ILLINOIS

POLLUTION

CONTROL BOARD

May

3,

1971

ENVIRONMENTAL

PROTECTION

AGENCY

)

)

v.

)

#70—39

)

JOHN

T

•

LAPORGE

COMPANY,

INC.

)

JOHN T.

LAPORGE

COMPANY,

.

)

)

v.

)

#71—18

)

ENVIRONMENTAL

PROTECTION

AGENCY

)

CONSOLIDATED

Fred

Prillanan,

for

the

Environmental

Protection

Agency

Williams,

McCarthy,

Kinley

&

Rudy,

P~ockford,for

John T.

LaForge

Company,

Inc.

OPINION OF THE BOARD

(BY MR. LAWTON):

Complaint

was

filed

by

the

Environmental

Protection

Agency

against

John

fl

LaForge

Company,

Inc. ,Respondent,

of

Preeport,

Illinois,

alleging

that between

August 22, 1967 and June 30, 1970, Respondent caused or per-

mitted

“certain

organic

matter”

from

its

rendering

operation

to

pollute

the Pecatonica River in violation of Section 10

of

the

Sanitary

Water

Board

Act

and

Rule 1.08 of the Rules and Regulations of Sanitary Water

Board SWEll.

The

complaint

further alleges that

between

July 1, 1970

and

the

date

of filing the ComplaLnt, Respondent caused, threatened or allowed the

discharge of certain organic matter from its rendering operation into the

river so as to cause water t,ollution in violation of Section 12(a) of the

Environmental

Protection

Act

and

Rule

1.08

of

SWEll,

continued

in

effect

by Sectton 49(c) of the Environmental Protection Act. The complaint asks

for the entry of an Order dIrecting Respondent to cease

and

desist the

causing of water pollution and for assessment of penalties in the

maxi—

mtun

amounts

allowable

on

the

dates

of

the

alleged

offenses.

Answer

was

filed

by

Respondent

denying

the

allegations

of

the

complaint.

Respondent also filed a Motion to Disniss alleging that the Environmental

Protection Act viclates the provision

of the Constitution of the United

States

and

the

State

of

Illinois,

that

the

Environmental

Protection

Act

does

not

authorize

the

Board

to

impose

fines

or

penalties

but

that

if

the

Act

is

so

interpreted,

Respondent

is

deprived

of

its

right

to

trial

by

jury

and

that

the

provisions

allowing

the

imposition

of

fines

oonsti-

tues

an

cx

post

facto

law

and

is

unconstitutional.

Respondent

filed

a petition

for

variance asking for leave

to

continue

its

pollutional

discharges

until

October

8,

1971,

during

which

time

Respondent would construct a sewer line to connect !ith one

being constructed by Burgess Cellulose, whose sewer, in turn, will

connect with the sewage treatment facilities of the City of Freeport.

1—647

---

Respondent states the foregoing program will bring it into

compliance

with all relevant statutory provisions and regulations.

Recommendation

filed

by

the

Environmental

Protection

Agency

recommends

that

the

variance

be

denied.

The

Board

ordered

that

a

hearing

be

held

on

the

variance which was consolidated by order of the Nearing Officer with

the pending enforcement proceeding.

The notion to dismiss by stipula-

tion

was

taken

with

the

case;

hearing

was

held

on

the

consolidated

matter in Freeport on March 5, 1971.

Before considering the merits of the case, it is necessary to con-

sider and dispose of Respondent’s Motion to Dismiss, which we deny.

We have this day entered an Opinion

an.i Order in Environmental

Protection Agency v.

Moderti Plating Corporation,

#70•-38, in which most

contentions raised by Respondent have been fully considered and answered.

While Respondent’s Motion to Dismiss is defective in failing to specify

what provisions of the United States and Illinois Constitutions that it

contends are violated by the Environmental Protection Act, we have pre-

viously

commented

on

the

usual

arguments

made

in this regard; assertions

of vagueness, improper delegation of legislative

power

and denial of

due process.

The Opinion in Environmental Protection Agency v. Gran!te

City Steel Company, #70-34, disposes of these conthntions.

As we

said there, “All of

(theSe

contentions

ignore

the

fundamental

presumption

of the validity of a statute.

None of

them

has

any merit...

“The vagueness issue was settled beyond all possibility

of dispute by the Illinois Supreme Court’s quite recent

decision in Metropolitan Sanitary District v. United States

Steel Corp.,

41 Ill. 2d 440, 243 N.E. 2d 249

(1968).

There

the Court upheld against the charge of vagueness a statute

giving the District authority to sue “to prevent the pollution”

of certain waters.

Even though “pollution” was nowhere

defined in the statute, the Court had no difficulty sustaining

it, pointing out that the term “pollution” had long since acquired

a common meaning in nuisance cases

and

adding that “such

a

statutory authorization need not delineate with scientific

precision, the characteristics of all types of pollution.”

With regard to improper delegation of legislative authority we noted:

“Legislatures

are

far too busy, and the business of

governing

is

far

too

intricate

and

detailed,

for

any

one

body

to

prescribe

precisely

the

particular

rules

govern-

ing

every

aspect

of

human

behavior

that

requires

regulation.

All

the

legislature can reasonably be expected to do is to set basic

policy,

subject

to

certain

procedural

and

substantive

safeguards,

and

exercise

its

inherent

authority

by

setting

aside

administra-

tive

rules

that

do

not

comport

with

its

policy.”

1-548

---

While

it

is

not evident that

a due process issue is being raised

by

the Motion to Dismiss, nevertheless,

we have previously held that

the contaminants emitted by one polluter may be considered in connec-

tion with discharges from other sources over which Respondent has

no control,

~s noted

in Granite City

Steel Company,

~No one has

a

constitutional right to be the straw that breaks the camel~sback.”

The

statute expressly orovides

a defense for anyone who

can show

that comeliance would impose an arbitrary or unreasonable hardship.

Section 31(c).

Accordingly,

it

is manifest

that the statute does

not aoply in

any case

in which its application would be unconstituional.

Respondent argues

that the Board lacks both statutory and con-

stitutional power to assess money penalties.

These contentions

were analyzed at length and refuted

in Environmental Protection Agency

v. Modern Plating Corporation,

supra.

As

to the alleged absence of

statutory power

to assess penalties,

we noted that Section 33(b)

of

the statute flatly provides that

the Board~sorder may include the

ineosition of money penalties.

Answering the constitutional arguments

raised, we held with extensive citation of Federal and state authorities

that the power

to impose

money

penalties does

not constitute

an

imnrooer delegation of judicial power to

an administrative tribunaJ

nor

would

the

imposition

of

money

penalties constitute

a criminal

sanction necessitating

a

jury

trial,

Respondent

asserts

that charges of violations ore—dating

the

enactment

of

the

Pnvironeental

Protection

Act

constitute

cx

post

facto

application

of

the

law.

This

contention

was

squarely

answered

and

refuted

in

Environmental

Protection

Agency

v,

J.

H.

Cooling,

#70~2.

entered

Decenber

9,

1970,

where we said,

~From the foregoing statutory provisions

and regulations

cromulgeted

thereunder,

it

will

be seen that the violations

with

which

Respondent

has

been

charged

were

violations

of

the

law

prior

to

the

effective

date

of

the

new

Environmental

Protec-

tion

Act

and

that

the new

Act

keeps

in

force

and

effect

all

regulations

previously

promulgated

by

the

Air

Pollution

Control

Board,

relative

to

air

pollution

and

rules

and

regulations

promulgated

by

the

Department

of

Public

Health,

relative

to

refuse

disposal

sites,

Any

fines imposed for events pre—dating

the

new

Act

but

constituting

violations

under

the

old

statutory

provisions

cannot

be

deemed

retroactive

or

cx

post

facto,

since

the

fines

imposed

are

within

the

statutory

monetary

limits

as

in

each

case provided.

Both the offenses

and the fines relating

thereto were cognizable under prior

law and the regulations

promulgated thereunder were

in force at all relevant times

and

are

presently.~’

We now consider

the

substantive aspects of the case.

1

549

---

We find Respondent to have violated SWB5. on the dates alleged,

and, order

it

to cease and desist the discharge of cyanide in any

amounts from either of its plants.

We find that Respondent’s violation

of SWB5 constitutes a violation of Section 12(a) of the Environmental

Protection Act.

We assess a

penalty in the amount of $5,000~00fo~the

cyanide

discharges.

We

find

Respondent

not

guilty

of

violating

Sec~

tion

10

of

the

Sanitary

Water

Board

Act,

Technical

Release

20~22, or

Section 1.05 of Sanitary Water Board SWB11.

Technical Release 20~22

is a criteria document promulgated by the Technical Secretary of the

Sanitary Water Board but never adopted by the Board as a regulation

and lacking the attributes of an enforceable legal stan~axd, Section 10

of the Sanitary Water Board Act prohibits water pollution, defined in the

Act

to require a showing that the discharges alleged are likely to

create a nuisance or render such waters injurious to the public health

or welfare.

The record

is devoid of any evidence manifesting that tI’~

discI~rgesalleged would produce such results,

SWBI1, Section 1.05 is

a Water Quality Standard and not an Effluent Standard.

Since the only

tests conducted were of water from Pesmondeht~s

seerer

~nd

not from

the

river, there

is no evidence in

the

record to support a Water Quality

Standard violation, irrespective of what the effluent meaairement may

have been,

We

grant the variance requested

by

Respondent to permit concen~

trations of chromium, copper

and

zinc in its effluent to September 30,

1971, subject

to the terms and conditions hereinafter provided in the

decretal portion of this Opinion.

Modern Plating Corporation, employing approxiimtely 180 employees

and

having

a $15,000,000.00 payroll, operates two plating plants in

Freeport, pumping the effluent from each of its operations into the

Pecatonica River at a rate of 500,000 gallons a day.

It processes be’~

tween 2~l/2and 3 million pounds of raw material each month, consisting

principally of formed carbon steel parts processed through electroplating

solutions for decorative and corrosion protecting purposes.

The princi”

pal operation of Respondent

is conducted at the ‘~new~’plant acquired in

1962,

The so-called ~0ld”plant represents approximately l0~of Respon”~

dent’s production.

Waste water containing cyanide and heavy metals

employed in Respondent~splating operation are discharged

itito privately-

owned sewers which,

in turn, discharge into the Pecatonica River.

1 -55O~

---

count.

The permissible limit is

a measurement of

400 per 100 milliliters,

All measurements

taken for all years in question were enormously in

excess of this limitation,

the lowest being 2,000

and the highest

measured

on

October

20, 1970 in the amount of 9,900,000 per

100

milliliters.

According to Mr.

Lindstrom, witness for the Environmental

Protection Agency,

the discharge of the plant had

a population equiva-

lent of 555 people with

a waste volume of 60,000 gallons per day

(R80—81).

The SWB11 schedule lists Respondent

as having provided treatment lagoons

with construction of additional lagoons

to be commenced in July of 1969.

The evidence shows

that Respondent has no lagoons presently on its

property nor under construction.

It has failed to take any steps

to

bring itself into compliance, neglecting

even to install minimum

chlorination facilities, and continues in violation of all effluent

standards except PH down to

the present date.

SWB11 effluent standards

of BOD of

20 milligrams per liter and

of suspended solids

of 25 milligrams per liter are

in consideration

of

the Pecatonica River being

a stream with

a minimum

2 to

1 dilution

(R83).

SWB11 categorizes

the Pecatoni

a River for fishing, boating,

recreation, including full body contac:,

as well

as industrial water

supply.

The stream quality must meet all criteria for all

uses except

public water

supply.

Among other things,

the Pecatonica

River

is

a

primary recreation stream.

High coilform count indicates the likely

presence of pathogenic bacteria and virus

in the water which have

attributes

of danger to persons using

the water for primary

recreation.

It should benoted

at this point that Section 1.08 of

SWB11

is an effluent standard

as distinguished from Section 1.05 which

is

a water quality standard.

The significance

of this difference

relates

to the propriety of measurements made

in

the

Respondent’s

sewer

as distinguished from measurements

made

in the river itself.

In Modern Plating we noted

that where

violation is asserted

in

a water quality standard,

the measureme~:must be made

in the river.

However, where the alleged violation

is

of an effluent standard,

a

test made

in the Respondent’s

sewer

is appropriate.

TI~ evidence is

undisputed that Resnondent has been

a flagrant violatc

of the effluent

standards applicable

to HOD,

ODI, suspended solids

an

coliform,

nor does

it appear that

any effort has been seriously pursued

to install

chlorination facilities which have

the capability

of reducing

fecal

coliform to the required limits.

Resnondent’s

efforts,

or the lack

thereof,

to control

its pollutional discharges,

cover

a substantial

period of years, but are imoressive only by their lack of achievement.

Communications from the State Sanitary Water Board as early

as 1963

notified Respondent of the need

to

take affirmative steps

to reduce

its pollutional discharge.

According

to Edward LaForge, President

of Respondent “actually there was very little done,

I will have to

admit that”.

(R.ll9.)

Outside of

the

construction of

the

septic

tanks,

the first in 1937 and

the second in

1950,

Mr. LaForge conceded

that they had done nothing excent keen

the

place

as

clean

as possible.

He conceded his negligence with regard

to

the

letters

from the Sanitary

Water Board in 1963

and 1966.

1-551

---

W.

T.

Nieman,

a registered professional

engineer,

testified with

regard

to

the

proposed

channel

changes

contemplated

for

the

Pecatpnica

River

and

his

work

on

proposals

for

Respondent’s

pollution

abatement.

For

the last 40 years, consideration has been given to

a realignment

of the Pecatonica River.

When originally proposed,

channel realign-

ment would entail the taking of

a portion of the LaForge property,

which area was under consideration for erection of sewer treatment

facilities.

However,

in June,

1966, Respondent was aware

that

this

land would not be taken

(R.204).

Nieman was employed by LaForge

in 1963 with

the view of developing plans for

a sewage treatment

program.

The plan for

a holding lagoon system was developed and sub-

mitted to Respondent

in March of 1968 although this report dealt

principally with

the proposed river channel change

at

the LaForge

property.

Subsequently,

plans

for

preparation

of

waste

lagoons

were

developed

and

submitted

to

the

State

Sanitary

Water Hoard which

received

the

Hoard’s approval.

See

Res.

Ex.

6.

A proposal was made

for

the

construction

of

this system which

resulted in

a bid of $113,000.00 which was rejected by Respondent.

Nieman next designed a sewage treatment facility which contemplated

the installation of

a waste treatment operation consisting of grease

collectors,

a lift station,

two an~robiclagoons in series and

chlorination of all discharge to the Pecatonica River.

This program

was

likewise approved by the Sanitary Water Board and plans

and specifica-

tions orepared.

Bids ranging from $96,000.00

to $149,000.00

were

received,

which again were rejected by Respondent

in September

of

1970.

The latest program prepared by Mr.

Nieman comprised a

set of plans

and specifications

for construction of

a sanitary sewer

line connecting

the Respondent’s

treatment facilities

to

the Sanitary sewer constructed

by Burgess Cellulose Company, which,

in

turn, would connect with

the

city

sewer

to be constructed.

This program contemplated

connection with

Respondent’s grinding facilities

and grease collection operation.

Manholes would be constructed at 300 foot intervals and

a pumping

station installed.

It

is this proposed construction that

is the sub-

ject matter of Respondent’s

variance request.

At the request

of the hearing officer, Respondent furnished more

detail on the status of the construction, both of

the city extension

and the tie-in by Burgess Cellulose.

it appears that the city construc-

tion will

he completed well before

the October date

to which Respondent

seeks

its variance.

Likewise,

correspondence from Minnesota Mining

and Manufacturing,

the parent company of Burgess Cellulose,

states

that completion of

its portion of the sewer construction will be

no later than June

1,

1971.

Mr.

Nieman states that

the Respondent’s

portion of construction will be completed in September of 1971.

Accordingly,

it appears that the construction program by all

three

entities involved,City

of Freeport, Burgess Cellulose and Respondent,

will be achieved before October

1,

1971.

1

—

552

---

Evidence

of witnesses McGregor, Andregg, Franzmeier and Burchardt

(Rl68,l74,l80,l84)

all

sustain

the

position

expressed

by

Respondent

that

it

performs

a

necessary

function

in

the

Freeport

area

by

picking

up the dead carcasses and disposing

of

them,

Alternative

methpds

of

disposal,

particularly

that

of

burying

the

dead

animals,

do

not

appear desirable substitutes.

From

the

state

of

the

record,

the

following facts emerge~

Respondent has been conducting

its

animal pick—up

and

rendering

service in

the

Freeport area for 34 years, during

which

time

it

has been

virtually oblivious of its obligation

to

eliminate

its

pollutional

discharge

into

the

Pecatonica River,

These pollutional discharges

have

been

in

excess

of the legal

limits for oxygen—demanding waste and

suspended solids and inexcusably high

in fecal coliform,

While

chlorination facilities could have reduced the coliform count to permissi-

ble limits, no efforts

in this direction have been demonstrated,

In

more

recent

years, particularly since 1963,

when

the State Sanitary

Water Board

expressed its concern at the manner in which Respondent

was conducting

its operation,

some consideration

was

given to methods

to contr(4 the pollutional discharge,

However,

in each instance, the

plans were rejected because of

cost,

Had the State Sanitary Water Board

exercised the

same diligence

in seeking compliance

as

is now being

demonstrated by the Agency,

it

is likely that treatment facilities

would have been installed before

now,

SWBI1 states that Respondent

has

orovided

for

treatment

lagoons

and

additional

lagoons

will

be

under

construction

in

July

of

1969,

The

facts

do

not

bear

out

either

the

presence

of

lagoons

or

any

remedial

construction,

by

any

date,

There

is

no

dispute

that

Fespondent’s

discharges

violated

SWBII

and

it

is

hereby ordered to cease and desist such pollutional discharges except

as

permitted

pursuant

to

the

terms

of

the

variation

hereby

granted,

the

indifference

that

Respondent

has

shown

in

the

past

to

fulfill

its

obligations

to

the

State

by

abating

its

contamination

of

the

Pecatonica

River

make

it

difficult

to

grant

a

variance

at

this

time,

While Respondent employs approximately

18

people,

the

hardship

that

would be imposed by the closing of the plant would not be on the company

itself, but on

the community generally in not having the facility fur-

nished

by

Respondent

in oicking up the dead carcasses.

However,

in

granting the variation,

we will insist that chlorination facilities

be installed

to reduce the feeal coliform to the limits provided

in

SWBll of 400 per 100 milliliter.

We cannot sanction a continuing

indifference

to

this

violation,

Normally,

we

would

require

as

a

condition

to

the

variance

a

pro—

vision

that Reseondent would not increase the strength or quantity

of

its

coilutional

discharges

during

the

period

of

the

variance.

Because

of

the

unique

aspects

of

8esoondent’s

operation,

the

demonstrated

need

for

its

services

in

the

community

and

the

possible

epidemic

consequences~

of

any

limitation

imnosed

on

its

oneration,

we

do

not

impose

such

a

requirement in this case.

—7—

---

The

evidence

sustains

violation

of

SwEll,

Section

l~08

and therefore

of

Section

12(a)

of

the

Environmental

Protection

Act,

However, because

of

the

Agency~s

failure

to

take

measurements

in

the river we

are unable

to

find

a

violation

of

Section

10

of

the

Sanitary

Water Board

Act,

Respondent

is

ordered

to

cease

and

desist

its

pollutional

dis~

charges

into

the

Pecatonica

River

except

in

conformance

with

the

terms

of

the

variation

hereinafter

orovided.

A

penalty for Respondent~s

casual

indifference

to

the

law

is

imposed

in

the

amount

of

$l,500,O0~

Fmsnondent~sfailure to take any steps

to abate its

pollutional dis~

charges

constitutes

an

egregious

violation

for

which

a

much

heavier

oenalty

would

be

appropriate.

However,

the

evidence

indicates

that

resoondent

is

in

a

orecarious

financial

condition

and

the

amount

of

t:te

penalty

is

set

accordingly,

(cf.

Greenlee

Foundries,

lnc~

v,

EPA,

7GB

70~33)

This

Opinion

constitutes

the

findings

of

fact

and conclusions

of

law

of

the

Board.

IT

IS

THE

ORDER

OF

THE

POLLUTION

CONTROL

BOARD

THAT:

1.

Respondent

is

found

to

have

violated

SNB1I,

Section

l~08

and

Section

12(c)

of

the

Environmental

Protection

Act

on

the

dates

stafed

in

EPA

Ex.

9,

and

is

hereby

ordered

to

cease

are

desrst

ats

nolautopa~

d~c

ar~es

~n

e~ces~

of

the

amounts

permitted

in

the

variance

as

in

oaraqraoh

3

hereinafter provided,

2.

A eenaltv

is assessed ac.ainst LaForge in the amount of

$1,500.00

for

violation

of

SWE11.

and

Section

12(a)

of

the

Environmental ProtectIon Act,

3.

Respondent

is

nermitted

to

die charge

its

effluent

into

the Pecatonica River until October

8,

1971,

in

excess

of

the lim~tsoror~doe~n ~

Peia~ren~

08

~o~ct

to the following

terms

anct conditions:

(a)

fecal

coliform

conoentration

shall

not

exceed

400 ocr

100 milliliter,

(b)

Respondent shall complete on or before May

28,

1971,

construction of an effluent laqoon

to

accommodate 1/2 hour retention of

its effluent

discharge,

subject to plans

and soecifications

to

be aooroved by

the Environmental Protection

Agency, and provide chlorination to assure

comrliance with the effluent limitations proyid~ed

for in raragrap.h

(a) above,

1

554

---

Cc)

Respondent

shall

diligently

pursue

its

progra~

of

construction

of

a

sewer

line

to

connect

with

the

Burgess

Cellulose

sewer

line

which

will,

in

turn,

connect

into

the

sewage

treatment

facilities

of

the

City

of

Freeport,

so

that

no

effluent

shall

be

discharged

into

the

Pecatonica

River.

Cd)

Respondent

shall

post

with

the

Environmental

Protection

Agency

a

bond

or

such

other

security

ac

shall

be

approved

by

the

Agency

in

the

amount

of

$25,000.00

which

shall

be

forfeited

to

the

State

of

Illinois

in

the

event

Respondent

continues

the

operation

of

its

plant

after

October

8,

1971,

in violation of

any

of the provisions of the

Environmental Protection Act or the relevant

regulations.

Ce)

Respondent

shall

report

to the Board and to the

Agency when it has installed its chlorination

facilities which shall be inspected by the

Agency

within 10 days thereafter,

and

report made

to the Board with regard to the effectiveness of

such facilities.

The Respondent shall

report

to

the Agency and the Board on

June

1, 1371 and every

month thereafter on the status of construction of all

sewer

facilities

being

installed

by the City of

Preeport,

the

Burgess

Cellulose

Conpany

and

Respondent.

Violation of

any

of the foregoing terms shall result in a revocation

of the variance.

I, Regina E. Ryan, do hereby certify that the above Opittion and Order

was approved by the Board on the

3

day of

Clerk of the Board