ILLINOIS POLLUTION CONTROL BOARD

December

18,

1980

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Complainant,

v.

)

PCB 78—214

CITY OF PONTIAC, an Illinois

Respondent,

ALICE N.

KOHN, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF OF

THE COMPLAINANT.

VICARS, CAUGHEY & LEGNER, ATTORNEYS

AT LAW

(MR. ROBERT R. CAUGHEY,

OF COUNSEL), APPEARED ON BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by NE.Werner):

This matter comes

before the Board on the August

8,

1978

Complaint brought by the Illinois Environmental Protection Agency

(“Agency”).

On February

15,

1980,

the Agency filed a Motion for

Leave to File Amended Complaint Instanter,

the Amended Complaint,

and Motion to Direct Hearing Officer to Set Hearing Date.

On

April

3,

1980, the Board granted the Complainant’s motion.

Count

I of

the Amended Complaint alleged that,

during specified

months between November,

1977 and December,

1979,

the Respondent

discharged pollutants from

its

municipal sewage treatment facility

(the “facility” or “plant”)

into

the Vermilion River,

a water

of

the State of Illinois,

which violated its NPDES Permit effluent

limitations

for 5—day biochemical oxygen demand (“BOD~”),suspended

solids,

and chlorine residual, and failed to submit the necessary

quarterly Industrial Pretreatment Requirements Reports and Industrial

User Reports to the Agency in violation of the Respondent~sNPDES

Permit, Rules 410(a) and 901 of Chapter

3:

Water Pollution Control

Regulations

(“Chapter 3”)

and Section 12(f) of the Illinois

Environmental Protection Act

(“Act”),

Counts II and III alleged that, on

various specified occasions,

the City of Pontiac discharged effluent from its sewage treatment

plant which contained excessive levels of BOD5 and suspended solids

(i.e., over

10 mg/l of BOD~and over

12 mg/l of suspended solids)

in violation of Rule 404(c)’ of Chapter

3 and Section 12(a) of the

Act.

---

A hearing was

held on

August

22,

1980

at which a proposed, hut

unsigned,

Stipulation

was

presented,

The parties filed their

signed

Stipulation and Proposal for

Settlement on October 29,

1980.*

Because the

Agency

and

the City were not able to reach an agreement

as

to

a stipulated penalty, the proposed

settlement agreement leave~

the

amount of the penalty open.

However, both parties have filed

written briefs with respect to the penalty issue,

On October

29,

1980,

the

Agency filed its brief.

The City of Pontiac filed its

brief

on

November 14,

1980.

On November 21,

1980, the Agency filed

a Reply to the Brief of the Respondent.

In its briefs, the Agency has argued that a $5,000.00 penalty

is appropriate because of:

(1)

“several instances of

inexcusable

delays, poor maintenance, and insufficient planning” during a 2—year

period;

(2) “undue delay”

in taking affirmative steps

to abate

“troublesome wastes” contributed to

the

City’s sewage system by

Interlake,

Inc. and the Pontiac Correctional Center”;

(3)

failure

to correct

“poor

plant performance” due

to

sludge handling problems,

equipment breakdowns,

personnel problems, and the necessity for

extensive repairs.

On the other

hand,

the City

of

Pontiac has argued in its brief

that it has:

(1) exercised

“good faith”

by attempting

to abate

pollution caused by

discharges to its sewer

system;

(2) made

substantial efforts to

solve its sludge handling

problems; and

(3) tried to take all

necessary steps

to correct all other environ-

mental problems.

Additionally, the City has

argued that the

$5,000.00 penalty

proposed by the Agency is excessive,

punitive,

and much higher

than the customary penalties levied

against other

similarly situated

municipalities,

In its brief,

the Respondent has noted that:

.the City

personnel were

not prepared to anticipate

some of the

problems which

arose during the initial years

of the plant’s operation,

These,

coupled with the events

over which the City had no control

(the unexpected death

of its first operator,

the

uncontrollable power

surges,

and the

failure

of

the

microscreens to properly function

as initially

installed) resulted

in the plant discharging

an effluent

which did

not

consistently meet

NPDES permit

limitations,

*Although the proposed

settlement

agreement was not signed at

the time of the August

22,

1980

hearing, the substance of the Stipu-

lation filed on October 29,

1980

was presented,

The Board finds that

Procedural Rule 331 has

been

substantially complied with.

---

In addition, the City~sproperly certified

Class

II

operator, hired to replace the operator who was

killed,

failed to file required reports with IEPA, and

this fact

was not known to other City Officials until the

present

enforcement action was filed,”

(Respondent’s

Brief,

p.

1~-2),

Additionally, the City~sbrief indicates that:

“The sludge disposal problem was one

which the City

initially believed could be handled by use of the

existing sludge drying beds

as designed.

(Stipulation,

page 14),

When this failed, offsight disposal options

were reviewed, ultimately resulting

in awarding a

$91,000.00 per year contract for its removal,

This,

too,

required EPA permits and considerable time working out a

procedure which is undoubtedly a forerunner to this

type

of sludge disposal,

While hindsight makes resolution of problems much

simpler and more expeditious, the City in each of

these

problems exercised good faith and reasonable diligence

in attempting resolution of the problem with the

knowledge

it had at the time,

In addition, Complainant faults the City

for allowing

equipment breakdowns and imperfections in staff

perform-

ance,

(Complainant~sBrief, page 6),

Neither of

these

would occur in a utopian situation; however,

such is not

the case,

Pontiac~splant

is a complex operation, with

experience and training necessary for it to achieve the

effluent desired.

Pontiac desires its successful

operation as much as EPA does, yet is saddled with the

realities of the situation,

It has in good faith

addressed the problems which arose,

and sought to preclude

the reoccurrence of these problems.”

(Respondent~sBrief,

p.

4).

The proposed settlement agreement includes a detailed compliance

program

and schedule which provides that the Respondent admits the

violations

alleged

in the Amended Complaint and agrees to:

(1)

operate its plant under the direct and active supervision

of its

present

Class II operator or any Class

I operator;

(2) monitor

and

limit

(according to specified parameters) the main treatment plant

outfall,

(3) take specified, Agency—approved steps to limit

combined

sewer overflows and plant bypass;

(4) develop a

pretreat-

ment

program in accordance with an Agency—approved schedule

of

compliance;

(5) submit all necessary reports to the Agency;

(6) monitor

and report concentrations of

19 specified

parameters

(such as

arsenic, barium,

copper, cyanide,

fluoride,

iron,

lead,

mercury,

zinc, etc.)

to the Agency;

(7) monitor

the operation and

efficiency

of all treatment and control facilities and take

all

necessary

steps to minimize any adverse impact of

non—complying

discharges;

and

(8) follow various agreed—upon

measures to prevent

any further

environmental

problems.

(Stip.

22—38),

---

In evaluating t~ise fo, ere~taction and proposed settlement,

the

Board has taken

into consideration all the facts and circum-

stances in light of tte speci~iccriteria delineated in Section

33(c)

of the

Act.

The Board

finds the sct~1ementagreement acceptable

under

Procedural

Rule

331

ard

Section

33(c)

of

the

Act,

The

Board

finds

that

the

Respondent

the

City

of

Pontiac,

has

violated

Rules

404(c),

410(a,

and

°fl~

r~

Cha,tar

~.

~ter

Pollution

Control

Regulations

and

Sectiors

12(a

and

12(f)

of

the

Act,

In the

presen.

c

‘e,

‘~‘ITe Board

believes

that,

while the

record

indicates

that

the

d

sc~rg?

£

excessive

levels

of

contaminants

into

the Vermilion Riv r fron

he City~ssewage treatment plant

was

clearly improuer

thc

City

aetod in good faith, hut not

expeditiously erougf,

o correct thesc problems.

Accordingly,

the

Board

hereby assess~s

penalty of

1,000

00 against the Respondent.

This Opinion

o

st~.tuLes t

e

hoard’s

findings

of

fact

and

conclusions of law in this nat~

It is the Orfe

oc L5e

lino s Po1lut~onControl Board that:

1,

The Rc~poc~rt

F

Ci.~y

f Pon iac

has violated Rules

404(c),

410(a)

ana.

°

.1

of

hapte.

3.

‘tater Pollution Control

Regulations and Secti

ard

I

(f) of the Act

2,

Withir.

4~ 2a~

o

~u.

.

Ui: Order, the Respondent

shall,

by certiThed

o

o~s

I

payable

to the State of

Illinois,

pay

a

~

t

:

~tich

ia

o be sent to:

IF’.roi

ir

rrcntal

Protection

Agency

Ii’

Th

5

‘i ~.er

v~

don

22)

hrr

U

road

3.

The

Respondent

~ha11

cc~iply with

all

t~ie terms

and

conditions

of

~rc

~

pi

rtior

a

~

~roposai

~or

3ettlement

filed

October

29,

1980

r’Ficf

i~

:..

c

r

rc-tei

by

reference

as

if

fully

set forth

herein

I,

Chri tan

I

ictict

Icik

o~. the

Illinois

Pollution

Control

Board,

hereb

~er:if

tI~r

~

above Oiinlon and Order were adopted

on the

~~~d&1

“~

~

~

by

a

vote

of

~

Christan

U

Moff

,

Clerk

IlIino~sPollution

ontrol

Board