ILLINOIS POLLUTION CONTROL BOARD

Aoril 3, 1980

ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

)

78—131

HENRY

J. LIPPM7~N and BILL NELSON,

d/b/a PRESTORETE

CORPORATION,

Respondents.

MS. SUSAN H, SHUMWAY 

AND MS. NANCY J. BENNETT, ASSISTANT ATTORNEYS

~NERAL, APPEARED ON BEHALF OF THE COMPLAINANT.

MR. KENNETH J. GUMBINER, PEDERSEN & HOUPT, APPEARED ON BEHALF OF

THE RESPONDENTS.

OPINION AND ORDER OF THE BOARD (by Dr. Satchell)

This matter comes before the Board upon a complaint filed

May 10, 1978 by the Environmental Protection Acrency (Aqency)

naming as Respondents Henry 3. Lippman and Bill Nelson d/b/a

Prestcrete Corporation (Prestcrete). An amended complaint was

filed on November 15, 1978. The comrlaint alleges that Respond-

ents discharged contaminants into the waters of the state without

an NPDES oermit in violation of Section 12(f) of the Environmental

Protection Act (Act) and Rule 901 of Chapter 3: Water Pollution

(Chapter 3). Further counts alleges viol-~tions of Section 12(a)

of the Act and Rules 203(a), 203(h), 203(f) and 403 of Chapter 3

and a violation of Rule 305 of Chapter 7: Solid Waste Rules and

Regulations (Chapter 7). ~\hearing was held on November 20, 1978.

A motion to dismiss the individual Respondents was made at the

hearing. Since the Agency had no objection, Henry 3. Lippman and

Bill Nelson will he dismissed.

At the hearing the parties stioulated that Prestcrete is a

corporation, that it operates the Prestcrete Manufacturinq Plant

south of U. S. Route 34 in Piano, Kendall County and that it did

not have and never had an NPDES oermit. Prestcrete applied for

a permit on April 14, 1978 but at the time of the hearincr the

Agency had n~t acted on the anplication.

The site is situated on the northwest side of an abandoned

guarry at the top of a steee bank. To the south is a man made

lake within the quarry (Corn.p. Ex. D, 9). The qist of the complaint

—2—

is that ?restcrete pushes its solid waste into the quarry and

discharges its liquid waste to a ravine which flows into the

quarry and thence into 

the lake which it does not entirely own

(R. 15). Prestcrete has argued that the discharge to the lake

does not require an NPDES permit because it is not a navigable

water. However, Prestcrete’s application for an NPDES permit is

an admission that the discharge was to a navigable water.

Other than the stipulated facts, Prestcrete presented no

evidence whatsoever. This case therefore presents no questions

involving relative weight of evidence. The only issue before the

Board is whether the Agency has made out a prima facie case sub-

stantiating the allegations of the complaint.

The Agency witness Theodore M. Denning visited the site on

January 25, 1978. Prestcrete has run a prestressed concrete

forming and washing operation there since 1970 (R. 15). The con-

crete slabs are washed with a proprietary chemical and are then

rinsed with acid and clear water (R. 15, 16). On January 25, 1978

Mr. Denning observed a “broad delta—like deposit from the area of

the concrete slab washing operation which went towards the edge of

the quarry” (R, 21). There was a thin sheet of grayish liquid in

the deposit. The liquid appeared high in suspended and settleable

solids and there were some areas of reddish coloration (R, 21)

On that day the lake itself was covered with snow (R. 22). There

were areas that had been filled with debris from the operation CR.

22). Complainant’s Exhibit C shows results of laboratory results

on tests run from samples taken at Respondent’s site, There was

no testimony given concerning where and how the samples were taken.

The Board finds the Respondent was in fact discharging con-

tarninants into the lake without an NPDES permit and that this con-

stitutes a violation of Rule 901 of Chapter 3 and Sections 12(a)

and 12(f) of the Act. Respondent’s effluent contained settleable

solids arid color was not reduced below obvious levels in violation

of Rule 403 of Chapter 3. The allegations of violations of Rules

203(a) 

203(b) and 203(f) of Chapter 3 and Rule 305 of Chapter 7

will be dismissed because the evidence is insufficient to support

findings of violations.

In considering the factors of Section 33(c) of the Act the

Hoard has very little information since Respondent did not present

any testimony, Processing and Books, Inc. v. PCB, 351 NE 2d 865

(1965). The character and degree of injury is difficult to assess

since the Board does not know the exact nature of the contaminants;

however, the Agency investigation was in response to complaints

—3—

from a fishing club which uses the auarry lake (R. 13, 14, 15).

Respondent’s business has social and economic value. Information

concerning the suitability of the pollution source to the area

was not brought forward. Compliance is practicable since a permit

application

has been submitted. The 

Board observes that the pur-

pose of a p(’rm1~: sysLem 

is to provide information concerning con—

Lami non Ls and for Lhc 

protection of

Lite 

public.

In a letter dated March 16, 1979

Prestcrete’s attorney re—

cuested a stay of this proceeding because Prestcrete had filed

under Chapter XI of the Federal Bankruptcy Act. On March 29,

1979 the Board denied the stay. Attached to the motion was a copy

of an Order signed by the bankruptcy judge. Among other things

the Order states that :    “The filing of the petition by the debtor

above named operates as a stay of the commencement or continuation

of any court or other proceeding.” Prestcrete contends that this

action is an “other proceeding” within the meaning of the Bankruptcy

Act and cites Hillsdale Foundry Co. v. State of Michigan and Litch-ET?1 w?177 449 m?559 449 l?S?BT?

field Industrial Corp., W. D. Michigan, November 18, 1974 in support

of its position. The result of this case has apparently been re-

versed by Section 362(h) (4) of the new Bankruptcy Act which took

effect October 1, 1979, The decision as to whether this case

sbould he stayed under the Bankruptcy Act is the exclusive pre—

rope 

ive ol 

liNe Federal court-s.

The

bankruptcy judge’ s order is

di

rec Lcd Lo:

“The debtor, its 

Cre(l ton; and other part ~es in

interest.”

No copy was 

served upon

the

Board. However, the Board

has considered

the

Chapter XI status in mitigation as evidence of

inability

to pay a large fine.

Having considered all the factors enumerated above, the Board

finds that a penalty of $250 is necessary to aid the enforcement

of the Act.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

It is the order of tlie Pollution Control Board that:

1. Respondents Henry J. Lipoman and Bill Nelson are

dismissed.

*4—

2. Prestcrete Corporation is found in violation of Rule

901 of Chapter 3: Water Pollution and Section 12(a)

of the Environmental Protection Act; Section 12(f) of

the Act; and Rule 403 of Chapter 3.

3. The allegations of violations of Rules 203(a), 203(h)

and 203(f) of Chapter 3 and Rule 305 of Chapter 7:

Solid Waste Rules and Regulations are dismissed.

4. Prestcrete Corporation shall cease and desist from

further violations

of the Act and Board Rules.

5. Within 

thirty-five

days

of

the date of this Order,

Respondent shall, by certified check or money order

payable to the State of Illinois, pay a civil penalty

of $250 which is to he sent to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Spirngfield, Illinois 62706

Mr. Werner Dissented.

I, Chris-tan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereb certify the above Opinion and Order were

adopted on the 

_____

day of 

_________,

1980 by a vote of 

_____

Christan L. MoffettIlClerk

I. ~

Illinois Pollution Control Board