ILLINOIS POLLUTION CONTROL BOARD
February 17, 1977
ALTON BOX BOARD COMPANY,
Petitioner,
V.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
)
PCB 75-496
PCB
75—508
ENVIRONMENTAL PROTECTION AGENCY,
)
(Consolidated)
Complainant,
v.
ALTON BOX BOARD COMPANY,
Respondent.
Mr. Karl
K. Hoagland,
Jr. of Hoagland, Maucker, Bernard & Almeter
appeared on behalf of Petitioner;
Mr. Robert
N.
Reiland, Assistant Attorney General for the State of
Illinois and Mr. Robert Barewin, Attorney,
Illinois Environmental
Protection Agency appeared on behalf of Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Goodman):
On April
9,
1976 PCB 75—496,
a variance petition by Alton Box
Board Company
(Alton), and PCB 75—508, an enforcement action against
Alton Box Board Company, were consolidated and ordered set for hear-
ing.
Hearing was held on both matters on July
12 and July
13,
1976;
this Opinion and Order will address both matters.
Variance Petition
-
PCB 75-496
PCB 75-496, Alton’s variance petition, was filed before the
Board December 22,
1975.
The petition requests extension of the
24
—
767
variance heretofore granted by the Board in PCB
73-140,
extended in
PCB 74-5 and most recently in PCB 74~49l.
The Illinois Environmental
Protection Agency
(Agency)
filed its initial recommendation on
January
26,
1976.
On March
9,
1976 Alton
moved for an interim variance
and provided a conditional waiver based upon its motion.
The Board
rejected the motion for interim variance and,
since
it had no waiver
before it, dismissed the variance petition
on March 11,
1976.
The
matter was reinstated on April
18,
1976, and the Agency filed an
amended recommendation on May
6,
1976,
As noted previously,
hearing
was held on the matter on July 12 and 13,
1976.
In its petition Alton alleges that
it has complied with all the
Board conditions set forth in the previous orders and that it has been
pursuing the construction and installation
of the proposed mill waste—
water treatment plant and the selection of
methods
of
treatment
in
a
timely and good faith manner,
A1ton~s
prior allegations of undue and
unreasonable economic hardship are
realleged by the incorporation of
the prior variance proceedings.
The
Agency in its recommendation and
amended recommendation generally
complains about Alton’s responses to
the prior Board orders
concerning
engineering and other reports which
were to be sent to the Agency for
review.
In its amended recommend-
ation
of May
6,
1976,
the Agency upon,
review of the reports and pro-
posals
submitte~by Altor~ states that
Alton’s preliminary plan raises
serious questions
as to wi~ther
Alton
will achieve compliance with
applicable regulations in the
required
amount of time.
At
the hearing Alton amended
its
petition for extension of
variance
with
the
request
that
the
variance be extended from April
6,
1976
to
and
including
June
30,
1978,
rather than the April
6,
1977
date originally requested
(R.10).
Upon review of the records of the
prior variance proceedings and the
evidence presented in this case,
the Board is convinced that Alton
continues to be in a position of
arbitrary and unreasonable hardship with respect to immediate com-
pliance with the Board Regulations,
The issue herein is whether Alton
has proceeded with the compliance
plans associated with the prior
variances
in
a
goodfaith
manner,
The
Agency
has
questioned
Alton’s
response
to
paragraphs
6
and
12
of
the
prior
Board
order
granting
the
extension
of
variance
in
PCB
74-491,
In
a
previous
Opinion
the
Board
found
that,
while
the
response
by
Alton
to these paragraphs was not
exemplary, we could not find that Alton had
proceeded
in
bad
faith,
Alton Box Board Company v. EPA, PCB 74-491
(February
3,
1977.
The Agency questions Alton’s compliance
with Condition
5 of
PCB 74-491.
Alton submitted a report to
the
Agency prepared by
Williams Brothers Waste Control,
Inc.,
(Alton
Exhibit
AB-6),
which
the Agency found to be inadequate in that it
lacked
data
and
documen-
tation to support its conclusions and parts were
vague and ambiguous.
Condition
5 in PCB 74-491 required Alton to
submit
a
report within
30
days detailing the steps which it has taken
and intends
to take to
neutralize or treat the sludge remaining in
the impoundment area.
At
24
—
768
—3—
the
hearing
this
question was the subject of testimony by Mr. Charles
H.
Sheppard,
an engineer
in the firm of Sheppard, Morgan and Schwaab.
This firm was the author of the report submitted to the Agency by Aiton
on March
31,
1976,
entitled
“Description of Improved Channel. Through
Alton Impoundment Area, Including Revised Operating Procedures.”
(Alton Exhibit AB-37).
Sheppard’s testimony indicated in general
that
flooding of the impoundment area had been corrected by a channel and a
series of pumps which will discharge water that normally flows to the
Mississippi through two conduits in the
levee called the “twin sixties”
whenever the U.S.
Corps of Engineers
find it necessary tç close the
culverts when the river rises
to flood stage
(R. 102—121)
.
In addition
Sheppard indicated that under very exceptional flood stage conditions,
the Corps would find it neccesary
to flood the area behind the levee
including the impoundment area in order
to protect the levee from the
hydrostatic pressure of the river
(R.122).
Sheppard estimated that the
flood level would have
to be unusually high and indicated the last
time this happened was during the record breaking flood of 1973.
Fred Abel of Dravo,
Incorporated testified on behalf of Alton.
Abel identified
Exhibit
AB—36
as
a proposal for engineering construc-
tion of
a secondary treatment system for the Alton mill by •I~ravo,
Incorporated and further indicated that Dravo is now working on the
final design
ix:i preparation for soliciting proposals for construction.
Abel testified that 80-85 percent of the potential for cre.ating odors
in the impoundment area has been corrected and that Altori’s program,
if seen to
conclusion, would be 100 percent effective,
(R.l61—l64).
Lawrence W. Eastep testified on behalf of the Agency.
His testi-
mony indicated that the impoundment area still contained organic
matter but that any problems,
especially from hydrogen sulfide
(H2S)
generation,
would likely be caused only by
a general floodi~igof the
entire impoundment area
(R.33l-335).
Upon review of Alton’s Exhibit
AB-6 and the testimony at the hearing by witnesses for b~t~4itQwand
the Agency, the Board concludes that Altoia has made, a good
~aith effort
to comply with Condition
5 of the Board ordeT’ in PCB 74—491
Condition
3(e)
of
the Board order
in
PC4I 74—401
requi*’~edAl-ton to
submit preliminary wastewater treatment plant ~lans~by
Ma~cI4.3~,1976
to the Agency.
Alton’s Exhibits AB—35 and~3~are entitled ‘~PreI~minary
Wastewater and Treatment Plant Process and°Design, Plans aM’SP~cifi-
cations and Proposal for Engineering and ~Const~uction
of
~e~5opd~ry
Treatment System for the Aiton Mill, Alton Illinois, As P~paf~d’by
Dravo,
Incorporated”.
The Board finds
th.at these rep~rt~•
‘are
sufrf.Lcient
compliance with Condition
3(e)
of the Board order i~.P~B~74~-49i,con-
sidering that order envisioned a preliminary waste~ater
•é~.t~emt.plant
plan.
However,
the Agency has expressed grave doubts a~tp whether the
plans presented by Alton will achieve com?1ianc~with
the. standards of
20 mg/i of BOD5 and
25
rng/l
of suspended solids.
The Board can find no evidence of bad ~aith on the’ patt
of. Alton
24
—
769
—4-.
with regard to compliance with the Board order in PCB 74-491.
Agency
complaints concerning the adequacy of the submittals of Alton with
respect to the Board order not’~ithstanding, the evidence presented
indicates that Alton did in fact make
a good faith effort to comply.
The Board is nevertheless cognizant of the apparent weaknesses of
Alton’s proposal for
final
compliance, especially with regard to what
appears to be a
periodic
flushing
of the wastewater system (R.367-370).
The Board will,
therefore, grant Alton’s petition for extension of
variance but only until April
6,
1977.
This variance will be subject
to all applicable conditions of the variance granted in PCB 74-491 and
will additionally require Alton to provide details concerning phase
3
and phase
4 of its abatement plan for its wastewater treatment system,
especially with regard to disposal of the
sludge
removed
from
lagoon
and clarifier,
the
time
schedule of
the
plan,
and how the
plan
will
achieve
total
compliance
with
the
standards
of
20
mg/l
BOD5
and
25
mg/l
of suspended solids,
Enforcement Action
-
PCB 75-508
On
December
31,
1975
the Agency filed a formal complaint against
Alton
alleging
violation
of
Section 12(a)
of the Environmental Protec-
tion Act, paragraph 3(a~
-f
the Board order in PCB
74-491, Section
404(f)
of the Board~sWa.
Pollution Control Regulations
(Regulations),
and
Rule 601(a)
of the Rey~Iations.
Hearing
was
held
in
this
matter
on
July
12
and
13,
1976
in
conjunction
with
PCB
74-491
and
PCB
75-496.
No
public comment has been rec~ived
by
the
Board
in
this
matter.
The Agency alleges that
on
certain
dates
in
July
of 1975 Alton
allowed the discharge of effluent into the Shields Branch Creek which
contained a concentration of suspended solids in excess of 130 mg/l,
in violation of paragraph 3(a)
of the Board’s order in PCB 74-491.
In
addition the Agency alleges that
during
the
same
time
period
noted
above Alton was in violation of Rule 404(f) of the Board’s Water
Pollution
Regulations
concerning
the
discharge
of
BOD5
and
suspended
solids,
Violation of either one or both of the aforementioned Board
order and Regulation would result in
a violation of Section
12(a)
of
the
Act;
prohibition
of
the
discharge
of
any
contaminants
into
the
en-
vironment
so
as
to
violate
Regulations
or
Standards
adopted
by
the
Board.
Testimony
at
the
hearing
indicated
that
during
the
period
of
time
alleged in the complaint, Alton’s clarifier was inoperative due to the
failure of the bull and pinion gears and that repairs were being
effected
(R.380-4ll).
The
plant
effluent
(subsequent
to
preliminary
treatment in the inplant clarifier)
was bypassed directly by gravity
through the industrial ditch and the twin sixty culverts.
Under these
conditions,
Alton
was
unquestionably
in
violation
of
the
Board
order
24
—
770
—5—
and at least
in technical violation of Rule 404(f)
of the Regulations.
The Board recognizes the emergency situation faced by Alton during that
period of time under the conditions existing,
i.e.,
there being no
alternate method of discharging the effluent, and will therefore assess
no penalty for these violations.
In finding the aforementioned vio—
lations,
the Board affirms
its decision in PCB 74-5 that discharge
into
the impoundment area
is not a direct discharge to the Mississippi River.
The complaint also alleges violation of Rule 601(a)
of the Regu-
lations
in that Alton has provided no alternative or back-up system
for its mill process wastewater treatment facilities,
resulting in
violation of Section 12(a)
of the Act.
Alton has never addressed it-
self to the problem of minimizing violations of applicable standards
during such contingencies as the equipment failure noted
in this
case.
In addition Alton is well aware of the Board’s concern with any dis-
charge by any facility into the impoundment area that
is the subject
of this enforcement action.
By its inaction in this regard,
Alton
carries the burden of keeping its discharge from the impoundment area.
Alton has failed to do
so.
The Board,
therefore,
finds Alton
in viola-
tion of Section 601(a) of the Regulations and Section 12(a)
of the Act.
With respect to 33(c)
of the Environmental Protection Act the
Board has considered the character and degree of injury
to,
or inter-
ference with,
the protection of the health,
general welfare and
physical property of the people of the State of Illinois.
The effluent
that had been previously discharged into the impoundment area between
Alton’s plant and the Mississippi River has been a longstanding
problem with which Alton was totally familiar.
There is no contention
that Alton’s facility
is not of great social and economic value to the
area,
considering testimony by Mr. Sunderland of Alton Box Board
as
to
the number of people employed by Respondent and its total yearly pay-
roll
(R. 209)
.
The facility appears
to be suitable to the area
in which
it is located so long as it does not contribute unnecessarily to
problems in the surrounding environment.
However,
there can be no
question of the technical practicability and economic reasonableness
of the emergency equipment or installation that Alton failed toprovide
to their wastewater treatment plant.
Testimony by Mr. Sunderland indi-
cated that construction of
a bypass pipe around the primary clarifier
had been considered and was estimated to cost approximately $38,000.00
(R.2ll~). Alton’s annual report for 1975, Agency Exhibit A,
indicates
that
a cost of this type would have been no problem to Alton’s finances.
Considering the longstanding problem with the impoundment area,
the
Board’s continued emphasis that discharges to the impoundment ar~a
would no longer be tolerated,
and the complex compliance program
ordered by the Board in PCB 75-491,
Alton was on notice that discharge
to the impoundment area was not a viable option
in response to any
problem that might occur at the plant.
The Board therefore will impose
a $1,000.00 penalty for Alton’s violation of Section 601(a)
of the
Regulations and 12(a)
of the Act.
24
—
771
—6—
The Agency,
in
paragraph
13(b)
of
its
recommendation
in
PCB
75-49?~
and throughout consideration of this consolidated matter, proposes that
thu Board order Alton to construct
a
clarifier
bypass
to
insure
that
what happened in July of 1975 ~oncerning
Alton’s effluent discharge to
the impoundment does not recur.
Indeed testimony by Mr.
J.E. Sunderland,
Treasurer and Chief Financial Officer of the
Company,
indicated
that
construction of a bypass pipe around the primary clarifier has been
considered and
is estimated to
cost
approximately
$38,000.00
(R.211)
Alton,
however, produced considerable testimony at the hearing concern-
ing a new channel which they and the adjoining land owners engineered
and constructed late in
1975,
The sum of the testimony concerning this
channel
is that it has the capacity to
carry,
within
its
banks,
all
effluents previously sent through the impoundment area
(R.105-llO).
At one end of this channel,
as noted in Exhibit AB-37,
are the twin six-
ties conduit with their discharge through the levee
to the Mississippi.
While these remain open, Shields Creek Channel and all other effluents
in the area are discharged through the twin
sixties
to
the
Mississippi.
In the event that the Army Corps of Engineers closes the twin sixties
due to flood
stage
on
the
Mississippi,
the flow of the water
in the
channel goes in the opposite direction, draining to the Alton pumping
station which has a total pumping capacity
(in two stages containing
five pumps)
of approximately 60,000 gallons per minute
(R.ll0)
Testimony by Charle~
.
Sheppard of the firm of Sheppard, Morgan
and Schwaab, who specializ~ in municipal improvements, water works,
sewage,
etc.,
indicates that the channel will,
even in its pumping
mode,
contain within its banks anything less than
a
30—year
storm,
and will bring a 30-year storm back
in the channel within
48 hours
(R.lll)
.
The Board
finds tL~tthe proposed bypass of the clarifier,
whether or not it costs $38,000.00,
is not a reasonable requirement
in
the face of the existence of the new channel and its alleged capabili-
ties.
However, taking A1
un at its word that its effluent will not
enter the impoundment area Cue
to the existent of this new channel, the
Board
will
order
Alton
to
cease
and
desist
from
any
further
such
dis-
charges.
Th i s Op1 n I on cons
V
i
tutes
I h’
I
I nd
I nq~ (1
L1(~
t
nd
~oiic1
us
i
ens of
law
of
the
Board
in
this
matter.
ORDER
It
is the Order of the Pollution Control Board that in Variance
Petition PCB 75-496 that:
1.
Alton Box Board Company be granted a variance until April
6,
1977.
24
—
772
—7—
2,
This variance will be subject to all the applicable condi-
tions
of
the
variance
granted
in
PCB
74-491.
3.
Alton
shall
provide
to
the
Agency
details
concerning
phase three and phase four of its abatement plan
foi its
wastewater treatment system, particularly
the disposal of
the sludge removed from lagoon and clarifier,
the time schedule
of the plan and how the plan will
achieve
total compliance with
the standards of 20 mg/i of BOD5 and 25 mg/i of suspended
solids.
This detailed report shall be presented
to the Agency
within
45 days of the date of this Order.
It
is the Order of the Pollution Control Board Enforcement Case
PCB 75-508 that:
1.
Alton Box Board Company was,
during the time period alleged
in the Complaint,
in violation of paragraph
(3)
of the Board
Order
in PCB 74-491,
Rule 404(f)
of the Board’s Water Regulations,
and Section
12(a)
of the Environmental Protection Act.
2.
Alton Box Board Company was
in violation of Rule 601(a)
of
the Board’s Water Pollution Control Regulations and Section
12(a)
of the Environmental Protection Act in that it failed to pro-
vide alternative or back—up systems for its mill process waste-
water treatment facilities.
3.
Alton Box Board Company shall pay a penalty of $1,000.00
for the violations found in paragraph
2 above.
Penalty payment
by certified check or money order payable to the State of
Illinois shall be made within 35 days to:
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois
62706
4.
Alton
Box
Board
Company
shall
ceas’
and
desist
from any
further discharges
into the impoundment area.
I,
Christan
L. Moffett, Clerk of the Illinois Pollution Control
Board,
hereby
certif
the
above
Opinion
and
Order
were
adopted
on
the
~~~day
~
1977
by
a
vote
of
~_
~
Christan
L. MoffetWy’ Clerk
Illinois
Pollution
Control
Board
24
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773