of any discharge
of contaminants
into the waters, or construct or install
any sewer or sewage treatment facility or any new outlet
for contaminants
in the waters of
this State, without
a
permit granted by
the Agency.’
1
—
267
“Water pollution”
is defined under
the Act,
Section
3(n)
as “such alteration
of the physical, thermal,
chemical, biological or radioactive properties
of any
waters
of the State,
or
such discharge of any contaminant
into any waters
of the
State,
as will
or is likely to
create
a nuisance or render
such waters harmful or detri-
mental
or injurious to public health,
safety or welfare,
or to domestic,
commercial,
industrial, agricultural,
recreational,
or other legitimate uses,
or to livestock,
wild animals, birds,
fish or other aquatic life.”
SWB-5, Rule
1.01, provides:
“Any person,
firm or corporation engaged in manufacture
or other process,
including deactivation
of processes,
in which cyanides or cyanogen compounds are used shall have
each and every room, where said compounds
are used or
stored,
so constructed that none of said compounds
can
escape therefrom by means
of building sewer,
drain or
otherwise directly or indirectly
into any sewer system or
watercourse.
This case was originally set to be heard on October
30, 1970
at Carbondale,
but continued on
the motion of James
W.
Sanders,
at that time attorney for Container Stapler Corporation,
to Decem-
ber
4.
1970.
On the continued hearing date,
the firm of Harris
&
Lambert appeared on behalf of the corporate Respondents and moved
for
a continuance,
alleging by Affidavit, that the firm had not
been retained until November
30,
1970
to appear in this matter,
that Affiant R,
W. Harris had made arrangements
to attend
a seminar
out of the state and that his partner, Gordon Lambert,
was
on trial.
The Affidavit further asserted that counsel were unable
to properly
prepare the case because of the inadequate time available prior
to hearing.
The motion for continuance was denied by
the Hearing
Officer.
The corporate Respondents
then tendered
a series
of motions
wh~chwill he considered
in the order filed.
The first alleged
that the Environmental
Protection Act violated Article
II, Sec-
tion
2,
of the Illinois Constitution and
the Fifth and Fourteenth
Amen&nents of the UniteC States Constitution,
because it constituted
an invalid delegation of legislative power, that Respondents were
denied equal protection
~inder the
laws,
that the Act constituted
class
legis.at:.ion
and compelled
a litigant to submit his controversy
‘to
a tribunal
of which his adversary is
a member and makes
his
antagonist his judge and does
not afford due process of law.”
1
—
268
A jury demand was
filed,
which demand was denied by the Hearing
Officer on
the grounds that the Environmental Protection Act estab-
lishes the Board as an administrative tribunal and makes
no provision
for the trying of fact by
a
jury.
Motion
to dismiss was
next filed
on the grounds that the Act
violated
the Sixth Amendment of the United States Constitution
by providing
for
a monetary penalty in the nature of a
fine and
“forces Respondents herein to be witnesses against their own interest”.
A motion was filed to dismiss the case on the grounds
“that if
the Hearing Officer is to decide the cause herein by any standard
or quantum of
truth
less than
the quantum known
as
‘beyond
a reasonable
doubt’, the proceeding would deprive corporate respondents of due
process
of law on the grounds that the penalty provided under
the Act
is
a criminal penalty requiring
‘proof beyond
a reasonable doubt’.”
A motion to dismiss was filed on the grounds that the Act
was
so vague, uncertain and indefinite that corporate Respondents
would be unable to prepare their defense,
and thereby be deprived
of due process of law under the constitutions of the United States
and the State of Illinois.
Further motion to dismiss was filed on
the grounds that the
Environmental
Protection Act,
in permitting
the appeal of the Board’s
Orders
to the Appellate Court of the State of Illinois, was incon—
sistent with the Administrative Review Act and thereby deprives
the
corporate Respondents of due process of
law.
All motions to dismiss were taken with the case and referred
to the
full Board
for ultimate disposition.
Rule 308(b),
Procedural
Rules of
the Pollution Control Board.
Pursuant to Rule
107(c)
of the Rules of the Pollution Control
Board,
corporate Respondents moved that
a certain document
(later
introduced
as Corporate Respondents’
Exhibit
1)
be stamped “Not
Subject
to Disclosure”.
Upon proof made by Respondents,
the motion
was allowed and the document accordingly
so stamped.
Leave was given to
all
Respondetits to file answers instanter.
The answer of
the corporate Respondents denied the material allegations
of the Complaint and contained an
affirmative
defense asserting that
the Respondents’
plant was conducted
in such a way as
to
make impossible
the discharge of cyanide,
or that
if,
in
fact,
such discharge took
place,
it
was
not technically practical or economically reasonable
to eliminate
such emissions.
The answer
of
the City of Herrin
denied the
material
allegations of the Complaint and contained two
affirmative defenses,the
first alleging,
in substance,
that
it must
accept all sewage received by it,
that it cannot determine the
specific source of
the sewage and cannot control and treat certain
pollutants discharged into
its sewers, which are ultimately discharged
by it into discharge channels.
The second affirmative defense
denied culpability.
The Hearing Officer proceeded with
the trial of the cause,
at the conclusion
of which all parties were given, leave
to file
briefs.
The
Board notes
the propriety of the Hearing Officer’s denial
of continuance based upon the retention of counsel shortly before
the Hearing.
This case had been continued initially upon representa-
tion of counsel then representing the corporate Respondents.
Allow-
ing a continuance based on substitution of counsel shortly before
trial date would permit an endless succession of continuances making
a travesty of the Act and preclude the Board from performing its
statutory functions.
Likewise, the Hearing Officer’s determination
that no
jury could be called was correct.
The Environmental Protec-
tion Act makes
no such provision.
Prior
to disposing of the substantive issues of this proceeding,
it
is necessary to consider
the multitudinous motions
for dismissal
filed by corporate Respondents.
It is the Order of this
Board that all motions to dismiss
this proceeding be denied.
The contentions raised
by these motions
have either been disposed of in prior decisions of this Board or
are
so patently without merit that elaborate legal analysis is unnecessary.
The motion relative
to requiring proof
of guilt beyond
a
reasonable doubt misconstrues
the nature of the proceeding.
While
the Act provides
for misdemeanor prosecution,
the present proceeding
is not one.
The instant case is
a civil action calling for the entry
of a cease
and desist order
and the imposition of penalties
and does
not constitute
a criminal charge or require proof in excess of
a pre-
ponderance of the evidence.
Likewise,the assertion that
the judge
and prosecutor are one
and
the same manifests
a profound misunder-
standing of the basic legislation,
establishing the Environmental
Protection Agency as
the prosecutor,
and the Pollution Control Board
as the
court.
The motion for dismissal on the grounds that representatives
of Respondents are compelled to testify against themselves was dis-
posed of
in Environmental Protection Agency v.
Neal Auto Salvage,
#70-5, dated
10/28/70, where Respondent was called by
the Environmen-
tal Protection Agency as an adverse witness.
There we
said:
1
—
270
“Respondent next contends that Neal has been denied
his constitutional rights by being called to testify as an
adverse witness and has thereby been compelled
to incriminate
himself.
Respondent reasons that since violation
of the Act
could be
the basis
of
a misdemeanor charge and because Neal
would allegedly be subject to
a contempt proceeding
if he
fails to testify in the Hearing when called,
he is thereby
forced to incriminate himself
in violation of the Fifth
Amendment of the’United States Constitution.
The answer
to this contention
is
simple.
If Neal desired to plead
the Fifth Amendment and refuse to testify, he should have
done so at the time he was called as
a witness.
This he failed
to
do.
The only objection voiced was
in being called under
Section
60
of the Practice Act
(R.17)
.
The practice
of
calling, an adverse witxiess
is standard judicial procedure.
No reason is given why it would be inappropriate
in the
instant case which complied with Section
60
of the Practice
Act.
Indeed,
the practice had already been written into
~he procedural rules
of the Board
and
is
followed
in normal
court procedure
generally.
While Respondent: cannot be
‘forced
to inc±’iminatehimself,
his refusal must be timely,
and made
at the
time he is called.
The present contention
is an
afterthought.’
(Emphasis supplied).
It
is manifest that
a motion in
anticipation
of the possibility
of self—incrimination cannot
be
made prior to the calling of
a wit-
ness.
In
the
Neal case,
(supra)
the witness was called under Sec-
tion 60 of the Civil Practice Act,
At
the time
the motion was filed
in
the
instant
case,
no one had yet testified
and representatives
of Respondents,
when they did testify, were called by their own
counsel and
not
the Environmental Protection Agency.
The
constitutional
arguments
raised
on
the
question
of
vague-
ness
and
absence
of
standards
to
support
a
delegation
of
legislative
authority,
have
been
previously
considered
by
this
Board
in
Environ-
mental Protection Agency v.
J.
M.
Cooling,
#70-21, decision dated
12/9/70.
The
relevant
provisions
of
the
statute
and
the
regulations
under
which
the
present
proceeding
was
tried
are
set
forth
above.
The
specific
regulation
with
wbicn
corporate
Respondents
are
charged
expressly
prohibits
the
discharge
of
cyanide
into
a
sewer
system
or
water
course.
There is
no question
that this r~gu1ationis speci-
fic,
detailed and
understandable.
Section
12
of
the
statute
con-
tains
a series of express prohibitions regarding the discharge,
increase
and deposit.s of contaminants
so
s
to
cause
water
pollution
in
Illinois.
A
violation of a regulation constitutes
a violation
of
the Act.
See 12(a).
The Board, under Section
13,
is
authorized
to
adopt
regulations
with
regard
to
the
enactment of water
ciualitv
ant
effluent
standards,
issuances
of
permits
~e1ative
to
equinment
having
a potential of water pollution,
standards for
the certification
of sewage works and requirements and standards for monitoring
contaminant discharges at their
source,
in addition
to other areas
of regulation not relevant to this proceeding.
~s we said
in
Cooling:
“Statutory and regulatory provisions,
far less detailed
than the foregoing, were held to withstand
the challenge
of vagueness in the case of Department of Health
v.
Owens
Corning Fiberglass Corporation 242A.
2nd 21 1968,
affirmed
250A,
2nd 1969,
where the Defendant was ~found guilty of
violating
a regulation enacted pursuant to
a New Jersey
statute which merely prohibited
the causing, suffering,
allowing or permitting the emission into
the outdoor air
of substances
in quantities resulting in “air pollution”.
Air pollution was defined under the statute as the “pre-
sence
in the outdoor atmosphere
of substances
in quantities
which are injurious
to plant or animal life or to property
or reasonably interf~rewith the comfort and enjoyment of
life and property within the state.,.”
The New Jersey statute and regulations,
in effect,
adopted
a general nuisance approach without
the specifica-
tion found
in the Illinois Act and regulations, which not
only detail what
is prohibited, but likewise specify what
must be done affirmatively
in the operation of facilities
such as conducted by Respondent.”
See also ~
itanityDiictof
Greater
Chicago
v.
U.
S. Steel Corporation
41
Ill,
2d,
440,
243
N,
E~, 2d
249,
The motion to dismiss on the grounds that the Environmental
Protection Act,
in permitting direct appeals to the Appellate Court,
contravenes the Administrative Review Act,
is wholly without merit.
The jurisdiction of the Appellate Court of Illinois
to consider
administrative appeals is set forth
in
Article
VI, Section
6,
of
the
Illinois Constitution:
“The Appellate Court
shall have such powers of
direct review of administrative action as provided by
law,”
Section
41 of the Environmental Protection Act has made such a
provision.
,
We now consider
the substantive aspects
of the case.
On
August
4 and
5,
1970, Murl Teske, Environmental Control Engineer
employed by the Environmental Protection Agency obtained water
1
—
272
samples from discharges emanating from the south wall
of the plant
operated by the corporate Respondents
(R.39), where the effluent
from the plant entered the municipal sewer
system.
Two samples
were obtained on each day at separate points
of discharge from
Respondents’
building.
These samples were taken to the laboratory
of the State Department of Health and analyzed for cyanide content.
The sample taken on August
4,
1970 from the southeast
corner of
the plant showed cyanide content in the amount of
o.75 milligrams
per
liter.
The sample obtained from the middle of the south wall
on August
4 disclosed no cyanide content.
The August
5
samples
were taken
at the same locations.
On this occasion, Teske treated
the sample bottles with pellets of sodium hydroxide
to raise the pH
of the liquid and prevent the cyanide from escaping as gas
(R.52).
These samples disclosed
a cyanide content of
5.2 milligrams
per liter
from the discharge at the southeast corner of
the plant and
a con-
tent of 2,7 milligrams per liter in the discharge from the middle
of the south wall of the plant.
Effluent samples were obtained
from the Herrin sewage treatment plant on August
5, which were
likewise analyzed
at the laboratory and disclosed
a cyanide content
on that date of
.14 milligrams per
liter.
Subsequent testings
were made by Teske at both the plant of the Respondents and
the
sewage treatment plant which disclosed the presence of cyanide in
both
the factory effluent and the sewage treatment plant effluent.
(See Environmental Protection Agency’s Exhibits
7 through
20,
inclusive,
R.66,67,79).
Tests
as late
as October
28,
1970, disclosed
cyanide content
in the factory effluent.
A test on October
16,
1970,
disclosed cyanide
in the sewage treatment plant effluent.
Container Stapler Corporation and Federal Wire Mill Corporation,
while
separate
corporate
entities,
have
a
common
management
and
occupy
the same factory building in Herrin,
Illinois.
Container
Stapler Corporation
is
a manufacturer of staples and stapling
mach:Lnes;
Federal Wire Mill Corooration
is
a wire manufacturer
processing finished wire
in
a variety
of ways
(R.228).
Cyanide
is used
in the copper plating process
of both companies
(R.20l
and following)
.
In
connection
with
the copper plating,
a Pfaudler
Cyanide Recovery Unit is used.
This unit recovers the cyanide—
bearing waste and rinse waters from three copper cyanide plating
lines,
recycling the copper and cyanide-bearing effluent and the
rinse
water
in
a
closed
circuit
(R.233),
the
cyanide
returning
to the plating tank and
the rinse water in distilled
form, return~~.~
to the rinse
tank.
Installation
of this unit had been approved by
the State Sanitary Water Board on March 19,
1968.
(Corp.
Res.
Ex—
hibit
2)
.
According to the testimony,
no cyanide—containing water
can leave the plant or get into
the
municipal sewage system.
The
recovery unit is located in
a holding pit surrounded by concrete.
Residue not susceptible to reclamation containing cyanide and other
1
—
273
effluents is held in
a holding tank
and extracted by hose to a
tank truck,
removed from the premises and ultimately disposed of
by incineration
(R.2l3,237).
The cyanide recovery system is con-
nected to two plating processes by piping, covering distances
of
fifty and twenty-five feet,
respectively
(R.244).
The relative
location of
the component units is shown on Respondents’ Exh1b~tl_.
The copper plating process provides for the wire to be fed
into
the
plating tank, where it passes through the plating bath and is electro-
plated, drawn down to final
size and finished,
The finished product
is placed into barrels,
Rinse water used in the cleaning eliminates
all remnants of the cyanide-bearing plating solution and is recycled
in the Pfaudler unit as indicated.
(R.250-252).
According
to
testimony, there
is
no place wh~rewater residue from spools of
wire can spill on the
floor,
(R.253)
nor can emissions from the cya-
nide recycling process reach the sewer system.
The evidence introduced by the City of
Herrin
does not
contradict the finding of cyanide
in
its
effluent.
On
the contrary,
the
evidence
indicated
that
the
city itself had
been
aware of this
situation
by
its
own
analysis
for some
time
(R,l86), without being
able
to determine its
origin.
Employees
of the city sewage treatment
plant testified that they are
in the process of making installation
to detect the presence of cyanide in its effluent
(R,l73,
R,18l).
The
evidence
leads to the following conclusions:
The corporate Respondents,
in installing the Pfaudler re-
cycling unit, have made
a conscientious
and deterthined effort to
eliminate cyanide from their effluent and from the sewage facilities
of the city and the waters of the
State,
However, irrespective of
their efforts,
some cyanide has been escaping from the plant through
its water discharge.
Exactly how this occurs is not established by
the evidence.
However,
the fact that it does occur has been adequately
demonstrated.We feel that the corporate Respondents should be ordered
to cease and desist the discharge of cyanide in their water effluent
into the sewers of Herrin,
subject to the terms and conditions herein-
after
set forth,
The factual circumstances do not call for
the
imposition of
a monetary penalty and none will be assessed,
As far as the City of Herrin
is concerned, we must find
it
not guilty of the violation charged.
Clearly,
SWB-5 relating to
manufacture or processes utilizing cyanide is not applicable.
No other
effluent standard for cyanide has yet been promulgated by
the
Board
nor has there been proof that water pollution has been caused by
the
cyanide emissions,
so as to constitute’~aviolation of the Act,
While
the Board might be asked to take judicial notice of
the toxic effect
of cyanide as an abstract proposition,
evidence
is lacking
in this
record that the cyanide contained in the effluent involved in
this proceeding
is of
a magnitude to
cause water pollution as
defined in
the
Act.
Notwithstanding this finding,
it should be
made clear that
a municipality can be held responsible
for
its
effluent even though the pollutant
is contributed by others, and
be found
in violation of
the relevant statutory and regulatory
provisions upon proper proof of violation.
The alternative
would be the enactment
of
a comprehensive sewer code.
The
foregoing Opinion constitutes the finding of fact and
conclusions of law by the Board.
IT
IS
THE ORDER of the Pollution Control Board:
1.
The
City
of
Herrin
is
not found to be in violation
of
Sections
12(a)
and
12(c)
of
the
Environmental
Protection Act and
Regulation SWB—5
of the Illinois Sanitary Water Board, continued
in effect under Section 49(c)
of the Act.
2.
Container Stapler Corporation and Federal Wire
Mill
Corporation
are
found
to
be
in
violation
of
Regulation
SWB—5
of
the
Illinois
Sanitary
Water
Board,
continuing
in
effect
under
Section
49(c)
of
the
Act,
which
regulation
violation
likewise
constitutes
a
violation
of
Section
12(a)
of
the
Environmental
Protection
Act.
Contthner
Stapler
Corporation
and
Federal
Wire
Mill
Corporation
are
hereby
ordered
to
cease
and
desist
the
di,s—
charge
of
cyanide,
directly
or
indirectly,
into
the
sewer
system
of
the
City
of
Herrin.
Provision
shall
bt
made
to
monitor
the
effluent
from
each
possible
source
of
cyanide—containing
water.
Each
outLet
of
water
containing
cyanide
shall
be
thoroughly
guarded
to
prevent
escape.
Precautions
shall
be
taken
for
the
prevention
of
spillage
at
all
locations
where
such
possibility
exists,
and
specifically,
where
metal
plating
takes
place,
where
metal
products
are
rinsed,
where
movement
of
cyanide—bearing
material
occurs,
and
where
effluent
is
removed
from
tanks
and
placed
in
holding
facilities
or
tank
trucks.
Ongoing
surveillance
to
assure
the
effectiveness
of
the
Pfaudler
Recover7Unit
shall
he
conducted.
Insoection
and
monitoring
of
all
of
the
locations
and
areas
above
set
forth
shall
be
conducted
and
reports
‘made
to
the
Agency
no
less
than
every
two
months
relative
to
the
effective-
ness
of
the
foregoing
program.
I,
Regina
F.
Ryan,
ce~t~ifvthat
the
)~oarça adopted
the
above
oc’inion
and
order
on
:7
,,.“~
/‘
~2’2
~
-,
1971.
~
~