ILLINOIS POLLUTION CONTROL BOARD

March 26, 1975

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

vs.

)

PCB 74—376

CULLIGAN DUPAGE SOFT WATER

SERVICE, INCORPOR~TED,

Respondent.

Fredric Entin, Assistant Attorney General for the EPA

Louis Marchese, Attorney for Respondent

OPINION AND ORDER OF THE BOARD (by Mr. Henss)

Culliqan DuPage Soft Water Service, Inc. is charged in a

Complaint filed by the Environmental Protection Agency with

operating a waste water source without an operating permit

from January 1, 1973 to October 17, 1974, the date of Complaint.

Such operations are alleged to be in violation of Rule 903(a)

of the Water Pollution Control Regulations and Sections 12(a)

and 12(b) of the Environmental Protection Act.

At the public hearing in this matter, the parties submitted

a Stipulation of Facts in lieu of oral testimony. No members

of the public testified at the hearing.

Culliqan owns and operates a water softener facility at 120

North Bridge Street in Wheaton, Illinois. A waste disposal

system at this facility is admittedly a !waste water sourcel! as

that term is defined in Rule 104 of the Water Pollution Control

Regulations. This waste water disposal system allows flushing

and backwashings from water softener and iron filter tanks to

empty into a storm sewer which discharges directly to Windfield

Creek.

Respondent admits operating its waste water source since

January 1, 1973 without first obtaining an operating permit

from the Agency. Respondent contends that the violation was

not intentional but occurred through inadvertance.

—

197

—2—

Believing that a Federal permit was the only requirement

for waste water dischargers, Culligan requested and received

from the U. S. EPA copies of a short form application to

receive an NPDES oermit. The NPDES application was filed with

the U. S. EPA on June 17, 1973, shortly prior to the enactment

by the Illinois General Assembly of legislation to bring the

State of Illinois within the National Pollutant Discharge

Elimination System. During the early months of 1973 Culliqan

should not have been confused regarding the need for an Illinois

permit since at that time Illinois had not yet adopted statutory

language to establish NPDES as the Illinois system. The need

for an Illinois permit was clear.

When the new legislation did become effective in September

1973 it became apparent that the Illinois Legislature wished to

avoid a dual permit system. The Statute said: “It is in the

interest of the people of the State of Illinois for the State

to authorize such NPDES program and secure Federal approval

thereof, and thereby to avoid the existance of duplicative,

overlapping or conflicting State and Federal statutory permit

systems;” EPA Section ll(a)(5). It was further provided: “No

permit shall be requi~edunder this subsection and under Section

39(b) of this Act for any discharge for which a permit is not

required under the Federal Water Pollution Control Act 

Amenduents

of 1972 (PL 92-500) and Regulations pursuant 

thereto...

“In any case where a permit has been timely applied for oursuant

to Section 39(b) of this Act but final administrative disposition

of such application has not been made, it shall not be a violation

of this subsection to discharge without such permit unless the

Complainant proves that final administrative disposition has not

been made because of the failure of the applicant to furnish

information reasonably reauired or requested in order to process

the application. For purposes of this provision, until implementing

requirements have been established by the Board and the 

Acericy,

all applications deemed filed with the Administrator of the United

States Environmental Protection Agency pursuant to the provisions

of the Federal Water Pollution Control Act Amendments of 1972

(PL92-500) shall be deemed filed with the Agency.’

If Culligan truly was subject to the requirements of NPDES,

then under the new Statute a filing with the Federal Agency was

all that was required. There seems to be some basis for Culligan’s

confusion following the legislative enactment of September 1973.

When Cu1ligan~sNPDES application was received by the U. S. EPA

it was apparently forwarded to the Illinois EPA. On September 10,

1974, some 15 months after the application was filed, an Illinois

EPA inspector visited Respondentts plant to discuss the permit

application and to take samples of the water at the plant.

16 —198

On October 11, 1974 the Illinois Pollution Control Board filed

with the Illinois Secretary of State a new Regulation which

suspended the requirement for obtaining an Illinois operating

permit when the discharger is subject to NPDES. One week later

the Illinois EPA filed its action contending that Culligan DuPage

had neglected to obtain the Illinois permit. It is stipulated

by the parties that this was Respondent’s “first notification

regarding an Illinois permit” and “at all times prior to receiving

such notice, Respondent had no knowledge of any requirements of

separate permit systems for State and Federal Agencies.” It was

not until October 31, 1974 that the Illinois EPA sent a letter to

the U. S. EPA, with copy to Respondent, stating that a review of

Respondent’s application showed that no NPDES permit was required

for Respondent’s operation (Stipulated Exhibit B). The reason for

this decision is not stated in the record.

General instructions for submitting the NPDES application

contain the following statements: “The Federal Water Pollution

Control Act, as amended by Public Law 92-500 enacted October 18,

1972, prohibits any person from discharging pollutants into a

waterway from a point source, unless his discharge is authorized

by a permit issued either by the U. S. Environmental Protection

Agency or by an approved State Agency.” However, there are certain

exclusions: “You are not required to obtain a permit for the

following types of waste discharges: 

...

(6) most discharges from

separate storm sewers. Discharges from storm sewers which receive

industrial, municipal, and/or agricultural wastes or which are

considered by EPA or a State to be significant contributors to

pollution are not excluded”.

We can only speculate from this language and from the course

of events, that after inspection in September 1974 the Illinois

EPA concluded that the Culligan discharge was not industrial

waste and was not a significant contributor to pollution. If

that is the case then Culligan would not be required to obtain

an NPDES permit and would instead, be subject to other permit

requirements of the Illinois law. Rule 903(a) of the Illinois

Water Pollution Control Regulations provide: “No person shall

cause or allow the use or operation of any 

...

waste water source

after December 31, 1972 without an operating permit issued by the

Agency, 

There are a number of mitigating circumstances in this case.

Culligan states that it relied upon information published by the

State of Illinois, as shown in Stipulated Exhibit C, which makes

no mention of a State permit system but which does describe a

permit procedure by which application is made to the U. S. EPA.

Following Culligan’s application to the U. S. EPA there was a

considerable delay before the Company was contacted by the Agency.

During all of this time Culligan apparently thought it was protected

—

199

—4—

by the filing of the NPDES application which had been ma1e in

June 1973. The Agency does not question the good faith of

Respondent. As a matter of fact, it is stipulated that Culliqan

was “acting in good faith” in filing with the Federal Agency.

Although the Illinois EPA believed Culligan was in good faith

the Agency chose not to notify Culligan that it had filed its

application with the wrong Agency until after commencing this

prosecution.

Upon receiving the notice of Complaint, Culligan contacted

the Illinois EPA to determine its responsibilities and to dis-

cuss the discharge involved. As a result of meetings with the

Agency, Culligan has constructed a backwash recycline system

at a cost in excess of $23,000 to control the discharge of con-

taminants. This recycling system is reported by Respondent’s

Engineering Consultant to be capable of allowing Culligan to

operate in compliance with the Regulations. Perii~it application

forms are being prepared by Culligan’s Consulting Engineer and

will be submitted to the Illinois EPA.

Having reviewed the entire record in this matter, it is the

finding of the Pollution Control Board that Culligan DuPage

Soft Water Service, Inc. did operate a waste water source without

an operating permit in violation of the Statute and Board Regu-

lation as charged. The violation was not deliberate~—there are

extenuating and mitigating circumstances which compel us to reduce

the monetary penalty considerably below the level which is

ordinarily imposed. Under all of the circumstances we believe

that a monetary penalty in the amount of $150 is appropriate.

This Opinion constitutes the findings of fact and conclusiors

of law of the Illinois Pollution Control Board.

ORDER

It is the Order of the Pollution Control Board that Culligan

DuPage Soft Water Service Inc. shall pay to the State of Illinois

by May 1, 1975 the sum of $150 as a penalty for the violations

found in this proceeding. Penalty payment by certified check or

money order payable to the State of Illinois shall be made to:

Fiscal Services Division, Illinois EPA, 2200 Churchill Road,

Springfield, Illinois 62706.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify the abpve Opinion and Order was adopted

this 

day of 

_________,

1975 by a vote of 

4’

to~).

16—200