ILLINOIS POLLUTION CONTROL BOARD
February 14, 1974
ENVIRONMENTAL PROTECTION AGENCY
COMPLAINANT
v.
)
PCB 72—283
CITY OF ABINGDON AND
AMERICAN SANITARY DIVISION OF
)
STA-RITE INDUSTRIES, INC.
RESPONDENTS
)
PRESCOTT E. BLOOM in behalf of the ENVIRONMENTAL PROTECTION AGENCY
DAVID R. McDONALD, CITY ATTORNEY, in behalf of the CITY OF ABINGDON
DAVID B. BECKWITH in behalf of STA-RITE
OPINION AND ORDER OF THE BOARD (by Mr. Marder)
This action involves an enforcement case filed on July 6, 1972,
by the Environmental Protection Agency against the City of Abing-
don and Sta-Rite Industries (joint Respondents). The complaint
alleges infractions of various Sanitary Water Board regulations as
well as violation of Section 12 (a) of the Environmental Protection
Act. Violations are alleged from “on and after November 19, 1970.”
The City of lthingdon owns and operates a trickling filter sewage
treatment plant (STP) in Knox County, Illinois. The STP discharges
its effluent into Dago Slough, a tributary of Indian Creek which is
in turn a tributary to Cedar Creek. Sta—Rite, Inc., owns and oper—
ates facilities in the city of Abingdon.
As of the date of this opinion Respondent Sta-Rite has discontin-
ued all plating operations at its Abingdon plant. This is particu-
larly important in that it was the discharges from said plating op-
eration (cyanide, heavy metals) which are the alleged contaminants
complained of. Respondent Sta-Rite had owned and operated a facil-
ity for the manufacture of both plumbing and swimming pool fixtures.
As part of this operation Sta-Rite operated two plating operations
(R. 415): hand plating and automatic plating. The hand plating op-
eration consisted of a number of open tanks in which parts are im-
mersed and withdrawn by hand. The automatic plater is similar to
the above except that a conveyor and hook system is used to move the
components from tank to tank. The entire plant used in the vicinity
of 8 to 9 million gallons of water in a three-month period (R. 417).
11 —237
—2—
fla-Rite
presently
is conducting a stripping operation at
its plant
site. This operation is used to remove defective plating from a part.
The operation is an acid electrical system which generates a
sludge
which
settles to the bottom of a
tank
CR. 458),
and
is then removed
and
disposed of.
Specific
charges
alleged against
Respondents
are
as follows:
Count
I: Sta-Rite Industries
A) Violation of 12 Ca)
—
Discharge of contaminants.
B) Violation of Sanitary Water Board-l4 Rule 1.03 (a)
-
allowed
dischaatges which form bottom deposits detrimental to bottom
biota.
C) Violation of SWB—l4 Rule 1.03 Cd)
—
discharge of substances
which are toxic to human, plant or aquatic life; causing two
separate fish kills on or about November 19, 1970,
and
Dec-
ember 8, 1971.
D) Violation of SWB-l4 Rule 1.05 Cd)
-
discharges in excess of
48 hour median tolerance level.
B) Violation of SWB-l4 Rule 1.07 (1)
-
discharges that form
sludge deposits at points from which water is withdrawn for
livestock feeding.
F) Violation of SWB-14 Rule 1.07 C4)
-
discharged substances
harmful to human, animal,
?lant
or aquatic life at points
where water is withdrawn for
livestock
watering.
G) Violation of
SWB-5
Rule 1.01
-
discharge to sewer system.
Count
II: City of
Abingdon
A) The
above
(A) to (F) are alleged against the city of Abing-
don.
B) Violation of Section 12 Cb) of the Environmental Protection
Act
-
violation of
Agency
operating
permit
conditions.
This type of action, although not unprecedented, is somewhat unique.
The question arises as to who is responsible for discharges into waters
of the state if said discharges were “passed” through a city treatment
plant. It is clear that the city plant is under permit to treat in-
fluent so as to meet effluent criteria and on that simple fact one
could argue that the
entire
case against Sta-Rite with the exception
of
SWB—5
should be dismissed. This, however, is not the case. Section
12
and
specifically 12 Ca) of the Environmental Protection Act dictates
that no
one
shall discharge contaminants so as to cause water pollution.
The Sfl regulations, although passed prior to the passage of the Environ-
mental Protection Act, were incorporated in Section 49 Cc) as being the
effective tool of the Act until new regulations could be promulgated.
All
regulations embraced by the
Act
are meant to be clarifications
and
extensions of the
Act and
can thereby in no way distract from the Act’s
general principles.
The intent of Section 12 Ca) is
abundantly
clear.
li-au
—3—
The fact that a discharge is to the city sewer rather than directly to
the waters of the state simply allows a “second shot” at treatment, but
in no way allows contaminants above prescribed levels.
The above should not be considered a method for STP operators to dis-
avow responsibility for their plant in the event of upset, but rather
asserts that when a plant is upset by a sudden change in either quality
or quantity of effluent, both the discharger to, and the operator of,
the STP have unique responsibility. The operation and maintenance of an
STP under normal conditions is clearly the responsibility of the owner
of the STP.
Two previous cases before the Board have dealt with this very issue:
Environmental Protection Agency v. Airtex Products, Inc. and City of
Fairfield, PCB 71-325, and. Environmental Protection Agency v. Village of
Augusta, Dennis Food Co. and Dennis Chicken Products, Inc., PCB 71-364,
In both of these instances the higher monetary penalty was imposed on
the initial discharger. The Board’s decisions were based on our under-
standings of the mandate of the Environmental Protection Act. (On appell-
ate review Airtex Products, Inc., v. Illinois Pollution Control Board,
#72-80, 5th~istrict, the Airtex action was reversed as to the penalty;
however, the decision stood. The question of penalty power of the Board
is
under Illinois Supreme Court review as
of the date of this opinion.)
We now turn to the facts of the instant case. Mr. Rubinfeld (STP oper-
ator for city) testified as to the sampling procedure used during his op-
eration of the plant. On November 19, 1970, Mr. Rubinfeld found his sam-
ple to be high in pH, and that the growth on the trickling filter was de-
stroyed CR. 32). Mr.
Rubinfeld further testified that on November 19,
1970, he had a discussion with Sta-Rite employees (Dale Essex, Marshall
Hobbing) about the high pH reading at Sta-Rite’s plating room. The dis-
cussion revealed that a cleaner tank was dumpcd~ No evidence was elicit-
ed as to what was in the cleaner tank (R. 31). Mr. Rubinfeld then called
Mr. Ken Meredith (Illinois Environmental .Protection Agency) and notified
him that there was an apparent fish kill. This was noted by the presence
of fish floating on the water surface at about 12 noon
of November 19, 1970
Mr.
Rubinfeld
next
testified
as to events on August 4, 1971; again the
~d
was high (10.4). The presence of chrome and a
fish kill were noted.
5~rowth on the trickling
filter was destroyed (R.
35). On
this date Sta-
Rite called the city stating that a slug of cyanide had been released to
the city.
The Illinois Environmental Protection Agency was again
notified
(R, 36).
Mr. Rubinfeld further testified
that during July or August of
1571 he had received complaints from farmers alleging
cattle kills. It is
important to note that when the algae growth
on a trickling filter is de-
croyed, this essentially makes secondary treatment at the plant impossible
A
new growth
takes
between
38
and 40 days to reinstate itself (R. 63).
Under cross-examination it was established that on August 4, 1971, the
cyanide slug had come from a leaky drum and that Sta-Rite had attempted
to correct tbe ituation by addition of chlorine CR, 66).
Ms.
Jean ~hang testified as to results run on samples from the city
of Sta—Rite’s dischar:~s, Samples were run on Jan, 12, Feb. 4, and
March
16, 1972. The following results were reported (R.
73~75)
11—239
—4—
Samples During 1972
Jan. 12
Feb. 4
Mar. 16
Nickel
0,56 ppm
0.25
No reading
Chrome
5.480 ppm
7.0
5.303
Copper
0.320 ppm
2.0
0.091
Zinc
0.012 ppm
5.0
~
.004
Cyanide
No report
0.265
.002
pH
No report
13.3
10.2
These samples have relevance in that Sta-Rite has alleged that all
cyanide usage ended in November 1971, and yet the February 1972 analy-
sis shows 0.265 ppm. This would indicate that residual cyanide is
still entering the city sewers from some source.
Mr. Meredith next testified as to his investigations. On November
19, 1970, Mr. Meredith conducted a field survey of the area. He noted
that the trickling filter was being bypassed. Samples were collected
at various
points.
Complainant ~s
Exhibit
#1 was introduced as a re-
port of Mr. Meredith~s findings. The report affirms the allegations of
a fish kill on the above date. Analysis in Exhibit #1 (admitted by
hearing officer*) shows no heavy metals upstream of the plant and the
presence of cyanide, nickel, zinc, and chrome both in the STP influent
and in the STP discharge and the receiving streams. Upon motion of
Respondent City of Abingdon all biological tests were struck as not
having proper foundation. Complainant~s Exhibit #2 was entered as a
summary of the August 4, 1971 on-site survey. This was the date of
the cyanide leak from Sta-Rite. The following data was recorded.
Upstream Inf 1. Eff. Dago Indian
Indian
STP
STP Slough Creek
Creek
Down Upstream Downstream
Cyanide
0 mg/i 0.02 0,0 0.0
0.0
3.0
Nickel
0
3.5
4.5 2.5
0.06
2.5
Chrome +3
0
2.9
0.7 0.07
0
0.05
Chrome+6
0
0
1.5
0
0
0
Copper
0
0.58 0.35 0.15
0.16
0.94
Lead
0
0.13 0.08 0.025
0
0.175
It must be noted that these samples were taken some time after the
cyanide slug passed through the treatment plant and this could explai~.
*
There was much discussion as to the validity of test results. Upon
objection from Respondents, the hearing officer agreed to strike some of
the analytical data.
The hearing officer has resigned from the
~rd~s
service and did not strike the abovementioned data.
From rev1e~!of the
record, the Board has determined which data should be struck
and will
not rely on said data in its determinations,
11 —240
—5—
the high cyanide readings downstream (e.g., Indian Creek).
Mr. Meredith testified as to results of a tissue test run on cattle
which had died downstream of the treatment plant. The Animal Diagnost-
ic Lab reported that tests for heavy metals and cyanide had proven neg-
ative (R; itS). There was no proof that the cattle were poisoned by
the presence of toxic materials; in fact, the presence of poison weeds
in the area was testified to (R. 289)
Under cross—examination it was pointed out that some of the analysis
for cyanide showed seeming discrepancies. Mr. Meredith explained when
cyanide is discharged in slugs the release of cyanide may be slow and
not show up immediately (R. 159) Mr. Meredith pointed out that the
city was doing an excellent job with the facilities provided CR.
184)
Mr. Tucker next testified (Ill. Environmental Protection Agency bio-
logist) He testified as to a survey made on the area surrounding the
city~s STP CR. 196)
.
His conclusions, given in Complainant~s Exhibit
#4, show that the stream upstream of the STP was semipolluted, while
the downstream portion was classified as polluted.
A number of citizen witnesses testified as to cattle kills during
1970 and 1971. As mentioned above, no proof was offered as to the
cause of these alleged cattle kills.
Mr. Lyle Ray (Agency sanitarian) next testified as to the results of
investigations made of the STP and surrounding areas. His testimony
centered. around Sept. 21, 28, October 5, 18, Nov. 16, and Dec. 8, 1971.
Much evidence was gathered, and Complainant~s Exhibits #7,8,9,10,11
were entered, being reports of Mr. Ray~s findings. Mr. Ray reconfirmed
much of Mr. Meredith!s testimony as to his observations of the trickling
filter CR, 214) and stream conditions. Mr. Ray reported that bottom
samples taken downstream of the STP on dov. 9, 1971, had a septic odor,
were black, apparently organic in nature and approximately two feet
deep (R. 242), He also reported that the water was turbid and gray.
He
also testified that the water upstream of the plant was clear, and
the bottom deposits were of a normal color, Results of bottom mud sam-
ples recorded on November 9, 197L (not struck) were as follows:
Constituent
Upstream Downstream
Confluence Confluence
Upstream
Downstream
Lead mg/i
56
73
54
63
Chromium ±3mg/l 2.5
51
2.4
18
Cyanide* mg/i
0
0.05
5.0
0.02
Nickel mg/i
5.0
52
0.04
29
Cadmium mg/i
0.09
10
0.04
5
Zinc mg/l
10.0
53
10.0
24
On Nov. 16, 1971, the following bottom results were determined:
T~II~3yanidereadings are from water samples rather than bottom samples.
—6—
Constituent
Upstream
Downstream
Confluence Confluence
Upstream Downstream
Copper mg/i
25
85
5.0
30.0
Chromium mg/i 10
140
4.5
33
Cyanide* mg/l 0.002
0.02
0,005
0.015
Cadmium mg/i 0.11
10.0
0.11
4.0
Testimony as to stream conditions on October 18, 1971, was similar
to the above as regarding the deterioration of the stream as a result
of the STP effluent. Septic odors were noted downstream of the plant
and the bottom deposits were black (H. 258)
.
On this date a fish kill
was noted downstream of the STP (R. 263).
Under cross-examination it was shown that bottom deposits are not
black and septic from heavy metals but rather from rotted sewage (R.
277)
,
and that much of the turbidity and discoloration is due to inade-
quate treatment rather than heavy metals (R. 279)
.
It was pointed out
that poison weeds were indeed growing along the banks of the stream (R.
289)
.
Some discussion was had as to the validity of the bottom samples
and the reasons for the seeming inconsistency in analysis (R. 296)
.
Al-
though a solid answer was not given for these apparent variables (the
slug theory was advanced and has merit, R. 298)
,
the Board finds that,
indeed, the bottom samples show a long history of heavy metal discharges.
It has also been shown that Sta-Rite is the only discharger of conse-
quence of heavy metals into the city sewers. Also under cross—examina-
tion, it was pointed out that cyanide discharges could affect the oper-
ation of the STP and thus could be the “real” culprit for septic odors
and bottom deposits (H. 310),
Mr. Alec Pulley next testified as to the methodology used in deter-
mining the extent of fish kills on November 19, 1970, and December 8,
1971. Complainant’s Exhibits 13 and 14 were entered detailing the
studies made (R. 327, 342)
.
By standard methods fish kills were esti-
mated at $844.50 on December 8, 1971, and $231.52 on
November
19, 1970.
Mr. R. Guiler (employee of Sta-Rite) next testified as to operations
at Sta-Rite. Mr. Guiler stated that as of 6/19/73
all plating had
ceased and that the plumbing operation had been discontinued (R. 415).
He also testified that the plant had ceased the use of cyanide on Nov-
ember 16, 1971 (Note: This is before the alleged December 8, 1971,
fish kill) (R. 439)
,
However, it was pointed out that an acid strip-
ping compound is still in use at Sta-Rite (R. 457)
,
and it is possible
that some heavy metals could be dumped to the sewer as a result of this
operation (R, 461)
Mr. Hopping (employee of Sta-Rite) next testified as to the opere~
tions of Sta-Rite. He was in charge of treating cyanide at the s~5~t
(R. 496)
.
Mr. Hopping testified as to the August 1971 cyanide leak
*
All cyanide readings are from water samples rather than bottom s~mpiee
11—242
—7
and added that the plant had had various tanks leak (R. 499—500). Mr.
Hopping further testified that Sta-Rite had a program to install liners
in tanks and were installing them as fast as possible (R. 503). Mr. D.
Taft (factory manager Sta-Rite) testified that he was not aware of the
Abingdon city sewer ordinance restricting discharge to the city’s sewers
(Abingdon Exhibit #1
in force April 5, 1971).
Mr. Sam Rubinfeld next testified for the City of Abingdon. He testi-
fied as to a meeting held in December 197,0, at which the Sta-Rite Corp.
was told of the problems caused by cyanide in their discharges (R. 544).
It was also pointed out that the “Hack” test used by the STP for deter-
mination of cyanide would
be interfdred with by the presence of copper
(R. 574)
.
Mr. S. Mangieri next testified (mayor of city) and confirmed
the 1970 meeting (R. 589) and offered information as to the bond in-
debtedness of the city.
All of the above is a summation of testimony elicited during hear-
ings. It is admittedly somewhat confusing, especially in light of the
large number of charges alleged against the Respondents. The Board
must determine which of said charges are valid, and, if valid, to
whom should the blame be affixed. The following is a summary of facts.
1. Overwhelming testimony was generated that Sta-Rite had discharged
both cyanide and heavy metals into the city sewers.
2. It has been proven that the presence of these contaminants can
upset the normal operation of the STP.
3. Despite Sta-Rite allegations that it interpreted the results of
its negotiations with the Sanitary Water Board as equivalent to
the issuance of a permit (Brief Pg. 5)
,
there is no record of
a permit having been granted (Complainant’s Exhibit #10, Pg. 6
#4)
4. Sta-Rite was in violation of a signed effective city ordinance
after April 5, 1971.
5. Bottom samples have shown that a long period of discharging must
have occurred.
6. It is reasonable to find that the presence of contaminants
slightly upstream of creek confluence could be attributed to the
STP discharges. This is true because of the obvious long-term
discharges and the accumulation of contaminants in bottom c~am-
pies.
7. By Sta-Rite’s own witness’s admission (testimony of Mr. Hopping)
Sta-Rite had equipment which was prone to leakage.
8. Sta—Rite’s problem and thus the city’s and the environment’s
problem would be nowhere near as great if the STP had been of a
larger capacity. This point is important, in that to some ex-
tent it mitigates the circumstances. This fact (small STP) is
clearly out of Sta—Rite’s control.
Summary of Findings: The evidence presented in this case shows:
1. Violation of
12
(a): Both respondents are guilty.
2. Violation of SWB-14, Rule 1.03 (a): Both respondents are guilty.
11 —243
—8—
3. Fish kill
on
November
19,
1970: Both Respondents are guilty.
4. Fish kill on December 8, 1971: Although a
fish kill occurred,
there
was
insufficient evidence
to prove guilt.
5,
Violation of SWB-14 Rule 1.05 Cd): No
effort was made to enter
the TLm for any
of
these compounds,
therefore no showing of
violation was made
and
no
guilt
proven.
6. Violation of
SWB—i4
Rule
1.07 (1);
SWB—l4
Rule 1.07 (4): Al-
though no proof of the reason for cattle kills was entered,
sufficient evidence was entered to prove that contaminants
were present at these sites. Both Respondents are guilty.
7. Violation of SWB-5, Rule 1.01: No evidence of a formal permit
was established by Sta-Rite. Sta-Rite
is found guilty.
8. Violation 12 (b): The evidence is clear
that the City of Abing—
don is
guilty
of this charge.
in establishing
a
penalty the Board has
carefully
considered
all
the
facts
and. takes into account
the constherations
it is mandated to
consider under
Section
33 of the Act. For
violations found Sta-Rite
will be assessed a $2000 penalty plus one-half of the value of the Nov-
ember 19 fish kill ($115.76). The City of Abingdon will be assessed a
$250 penalty plus one—half of the November 19 fish kill ($115.76)
.
The
Board again restates its opinion that much of the reason for the deterio
ation of the receiving streams is due to the initial discharges of Sta-
Rite. Had Sta-Rite conformed witfr SWB-5 Rule 1.01, this situation could
possibly have been avoided.
This Opinion constitutes the findings of fact and conclusions of
law of the Board.
IT IS THE ORDER of the Pollution Control Board
that:
I. For violations found above, Rthpondent Sta-Rite shall pay to
the State of Illinois the sum of $2115.76 within 35 days from
the date of this Order, of which $115.76 shall be placed in
the Game and Fish Fund of the State Treasury pursuant to Sect-
ion 42 of the Environmental Protection Act. Penalty payment
by certified check or money order payable to the State of
Illinois shall be made to: Fiscal Services Division, Illinois
Environmental
Protection Agency, 2200
Churchill Road,
Spring-
field,
Illinois
62706.
2, For violations found above, Respondent City of Abingdon shall
pay to the State of Illinois the sum of $365.76 within 35 days
from the date of this Order,
of
which $115.76 shall be placed
in the Game and Fish Fund of the State T.easury pursuant to
Section 42 of the Environmental Protection Act, Penalty pay-
ment by certified
check or money order payable to the State of
Illinois shall be made to: Fiscal Services Division,
Illinois
Environmental Protection Agency, 2200
Churchill Road,
Spring-
field, Illinois 62706,
—9--
IT IS SO
ORDERED.
I, christan L. Moffett, Clerk of the Illinois Pollution Control
Board, certify that the above Opinion and Order was adopted by the
Board on the
~4’~
day of ~
1974, by a vote of
_____
to
p
