ILLINOIS POLLUTION CONTROL BOARD
March
22,
1973
ENVIRONMENTAL PROTECTION AGENCY
#71—340
v.
ALUMINUM PROCESSING CORPORATION
JOHN
U.
BICKLEY,
JR.,
STEVEN C.
BONAGUIDI AND DOUGLAS
T.
MORING,
ASSISTANT
ATTORNEYS GENERAL,
ON BEHALF
OF ENVIRONMENTAL PROTECTION
AGENCY
LANBERT M.
OCHSENSCHLAGER OF REID,
OCHSENSCHLAGER,
MURPHY
& HUPP;
JOI-IN
0.
IIEIMDAL, APPEARED ON BEHALF OF RESPONDENT
RICHARD
L.
COOPER, APPEARED
ON BEHALF
OF INTERVENOR, HERBERT DE KING
OPINION AND
ORDER
OF THE BOARD
(BY SAMUEL
T.
LAWTON,
JR.):
Complaint was filed
on October
29,
1971
by
the Environmental Pro-
tection Agency against Aluminum Processing Corporation,
with respect
to
two facilities
operated by Respondent,
one in Aurora and one
in Batavia.
The complaint alleges
that Respondent operates
an
aluminum processing
facility at Aurora and
that as
a result of
its opuratiori there,
has,
on certain specified
dates,
emitted con-
taminants
into
the
air,
creating
a public
nuisance and causing air
pollution
in
violation
of naragraph
240.3 and 240.2(a)
and
(c)
of
the Illinois Air Pollution Control Act and Section 9(a)
of
the Illi-
nois Environmental
Protection Act
(Act)
The complaint
further alleges
that Respondent used
its site at
Batavia
for
the disposal
of
solid waste,
particularly aluminum oxide
and iron wastes,
in violation of
the same provisions of both Acts afore-
said,
and
in addition, created
a water pollution hazard
in violation
of Section
12(d)
of
the Environmental
Protection Act,
caused water
pollution in violation
of Section 12(a)
of said Act and caused open
dumping and committed other violations
contrary
to
the Rules and Regu-
lations
for Refuse Disposal
Sites and Facilities,
with respect
to
registration,
absence of fencing sanitary facilities,
posting,
shelter,
hours of operation and adequacies
of final cover.
The violations
are
alleged
to have commenced
in June of 1966 and generally continued
to
“the close of
the record” which form of pleading we have previously
held
to be improper,
unless
specification
of
the events
of alleged
violations
occurring after the commencement
of hearings
is made. Air
pollution violations
occurring before July
1,
1970 are deemed
in vio-
lation
of
the Illinois Air Pollution Control Act and those subsequent
thereto,
in violation of
the Illinois Environmental
Protection Act.
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—
331
Water pollution violations are asserted
for
a period subsequent
to July
1,
1970 and are alleged
to be
in violation of the Environmental
Protection Act.
Solid waste disposal violations,
as alleged, com-
menced
on
June
7,
1966
and
continue
prospectively
in
violation
of
the
Rules
and
Regulations
for
Refuse
Disposal
Sites
and
Facilities,
which have been
in force and effect both orior and subsequent
to
the enactment
of the Environmental
Protection Act
(Section 49(c),
Environmental Protection Act)
.
In addition,
violation
of Section
21(f)
of
the Environmental Protection Act subsequent
to July
1,
1970
through September
25,
1970,
is alleged,
which trovision re-
quires compliance with relevant regulations
for refusedisposal
sites.
In summary,
the initial complaint alleges air pollution violations
relative
to
the Aurora
site and
air,
water and solid waste violations
with respect to the Batavia site,
for
a period commencing
on June
7,
1966
with
respect
to the Batavia site and commencing Nay
21,
1970
with respect to the Aurora
site.
Offenses prior
to July
1,
1970 are
alleged
to violate
the
Illinois Air Pollution Control Act,
and the
Refuse Rules; offenses after July
1,
1970 are alleged
to violate the
Environmental Protection Act with respect
to air pollution, water
pollution and disposal of solid waste and
the Refuse Rules, which have
been
in force and effect during all periods
of violations
alleged.
An amendment to the complaint was filed on January
10,
1973,
alleging that Respondent
in the
operation
of
a
“Jefferey
unit”
used.
for
the treatment of industrial waste generated to the Aurora site,has
caused water pollution i~violat~on cf Section
12(a)
of
the Act
since July
1,
1970, and
in addition thereto,
has
failed
to meet water cuality and effluent standards
set forth
in
SWB-ll.
This amendment conformed
the pleadings
to the proof.
The first hearing
in this matter was held before Edward
C.
Kent,
Hearing Officer,
on December
27,
1971,
at which
time Respondent was
represented by Lambert M.
Ochsenschlager,
who moved for
a
jury
trial.
It does
not appear that
the Board has acted at any time on this demand
and,
accordingly,
the motion
is denied.
Cf.
C.
M.
Ford v. Environmental
Protection Agency,
Appellate
Court of Illinois,
Third
i)istrict,
#12—60,
February
4,
1973).
Respondent represented
in substance that it had ceased
its
Aurora
operation
and
that
it
would
take
the
necessary
steps
to
abate
air
and
water
Pollution at both sites
and would remove minerals
from
the
Batavia
site
to
bring
its
operation
into
comnliance
there,
as
well.
Robert
Arundale,
II,
President
of
Aluminum
Processing
Corpora—
tion,
testified
that subsequent
to the
shutdown
of
the
Aurora site,
the premises would be leveled
and all
operations would
cease
by
January
15,
1972,
with the
exception
of
one
structure
which would
remain
standing,
that
a
berm
or
parapet
would
be
built
to
prevent
water
pollution
in
the
Fox
River,
that
comparable
steos
would
be
—7—
7
—
332
taken at the Batavia
site
to prevent the flow of aluminum oxide
into the Fox River,
that steps would be taken
to remove the alum-
inum oxide that was presently
in the land at the Batavia site
and that procedures would be employed
so that such removal would
not cause air pollution during the period when removal took place.
(R.3l-36,
12/27/71).
In addition,
dredging and excavation would
take
place
at
both
sites
to
remove
the
aluminum
oxide
that
had
flowed from Respondent’s property into
the river and was located
on the river bottom for
a distance of approximately
100 yards
beyond both premises
(H.
38-42,
12/27/71)
.
Water lines presently
running from the Aurora Plant into the river would be removed.
In summary,
Respondent agreed
to terminate
its operation and take
all necessary steps
at both locations
to terminate
air, water and
solid waste pollution,
to take precautionary measures during removal
of solid waste from Batavia to prevent air pollution,
to cover
all
exposed aluminum slag at both locations
and
to dredge the river con-
tiguous with
its facility
to remove aluminum oxide that had flowed
from
the Respondent’s land into the river.
At the December
27,
1971 hearing,
it was agreed that the sub-
stance
of the agreement
to which Mr. Arundale testified, would be
embodied
in
a written document and submitted
to the Air,
Water and
Land Divisions
of the Environmental
Protection Agency,
and possibly
to the State agency having jurisdiction
to authorize the dredging
aforesaid.
(R.43,
12/27/71)
The hearing was continued
to January
14,
1972.
This hearing
was continued by agreement until
January
31,
1972 and thereafter,
continued generally,
pending resolution
of
the settlement program.
For all
that appears
in the record,
nothing further
took place
until October
6,
1972 at which time Hearing Officer Kent requested
that,
because of illness,
the case be reassigned
to
a new hearing
officer.
The case was reassigned
to George A.
Lane,
Hearing Officer,
who on October
27,
1972,
reset the case for hearing on November
16,
1972.
A written motion
for continuance was
filed, alleging the un-
availability
of Mr.
Ochsenschlager,
because of convalescence from
surgery.
The case was continued
and reset
to January
3,
1973.
The motion for continuance
filed
by Respondent
contains
“Proposal
of Respondent”,
embodying
the oral agreement
submitted at the Decem-
ber
27,
1971 hearing.
The proposal
is
signed by
Mr. Arundale on
behalf of Respondent
and recites
that Respondent will remove all
buildings
from the Aurora site and level
the entire area pursuant to
a plan attached
to
the proposol,
that grading would be done
in
a manner
to prevent erosion and flow
of water from the land
to
the river.
The
Fox River would be dredged in an area
extending from the Old Pump
House,
100 yards
to the south adjacent
to
the subject property,
two
ninelines
extending
into the river from the subject properties would
be removed,
and production
of aluminum oxide or aluminum ingots would
cease
on the site.
No aluminum dross would be ordered
to the site
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333
and no aluminum oxide would be removed from the facility.
No further
lines
would
be
run
into
the
Fox
River
at
this
location
without
Agency approval.
All existing aluminum slag or oxide piles would
be covered in accordance with Board requirements, which would be
completed by the spring season
(1972).
With respect to the Batavia property,
aluminum oxide will be re-
moved as quickly as
“the demand for the same will permit”, it being
Respondent’s intention to sell this product as orders are placed.
Steps will be taken during such removal to prevent the development of
a slough.
Removal will be accomplished as rapidly
as possible.
The
area will be leveled and covered to prevent erosion and dust.
In
addition, Respondent will erect a berm or dike to prevent the flow
of aluminum oxide into the river.
The submission
is dated January 14,
1972, but does not appear to have been acted upon in any way by the
Agency.
On December 13,
1972, Lambert M. Ochsenschlager withdrew his and
his firm’s appearance as attorneys for Respondent.
On January
3,
1973,
John 0.
Heimdal, Secretary of the Respondent corporation,
appeared
initially as Secretary of Respondent and then entered his appearance
as counsel.
(R.
5,
1/3/73).
He filed a plea of nob
contendere stating
(H.
3,
1/3/73)
that he did not intend to contest the allegations on
behalf of Respondent but was not making all admissions
of violation.
Upon
being
told
by
the
Attorney
General
that
the
Board
Rules
would
not
embody
such
procedure,
an
oral
general
denial
was
imposed and the hearin
proceeded
on
this
basis.
The
Agency
introduced
a
substantial
number
of
exhibits in support of its complaint and the amendment thereto.
(Conipl.
Group Ex.
1 through’l4).
We consider the allegations in the order
specified in the pleadings.
We are unable,
on the state of the record,
to find air pollution violations at the Aurora facility as charged.
No
evidence has been introduced either with respect to numerical emissions
or impact on surrounding property that would justify a finding of nui-
sance or interference with the enjoyment of life to sustain
a finding
of air pollution,
as defined in both statutes.
The mere introduction
of photographs
is insufficient.
The same finding must be made with
respect to the allegations of air pollution from the Batavia facility.
The evidence is sufficient
to support a finding of violation with
respect to Section 12(d)
of the Act in the creation of
a water pollution
hazard at Batavia, between September,
1970 and April,
:L972.(Compl. Group
Ex.
3, Laboratory reports of composition of Fox River bottom samples
adjacent to the Batavia site;
Compi. Group Ex. 7, photographs of alum-
inum dross disposal site adjacent to Fox River)
.
For the same
reasons as stated above, however, we are unable to find
a demonstrable
violation of the Water Pollution Provisions of the Environmental Pro-
tection Act at either location.
There
is no question that Respondent’s
Batavia operation has violated the refuse regulations during 1970,
1971
and 1972, and has violated the Environmental Protection Act in operating
a Refuse Disposal Site without the necessary permits,
as charged in the
complaint.
(Compi. Group Ex.
2,
3 and 4).
—4—
7
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334
We also find that the evidence(Compl.Group Ex.ll&l2)supports
the alle-
gations of the amendment to the complaint as to SWE—il, Rule 1.03(a)
and
(b) relative to the Aurora facility.
However,
we are unable
to find violation of paragraph
(c) thereof because no nuisance
condition has been established.
We also find that the operation
at the Aurora site has violated Rule 1.08, paragraphs
10(a)
and
(b) (1),
(2),
(3)
and
(4)
of SWB—ll, with respect to effluent dis-
charges in excess of~applicable BOD,
suspended solids and other
limitations therein cohtained,
between July
1,
1970 and the date of
the last hearing.
The evidence indicates that the Aurora site has
been shut down and that the Batavia site has been sold since the
commencement of the hearings.
Respondent has made no effort to refute the allegations, but
has introduced evid~ence~ndicatinga condition of insolvency which
would, of course,
go -~othe matter of ultimate penalty but not to
the question of violation.
Respondent’s counsel has also reaffirmed
the proposal previous1y,~madeby Respondent and has indicated that
it
will perform all of the ~undertakings assumed by it in the proposal.
We believe that no useful purpose would be served by the imposition
of a substantial penalty, particularly in view of the sequence that this
case has taken,
the steps already taken to achieve abatement of the
pollutional discharges and the insolvency of the company.
We recognize
further that to the extent the ownership of the Batavia site has
changed, enforcement of our order may present certain difficulties.
However, we can only act on the basis of what is before us and direct
compliance against those who have been brought in
as party—respondents.
We must leave any further implementation of the enforcement pro-
cess
to the Attorney General.
It will be our order that a penalty
in the amount of
$1,000
is assessed against Respondent for the vio-
lations
of
SWB-ll,
the
creation
of
a
water
pollution
hazard
in
vio-
lation
of
Section
12(d)
of
the
Environmental
Protection
Act
and
for
violation of the Rules and Regulations Governing Refuse Disposal Sites
and Facilities.
We will direct that Respondent cease and desist from
all violations of the relevant statute and regulations with respect
to the causing of air and water pollution and comply with the Rules
and Regulations Governing the Control of Refuse Disposal Sites and
Facilities.
Lastly, we will
require that Respondent take all steps
that it has agreed to do in its proposal, which have been outlined
above,
to assure that no air or water pollution will continue from any
of its operations or will result from the operations
that it contem-
plates
in the closing of its facilities.
This opinion constitutes the findings of fact and conclusions
of law of the Board.
IT
IS THE ORDER of the Pollution Control Board:
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7
—
335
1.
Respondent shall pay to the State of Illinois the
sum of $1,000 as a penalty for the violations
of
SWB-11,
the Rules and Regulations for Refuse Disposal
Sites
and
Facilities
and
Section
12(d)
and
Section
21(f)
of
the
Environmental
Protection
Act
as
found
in
this proceeding.
Penalty payment by certified check
or money order shall be made to:
Fiscal Services
Division, Illinois Environmental Protection Agency,
2200 Churchill Drive, Springfield,
Illinois 62706,.by April
27,1973.
2.
Within
60 days from receipt of this order, Respondent
shall cease and desia from all violations
of the Environ-
mental Protection Act and all applicable Rules and Regula-
tions relative to the causing of air pollution, water pollu-
tion and the conduct of
a refuse disposal site and facility.
Respondent shall construct a dike or berm at both its
Aurora site and its Batavia site to prevent pollutional
discharges
from such sites
into the Fox River.
3.
Respondent shall dredge the Fox River in proximity with
both sites to remove deposited aluminum oxide, pursuant
to the provisions of paragraph
2 of the “Proposal of
Respondent” with respect to the Aurora site and will
take comparable steps with respect
to the Batavia site,
as agreed upon on page 42 of the December 27, 1971 trans-
cript of hearing.
Respondent shall remove all exposed
aluminum oxide from the Batavia site and shall fill and
cover said site in compliance with relevant regulations.
4.
Respondent shall level and apply cover to the Aurora site
to bring it into compliance with all relevant regulations.
5.
Respondent shall take such further and additional steps
at both its Aurora and Batavia sites as may be necessary
to prevent any and all emissions of effluents
or contam-
inants into the water and air that may cause water pollution
or air pollution or the threat thereof and shall cause such
steps
to be taken so that all areas presently or formerly
owned by it and subject to this proceeding shall be in
compliance with all relevant statutory provisions and
Rules and Regulations with respect to air and water pollu-
tion,
the emission of contaminants both into the air and
water and the relevant regulations with regard to refuse
disposal sites and facilities.
No excavation, removal or
loading of materials shall take place at any time when wind
conditions will create the likelihood of nuisance.
I,
Christan Moffett, Clerk of the Illinois Pollution Control Board,
certify that the above Opinion and Order was adopted on the
______
day of March,
1973,
by a vote of
~
to
________
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