BEFORE THE POLLUTION CONTROL BOARD
    OF THE STATE OF ILLINOIS
    ENVIRONMENTAL PROTECTION AGENCY
    v.
    )
    #70—18
    CONTAINER STAPLER CORPORATION,
    )
    FEDERAL WIRE MILL CORPORATION,
    and CITY
    OF HERRIN
    OPINION OF
    THE
    BOARD
    (BY MR.
    LAWTON):
    Complaint was filed by the Environmental Protection Agency
    against Container Stapler Corporation, Federal Wire Mill Corporation
    and the City of Herrin alleging in Paragraph
    1 that on August
    4 and
    5,
    1970,
    the corporate Respondents caused
    and allowed water pollution
    by discharging contaminants into
    the City of Herrin Sanitary Sewer
    System in violation of Section
    12(a)
    of the Environmental Protection
    Act
    (“Act”)
    and Regulation SWB-5
    of the Illinois Sanitary Water
    Board, continued
    in effect
    by
    Section
    49(c)
    of the Act.
    Paragraph
    2 alleges that
    the City of Herrin caused and allowed
    water pollution by discharging contaminants and increasing
    the quan-
    tity
    or strength of contaminants
    into the waters
    of the State of
    Illinois,
    in violation
    of Sections
    12(a)
    and 12(c)
    of the Act,
    and
    Regulation
    SWB—5 aforesaid.
    The complaint asks for
    the entry of an
    Order directing all Respondents
    to cease and desist the causing and
    allowing of water pollution and the assessment
    of penalties against
    each Respondent in the amount of $10,000 for each violation,
    plus
    $1,000
    a day
    for each day
    such violation shall have been shown to have
    continued.
    Section
    12(a)
    of the Act provides that no person shall:
    “Cause or threaten or allow the discharge of any
    contaminants
    into
    the environment
    in any state
    so as. to
    cause or tend
    to cause water pollution
    in Illinois, either
    alone or in combination with matter from other sources,
    or so as
    to violate regulations or standards adopted by
    the Pollution Control Board under
    this Act.”
    Section 12(c)
    of the Act provides
    that no person shall:
    “Increase the quantity or strength of any discharge
    of contaminants
    into the waters, or construct or install
    any sewer or sewage treatment facility or any new outlet
    for contaminants
    in the waters of
    this State, without
    a
    permit granted by
    the Agency.’
    1
    267

    “Water pollution”
    is defined under
    the Act,
    Section
    3(n)
    as “such alteration
    of the physical, thermal,
    chemical, biological or radioactive properties
    of any
    waters
    of the State,
    or
    such discharge of any contaminant
    into any waters
    of the
    State,
    as will
    or is likely to
    create
    a nuisance or render
    such waters harmful or detri-
    mental
    or injurious to public health,
    safety or welfare,
    or to domestic,
    commercial,
    industrial, agricultural,
    recreational,
    or other legitimate uses,
    or to livestock,
    wild animals, birds,
    fish or other aquatic life.”
    SWB-5, Rule
    1.01, provides:
    “Any person,
    firm or corporation engaged in manufacture
    or other process,
    including deactivation
    of processes,
    in which cyanides or cyanogen compounds are used shall have
    each and every room, where said compounds
    are used or
    stored,
    so constructed that none of said compounds
    can
    escape therefrom by means
    of building sewer,
    drain or
    otherwise directly or indirectly
    into any sewer system or
    watercourse.
    This case was originally set to be heard on October
    30, 1970
    at Carbondale,
    but continued on
    the motion of James
    W.
    Sanders,
    at that time attorney for Container Stapler Corporation,
    to Decem-
    ber
    4.
    1970.
    On the continued hearing date,
    the firm of Harris
    &
    Lambert appeared on behalf of the corporate Respondents and moved
    for
    a continuance,
    alleging by Affidavit, that the firm had not
    been retained until November
    30,
    1970
    to appear in this matter,
    that Affiant R,
    W. Harris had made arrangements
    to attend
    a seminar
    out of the state and that his partner, Gordon Lambert,
    was
    on trial.
    The Affidavit further asserted that counsel were unable
    to properly
    prepare the case because of the inadequate time available prior
    to hearing.
    The motion for continuance was denied by
    the Hearing
    Officer.
    The corporate Respondents
    then tendered
    a series
    of motions
    wh~chwill he considered
    in the order filed.
    The first alleged
    that the Environmental
    Protection Act violated Article
    II, Sec-
    tion
    2,
    of the Illinois Constitution and
    the Fifth and Fourteenth
    Amen&nents of the UniteC States Constitution,
    because it constituted
    an invalid delegation of legislative power, that Respondents were
    denied equal protection
    ~inder the
    laws,
    that the Act constituted
    class
    legis.at:.ion
    and compelled
    a litigant to submit his controversy
    ‘to
    a tribunal
    of which his adversary is
    a member and makes
    his
    antagonist his judge and does
    not afford due process of law.”
    1
    268

    A jury demand was
    filed,
    which demand was denied by the Hearing
    Officer on
    the grounds that the Environmental Protection Act estab-
    lishes the Board as an administrative tribunal and makes
    no provision
    for the trying of fact by
    a
    jury.
    Motion
    to dismiss was
    next filed
    on the grounds that the Act
    violated
    the Sixth Amendment of the United States Constitution
    by providing
    for
    a monetary penalty in the nature of a
    fine and
    “forces Respondents herein to be witnesses against their own interest”.
    A motion was filed to dismiss the case on the grounds
    “that if
    the Hearing Officer is to decide the cause herein by any standard
    or quantum of
    truth
    less than
    the quantum known
    as
    ‘beyond
    a reasonable
    doubt’, the proceeding would deprive corporate respondents of due
    process
    of law on the grounds that the penalty provided under
    the Act
    is
    a criminal penalty requiring
    ‘proof beyond
    a reasonable doubt’.”
    A motion to dismiss was filed on the grounds that the Act
    was
    so vague, uncertain and indefinite that corporate Respondents
    would be unable to prepare their defense,
    and thereby be deprived
    of due process of law under the constitutions of the United States
    and the State of Illinois.
    Further motion to dismiss was filed on
    the grounds that the
    Environmental
    Protection Act,
    in permitting
    the appeal of the Board’s
    Orders
    to the Appellate Court of the State of Illinois, was incon—
    sistent with the Administrative Review Act and thereby deprives
    the
    corporate Respondents of due process of
    law.
    All motions to dismiss were taken with the case and referred
    to the
    full Board
    for ultimate disposition.
    Rule 308(b),
    Procedural
    Rules of
    the Pollution Control Board.
    Pursuant to Rule
    107(c)
    of the Rules of the Pollution Control
    Board,
    corporate Respondents moved that
    a certain document
    (later
    introduced
    as Corporate Respondents’
    Exhibit
    1)
    be stamped “Not
    Subject
    to Disclosure”.
    Upon proof made by Respondents,
    the motion
    was allowed and the document accordingly
    so stamped.
    Leave was given to
    all
    Respondetits to file answers instanter.
    The answer of
    the corporate Respondents denied the material allegations
    of the Complaint and contained an
    affirmative
    defense asserting that
    the Respondents’
    plant was conducted
    in such a way as
    to
    make impossible
    the discharge of cyanide,
    or that
    if,
    in
    fact,
    such discharge took
    place,
    it
    was
    not technically practical or economically reasonable
    to eliminate
    such emissions.
    The answer
    of
    the City of Herrin
    denied the
    material
    allegations of the Complaint and contained two

    affirmative defenses,the
    first alleging,
    in substance,
    that
    it must
    accept all sewage received by it,
    that it cannot determine the
    specific source of
    the sewage and cannot control and treat certain
    pollutants discharged into
    its sewers, which are ultimately discharged
    by it into discharge channels.
    The second affirmative defense
    denied culpability.
    The Hearing Officer proceeded with
    the trial of the cause,
    at the conclusion
    of which all parties were given, leave
    to file
    briefs.
    The
    Board notes
    the propriety of the Hearing Officer’s denial
    of continuance based upon the retention of counsel shortly before
    the Hearing.
    This case had been continued initially upon representa-
    tion of counsel then representing the corporate Respondents.
    Allow-
    ing a continuance based on substitution of counsel shortly before
    trial date would permit an endless succession of continuances making
    a travesty of the Act and preclude the Board from performing its
    statutory functions.
    Likewise, the Hearing Officer’s determination
    that no
    jury could be called was correct.
    The Environmental Protec-
    tion Act makes
    no such provision.
    Prior
    to disposing of the substantive issues of this proceeding,
    it
    is necessary to consider
    the multitudinous motions
    for dismissal
    filed by corporate Respondents.
    It is the Order of this
    Board that all motions to dismiss
    this proceeding be denied.
    The contentions raised
    by these motions
    have either been disposed of in prior decisions of this Board or
    are
    so patently without merit that elaborate legal analysis is unnecessary.
    The motion relative
    to requiring proof
    of guilt beyond
    a
    reasonable doubt misconstrues
    the nature of the proceeding.
    While
    the Act provides
    for misdemeanor prosecution,
    the present proceeding
    is not one.
    The instant case is
    a civil action calling for the entry
    of a cease
    and desist order
    and the imposition of penalties
    and does
    not constitute
    a criminal charge or require proof in excess of
    a pre-
    ponderance of the evidence.
    Likewise,the assertion that
    the judge
    and prosecutor are one
    and
    the same manifests
    a profound misunder-
    standing of the basic legislation,
    establishing the Environmental
    Protection Agency as
    the prosecutor,
    and the Pollution Control Board
    as the
    court.
    The motion for dismissal on the grounds that representatives
    of Respondents are compelled to testify against themselves was dis-
    posed of
    in Environmental Protection Agency v.
    Neal Auto Salvage,
    #70-5, dated
    10/28/70, where Respondent was called by
    the Environmen-
    tal Protection Agency as an adverse witness.
    There we
    said:
    1
    270

    “Respondent next contends that Neal has been denied
    his constitutional rights by being called to testify as an
    adverse witness and has thereby been compelled
    to incriminate
    himself.
    Respondent reasons that since violation
    of the Act
    could be
    the basis
    of
    a misdemeanor charge and because Neal
    would allegedly be subject to
    a contempt proceeding
    if he
    fails to testify in the Hearing when called,
    he is thereby
    forced to incriminate himself
    in violation of the Fifth
    Amendment of the’United States Constitution.
    The answer
    to this contention
    is
    simple.
    If Neal desired to plead
    the Fifth Amendment and refuse to testify, he should have
    done so at the time he was called as
    a witness.
    This he failed
    to
    do.
    The only objection voiced was
    in being called under
    Section
    60
    of the Practice Act
    (R.17)
    .
    The practice
    of
    calling, an adverse witxiess
    is standard judicial procedure.
    No reason is given why it would be inappropriate
    in the
    instant case which complied with Section
    60
    of the Practice
    Act.
    Indeed,
    the practice had already been written into
    ~he procedural rules
    of the Board
    and
    is
    followed
    in normal
    court procedure
    generally.
    While Respondent: cannot be
    ‘forced
    to inc±’iminatehimself,
    his refusal must be timely,
    and made
    at the
    time he is called.
    The present contention
    is an
    afterthought.’
    (Emphasis supplied).
    It
    is manifest that
    a motion in
    anticipation
    of the possibility
    of self—incrimination cannot
    be
    made prior to the calling of
    a wit-
    ness.
    In
    the
    Neal case,
    (supra)
    the witness was called under Sec-
    tion 60 of the Civil Practice Act,
    At
    the time
    the motion was filed
    in
    the
    instant
    case,
    no one had yet testified
    and representatives
    of Respondents,
    when they did testify, were called by their own
    counsel and
    not
    the Environmental Protection Agency.
    The
    constitutional
    arguments
    raised
    on
    the
    question
    of
    vague-
    ness
    and
    absence
    of
    standards
    to
    support
    a
    delegation
    of
    legislative
    authority,
    have
    been
    previously
    considered
    by
    this
    Board
    in
    Environ-
    mental Protection Agency v.
    J.
    M.
    Cooling,
    #70-21, decision dated
    12/9/70.
    The
    relevant
    provisions
    of
    the
    statute
    and
    the
    regulations
    under
    which
    the
    present
    proceeding
    was
    tried
    are
    set
    forth
    above.
    The
    specific
    regulation
    with
    wbicn
    corporate
    Respondents
    are
    charged
    expressly
    prohibits
    the
    discharge
    of
    cyanide
    into
    a
    sewer
    system
    or
    water
    course.
    There is
    no question
    that this r~gu1ationis speci-
    fic,
    detailed and
    understandable.
    Section
    12
    of
    the
    statute
    con-
    tains
    a series of express prohibitions regarding the discharge,
    increase
    and deposit.s of contaminants
    so
    s
    to
    cause
    water
    pollution
    in
    Illinois.
    A
    violation of a regulation constitutes
    a violation
    of
    the Act.
    See 12(a).
    The Board, under Section
    13,
    is
    authorized
    to
    adopt
    regulations
    with
    regard
    to
    the
    enactment of water
    ciualitv
    ant
    effluent
    standards,
    issuances
    of
    permits
    ~e1ative
    to
    equinment
    having

    a potential of water pollution,
    standards for
    the certification
    of sewage works and requirements and standards for monitoring
    contaminant discharges at their
    source,
    in addition
    to other areas
    of regulation not relevant to this proceeding.
    ~s we said
    in
    Cooling:
    “Statutory and regulatory provisions,
    far less detailed
    than the foregoing, were held to withstand
    the challenge
    of vagueness in the case of Department of Health
    v.
    Owens
    Corning Fiberglass Corporation 242A.
    2nd 21 1968,
    affirmed
    250A,
    2nd 1969,
    where the Defendant was ~found guilty of
    violating
    a regulation enacted pursuant to
    a New Jersey
    statute which merely prohibited
    the causing, suffering,
    allowing or permitting the emission into
    the outdoor air
    of substances
    in quantities resulting in “air pollution”.
    Air pollution was defined under the statute as the “pre-
    sence
    in the outdoor atmosphere
    of substances
    in quantities
    which are injurious
    to plant or animal life or to property
    or reasonably interf~rewith the comfort and enjoyment of
    life and property within the state.,.”
    The New Jersey statute and regulations,
    in effect,
    adopted
    a general nuisance approach without
    the specifica-
    tion found
    in the Illinois Act and regulations, which not
    only detail what
    is prohibited, but likewise specify what
    must be done affirmatively
    in the operation of facilities
    such as conducted by Respondent.”
    See also ~
    itanityDiictof
    Greater
    Chicago
    v.
    U.
    S. Steel Corporation
    41
    Ill,
    2d,
    440,
    243
    N,
    E~, 2d
    249,
    The motion to dismiss on the grounds that the Environmental
    Protection Act,
    in permitting direct appeals to the Appellate Court,
    contravenes the Administrative Review Act,
    is wholly without merit.
    The jurisdiction of the Appellate Court of Illinois
    to consider
    administrative appeals is set forth
    in
    Article
    VI, Section
    6,
    of
    the
    Illinois Constitution:
    “The Appellate Court
    shall have such powers of
    direct review of administrative action as provided by
    law,”
    Section
    41 of the Environmental Protection Act has made such a
    provision.
    ,
    We now consider
    the substantive aspects
    of the case.
    On
    August
    4 and
    5,
    1970, Murl Teske, Environmental Control Engineer
    employed by the Environmental Protection Agency obtained water
    1
    272

    samples from discharges emanating from the south wall
    of the plant
    operated by the corporate Respondents
    (R.39), where the effluent
    from the plant entered the municipal sewer
    system.
    Two samples
    were obtained on each day at separate points
    of discharge from
    Respondents’
    building.
    These samples were taken to the laboratory
    of the State Department of Health and analyzed for cyanide content.
    The sample taken on August
    4,
    1970 from the southeast
    corner of
    the plant showed cyanide content in the amount of
    o.75 milligrams
    per
    liter.
    The sample obtained from the middle of the south wall
    on August
    4 disclosed no cyanide content.
    The August
    5
    samples
    were taken
    at the same locations.
    On this occasion, Teske treated
    the sample bottles with pellets of sodium hydroxide
    to raise the pH
    of the liquid and prevent the cyanide from escaping as gas
    (R.52).
    These samples disclosed
    a cyanide content of
    5.2 milligrams
    per liter
    from the discharge at the southeast corner of
    the plant and
    a con-
    tent of 2,7 milligrams per liter in the discharge from the middle
    of the south wall of the plant.
    Effluent samples were obtained
    from the Herrin sewage treatment plant on August
    5, which were
    likewise analyzed
    at the laboratory and disclosed
    a cyanide content
    on that date of
    .14 milligrams per
    liter.
    Subsequent testings
    were made by Teske at both the plant of the Respondents and
    the
    sewage treatment plant which disclosed the presence of cyanide in
    both
    the factory effluent and the sewage treatment plant effluent.
    (See Environmental Protection Agency’s Exhibits
    7 through
    20,
    inclusive,
    R.66,67,79).
    Tests
    as late
    as October
    28,
    1970, disclosed
    cyanide content
    in the factory effluent.
    A test on October
    16,
    1970,
    disclosed cyanide
    in the sewage treatment plant effluent.
    Container Stapler Corporation and Federal Wire Mill Corporation,
    while
    separate
    corporate
    entities,
    have
    a
    common
    management
    and
    occupy
    the same factory building in Herrin,
    Illinois.
    Container
    Stapler Corporation
    is
    a manufacturer of staples and stapling
    mach:Lnes;
    Federal Wire Mill Corooration
    is
    a wire manufacturer
    processing finished wire
    in
    a variety
    of ways
    (R.228).
    Cyanide
    is used
    in the copper plating process
    of both companies
    (R.20l
    and following)
    .
    In
    connection
    with
    the copper plating,
    a Pfaudler
    Cyanide Recovery Unit is used.
    This unit recovers the cyanide—
    bearing waste and rinse waters from three copper cyanide plating
    lines,
    recycling the copper and cyanide-bearing effluent and the
    rinse
    water
    in
    a
    closed
    circuit
    (R.233),
    the
    cyanide
    returning
    to the plating tank and
    the rinse water in distilled
    form, return~~.~
    to the rinse
    tank.
    Installation
    of this unit had been approved by
    the State Sanitary Water Board on March 19,
    1968.
    (Corp.
    Res.
    Ex—
    hibit
    2)
    .
    According to the testimony,
    no cyanide—containing water
    can leave the plant or get into
    the
    municipal sewage system.
    The
    recovery unit is located in
    a holding pit surrounded by concrete.
    Residue not susceptible to reclamation containing cyanide and other
    1
    273

    effluents is held in
    a holding tank
    and extracted by hose to a
    tank truck,
    removed from the premises and ultimately disposed of
    by incineration
    (R.2l3,237).
    The cyanide recovery system is con-
    nected to two plating processes by piping, covering distances
    of
    fifty and twenty-five feet,
    respectively
    (R.244).
    The relative
    location of
    the component units is shown on Respondents’ Exh1b~tl_.
    The copper plating process provides for the wire to be fed
    into
    the
    plating tank, where it passes through the plating bath and is electro-
    plated, drawn down to final
    size and finished,
    The finished product
    is placed into barrels,
    Rinse water used in the cleaning eliminates
    all remnants of the cyanide-bearing plating solution and is recycled
    in the Pfaudler unit as indicated.
    (R.250-252).
    According
    to
    testimony, there
    is
    no place wh~rewater residue from spools of
    wire can spill on the
    floor,
    (R.253)
    nor can emissions from the cya-
    nide recycling process reach the sewer system.
    The evidence introduced by the City of
    Herrin
    does not
    contradict the finding of cyanide
    in
    its
    effluent.
    On
    the contrary,
    the
    evidence
    indicated
    that
    the
    city itself had
    been
    aware of this
    situation
    by
    its
    own
    analysis
    for some
    time
    (R,l86), without being
    able
    to determine its
    origin.
    Employees
    of the city sewage treatment
    plant testified that they are
    in the process of making installation
    to detect the presence of cyanide in its effluent
    (R,l73,
    R,18l).
    The
    evidence
    leads to the following conclusions:
    The corporate Respondents,
    in installing the Pfaudler re-
    cycling unit, have made
    a conscientious
    and deterthined effort to
    eliminate cyanide from their effluent and from the sewage facilities
    of the city and the waters of the
    State,
    However, irrespective of
    their efforts,
    some cyanide has been escaping from the plant through
    its water discharge.
    Exactly how this occurs is not established by
    the evidence.
    However,
    the fact that it does occur has been adequately
    demonstrated.We feel that the corporate Respondents should be ordered
    to cease and desist the discharge of cyanide in their water effluent
    into the sewers of Herrin,
    subject to the terms and conditions herein-
    after
    set forth,
    The factual circumstances do not call for
    the
    imposition of
    a monetary penalty and none will be assessed,
    As far as the City of Herrin
    is concerned, we must find
    it
    not guilty of the violation charged.
    Clearly,
    SWB-5 relating to
    manufacture or processes utilizing cyanide is not applicable.
    No other
    effluent standard for cyanide has yet been promulgated by
    the
    Board
    nor has there been proof that water pollution has been caused by
    the
    cyanide emissions,
    so as to constitute’~aviolation of the Act,
    While
    the Board might be asked to take judicial notice of
    the toxic effect
    of cyanide as an abstract proposition,
    evidence
    is lacking
    in this

    record that the cyanide contained in the effluent involved in
    this proceeding
    is of
    a magnitude to
    cause water pollution as
    defined in
    the
    Act.
    Notwithstanding this finding,
    it should be
    made clear that
    a municipality can be held responsible
    for
    its
    effluent even though the pollutant
    is contributed by others, and
    be found
    in violation of
    the relevant statutory and regulatory
    provisions upon proper proof of violation.
    The alternative
    would be the enactment
    of
    a comprehensive sewer code.
    The
    foregoing Opinion constitutes the finding of fact and
    conclusions of law by the Board.
    IT
    IS
    THE ORDER of the Pollution Control Board:
    1.
    The
    City
    of
    Herrin
    is
    not found to be in violation
    of
    Sections
    12(a)
    and
    12(c)
    of
    the
    Environmental
    Protection Act and
    Regulation SWB—5
    of the Illinois Sanitary Water Board, continued
    in effect under Section 49(c)
    of the Act.
    2.
    Container Stapler Corporation and Federal Wire
    Mill
    Corporation
    are
    found
    to
    be
    in
    violation
    of
    Regulation
    SWB—5
    of
    the
    Illinois
    Sanitary
    Water
    Board,
    continuing
    in
    effect
    under
    Section
    49(c)
    of
    the
    Act,
    which
    regulation
    violation
    likewise
    constitutes
    a
    violation
    of
    Section
    12(a)
    of
    the
    Environmental
    Protection
    Act.
    Contthner
    Stapler
    Corporation
    and
    Federal
    Wire
    Mill
    Corporation
    are
    hereby
    ordered
    to
    cease
    and
    desist
    the
    di,s—
    charge
    of
    cyanide,
    directly
    or
    indirectly,
    into
    the
    sewer
    system
    of
    the
    City
    of
    Herrin.
    Provision
    shall
    bt
    made
    to
    monitor
    the
    effluent
    from
    each
    possible
    source
    of
    cyanide—containing
    water.
    Each
    outLet
    of
    water
    containing
    cyanide
    shall
    be
    thoroughly
    guarded
    to
    prevent
    escape.
    Precautions
    shall
    be
    taken
    for
    the
    prevention
    of
    spillage
    at
    all
    locations
    where
    such
    possibility
    exists,
    and
    specifically,
    where
    metal
    plating
    takes
    place,
    where
    metal
    products
    are
    rinsed,
    where
    movement
    of
    cyanide—bearing
    material
    occurs,
    and
    where
    effluent
    is
    removed
    from
    tanks
    and
    placed
    in
    holding
    facilities
    or
    tank
    trucks.
    Ongoing
    surveillance
    to
    assure
    the
    effectiveness
    of
    the
    Pfaudler
    Recover7Unit
    shall
    he
    conducted.
    Insoection
    and
    monitoring
    of
    all
    of
    the
    locations
    and
    areas
    above
    set
    forth
    shall
    be
    conducted
    and
    reports
    ‘made
    to
    the
    Agency
    no
    less
    than
    every
    two
    months
    relative
    to
    the
    effective-
    ness
    of
    the
    foregoing
    program.
    I,
    Regina
    F.
    Ryan,
    ce~t~ifvthat
    the
    )~oarça adopted
    the
    above
    oc’inion
    and
    order
    on
    :7
    ,,.“~
    /‘
    ~2’2
    ~
    -,
    1971.
    ~
    ~

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