ILLINOIS POLLUTION CONTROL BOARD
July 10,
1975
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
).
PCB 74—421
TOWNSHIP PUBLIC UTILITY
CORPORATION, and Illinois
)
Corporation,
Respondent.
Nary C,
Schlott, Assistant Attorney General, appeared for the
Complainant;
Mr. Anthony Arena, Pro Se, for the Respondent;
Mr. Glenn E. Nelson,
for the Willowbrook Utility Company.
OPINION AND ORDER OF THE Board
(By Mr.
Zeitlin):
This matter comes before the Pollution Control Board
(Board)
on
a Complaint filed November
15,
1974, by the
Environmental Protection Agency
(Agency)
against Respondent
Township Public Utility Corporation
(Township). A hearing
was held in the matter on February
21,
1975,
at Joliet,
Illinois.
In addition to the Agency and Township,
the
Willowbrook Utility Co.
(Willowbrook) was represented by
counsel, claiming an interest in the case as
a prospective
purchaser of the assets of Respondent Township.
Township,
an Illinois corporation, operates an activated
sludge sewage treatment plant located near the city of
Crete, Illinois,
serving the Dixie Dells subdivision in
northeastern Will County,
Illinois.
Township services 157
homes in this subdivision
(R. 105).
Flow enters the plant
from the west through a concrete manhole;
after passing
through
a grit chamber,
the flow is designed to enter an
aeration tank for the activated sludge process.
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Following the sludge process, effluent from the digester
enters one of two polishing ponds, each 30 feet by 60 feet.
The final effluent from the treatment plant is discharged
into Plum Creek, a tributary of the Little Calumet River.
Both Plum Creek and the Little Calumet River are “waters
of
the state,”
as defined under the Environmental Protection
Act
(Act), and the Board’s Rules and Regulations.
Ill.
Rev.
Stat., Ch.
111 1/2,
Sec.
1001,
et seq.(l973).
PCB Regs.,
Ch.
3,
Rule 104.
The Agency alleges a considerable number of violations
by Township, under both the Act and the Board’s Water Pollution
Regulations.
The Agency claims that Township either fails
wholly to treat the human wastes entering the plant,
or when
in fact attempting treatment does so in an entirely inadequate
manner.
The following table sets out briefly the violations
alleged:
VIOLATIONS
ALLEGED
DATES
ALLEGED
Sec.
12(a), Act
(discharge of
untreated
human
wastes)
Ch.
3,
Rule 403
(effluent
containing settleable
solids, floating debris,
scum,
sludge solids, and
obvious color, odor,
and
turbidity levels), and also
Sec.
12(a)
of the Act
Ch.
3,
Rule 203(a) causing waters
of
the
state
to
contain
unnatural sludge, bottom
deposits, floating debris,
and unnatural odor and colo.r)
and also Sec.
12(a)
of the
Act
Ch.
3,
Rule 404(f) (BaD,
SS),
and
also Sec.
12(a)
of the Act....
Ch.
3,
Rule 405
(fecal coliform),
and
also
Sec.
12(a)
of
the
Act
Oct.
17,
1972 to
Nov.
15, 1974
Oct.
17,
1972 to
Nov.
15,
1974,
including
Oct.
17,
1972; Oct.
10,
1973 and March
25,
1974.
Oct.
17,
1972
Oct.
5,
1973
and Oct.
10,
1973
Oct.
17,
1972,
Oct.
10,
1973, Mar.
25,
1974,
July 30,
1974
Oct.
17,
1972,
Oct.
10,
1973, Mar.
25,
1974,
July 30,
1974
18—36
—3—
Ch.
3, Rule 1201
(certified
July 1,
1970 to
operator),
and also Sec.
12
Nov.
15,
1974
(a)
of the Act
Ch.
3, Rule 903(a),
(operating
June 30,
1974 to
permit), and also Sec.
12(b)
Nov.
15,
1974
of the Act
At the February 21,
1975,
hearing the Agency introduced
testimony and evidence which unquestionably proves all of
the violations alleged.
The attorney for
the
Agency first
introduced considerable testimony establishing
the validity
of tests run by the Agency on Township’s effluent, and on
the receiving stream.
In light of that testimony,
the
introduction of the
results
of those tests provides conclusive
evidence that the violations alleged did
in fact occur.
(eg.,
R.
15,
16,
7—il,
30,
35,
39,
41—47,
48,
50,
51,
64,
66—70,
72,
76—77.)
In addition, the Agency brought testimony from a marine
biologist, along with corroborating exhibits, indicating
that the receiving stream for Township’s treatment plant is
in a degraded condition
(R.
80-87).
It is evident from the
testimony and exhibits presented that this: degraded condition
is the result of improper operation by Township’s plant.
The Agency’s~
case
makes plain the fact that Township’s
plant was negligently and improperly operated
(eg.,
R.
42,
EPA Exhibit 11).
It is also plain that although Township’s
plant
was not designed to meet effluent standards of
4
milligrams per liter of BOD and 5 milligrams per liter of
SS,
(the applicable Board criteria under Chapter Three:
Water Pollution),
it could much more closely approximate
those standards
if it were properly run.
The record is
replete with testimony showing that the plant either bypasses
treatment directly, or performs treatment in a haphazard
manner
(B.
51).
At the conclusion of the Agency’s presentation,
Mr. Arena, President of Township since 1968
(R.
103), was
called as an adverse witness and admitted essentially all
of the violations alleged by the Agency.
He admitted that
the plant does not employ a licensed operator
(R.
104),
and that the proper operational reports have not been kept
by Township
(R.
105).
Mr. Arena also stated that after plant
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—
37
—4—
breakdowns, sewage was allowed to flow directly into the
polishing ponds, with the result that those ponds became
polluted;
as a further result, once the plant began to
operate again,
the effluent that left the treatment plant
would go into the polluted polishing ponds, and then enter
the receiving stream in a condition worse than when it had
completed the sludge process
(R.
109).
Mr. Arena admitted
that the plant has been improperly operated
(R.
112).
Mr. Arena bluntly admitted that Township’s sewage treatment
plant
is polluting
(R.ll3)
The Board finds, based on this testimony and the exhibits
entered at the hearing,
that Township did
in fact discharge
untreated human wastes into Plum Creek.
Further, Township
discharged an effluent containing settleable
solids, floating
debris,
scum,
sludge solids, and obvious odor,
color, and
turbidity.
Township caused its receiving stream,
Plum
Creek,
to be polluted within the meaning of the Environmental
Protection Act,
in that it did contain
—
and does contain
-
unnatural sludge,
bottom deposits,
floating debris,
and an
unnatural odor and color.
The effluent from Township’s
plant clearly exceeded the Board’s limits on BOD,
SS, and
fecal coliform
(eg.,
Ex.
11,
2(a)—2(f),
9,
10).
In mitigation,
Township offers only a financial inability
to expand or improve upon its treatment plant.
Mr. Arena
testified that he was turned down by the Small Business
Administration,
and that he was unsuccessful
in an attempt
to obtain funds from one Bill Miller and a nearby Holiday
Inn
(B.
113).
Mr. Arena stated that at one point,
in
1974,
another Township stockholder offered to take over the entire
treatment plant operation as sole owner;
this deal, unfortunately,
also fell through
CR.
114).
It even appears that the
corporation President,
Mr. Arena, never received his full
salary
(B.
104), and that he personally assisted the part—
time treatment plant operator in making necessary repairs
and maintenance
(R.
110).
The substance of Mr. Arena’s testimony, which constituted
all of Township’s defense in this matter,
is that the problem
is recognized, but without money a solution is not imminent.
Although not a part of the record,
it appears from the
brief of Willowbrook that Township has also failed in its
attempt to generate greater income through a rate increase.
Willowbrook’s brief states,
at p.
3,
that the Illinois Com-
merce Commission denied Township a rate increase applied for
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—
38
—5—
on February
8,
1974,
in a decision rendered December 26,
1974.
(It should be noted,
that the Board can take official
notice of such I.C.C. proceedings).
I.C.C. Docket No.
58855, Dec.
26,
1974.
Despite Township’s plea of poverty,
it is apparent that
the situation at Township’s plant could be improved without
the expenditure of
large sums.
Voluminous testimony was
introduced by the Agency indicating very poor maintenance at
the plant.
(Although we shall discuss considerations required
under Section
33(c)
of the Act later,
it should be noted now
that such maintenance difficulties are one reason for
requiring the presence of an Agency licensed treatment plant
operator in this type of situation).
The Agency estimated,
at p.
13 of its brief,
that although Township cannot meet
the 4/5 BOD and SS standards,
a facility of this type should
be able to achieve a level of
30 mg/i BOD
and
30 mg/l suspended
solids.
(See also,
R.
126.) These levels would be in sharp
contrast with samples introduced at the hearing indicating
an effluent containing up to 140 mg/i BOD and
75 mg/l SS.
The Agency also contends that proper operation and maintenance
would virtually eliminate the problems of by-passing and
polishing pond contamination which currently exist.
In a proposed order submitted with its final arguments,
the Agency suggests that the Board require Township to
perform such maintenance and operational changes as are
presently technically and financially possible,
in an attempt
to
bring its treatment plant closer to compliance with the
Act
and the Board’s Rules and Regulations.
The Agency would
further have us require that Respondent develop a long—term
plan for compliance, within 60 days,
to include the construction
of facilities capable of meeting
the effluent requirements
of the Act and the Board’s Regulations.
Further,
the Agency
feels that these requirements,
as well as any penalty which
the Board may impose in this matter,
should be made binding
on any successor in interest to Township.
The Agency brief
points out that Willowbrook is in fact contemplating the
purchase of Township’s assets.
Willowbrook, which participated at the hearing, does
not deny that it is contemplating such a purchase.
However,
in a brief submitted pursuant to leave
granted by the Hearing
Officer, Willowbrook points out that this prospective purchase
is conditioned
upon several factors not within its control,
or that of any of the parties.
Willowbrook flatly states
that it would have no interest in acquiring Township or its
assets were that the total extent of the transaction. Instead,
18
—
39
—6—
Willowbrook states that its offer to purchase Township’s
assets
is conditional upon approval by the I.C.C. of its
Petition to also service a new subdivision being developed
adjacent to Township’s service area.
Conditioned upon the actual acquisition of Township’s
assets, Willowbrook has also proposed a compliance plan to
alleviate the present problems of Township.
That plan,
would provide for ultimate compliance through the construction
of
a new treatment facility.
For the interim, Willowbrook
has proposed a reasonably comprehensive plan of action which
would apparently approach compliance as closely as
is
feasible
with
the
present
plant.
Willowbrook
does,
however,
ask for
90 days following any acquisition of Township’s
assets to submit a final,
long—term compliance plan, and for
a further
18 months from that time to actually achieve
compliance.
Regardless of the timing involved,
it is apparent to
the Board that acquisition of Township’s assets by Willowbrook
would provide the most expeditious solution to the admittedly
serious problem now existing.
It is apparent that Township
itself cannot achieve compliance,
so that if compliance is
to actually be achieved,
it must result from the efforts of
some outside agency such as Willowbrook.
The Board is
troubled, however, by the conditional nature of Willowbrook’s
proffered compliance plan.
There is no question,
of course,
that the Board can
enter a final order conditional upon further future events.
Nor,
of course, would there be any difficulty with our
retaining jurisdiction to deal with possible future difficulties
arising
out
of
this
situation.
For these reasons, we shall
in this case enter an Order
requiring
immediate
short-term
compliance
by
Respondent
Township,
but
providing
alternative
long-term
compliance
requirements,
due to the contingent nature of Willowbrook’s
cornmittment
to purchase.
In arriving at the timetables for
long—term
compliance
we
have
taken
note
of
the
fact
that
there
may
be
some
delay
in
the
Illinois
Commerce
Commission’s
decision
relating
to
this
matter.
We shall require Respondent Township to immediately
undertake
certain
steps
designed
to
achieve
the
maximum
practical compliance in the shortest possible time.
This
18
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40
—7—
will include the employment of an Agency certified treatment
plant operator, which may alleviate some of the glaring
problems presently occurring with maintenance and operation
of the plant.
We shall also order Township to immediately
undertake steps
to prevent the bypassing of raw sewage
directly into the receiving stream.
Based on the evidence
discussed above to the effect that the polishing ponds are
presently a major source of contamination, Township shall
take all necessary steps to insure that the polishing ponds
be cleaned and maintained to eliminate the present septic
condition in those ponds.
These latter requirements must be
given the first priority,
in order to eliminate the grossest
of
the violations which we have found here.
If necessary and
feasible,
the polishing ponds should be bypassed to accomplish
this.
While it is not clear that such a bypass alternative
is feasible,
in that the Board is not apprised of the layout
of
the treatment plant,
this
is offered as an alternative
because of Respondent Township’s claim as to the difficulty
of cleaning these ponds, and because the evidence demon-
strates that such a cleaning is badly needed.
Respondent
Township will also be given a period of 120 days to prepare
a plan for long-term compliance to be implemented in the
eventuality that Willowbrook does not acquire Township’s
assets.
We will require that such
a plan be designed for
implementation and completion within 24 months of the date
of this Order.
In the eventuality that Willowbrook does in fact purchase
the assets of Township, Willowbrook will be allowed a period
of
90 days
to propose a long—term compliance plan for the
plant, which plan may include elimination of the plant
aitogether.
Willowbrook will then be granted a further
period of 18 months from the date on which acquisition is
effectuated
to carry out such a plan;
or in the alternative,
until compliance would have been required of Township
(if
there were no acquisition of Township’s assets by Willowbrook),
whichever period
is longer.
These alternatives will provide both for the immediate
changes needed to achieve an effluent as close to compliance
as possible, under the circumstances, and for the flexibility
in long-term compliance plans we feel is required, due to
Township’s poor financial condition and the contingent
nature of Willowbrook’s offer to purchase Township’s assets.
18—41
—8—
We will in addition impose a penalty on Township for
the violations found herein. The record indicate that,
although the sewage treatment plant here
in question was not
designed to meet the Board’s effluent criteria,
it could
have more closely approached those criteria with proper
operation and maintenance.
It
is the feeling of the Board
that the imposition of the civil penalty in this matter will
emphasize our desire that, even where complete compliance
cannot be immediately achieved, all attempts must be made to
abate water pollution to the extent possible.
The Agency quite correctly points out in its brief that
any order which may enter in this matter can be held binding
against a successor in interest to Township.
The Board
fears,
however, that the imposition of a severe penalty
which might then be enforced against Willowbrook or some
other purchaser might in fact have a negative effect. For
that reason, we are here noting that it is the Board’s
intent to remedy, by the imposition of the penalty, the
problems shown to be the result of past violations.
Board
Procedural Rule
334 clearly provides for the relief which
might be needed by a successor in interest, and would allow
any purchaser to obtain modification or reversal of certain
parts of our decision here.
It
is clearly not the Board’s intent,
in the imposition
of
a penalty here,
to forestall the sale of Township’s
assets.
On the contrary, based on our findings here,
that
is clearly the best solution.
As regards the Board’s consideration of Section 33(c)
of the Act, the alternative Order contemplated here clearly
resolves any issues under that Section.
There is no question
of the fact that the character and degree of the injury
caused by Respondent’s violations
is quite serious.
Township
has polluted its receiving stream, and based on the testimony
presented at the hearing in this matter,
it is evident that
the operation of Township’s sewage treatment plant may
result
in
a health hazard.
It is to prevent such hazards
that sewage treatment is required.
On the other hand,
the social and economic value of a
sewage treatment plant cannot be underestimated.
It is
apparent from the evidence in this matter that some 157
homes are dependent on Township’s plant for treatment of
their domestic wastes.
However, the social and economic
value of the sewage treatment plant is significantly reduced
18
—
42
—9—
when it is improperly managed and operated.
In weighing
these questions,
it is apparent that the injury imposed on
the State by Township far outweighs its value.
For that
reason,
a penalty is clearly indicated,
and must accompany
our finding of violation.
The Board has previously stated that an improperly
maintained and operated sewage treatment plant is patently
unsuitable for any area.
For that reason,
we need not con-
sider the suitability of Township’s plant to its present
site, or the question of priority of location
There
is no question that it
is technically practical
to abate the pollution presently found in Township’s effluent.
There
is,
however,
a serious question as to the economic
reasonableness of requiring immediate compliance.
Insofar
as Township has not been able to raise money,
it is not
economically reasonable to require immediate,
full compliance.
For that reason,
our Order shall reflect a requirement that
Township immediately undertake all actions possible to
achieve
a properly maintained and operated plant, within the
technical limitations of the present plant.
We shall require
full compliance under either of two alternatives over a
longer period of time.
This flexibility,
as allowed by our
Order,
is designed specifically to deal with these questions
of economic reasonableness and short—term technical feasibility.
For the reasons stated above,
the Board finds
that
Respondent Township did in fact violate all of the alleged
Sections of the Act and the Water Pollution Regulations.
A
penalty of $500, we feel,
is reasonable in light of the
seriousness of the violations proven and the financial
condition of Respondent Township.
This Opinion constitutes the finding of fact and con-
clusions of law of the Board
in this matter.
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:
1.
Respondent Township Public Utility is found to
have violated Section 12(a)
and 12(b)
of the Environmental
Protection Act, and Rules 203(a),
403,
404(f),
405,
903(a)
and 1201 of Chapter
3:
Water Pollution, of the Pollution
Control Board’s Rules and Regulations.
With respect to
those violations:
18
—
43
—10—
a.
Respondent Township Public Utility shall,
within
30 days of the date of this Order,
employ a
sewage treatment plant operator certified as qualified
by the Environmental Protection Agency.
b.
Respondent Township Public Utility shall,
within 180 days of the date of this Order, take all
steps necessary to bring
its treatment plant
as close
to compliance with the Environmental Protection Act and
this Board’s Rules and Regulations as
is technically
and economically feasible, using the present plant
facilities.
Respondent shall consult with the Agency
with regard to an approval plan.
c.
Respondent Township Public Utility shall,
within 90 days of the date of this Order,
develop a
long—term compliance plan to achieve full compliance
with the Environmental Protection Act.
That plan shall
indicate the means and methods by which Township shall
attain such compliance within a period of
24 months
from the date of this Order,
in the eventuality that
Township’s assets and service area are not acquired by
other parties.
d.
Respondent Township Public Utility shall, for
the violation found above, pay a penalty in the amount
of
$500.
payment to be made by certified check or money
order within 30 days of the date of this Order to:
State of Illinois
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Rd.
Springfield, Illinois
62706
2.
Any successor in interest to Township Public
Utility shall, within
90 days of such succession,
submit to
the Environmental Protection Agency a plan to achieve full
compliance with the Environmental Protection Act and all
applicable Board Regulations.
That plan will indicate the
methods by which such a successor will achieve full compliance
within 18 months of such succession, or within
24 months of
the date of this Order, whichever period is
longer.
18— 44
—ii—
3.
Any successor in interest to Township Public
Utility shall,
if such succession takes place within 180
days of thes Order,
take all steps necessary to bring Township’s
present plant as close to compliance with the Environmental
Protection Act and the applicable Board Regulations as is
technically and economically reasonable using the present
plant, within
180 days of this Order or within 120 days of
the date of such succession, whichever period is longer.
4.
Township Public Utilities, and any successor
thereto,
shall submit monthly progress reports
to the Environmental
Protection Agency, Division of Water Pollution Control,
2200
Churchill Rd., Springfield, Illinois 62706, detailing progress
on both short and long—term compliance programs.
5.
The Board retains jurisdiction in this matter to
assure compliance with all provisions of this Order, not to
exceed
24 months of the date of this Order.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board hereby certify tl?at the above Opi io
and
Order were adopted on the
Jc~~1’
day of
_______________
1975 by a vote of
~$
to
~
OA~4~
~
Christan L. Moffe~9/~lerk
ILLINOIS POLLUTION”~NTROLBOARD
18—45