ILLINOIS POLLUTION CONTROL BOARD
    July
    12,
    1979
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    Complainant,
    V.
    )
    PCB 79—1
    BORDEN CHEMICAL, a division
    )
    of BORDEN,
    INC.,
    a New Jersey
    )
    corporation,
    Respondent.
    MR. PATRICK J.
    CHESLEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON
    BEHALF OF THE COMPLAINANT.
    SIDLEY
    & AUSTIN, ATTORNEYS AT LAW
    (MR.
    ROGER H.
    DUSBERGER,
    OF
    COUNSEL), APPEARED ON BEHALF OF THE RESPONDENT.
    OPINION AND ORDER OF THE BOARD
    (by Mr. Werner):
    This matter comes before the Board on the January
    3,
    1979
    Complaint brought by the Illinois Environmental Protection Agency
    (“Agency”).
    On February
    8,
    1979,
    the Complainant filed its First
    Set of Interrogatories and Request to Admit Facts.
    The Respondent
    filed its Answer to the Request to Admit Facts on March 14,
    1979,
    and filed its Answers and Objections to EPA’s First Set of
    Interrogatories on March 21,
    1979.
    On March 20,
    1979,
    the Complainant
    filed its Motion to Amend Complaint and Amended Complaint.
    On
    April
    12,
    1979, the Agency filed a Motion
    to Supplement the Amended
    Complaint and First Page of Amended Complaint
    (the first page of the
    Amended Complaint had been inadvertently omitted).
    On April
    26,
    1979, the Board granted the Agency leave to supplement the Amended
    Complaint.
    Count
    I of the Amended Complaint alleged that the
    Respondent discharged wastewater containing pollutants from its
    chemical plant into Long Point Slough via an unnamed ditch in excess
    of the effluent limitations set in its NPDES permit for pH, BODç,
    and suspended solids during the months of November,
    1977; December,
    1977; January,
    1978;
    December,
    1978; and January,
    1979 in violation
    of Rules
    410(a)
    and 901 of Chapter
    3:
    Water Pollution Control
    Regulations
    (“Chapter
    3”)
    and of Sections
    12(a)
    and 12(f)
    of the
    Illinois Environmental Protection Act
    (“Act”).
    Count
    II alleged
    that,
    on March
    30,
    1978,
    effluent
    discharged from the Borden plant
    produced unnatural color and turbidity in the unnamed ditch which
    is
    ~5—45
    —2—
    tributary to Long Point Slough,
    in violation of the Respondent’s
    NPDES Permit and Rule 203(a) and 901 of Chapter
    3 and Sections 12(a)
    and 12(f)
    of the Act.
    Count III of the Complaint alleged that,
    on
    June
    6,
    1978,
    a discharge, resulting from the rupture of
    a sludge
    holding lagoon
    (which was built and operated without the requisite
    Agency Construction Permit or Operating Permit), produced unnatural
    odor,
    color and turbidity
    in the unnamed ditch and in Long Point
    Slough itself,
    in violation of Rules 203(a),
    901,
    951, and
    952
    of
    Chapter
    3 and Sections 12(a),
    12(b)
    and 12(f)
    of the Act.
    A hearing
    was held on June
    13, 1979.
    The parties filed a Stipulation and
    Proposal for Settlement on June
    26, 1979.
    The Respondent operates a chemical plant in Illiopolis at the
    intersection of Cantrall Road and South Victory Drive in Sangamon
    County,
    Illinois.
    Borden Chemical
    (“Borden”)
    discharges wastewater
    to an unnamed ditch which is tributary to Long Point Slough* pursuant
    to its NPDES Permit No.
    IL 0001350.
    In the Statement of Stipulated Settlement,
    the Agency indicated
    that,
    if
    a full hearing were to be held in this matter,
    it would
    present evidence to support
    its contention that the rupture
    of the
    Respondent’s sludge holding lagoon on June
    6,
    1978 caused discharges
    which “produced unnatural odor, color and turbidity”
    in Illinois
    waters.
    (Stip.
    2).
    The Complainant also noted that it has no
    evidence which would indicate any other water quality violations due
    to the June
    6, 1978 discharge.
    (Stip.
    3-4).
    Additionally,
    it is
    the Agency’s position that both a Construction Permit and an Operating
    Permit were required for this sludge holding lagoon.
    (Stip.
    4).
    However,
    the Respondent maintains the position that since the sludge
    holding lagoon was part of a treatment system for which Borden had
    previously been issued an NPDES Permit by the United States
    Environmental Protection Agency
    (“USEPA”),
    no additional permits
    were required for the sludge holding lagoon.
    (Stip.
    5).
    Moreover,
    the Respondent has stated that,
    if a full hearing were to be held in
    this matter,
    it would produce evidence to show that, within 15 minutes
    after the rupture in the sludge holding lagoon was observed,
    a crew
    was formed to stop the leak.
    (Stip.
    5).
    The Company states that the
    maximum time that the rupture allowed a discharge was from 45 minutes
    to
    1 hour.
    (Stip.
    5).
    Borden believes that the discharge from the
    *Long Point Slough is a “navigable water”
    as that term is used in the
    Federal Water Pollution Control Act,
    33 U.S.C. 1251 et
    ~a•
    and a
    water of the State of Illinois as that phrase
    is used in the Illinois
    Environmental Protection Act.
    —3—
    ruptured sludge holding lagoon was caused by:
    (1)
    the addition of
    sludge of a thinner consistency
    (this consistency was unknown to
    the Respondent at the time);
    (2) the formation over time of a layer
    of water on the top of the sludge mixture
    (this water layer was not
    visible due to the existence of a foam cover over the water);
    and
    (3) the over-filling of the sludge lagoon.
    (Stip.
    4).
    The proposed settlement agreement provides that:
    (1)
    should
    Borden
    (or a consultant hired by Borden)
    undertake a study to
    investigate methods to improve
    its effluent quality during cold
    weather periods, Borden agrees to provide the Agency with the results
    of the study and
    (2) Borden agrees not to use the sludge holding
    lagoon
    (which ruptured on June
    6,
    1978)
    in the future, unless such
    use
    is consistent with the applicable
    laws and Board regulations.
    Additionally,
    the settlement proposal provides that the Agency
    agrees to dismiss Counts
    I and II of its Amended Complaint.
    (Stip.
    7)
    .
    Furthermore,
    the settlement agreement provides for a
    stipulated penalty of $4,000
    In evaluating this enforcement action and proposed settlement,
    the Board has taken into consideration all the facts and circumstances
    in light of the specific criteria delineated in Section
    33(c)
    of the
    Illinois Environmental Protection Act.
    The Board finds the
    stipulated agreement acceptable under Procedural Rule 331 and
    Section
    33(c)
    of the Act.
    The Board hereby dismisses Counts
    I and
    II
    of the Amended Complaint.
    The Board
    finds that the Respondent has
    violated Rules
    203(a),
    901,
    951 and 952 of Chapter
    3:
    Water
    Pollution Control Regulations and Sections 12(a),
    12(b)
    and 12(f)
    of
    the Act.
    Accordingly,
    the Respondent shall pay the stipulated
    penalty of $4,000
    The Board has also considered the NPDES Permit issue in light
    of the decision by the U.S.
    Court of Appeals
    in Citizens for a Better
    Environment v. EPA,
    No. 78-1042, _______F.
    2d
    _____
    (7th Cir.
    1979)
    and finds that the Board has competent jurisdiction over the subject
    matter
    in the Amended Complaint pursuant to Sections 11(b),
    12(f)
    and
    13(b)
    of the Act and Board regulations established thereunder.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    It
    is the Order of
    the
    Illinois Pollution Control Board that:
    1.
    The Respondent has violated Rules
    203(a),
    901,
    951 and 952
    of Chapter
    3:
    Water Pollution Control Regulations and Sections 12(a),
    12(b)
    and 12(f)
    of the Act.
    35—4
    7
    —4—
    2.
    Counts
    I and II of the Amended Complaint are hereby dismissed
    3.
    The Respondent shall not use the sludge holding lagoon (which
    ruptured on June
    6,
    1978)
    in the future, unless such use is consistent
    with the applicable laws and Board regulations.
    4.
    The Respondent shall provide the Agency with the results of
    a study to investigate methods to improve Borden’s effluent quality
    during cold weather periods,
    if any such study
    is undertaken by the
    Respondent
    (or by a consultant hired by Borden).
    5.
    Within 45 days of the date of this Order, the Respondent
    shall pay the stipulated penalty of $4,000
    *
    Payment shall be made
    by certified check or money order payable to:
    State of Illinois
    Fiscal Services Division
    Illinois Environmental Protection Agency
    2200 Churchill Road
    Springfield,
    Illinois
    62706
    6.
    The Respondent shall comply with all the terms and conditions
    of the Stipulation and Proposal for Settlement filed June
    26, 1979,
    which is incorporated by reference as
    if fully
    set forth herein.
    Dr. Satchell and Mr. Goodman abstain.
    I, Christan
    L. Moffett, Clerk of the Illinois Pollution
    Control Board, here~ycertify the abov
    Opinion and Order were
    adopted on the
    /c~
    ~‘
    day of
    ________________,
    1979 by a
    vote of
    3_~
    C
    Illinois Pollution
    1 Board
    35—48

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