ILLINOIS POLLUTION CONTROL
BOARD
December 6,
1973
PACKAGING
CORPORATION
OF
AMERICA,
a
Corporation
#71—352
V.
ENVIRONMENTAL PROTECTION AGENCY
ENVIRONMENTAL PROTECTION AGENCY
#72—10
v.
PACKAGING
CORPORATION
OF
AMERICA,
)
a
Corporation
JAMES
E.
BECKLEY
OF
ROAN
&
GROSSMAN
APPEARED
ON BEHALF OF PACKAGING
CORPORATION
OF
AMERICA
DOUGLAS
MORING
AND
FREDERIC
C.
HOPPER, ASSISTANT ATTORNEYS GENERAL,
APPEARED ON BEHALF OF ENVIRONMENTAL PROTECTION AGENCY
OPINION AND ORDER OF THE BOARD by
(Mr. Dumel Ic):
These consolidated actions relate to Packaging Corporation of
America’s
(PCA) Quincy paperboard manufacturing facility
located
along the Mississippi River and the alleged pollutional discharges
by it into the river.
The first proceeding
(#71—352), was a peti-
tion for variance seeking relief from Sections 12(a)
and 12(b)
of
the Environmental Protection Act, relating to water pollution.
On
January
7,
1972,
a complaint was filed by the Agency alleging that
on six specified dates between July
1, 1970 and July
20,
1971,
PCA
caused or allowed effluent emissions into the Mississippi River,
so
as to violate Section
12(a)
of the Environmental Protection Act and
various provisions of SWB—l3.
The specifics of the original variance
petition and original complaint are not detailed herein because an
amended variance petition and an amended complaint were later filed.
The two proceedings were consolidated by order of the Board and
a partial hearing held on the consolidated cases on May 15,
1972.
On July
10,
1972,
a stipulation of facts and proposed settlement were
filed by the parties, together with an amended petition for variance
filed by PCA.
By our opinion and order of August 15,
1972,
the stip-
ulation and proposed settlement were rejected, principally because
of the iwlusion in the stipulation of
a proposed $3,000 penalty,
which the Board concluded to be inadequate
in consideration of the
admitted violations set forth in the stipulation.
The Board suggested
that the parties renegotiate and increase the penalty substantially, or,
10— 197
in the alternative,
conduct a full hearing on all issues enabling
the Board to render
a plenary decision on
the
basis of the record.
The matter appears to have remained dormant until February
8,
1973, when an amended complaint was filed by the Agency to
which
PCA filed an answer on May 22,
1973.
The answer denied the essen-
tial allegations of the complaint and additionally, asserted
various affirmative defenses which will be commented on hereafter,
all of which we find without merit.
Additional hearings were held
on the consolidated cases on June 4,
1973 and July 23, 1973.
A
stipulation with respect to PCAt5 water use, effluent emissions
and abatement program was filed on July 30,
1973.
Briefs were
filed by both sides.
Disposition of this matter is difficult, not only because
of the
complexity of the subject matter involved, but because of the in-
ordinate passage of time between the filing of the original variance
petition and complaint and the present date,
a circumstance for which
all parties, including the Board, must bear some responsibility.
Further complicating the disposition of the case is the fact that
PCA~sQuincy facility was sold to Celotex Corporation on June 1,
1973 and as a result PCA has ceased to have any control over the
Quincy mill’s operations since that date
(Stipulation July 30,
1973, paragraph 11).
The matter is further complicated by the
fact that while the May 15, 1972 hearing was devoted exclusively
to the variance proceeding, we have received no brief
from the
Agency indicating its views with respect to the allowance or denial
of the variance petition.
In arriving at our decision, we have considered only the
pleadings,
the transcripts of all hearings and the briefs filed,
together with the July 30, 1973 stipulation.
We have not considered
the stipulation originally filed on July 10,
1972,
later rejected
by the Board.
We grant PCA’s petition for variance for the period
between November
5,
1971 and November
4,
1972, extended from November
5,
1972 to June
1,
1972,
the date on which PCA ceased to own and operate
the subject facility.
We assess a penalty against PCA in the amount
of $10,000 for the reasons and with respect to those specific vio-
lations found to have occurred as hereinafter set forth.
We consider first the amended variance petition.
The petition
alleges that PCA acquired the paperboard mill in 1965.
The plant
had been in operation since 1865,
and is located on the Mississippi
River,
During 1970,
96,000 tons of waste paper were recycled in
the production of paperboard.
A schedule of the types of waste
paper used
is attached to the petition as Exhibit
IrAn.
Petitioner
represents that the 96,000 tons of waste paper processed by the
plant is the equivalent of 1,632,000 trees, which,
if it were not
for the waste paper recycling process employed in the petitioner’s
plant, destruction of this number of trees would be necessary to
produce the same amount of paper.
—2—
10—
198
PCA employs 167 salaried and hourly employees.
The 1971
payroll was $1,554,489.
Process water is obtained from deep wells
used first as cooling water and then mixed with waste paper in
pulpers
to form a
slurry.
Equipment in the process removes wire,
plastic
and other insoluable materials from the slurry, which trash is
trucked to a sanitary landfill.
The resulting slurry is converted
into paperboard
on two paperboard machines
(Nos.
4 and
6)
and the
process water discharged into the Mississippi River through two
outfails
The variance petition further recites that PCA was notified in
February,
1971 that its operation violated the Environmental Protection
Act and that steps should be taken to abate such violation.
Pursuant
to this directive, PCA engaged the services of Sverdrup and Parcel
and Associates
of
St. Louis,
for engineering studies and design of
waste treatment facilities to bring the plant into compliance.
The
services to be performed and costs are set forth in the variance peti~
tion under Exhibit
“3”.
In July,
1971,
the engineering firm submitted
a proposal to the Agency proposi.ng the installation of solids separa~
tion equipment and a primary clarifier.
The study and submission letter
are attached to the petition as Exhibit
“D”.
On August 18,
1971,
an
application for permit to construct a solids separation facility and
primary clarifier was filed with the Agency which permit was granted
on October
25,
1971.
Engineering details were completed and a cost
estimate provided.
The various permits, correspondence,
cost estimates
and engineering details are attach.ed to the petition as Exhibits E,
F,
O & H.
Included in the petition are the waste water characteristics
discharged
by both paperboard nachines,
Th.e petition further represents
that BOA has contracted with the engineering firm for the design of
additional treatment facilities to meet existing effluent quality
standards by December,
1973
(Exhibit B).
The estimated start-up date
for primary treatment facilities was predicted to be March
21,
1973.
A
variance
is sought
from Sections 12(a)
and 12(b)
of the Environmental
Protection Act and “any regulations thereunder”
for such time as is
necessary to install the solids separation system and primary clarifier.
PCA summarizes that as of the date of the amended variance peti-
tion,
it has committed itself to an expenditure of $227,000 for engineer~
ing and design studies and has projected an expenditure of
$1.8 million
dollars for the solids separation systems and primary clarifier facili-
ties.
Electric equipment necessitated by the installations is estimated
to be $611,000 and the total expenditure in excess of $3,000,000 is
projected for total construction when final treatment is completed.
Petitioner contends that insistence on compliance with the statute
and regulatory provisions would constitute~an arbitrary and unreason-
able hardship on PCA for the following reasons:
A shut-down of the plant as an alternative to immediate compliance
would result in the possible loss of 167 jobs in the Quincy area,
—3—
10
—
199
termination of
a payroll in excess of $1,000,000 and loss of real
estate and property taxes in the approximate amount of $57,000.
In addition, plant purchases of coal,
paper stock and chemicals
totalling almost $7,000,000 per year also would be lost.
Lastly,
PCA alleges that its recycling of waste paper serves a vital public
function as compared with disposal of waste paper by burning or
landfill, and results in the conservation of timber which, among
other things, preserves needed recreational space and facilities.
Petitioner urges that the grant of the variance,
for a limited period
until the solids operation systems and primary clarifier are com-
pleted, would have a minimal detrimental impact on the public.
The hearing of May l5,~1972, while predating the amended
variance petition, established
the essential allegations of PCA’s
amended petition.
Albert Haller, Assistant Secretary and General
Counsel of PCA, testified to the 1971 meetings between PCA and
Environmental Protection Agency personnel,
ultimately resulting in the
hiring of the engineering firm of Sverdrup
&
Parcel to design and
engineer the treatment facilities
(R. May 15,
1972,
p.
13). (All
record
references
in this portion of the opinion are to the May 15,
1972 hearing.)
The purchase order and contract were introduced into
the record as PCA Exhibit
1.
This witness testified with respect
to a contract entered into
in October of 1971 with Norfolk
& Western
Railroad for the acquisition of approximately 22,500 square feet of
land adjacent to the mill for the accommodation of the new treatment
facility, although the title to the land as of the date of the hearing
had not been conveyed to PCA
(R.
16).
In addition,
in April,
1972,
a contract was entered into with Wapora,
Inc. for water treatment study
of final effluent
(R.
17).
The primary or solid operation system was
described as that which removed bulky materials “from the system”.
Henry
G.
Schwartz
(R.
20) affiliated with Sverdrup and Parcel,
testified that he was Project Manager for the PCA facility installa-
tion.
A floor plan introduced
as
PCA Exhibit 2
c~iagrarrimedthe present
system schematically, portraying the two paper machines and related
operations producing the slurry, which,
in turn, was used in the paper
board production.
Exhibit
3 diagrammed the existing facilities with
the proposed abatement equipment added.
(R.
29).
The essential
characteristic of this system would be to recover fiber within the
plant system itself, thereby reducing the total waste load and also
to provide
a primary clarification system to treat the effluent that
remained
(R,
31).
A float purge system would enable greater recovery of fiber in
the pumping and subsequent operations.
Testimony was received relative
to the classifining and deflaking processes.
Paper machine effluent
ultimately passed through
a liquid cyclone, the rejection of which
passes to the solids handling system and recycled.
These materials
which would be retained and recycled arc what have :been discharged
from the plant’s system
(R,
33)
.
Separated solids would be pumped
to a sludge dewatering system and ultimately treated as discharge of
solids,
The clarified supernatant from the primary clarifier would
go to
a sewer system or
a secondary treatment system as yet not
formulated.
Additional electrical power would be needed to achieve the fore-
going
(R.
34).
The proposed electrical thanges are reflected in
Exhi:bit 4 and were testified to in detail.
This witness
(R.
41)
testifled that the installation of the prcposed system would reduce
water consumption by more than 1,170,000 gallons per day.
Removal
of
65
of the suspended solids and 25
of the SOD by the primary
clarification system was estimated
(H.
41).
Harry W.
Gehm
(R.
48)
testified for PCA,
He
is a Vice—President
of
Wapora,
Inc.
with
whom
BOA has contracted for the necessary testing
to enable achievement of the relevant reculatory effluent limits.
The nature of the contemplated testing was described by this witness.
Merlyn
F. Woiicott
(3.
81), Engineering Manager of PCA~test.i~
fled that the final completion date for the solids operation facility
and primary clarifier was anticipated to be March 21, 1973
(R.
85).
He testified that 110 people were employed by the mill and that the
1971 payroll was
‘$l;0l6,000.
Counsel for PCA,
Inc.
stated that the
variance was sought until March
25, 1973 for the installation of the
primary clarifier equipment at which time BOA expected to be in corn-
pliance
with. State standards.
However,
a program for secondary treat’-
ment as of the date of the hearing had not been finalized, hut was
still in the study stage.
The Environmental Protection Agency introduced no witnesses in
opposition
to the variance.
While the original stipulation was rejected
by the Board, the later Stipulation of July 30,
1973 contained mater-
ial relevant to the variance request.
As of April
30,
1973, $197,693 had been expended for engineering
and $2,076,358 had been expended for equipment purchases and installa-
tion with respect to the primary treatment and solids separation system.
The details
of
the entire installation by contract and amounts paid
are set forth in the stipulation.
Samples taken subsequent to installation of the primary clarifier
from the #6 paper machine sump and the outfall for the clarifier
indicate that settleable,
filterable and total solids are as follows:
#6 Sump
Outfall
Imhoff
+200 ml/l
0,5 ml/l after 45
mm.
Filterable
.900
—.850
—.890
.367 g/l00 ml
.010 g/100 ml
=58.4
lb/bOO gal
=1.59 lb/l000 gal
.427 g/lOO ml
.108 g/lOO ml
=67.9 lb/bOO gal
=17.2 lb/I000 gal
The Quincy mill was sold by BOA to the Celotex Corporation on June
1,
1973 at which time BOA ceased control of its operations.
The foregoing constitutes the entire variance case so far as the
record is concerned.
BOA has devoted
a considerable portion of its
brief in urging the Board to grant the variance retroactive to November
5,
1971,
the date of the filing of the original variance petition.
While
this is a procedure that we normally would not follow, the somewhat
unique circumstances of the instant case call for a different treatment
than that characteristic of other variances in the past.
The 3oard~srejection of the original stipulation,
the length of time
between the original pleadings and the ultimate decision, and the evi~
dent achievement of success in BOA~sinstallation justify the departure
from our previous procedures.
While nothing in the evidence justifies
in
any way
the inordinate delay on the part of the BOA in embarking on a
pollution control program, which facts will be dealt with in greater
detail when we consider the enforcement action, we are constrained to
consider the variance application in the context
of. what the petitioner
proposed and actually achieved since the filing of the original petition.
As we observed in ~
~nAenc,#7O-27,lPCB237(Februar’l7,l97l):
“While it is inexcusable
for the company to have taken
almost five years to reach its present proposal,
the Board
must consider the variance program in light of the current
factual situation and determine whether petitioner’s pro-
posed program,
or some modification thereof,
is compatible
with the statutory requisites for the allowance of
a
variance.”
The delay in rendering
a decision enables the Board to determine
whether,
in fact,
the petitioner has accomplished that which it set out
to do at the time that the variance was sought,
BOA has made installa~
tion of its solid operation system and primary clarifier within the
time frame originally proposed.
Furthermore,
it presently is no longer
in control of the Quincy operation.
A variance is nothing more than
a
shield from enforcement actions, pending installation of abatement
equipment to achieve compliance.
We see no reason to deny the variance,
as requested,
primarily since PCA has accomplished what it set out to do
by the variance, and is no longer in control of the operation.
No useful
purpose would be served by continuing PCA’s exposure to penalties during
the period when compliance
was
being effectuated,
—6—
10—202
We grant
the
variance
from
the
provisions
of
Sections
12(a)
and
12(b)
of
the
Environmental
Protection
Act
and
5118-13
as
applicable,
for
the
period between November 5,
1971
and November
4, 1972, and extend the
same
from November
5, 1972 to June 1, 1973,
the
date on which Celotex
acquired the subject facility from PCA.
We
now
consider the amended complaint filed by the Environmental
Protection Agency.
The amended complaint was filed on February 8, 1973,
subsequent to
the Board’s rejection of the stipulation and settlement.
The complaint
is in five counts
and
alleges that PCA,
in the operation of its Quincy
paperboard facility, discharged effluent into the Mississippi River be-
tween July 1, 1970 and the dates as indicated below,
thereby
violating
the Environmental Protection
Act and 8118-13,
as
follows:
Count I:
Between July 1, 1970
and
the date of the filing of the
complaint, violated Section 12(a) of the Act by the discharge of approx-
imately 4,000,000 gallons per day of fluids, substances and wastes con-
taining contaminants, having a
BOD
count in excess of 200 milligrams
per liter,suspended solids in excess of 200 milligrams per liter and
an oxygen demand index of in excess of 200 milligrams per liter.
Count II: Violation of Rule 1.05—7 of SWB—13 between July 1, 1970 and
March
7,
1972 by the discharge of the foregoing contaminants so as to
cause substantial visible contrast with natural appearance of, and inter-
ference with, legitimate uses of the aforesaid waters and
that
the dis-
charges created turbidity,
in violation of Section 12(a) of the Act.
Count In: Violation of Rule 1.05—8 of SWB—13 by the foregoing dis-
charges between the
same
dates, causing substantially the same vibrations
and
that the discharges caused color chan~gesviolating Section 12(a)
of the Act.
Count IV:
Violation of Rule 3.01-10(b) of SWB—13 by the discharges
aforesaid and in failing to provide facilities for substantially complete
removal of settleable solids, the removal of floating oil, scum
or sludge
solids and the removal of color, odor or turbidity below obvious levels.
Failure to comply with Rule 3.01—10(b) of 8118—13 is alleged to be a viola-
tion of Section 12(a) of the Act.
Count V:
Between March 7, 1972
and
the filing of the
amended
complaint,
discharges of fluids, substances and wastes containing the
same
contaminants
into the Mississippi River causing formation of unnatural sludge deposits
and unnatural color or turbidity, in violation of Rule 203 (a) of the
Water Pollution Regulations
and
Section 12(a) of the Act.
With
respect
to
each
of
the
foregctg
Counts,
the
Agency prays for
the
entry of a cease and desist order and penalties in the
maximum
statutory
amounts.
—7—
10—
-
Hearing was held on the consolidated proceeding again on
June
4,
1973.
While the proceeding remained as a consolidated cause
the only evidence introduced at the later hearing was with respect to
the foregoing violations, PCA apparently resting on its evidence at
the earlier hearing to support its variance petition as amended and
the Agency introducing no evidence in opposition thereto,
It should
be noted that pursuant to Stipulation filed on March 30,
1973,
the
sale of the mill to Celotex Corporation had been completed on June
1,
1973,
and prior to the continued hearing.
The Agency witnesses were
as follows:
Mrs. Dorothy Bennett, chemist employed by the Environ-
mental Protection Agency and Supervisor of the Springfield laboratory
(R.l9—24);
Roy Frazier, Agency Chemist
(R.
27-33); William Tucker, EPA
biologist,
(R, 35—47); James Lienicke
CR.
52~71);
James Kammuller,
Agency Sanitarium
(R, 79—l36h
All record citations immediately
above and hereafter refer to the June
4,
1973 hearing.
Mrs.
Bennett testified with respect to Environmental Protection
Agency Exhibits
2,
3 and
4, being laboratory reports of samples of PCA
discharges,
taken on January
6,
1971, April
26, 1971 and June 10,
1971,
respectively.
Exhibit
2 reflected effluent discharges taken January
6,
1971 from the #4 outfall line of 2108 mg/l suspended solids and from
the #6 outfall line of 4,956 mg/l suspended solids.
Exhibits
3 re-
flects samples taken on April
8,
1971
of effluent from the #4 line of
930 mg/l suspended solids and from the #6 line of 980 mg/l suspended
solids.
Exhibit
4 reflects effluent samples taken on June 10,
1971,
showing discharges from the #4 line of
364 mg/l suspended solids and
from the #6
line of 342 mg/l suspended solids.
William Tucker testified with respect to sampling of the river
in the area of the PCA plant on September 1,
1971.
Exhibit
6 reflects
the results of this sampling.
Stream classification made at Station C-I
opposite the plant~sthree smoke stacks was defined as disrupted,
but
not destroyed
(R.
43).
Testing made at Station C-2, approximately
three—fourths of a mile downstream from Route
24 bridge was character-
ized as polluted and no aquatic life observed.
At this station, mats
of fibrous material were observed and a half pint of paper parts was
observed in the sieve.
The water was discolored and further character-
ized by a maroon color
(R,
46).
While the admission of this exhibit
was objected to, we believe that the proximity and character of the
sampling stations substantiates a causal connection between the dis-
charge of the plant and the observations noted,
Photographs introduced
as Environmental Protection Agency Exhibits 12 and 13,
substantiate
this connection.
James Lienicke testified with respect to his visits of January
6,
1971.
The samples he collected were those that were reflected in the
Environmental Protection Agency Group Exhibit #2 indicating suspended
solids fr~omthe #6 machine discharge of 4,956 mg/i and from the #4
paper machine of 2,108 mg/l.
The samples were described as
“gray—
colored,
thick,. .suspension of paper
fiber materials.”
James Kammuller testified to his visits to the plant on
April
26,
1971.
His samples of the
#6 and
#4 machine effluents are
reflected in Environmental Protection Agency Group Exhibit
3.
He
testified that the samples appeared gray and turbid in color and
contained paper materials.
The results of his visit to the plant
of June 10,
1971 are reflected in Environmental Protection Agency
Group Exhibit
4.
The samples
taken on this occasion were described
as “gray and turbid
in color and contained paper solids.”
CR.
87).
He observed a turbid color above the #6 outfall, approximately
20
feet from the East bank of the Mississippi River.
Samples taken
on January 16, 1973 when the newly installed primary clarifier was
not in operation reflected effluent discharges from the
#4 line, gray
and turbid in color,
and containing paper solids and from the #6 line,
brown and turbid
in color and containing paper solids.
Suspended
solids in the amount of 690 mg/l were sampled from #4 effluent and
in the amount of 950 mg/i from the #6 effluent
(Environmental Pro-
tection Agency Exhibit
5).
Samples taken by this witness on
June 28,
1971
from the #4 and #6 lines indicated dark red turbid color and
paper solids in the #4 effluent and dark gray color and paper solids
in the #6 effluent.
On this occasion, the witness noticed that the
Mississippi River was being discolored red above the #4 outfall,
which extended to 200 to 300 feet downstream and that
a gray
scum
was present downstream from both outfalls
(R.
100-1).
Samples col-
lected later the same day from both lines indicated a continuing red
discharge into the river from a
#4 outfall and discoloration down-
stream to approximately the location of the #6 outfall.
Discharges
from the #6 outfall were gray—white in color and when mixed with
the red discoloration extended downstream in excess of one—fourth
of a mile
CR.
103).
Tests made of the samples are contained in En-
vironmental Protection Agency Exhibit
8 reflecting suspended solids
discharges of 590 mg/i at 2:20
P.
M.
and 418 mg/i at 6:02 P.
M.
from
the #4 line,
and 1074 mg/i suspended solids at 11:05 A. M.,
3180 at 2:30 P.
M. and 920 mg/i at 6:10
P.
M.
from the #6
line.
Photographs taken on this occasion were introduced
as Environmental
Protection Agency Group Exhibit
12.
Further inspection was made by
Mr. Kammulier of the PCA outfalls on January
20,
1971.
Gray—brown
colored waste emerging at the surface was observed from the #4 out-
fall
(R. 111-112).
Photographs taken on
this occasion were intro-
duced as Group Exhibit
13.
The discharge from #4 outfall extended
downstream to the #6 outfall where it mixed with that discharge re-
sulting in a gray discoloration of the river extended 800 to 1,000
feet downstream
(R.
114).
A large mass of paper sludge approximately
30 feet wide and 60 feet long downstream of #6 outfall was ob-
served
(R.
14), as well as
a mass of paper sludge surrounding the
#4 outfall
(R.
115).
Tests made by PCA of its effluent during February,
1971,
in—
dicate that composite samples from the #4 line averaged 1916 mg/i
suspended solids and 436 mg/i BOD,
Discharges from the #6 line
averaged 2574 mg/i suspended solids and 540 mg/I BOD,
(Stipulation
Exhibit C).
The stipulation further verifies discharges from the #4
line
during the same period of 1,116,102 gallons per day and from the #6
line of 2,691,385 gallons per day.
In summary, the Agency asks
in its brief, that in framing an order with respect to the enforce~
ment proceeding,
the Board consider the following:
“I.
That SWB~l3which required primary treatment of
wastes was enacted prior to the adoption of the
Act and continued it in to effect.
2.
That this Board adopted R70~3which in addition to
primary treatment required secondary treatment by
December 31,
1973.
3.
That until at least March
21,
1973, PCA had no
treatment facilities for its wastes p.rior to discharge
to the Mississippi River.
4.
That the discharge from the No.
4 line during
February,
1971 averaged 1,116,102 gal/day with
an average of 1,916 mg/I suspended solids and
436 mg/l BOD.
That during this same period, the
No.
6 discharge averaged 2,691,385 gal/day with an
average of 2,574 mg/I and 540 mg/l BOD.
(Stipulation.)
5.
That on January
6,
1971, Agency samples of effluent
showed 2,108 mg/I suspended solIds on the No,
4
line
and 4,967 mg/l suspended solids on the No.
6 line
(B.
P.
A, Exhibit).
6.
That on April
28,
1971, Agency samples of effluent
showed 990 mg/l suspended solids from the No.
4 line
and 980 mg/i suspended solids from the No.
6
line
(E.
P.
A, Exhibit 3).
7.
That on June 10,
1971, Agency samples showed the
No,
4 line to have
364 mg/I suspended solids and the
No.
6 line to have 342 rng/l suspended solids
(E,
P.
A.
Exhibit 4).
8.
That on June 28,
1971, Agency samples showed the
No,
4
line to have
590 mg/I suspended solids and the
No.
6
line to have 1,074 mg/i suspended solids.
That
the visual observation taken on this day reflects
the degree, duration and extent of the PCA discharge
on the Mississippi River
(E.
P.
A.
Exhibits
8 and 12).
—10-
10—206
9.
That on July 20,
1971, Agency samples showed
continued violations and the visual observations
again reflected the degree and extent of the PCA
discharges
on
the
Mississippi
River
CE.
P.
A.
Exhibit
13).
10.
That on January 16,
1973, Agency samples showed
continued violations of the Act and that the No.
4
and
No.
6
effluent
samples
were
visually
discolored
and contained paper parts
(E.
P.
A. Exhibit
5).
11.
That on September
1,
1971,
a biological survey showed
an absence of aquatic life at Station C—2 and the
presence of approximately one—half pint of paper parts
on the sieve.
12.
That the record reflects no substantive action by PCA
to minimize its discharges or its
impact
on the Mississippi
River until November,
1971 with the filing of
a peti-
tion
for variance, approximately
ten months after the
first Agency visit...
13.
That PCA,
as
a direct result of its discharges, has
violated the applicable rules alleged in the complaint
and has shown no factors in mitigation.
The Agency,
therefore,
submits that penalties are called for to
redress the egregious violations of the applicable
rules and regulations..
.“
We believe that the foregoing represents
a fair evaluation
of the evidence in the record.
The company’s defense
is premised primarily on its criticism
of the testing and sampling methods employed by the Agency, and
its contentions that because of the installation ultimately made to
approach or achieve compliance,
no substantial penalty should be
invoked.
No evidential defense disproving the findings of the
Agency was made at the hearing.
In its answer to the complaint and its brief, the
Company
asserts alleged infirmities in the controfling provisions of the
Environmental Protection Act and the regulations of which violations
have been asserted.
The term “water pollution”
is alleged to
be
vague and uncertain and the Legislature is deemed to have
made an
invalid delegation of legislative power to the Pollution Control
Board.
These contentions have been answered many times by the
Board in past cases, and need not be re-examined here.
The con-
tentions are wholly lacking in merit and serve in no way as
a
de-
fense to the alleged violation in this case
(See Granite City
—ii—
10
—
207
Steel
Company
v.
Env:ironrnental
Protection
Agency,
~i70-34,
I
PCB
315,
(March
17,
1971
and
Environmental
Protection
Agency
v.
~1odern
Plating
Corporati~p~j(70-38,
Modern
Plating
Corporation
v.
J~nvironrnental
Protection
Agency,
i/
71
6
,
I
PCB
531
,
(May
3,
1971)
P~~Fther
contends
that
it
has
installed
the
necessary
equipment
for
compliance
with
SWB- 13.
This
may or
may
flC)t
be
so,
but
in
any
event,
the
record
makes
clear
that
whatever
was
installed
was
not
done
until
subsequent
to
the
alleged
viol
ation
and
constitutes
no
de-
fense.
The
company
also
asserts
that
the
Federal
Government,
by
virtue
of
the
supremacY
clause
in
the
United
States
Constitution,
has
preempted
and
superceded
all
regulatory
powers
involving
pollu-
tion
control.
We
respect
this
contention
in
view
of
the
obligation
imposed
on
the
states
to
implement
Federal
legislation.
Lastly,
the
Company
contends
that
a
suit
f:iled
in
the
Adams
County
Circuit
Court
relates
to
the
same
facts
as
alleged
in
the
amended
complaint
and
forecloses
the
present
proceecli n.
Nothing
has
been
submitted
to
the
Board
enabling
it
to
make
a
determination
of
this
question
nor
does
it
appear
to
have
been
seriously
advanced,
since
no
reference
is
made
to
it
in
the
Company’s
brief.
The
Board
has
been
informed
that
Adams
County
Circuit
Court
is
holding
its
opinion
until
the
Board
acts
in
the
present
case.
We
hold
that
all
of
the
Legal
contentions
asserted
by
way
of
defense
are
corn-
p lete
ly
devoid
of
merit,
and
:in
no
way
foreclose
the
Board
from
considering
the
merits
of
the
case.
The
Company’s
next
line
of
defense
is
subjective
and
relates
to
the
methods
emnloyed
by
the
Agency
in
:its
testing,
sampling
and
observations
and
the
prcoedures
employed
to
ascertain
violations,
Without itemizing
such
area
of
contention,
it
apnears
to
be
the
Company’s
view
that
Standard
Methods
for
Examination
of
Water
and
Waste
Water
were
~
storage
conditions
between
collection
and
testing
were
not
proper,
that
the
containers
used
may
have
been
polluted,
that
the
tempera-
ture
standards
with
respect
to
samples
were
not
adhered
to
and
that
the
testing
methods
generally
were
not performed
within
the
time
frame
required.
While
we
do
not
view
with
mdi
fference
content
ions
of
this
sort,
it
seems
to
us
that
more
is
needed
than
a
mere
asser-
tion
that
test:ing
procedures
were
not
rigidly
adhered
to.
The
Agency,
by
the
submiss
ion
o:f
its
data,
and
test
results,
has
estab
-
lished
a
prima
facie
case.
Proof
of
failure
to
adhere
to
approved
testing
methods
might,
in
an
appropriate
case,
serve
as
a
valid
defense
i:f
the
burden
of
the
Respondent
had
been
prope:rly
sustained.
However,
the
present
record
is
completely
devoid
of
any
ind:ication
that
the
de:fects
in
the
test:ing
method
resulted
in
an
erroneous
conclusion,
or
that
the
errors
such
as
might
have
existed
worked
to
the
detriment
of
Respondent’s
position.
For
all
that
appears
the
defects
in
testing
alluded
to
may
have
resulted
in
measurements
and
conclusions
based
upon
such
measurements
more
fuvorable
to
the
Company.
In
any
event,
in
order
for
this
I Inc
of
defense
to
negate
the
findings
of
the
Agency,
Respondent
is
obliged
either
to
demon-
strate
that
the
failure
to
adhere
t:o
standard
testing
methods resulted
10—
208
in
an erroneous report of contaminants,
or that testing made by
the
Company demonstrated compliance,
or at the
very
minimum,
result
in
contaminant counts substantially different from those asserted by the
Agency.
We find nothing of either category in the present record.
On
the contrary,
the Company has presented no affirmative defense of any
kind with respect to the specific allegations made and initially proven
by the evidence of the Agency.
While we by this opinion in no way
sanction indifferent or inaccurate testing procedures, we do not believe
departures
from testing methods such as suggested by the evidence,
nullify what has been established as
a prima facie case of violation,
The Company has not established its burden of coming forward to
rebut the case established by the Agency.
On the contrary, the
admitted poliutional discharges stipulated to by the Company support,
rather than vitiate the proof of violations as established by the
Agency.
The Company has submitted no countervailing evidence to
negate the case established by the Agency and its own admissions sup-
port the Agency’s case.
Furthermore, the visual observations made
by Agency witnesses add additional support to violations alleged.
On the basis of the foregoing evidence of the Agency which on
this state of the record, we accept as proven, we will assert
a
penalty in the amount of $10,000 for the violations found.
The Com-
pany’s indifference to pollutional control until called to task by
the Agency,
coupled with the magnitude,
intensity,
continuity and
character of poliutional discharges, make this penalty appropriate.
It is the type of inaction demonstrated by Respondent that has made
the Mississippi River the polluted river that it
is.
The photographs
contained in Environmental Protection Agency Exhibits 12 and 13
emphatically support the observations testified to by Agency witnesses
during their inspections of June,
1971 and July 20,
1971.
The gray
scum and red discoloration resulting f±omthe Company’s emissions are
dramatically portrayed by Exhibit 12.
Exhibit 13 manifests the
gray-brown turbidity resulting from the Company’s poliutional dis-
charges, together with the gray paper pulp sludge thath~saccumulated
in the river bed and in-shore areas, consequential to the #4 and #6
line emissions.
In assessing this penalty, we are not unmindful of
the steps taken recently by the Company to approach or achieve com-
pliance.
In the absence of such improvement,
our penalty might have
been substantially greater.
Nor ar~we persuaded that the
fact
that
the Mississippi River
is already a polluted river in any way serves
as justification for the past inaction of the Company.
It is this
very attitude that has caused the Mississippi to take on the
attributes that Government agencies are attempting
to abate.
We
find that the Agency has established the essential elements of
its complaint and will enter our Order accordingly.
We believe that
the amount, character and content of the pollutional discharges
emanating from the PCA facility over the period covered by the com-
plaint,
limited by our variance allowance, are of such a degree and
—13—
10
—
209
magnitude
that
proof
of
water
pollution
pursuant
to
Section
12(a)
of the Act has been established
as
the term is therein defined.
Clearly, the likelihood of creation of
a nuisance is evident and the
waters have been rendered detrimental to
the public health, safety
and welfare
and for the uses contemplated by the Section.
We
further find that
the discharges
in the amount,
character and quan-
tity hereinabove established by the inspections,
testing and analyses
introduced by the Agency and contained in EPA Exhibits
2,
3,
4,
5,
6,
8,
12
and
13 on the dates
of the inspections establish
violations
of SWB-l3 in
the following respects:
1.05-7 with respect
to visible contrast with natural appearance
and interference
of
legitimate
uses
and turbidity;
1.05-8 with respect to visible contrast
with natural appearance
and interference with legitimate uses
and
color;
3.01-10(b)
with respect
to the presence of settleable solids,
the failure
to remove floating oil,
scum or sludge solids and the
presence of color,
odor
and turbidity in excess of obvious
levels.
We further find that the discharges
of contaminants
aforesaid into
the Mississippi River has caused formation of unnatural sludge deposits
and unnatural color and turbidity,
in violation of Rule
203(a)
of the
Water Pollution Regulations.
We
find that
the violation of SWB-13
and Rule
203(a)
aforesaid,
constitutes violation of Section 12(a)
of the Act.
We further find that
all violations aforesaid occurred
during the time specified in the complaint,
limiting the period
of
violation,
however,
to between July 1,
1970 and November 5,
1971,
the date on which the variance
is allowed pursuant to our order.
Because the effective
date of Rule
203(a) was April
6,
1972
the
Board assesses
no penalty for the violation of Rule
203(a).
This opinion constitutes the findings of fact
and conclusions
of law of the Board.
IT
IS THE ORDER of the Pollution Control Board that:
1.
Variance
is
granted Packaging Corporation of America
from the provisions
of Section 12(a)
and
(b)
of the
Environmental Protection Act
and SWB-l3 from
November
5,
1971
to November
4,
1972.
2.
Penalty in the amount of $10,000
is assessed against
Packaging Corporation of America for violations
of
Section 12(a)
of the Environmental Protection Act
and SWB-l3
as found in this proceeding during the
periods between July
1,
1970 and November
5,
1971.
Penalty payment shall be made by certified check or
money
order
within
thirty-five
days
from the date
of this order,
and sent
to:
Fiscal Services Division,
Environmental Protection Agency,
2200 Churchill Drive,
Springfield, Illinois
62706.
-14-
10 —218
3.
In
view
of
the
parties having stipulated that Packaging
Corporation of America
is no longer in control of the
subject premises, no cease and desist order will be
imposed by this order.
I, Christan Moffett, Clerk of the
Pollution Control Board, certify
that th
above Opinion and Order
was
adopted
on the
~‘
day
of
,
1973, by a vote of
q
to
~
/1
—15—
10— 211
