ILLINOIS POLLUTION CONTROL BOARD
September 4,
1980
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 78—132
VILLAGE
OF MILLSTADT,
a municipal corporation, and
)
TESTING, ANALYSIS, AND
CONTROL, INC.,
an Illinois
corporation,
Respondents.
MR. BRIAN E. REYNOLDS, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE COMPLAINANT.
JENNINGS, TEDESCO
& FLYNN, ATTORNEYS AT LAW
(MR. DONALD L.
TEDESCO,
OF COUNSEL), APPEARED ON BEHALF
OF THE RESPONDENT, THE VILLAGE
OF MILLSTADT.
MR. ANTHONY B. CAMERON, ATTORNEY AT LAW, APPEARED ON BEHALF OF THE
RESPONDENT, TESTING, ANALYSIS, AND CONTROL,
INC.
OPINION AND ORDER OF THE BOARD
(by N.E.Werner):
This matter comes before the Board on the May 10,
1978,
Complaint brought by the Illinois Environmental Protection Agency
(“Agency”).
On May 19,
1978,
the Agency filed a Motion to Supple-
ment its Complaint
(to add Exhibit A——a copy of its NPDES Permit
which was inadvertently omitted).
On May 25,
1978, the Board
granted the Agency’s Motion to Supplement its Complaint.
On
June
9,
1978,
the Agency filed a Notice of its Correction of a
Clerical Error.
On July
5,
1978, the Village of Millstadt
(the “Village” or
“Millstadt”) filed a Counterclaim against Testing, Analysis and
Control,
Inc.
(the “Company”).
Additionally, the Village filed its
Answer to the Agency’s Complaint on July
5,
1978.
On July
3,
1978,
the Company filed a Special Appearance and a Motion to Dismiss For
Want of Jurisdiction.
On July 10,
1978, the Agency filed its
Response to the Motion to Dismiss.
On July 11,
1978, the Agency
filed its Response to the Village’s Answer and a Motion to Strike
the Village’s Counterclaim.
—2
On July 20, 1978,
the Board entered an Order which:
(1) dismissed the Village’s counterclaim against the Company, and
(2) directed the Hearing Officer to stay any proceedings in this
matter as to all parties and to establish a schedule for the
submission of legal briefs by the parties on the question of
jurisdiction raised in the Company’s Motion to Dismiss~for Want of
Jurisdiction.
On August 21,
1978, the Company filed its brief
(i.e.,
a
Memorandum in Support of the Motion to Dismiss for Want of Juris-
diction).
On September 1,
1978,
the Agency filed its Brief in
Opposition to the Motion to Dismiss.
On September
7,
1978, the
Board entered an Order denying the Company’s Motion to Dismiss.
On November
16,
1978,
the Agency filed a Motion for Leave to
File an Amended Complaint and an Amended Complaint.
On January
18,
1979,
the Board granted the Agency’s Motion for Leave to File an
Amended Complaint.
Count
I of the Amended Complaint alleged that,
on February 3,
1978,
the Village allowed a bypass of discharge from its municipal
wastewater treatment plant
(the “plant” or “facility”) and failed
to notify the Agency
in writing within 72 hours of this diversion
of flow of discharge to the holding lagoon in violation of its
NPDES Permit,
Rule 901 of Chapter
3:
Water Pollution Control
Regulations
(“Chapter 3”),
and Section 12(f)
of the Illinois
Environmental Protection Act
(“Act”).
Count II alleged that,
from December 1, 1977 until April
6,
1978,
the Village failed to operate its facility in such a manner
as to minimize upsets and discharges of excessive pollutants
(i.e., by failing
to have any replacement parts on hand to repair
broken or damaged equipment; by allowing a non-permitted bypass to
occur; by allowing a non-permitted discharge from the holding lagoon;
and by failing to properly maintain the facility’s holding lagoon)
in violation of its NPDES
Permit,
Rule 901 of Chapter
3, and
Section 12(f)
of the Act.
Count III alleged that the Company and the Village failed to
sufficiently treat the diversion before allowing a discharge from
the plant on March 17,
1978 which caused a tributary of Douglas
Creek (downstream from the discharge)
to have an unnatural grayish
color, unnatural turbidity and an ammonia nitrogen
(as N) concentra-
tion of 7.7 mg/l
in violation of Rules 203,
402, and 602(c) of
Chapter
3 and Section 12(a)
of the Act.
Count IV alleged that the Company and the Village allowed the
discharge from the facility to cause the plant’s receiving stream
to have an unnatural turbidity, odor,
and an excessive ammonia
nitrogen concentration in violation of Rules 203 and 402 of
Chapter
3 and Section 12(a)
of the Act.
—3—
Count V alleged that the Company and the Village allowed, on
3 separate occasions, effluents to be discharged from the plant
which were offensive discharges
in that color, odor and turbidity
were not reduced below obvious
levels in violation of Rule 403 of
Chapter
3 and Section 12(a) of the Act.
Count VI alleged that the Company and the Village allowed, on
3 separate occasions, effluents to be discharged from the facility
which exceeded the numerical standards for BOD5 and suspended solids
in violation of Rules 401(c) and 404(f) of Chapter
3 and
Section 12(a) of the Act.
Count VII alleged that the Company and the Village allowed,
on
2 separate occasions, effluents to be discharged from the plant
which exceeded the numerical standards for fecal coliform in
violation of Rules
401(c) and 405 of Chapter
3 and Section 12(a)
of the Act.
Count VIII alleged that,
from December 1,
1977 until April
6,
1978, the Company and the Village failed to operate the facility
in such a manner as to minimize violations of applicable standards
during such contingencies as adverse weather and equipment
malfunctions in violation of Rule 601(a)
of Chapter
3 and
Section 12(a)
of the Act.
After the various discovery motions were filed,
a hearing was
held on April
25, 1979.
The parties filed a Stipulation and
Proposal for Settlement on May
25,
1979,
However, on August
9,
1979, the Board entered an Order which rejected the settlement
proposal because of the proposed suspended penalty.
On June 12,
1980, another hearing was held.
On July
29,
1980,
the Agency and the Village filed their Stipulation and Proposal for
Settlement
(See: Joint Exhibit No.
3).
Concurrently, on July
29,
1980, the Agency and the Company filed their Stipulation and
Proposal for Settlement
(See: Joint Exhibit No.
4).
The Village of Millstadt is
a small community in St. Clair
County,
Illinois which has
a population of approximately 2,200
individuals.
Its municipal wastewater treatment plant discharges
effluents into the South Branch of Douglas Creek,
a navigable
Illinois water, pursuant to NPDES Permit No.
IL 0032514.
(See:
Exhibit A).
On August 16,
1976,
the Village entered into a written agreement
with Testing, Analysis and Control,
Inc.
in which the Company was to
render certain services in connection with the maintenance and
operation of the Village’s plant for a basic annual charge of
$17,400.00 per year, payable at the rate of $1,450.00 per month.
(See: Exhibit B),
—4
It is also stipulated that, from January 21, 1978 until
March
21, 1978, the clarifier at the facility was out of service.
As
a
result
of
this
situation,
all
flow
of
discharge
at
the
plant
was
diverted
into
the
facility’s
holding
lagogn.
Full
service
was
restored
at
the
plant
on
April
4,
1978.
(Jt.
fl.
4,
p.
4).
The
Company has
indicated
that,
although
its
employees
believed
that
all
discharge
valves
from
the
plant’s
holding
lagoon
were
closed,
the
lowest
discharge
pipe’s
valve
was
inadvertently
left
in
a
partially
opened
position.
The
flow
into
the
lagoon
reached
the
level
of
that
discharge
pipe
by
February
3,
1978,
and
a
discharge
from
the
lagoon
occurred.
On
February
7,
1978
and
March
6,
1978,
Agency
personnel
inspected
the
lagoon
and
found
that
a
trickle
discharge
was
occurring.
When
the
Company’
s
employees
again
inspected
the
four
discharge
valves,
they
found
that
the
second
lowest
discharge
pipe
was
allowing
a
discharge
of
flow
from
the
lagoon.
Their
attempts
to
close
the
valve
were
futile
(indicating
the
gate
valve
to
be
possibly
defective
or
blocked
in
a
partially
opened
position).
(See:
Jt.
Er.
4,
p.
4—5).
Additional
Agency
inspections
on
March
17,
1978
and
March
31,
1978
revealed
that
the
holding
lagoon
was
improperly
discharging
effluents.
On
April
7,
1978,
the
lagoon—to—plant
pipe
was
opened
to
begin
treating
the
partially
treated
lagoon
flow
and,
by
April 10, 1978, the holding lagoon level had
dropped
to
a
point
where discharges from the lagoon into the South Branch of Douglas
Creek had ceased.
(Jt. Er. 4, p.
5).
It appears that the clarifier at the plant
became
jammed
and
inoperative
when
the
skimmer
arm
of
the
clarifier
broke
of
f
and
fell
into
the
tank.
The
Agency
contends
that
the
Company
could
have
alleviated
this
problem
and
brought
the
clarifier
back
into
service
at
a
much
earlier
date
by:
(1)
fully
draining
the
clarifier
tank
and initiating
the
necessary
repairs
prior
to
the
formation
of
any
ice
covering;
or
(2)
enclosing
the
clarifier
tank
in
a
tarp
and
pumping
heat
(or
using
space
heaters)
in
the
enclosed
area
(thereby
melting
the
ice
in
the
tank
and
allowing
the
requisite
repairs).
On
the
other
hand,
the
Company
contends
that,
under
the
existing
sub—zero weather
conditions
with
the
concomitant
snow
and
ice,
it
acted
with
all
reasonable
diligence
in
performing
the
necessary
repairs on the clarifier.
The
Company
notes
that,
because
of the
adverse
and inclement weather conditions, it was unable to fully
inspect
the
lagoon
discharge
pipes
to
insure
that
the
pipes
were
fully
closed
and it was hindered in making the requisite repairs.
(Jt.
Er.
4,
p.
5).
It
is
stipulated
that, from 1975 until June, 1978, the Village’s
facility generated about $115,000.00 income from residential sources
and $13,000.00
income
from
industrial
and/or commercial sources,
while
its
operation
and
maintenance
costs
were
approximately
$97,000.00
.
(See:
Joint Exhibit No.
3, p.
5).
The
total cost
to
correct the problems at the plant (including labor costs,
manpower
hours
expended,
and
replacement parts’ cost) was about $2,000.00
—5-.
The Agency contends that,
as a result of the clarifier being
out of service from January
21,
1978 until March 21,
1978,
and the
subsequent diversion of discharges into the holding
lagoon,
the
Village has violated its NPDES
Permit,
the Board’s Water Pollution
Control Regulations, and the Act.
These alleged violations have
been documented by laboratory analysis of water samples taken at
the Village’s wastewater treatment facility.
(See: Exhibits C,
D,
E,
F,
G, and H).
The proposed settlement agreement between the Village and the
Agency provides that the Village:
(1)
neither admits nor denies
the allegations contained in Counts
I through VIII of the Amended
Complaint;
(2)
agrees that its contract with the Company does not
relieve the Village of its obligation under the Act to exercise
control over those who operate the plant; and
(3)
agrees to pay,
jointly and severally with the Company,
a stipulated penalty of
$1,000.00
.
(Jt. Ex.
3,
p.
6).
The proposed settlement agreement between the Company and the
Agency provides that the Company admits
all allegations contained
in Count III and Count V of the Amended Complaint and agrees to:
(1)
immediately cease and desist from all further violations;
(2) insure the effective and proper sealing of the holding lagoon
discharge valves
(so long as the Company operates the facility);
and
(3) pay, jointly and severally with the Village,
a stipulated
penalty of $1,000.00
.
(Jt.
Ex,
4,
p.
6—7),
It is also stipulated that,
in order to insure that no
possibility of similar discharge occurs in the future,
the Company
has sealed
(by the use of a concrete grout) three discharge pipes
from the holding lagoon--leaving only the top overflow pipe from
the holding lagoon operative.
(Jt. Ex,
4,
p.
6).
The Company
believes that this measure will result in the lagoon having the
capacity of holding over
6 months of total sewage flow with no
possible discharge from the
lagoon (except to the facility for
final treatment).
In evaluating this enforcement action and the two proposed
settlement agreements,
the Board has taken into consideration all
the facts and circumstances in light of the specific criteria
delineated in Section 33(c) of the Act,
The Board finds both of
the stipulated agreements acceptable under Procedural Rule 331 and
Section 33(c) of the Act.
—6—
The Board finds that the Respondent,
Testing, Analysis and
Control,
Inc., has violated Rules
203, 402,
403,
and 602(c) of
Chapter 3:
Water Pollution Control Regulations and Section 12(a)
of the Act.
Counts
IV, VI, VII and VIII of the Amended Complaint
are hereby dismissed as against the Respondent Company.
The Company
is ordered to immediately cease and desist from further violations
of Chapter
3 and the Act,
The Company is ordered to insure the
effective and proper sealing of the holding lagoon discharge valves
(so long as the Compnay operates the Village of Millstadt’s
municipal wastewater treatment plant).
The Board also finds that the Village of Millstadt,
by virtue
of its contract with the Company pertaining to plant operation and
maintenance, has not been relieved of its obligation under the Act
to exercise due control
over those to whom the actual day—to—day
plant operation has been delegated to insure that violations of
the Board’s Water Pollution Control Regulations and the Act do not
occur.
Accordingly, Respondent Village of Millstadt and
Respondent
Testing, Analysis and Control,
Inc.
are assessed,
jointly and
severally, the stipulated penalty of $1,000.00
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.
Respondent Testing, Analysis and Control,
Inc.
(“the
Company”) has violated Rules
203,
402,
403,
and 602(c)
of Chapter
3:
Water Pollution Control Regulations and Section 12(a) of the Illinois
Environmental Protection Act.
2.
The Company shall immediately cease and desist from all
further violations.
3.
Counts
IV, VI, VII and VIII of the Amended Complaint are
hereby dismissed as against the Company.
4,
The Company shall insure the effective and proper sealing
of the holding lagoon discharge valves
(so long as the Company
operates the Village of Millstadt’s municipal wastewater treatment
plant).
5.
Within 45 days of the date of this Order, the Respondent
Testing, Analysis and Control,
Inc.
and the Respondent Village of
Millstadt shall, by certified check or money order payable to the
State of Illinois, jointly and severally pay the stipulated penalty
of $1,000.00 which is to be sent to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois
62706
—7—
6.
The
Respondents
shall
comply
with
all
the
terms
and
conditions of their respective Stipulations and Proposals for
Settlement filed on July 29, 1980, which are incorporated by
reference as if fully set forth herein,
I,
Christan L.
Moffett,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order we~eadopted
on the
/I’~
day of
____________,
1980 by a vote of
~-O
Illinois
Board
