ILLINOIS POLLUTION CONTROL BOARD

May 12, 1971

ENVIRONMENTAL PROTECTION AGENCY

)

)

v.

)

#

70~149

)

)

KOPPERS

CO.

)

Frederick Hopper, Special Assistant Attorney General, for the

Environmental Protection Agency

Norman

J.

Barry, Chicago, for Koppers

Co.

Opinion of the Board (by Mr.

Currie):

Koppers treats croesties and utility poles with creosote

at its Carbondale plant to preserve them

(F.

124).

Pursuant to

a permit granted in l96~by the Sanitary Water Board, the

effluent from the plant

is taken to settling lagoons and is

then applied to the land for irrigation

(F. 119—21).

The permit

limits discharges of runoff water from these facilities

to the

“waters of the State”

to 200 parts per billion phenol and 20

parts per million biochemical oxygen demand (SOD) and specifies

that ~‘iCthe effluent quality

is

consIstently in violation of

the above

limitation, additional treatment shall be

provided.tt

Phenols in very low stream concentrations (above

1 ppb)

can cause

taste and odor problems in both water supplies and fish; SOD

can deplete the oxygen reserves of a stream.

(EPA Ex.

35).

The EPA’s complaint charged that discharges fr~4~opper~.

since December

9,

1969 violated not only the conditions

of the

permit but also sections

10 and 11 of the Sanitary Water Board

Act, sections 12(a),

(b), and (c) of the Environmental Protection

Act, and Rules 1.03 and 1.08

of Rules and Regulations SWB—14,

Except for Rule 1.08, which imposes

a

30 ppm standard for SOD,

the essence of these additional charges

is causing pollution

of the receiving stream.

Moreover, Koppers was charged with

depositing wastes on the

land

so

as to create

a water pollution

hazard inwiolation of section 12(d) of the Environmental

Protection Act.

The record

is

singularly Gninformative.

Were

it not for

the relatively lucid testimony of the company, we would know

nothing whatever of the Koppers operation or of its present or

proposed treatment facilities, for the Agencyts entire case

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579

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consisted of

sampling

results

and

a few visual

and

olfactory

observations, together with a painfully prolonged effort to

pinpoint where each sample was taken

CR.

7—1k).

We think it

imperative that those who prosecute cases before the Board

recognize it is incumbent upon them to provide the Board with

~evidenceon which it

can

base an

informed

decision.

On the

present record,

for

reasons that will appear below, most of the

Agency’s evidence is useless even on the simple issue of violation.

And

of course we need evidence on the question of

remedy as

well, of which the Agency presented none whatsoever, nor even

any

arguments

as to what we should order Koppers to do.

Despite the lengthy testimony identifying

sampling

points,

there is a total absence of proof as to whether or not most of

the

samples

measured

discharges

to

“waters

of

the

State”

within

the

meaning

of

any

of

the

relevant

provisions.

Most

were

taken

at the point

where

water

drains

from

the

irrigation

field

into

a

stream

or

ditch

that

crosses

Koppers’

land

from

west

to

east.

Whether this is a stream or not was never proved.

The fact that

it is bordered on both sides b~the respondent’s property does

not excuse its pollution, since the statutes apply to waters

“public or private.”

But if the discharge is to a ditch that is

essentially a

part

of the treatment or discharge facilities,.

it

may

be unprotected; the law does not say sewage cannot be

dumped into sewers.

For lack of proof on this issue, therefore,

we

must

ignore

the

numerous

samples

taken

at

this

point

or

farther

up

the

ditch.

Discharges

grossly

in

excess

of

the

permit limits, however,

are

clearly

shown

by

a

number

of

samples,

taken

on

various

days,

at

points where the ditch itself passes under a road just prior

to its discharge into Glade Creek, which rather plainly is a

water of the State protected by the law.

On December

9,

1969,

phenols at this point were 3,900 ppb (EPA Ex.

3);

on

January

19,

1970, SOD was 210

ppm

(EPA Ex.

6); phenols were 11,000 ppb on

February 2, 1970 (EPA Ex. 19) and 8000 ppb on February

9,

1970

(EPA Ex.

22).

The reason for these excessive discharges was made

clear by the company’s

own testimony

that the lagoons

Sand

irrigation

field were seriously overloaded:

Designed to cope with 10,000

gpd of waste

CE. 140), they were subjected to as much as 60,000

CR. 128).

Repeated discharges in excess of pórmit conditions were

conceded CR. 140).

The permit itself, therefore, required the

company to install additional equipment.

There was some testimony

as

to degraded stream conditions

in Glade Creek itself (R. 30, 32), but the Agency

made

no serious

effort to prove these conditions were attributable to Koppers,.

and

we cazinot find pollution of the stream itself, as contrasted

with the discharge limits of

the

permit,

on

the

present

record.

---

The Agency made no attempt to prove its charge that Koppers

had created a pollution hazard by depositing contaminants on the

ground, and indeed it withdrew this allegation at the close of

its case

(R.

110—11),

Koppers testified that it is working to reduce the volume

of its effluent to an acceptable 10,000 gpd or less and to

employ some chemical flocculation, both by June

1 of 197?

(R.

129);

that

it plans to replace topsoil and plants washed from the

irrigation field (estimated to take two months,

fi.

141) and

remove sludge from the lagoons

as soon as it can

(H.

137—38,

141); and that

it is negobiating for a grant

to install

an

experimental activated sludge plant as well

(H.

134).

We think

the company should be ordered to adhere to its June dates and to

supply the Board and the Agency, by June

1, with a firm schedule

for completing its field and lagoon improvements by no later than

July

1,

1971.

So far as we can determine from the record,

these

steps should bring Koppers into compliance

(H.

138);

in any case

compliance will be requi~redby July lof this year, and a

$10,000 bond or other security required to assure performance.

The final question is whether

a money penalty should be

assessed.

The statute provided in 1969 and 1970 for penalties

of $5000 plus $200 for each additional day for violation

of either

the

statute or a “determination or order of the Board~” Smith—Hurd

Ill.

Ann.

Stat.

ch.

19, ~ 145.13

(Supp,

1970), and the permit

was an order of the Sanitary Water Board

(id.,

§ l45~ll), Discharges

in excess of the permit limits, however, were not in themselves

a violation of the permit; the process was described in the

permit as “experimental,” and the permit provided for the

construction of additional facilities

if

consistently high discharges

occurred.

This implies that the company?s obligation was to

sample its effluent and to take action as soon as

it discovered

that its existing facilities were inadequate.

The facilities were

built in 1967

(H.

121); high discharges were found by the Agency

in late 1969 and early

1970.

Whether these were the first such

discharges we do not know; we cannot therefore say the company

should have taken corrective action in advance of those dates.

It is clear, however, that the company knew or should have known

no later than December, 1969 that additional facilities were

required.

But there was nothing in the Agency~scase to show

that the company failed to take the necessary action with due

dispatch.

The burden was on the Agency

to show this violation,

and it introduced no evidence on the issue.

The motion to dismiss

the penalty request

at the end of the complainant~scase is

hereby granted.

This

we hold despite the fact that the respondent’s

1

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581

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case showed the high discharges occurred not because of the failure

of the experithent but because

of

a severe overload of the treat-

ment facilities, which could not have been accidental.

The

Agency cannot rely on the respondent

to prove its case.

This opinion constitutes the Board’s findings of fact and

conclusions of law,

ORDER

1.

Koppers

Co.

shall reduce the effluent from its Carbondale

plant to 10,000 gpd, and shall provide chemical flocculation

as described in the record, all by June

1,

1971.

2.

Koppers

Co.

shall submit to the Board and to the Agency,

by June 1, 1971,

a report showing that the requirements of

paragraph 1 of this order have been met and a firm schedule

for replacing topsoil, replanting the irrigation field, and

removing sludge from the lagoons at its Carbondale plant,

all of which shall be accomplished

by July

1,

1971.

A final

report shall be filed July

1,

1971.

3.

Koppers

Co.

shall bring

its effluent into compliance with the

Sanitary Water Board permit no later than July

1, 1971.

4.

Koppers

Co.

shall post with the Agency,

on or before June

1,

1971,

a bond or other security in the amount of $10,000,

which shall

be

forfeited

to the State of IllinoIs

in

the

event

the conditions of

this

order are not met.

I,

Regina S.

Ryan, Clerk of the

Illinois

Pollution

Control

Board,

certify that the Board adopted the above opinion this

12

of May,

1971.

~4.

Mr. Dumelle will file a dissenting opinion.

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