ILLINOIS POLLUTION CONTROL BOARD

August 13,

1971

CITY OF PANA

v.

)

#

PCB71—160

ENVIRONMENTAL PROTECTION AGENCY

Opinion of the Board

(by Mr. Currie):

The City of Pana received

a lettdr from the Environmental

Protection Agency,

dated January

11,

1971,

stating

thai: because

mercury seals used

in trickling filter sewage treatment plants

“pose

a serious threat of additional mercury pollution by either

leaking or rupture of the seal,”the Agency was “requiring

that all

mercury seals in trickling filters with rotary distributors be

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June 23 the City filed

a petition for variance reciting

its investigation

of.

the problem

and its determination

to replace

the existing mercury

seal,

and requesting

that the deadline be extended to March

1,

1972,

the earliest date on which it believed

it could

comply.

The Agency

has filed

a motion to dismiss in which

it says that

“the City

of Pana is replacing

its

mercury seal

in

its treatment

plant within

a reasonable period

of time;” that mercury con-

centrations in the effluent

are below the regulation limit of

0.0005 mg/l;

and that the Agency direction from which variance is

sought is neither

a statutory requirement,

a Board regulation,

nor

a Board order

and therefore not the proper subject of

a

variance proceeding.

We confess to some difficulty in understanding just what

the Agency~s letter was.

It is of course the Board and not the

Agency that is empowered

to adopt regulations,

and the only

proper statutory procedure

for promulgating

a rule requiring

the replacement

of mercury seals is through rule—making proceedings

entailing public hearings before this Board,

If mercury seals

should be outlawed, we suggest the Agency propose

a regulation

to that effect so as to allow interested ‘people to comment.

The Agency cannot “require”

that seals

be replaced.

We must

therefore interpret the Agency~s letter as

a warning that unless

the seals were replaced the Agency might institute proceedings

against

the City on the ground that the danger of leakage or

rupture constituted a threat of water pollution in violation

of

the Environmental Protection Act.

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311

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The Agency is quite right that its letter is

not an order

from which

a variance

can be granted.

But we view the petition

in essence

as

a request for immunity from prosecution for

the

statutory violation,

if it exists here,

of causing

a threat

of water pollution.

The Agency states in its motion that it

approves

the City’s program for terminating the threat.

But

in our view approval of the program

is grounds not

for dis-

missing

but

for granting

the petition.

We think the

City,

having been pushed by the Agency into seeking relief against

the threat of

an enforcement

action,

is entitled to

a decision

on the merits

of its program.

In accordance with

the statements

in the Agency’s motion to dismiss we conclude that

the program

is reasonable and that the program should be approved.

Because

of

this agreement

there is no need for

a hearing,

and the

hearing scheduled will be cancelled.

This opinion constitutes the Board’s findings

of fact

and conclusions

of

law.

ORDER

The City of Pane is hereby granted

a variance from the

statutory prohibition against causing

a threat of water pollution

with

resoer.1-

to

the

m~infenance

of

a mercury seal

on its tricklinc

filter, subjoct to

the tollowing conditions:

(1)

The mercury seal shall be replaced

no later than

March

1,

1972;

(2)

This variance shall terminate upon the occurrence of

any leak

or

rupture of the

seal.

I,

Regina E.

Ryan,

Clerk of the Pollution Conti~o Board,

certify

that

the Board adopted the above Opinion thisjl

day of

1971.

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312