ILLINOIS POLLUTION CONTROL BOARD
October 18, 1973
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
vs.
)
POE 72—316
ILLINOIS CENTRAL RAILROAD COMPANY,
Respondent.
Thomas A.
Cengel, Assistant Attorney General on behalf of
Complainant;
Joseph W.
Phebus, on behalf of Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Seaman):
On July
28,
1972,
the Agency filed complaint against
Respondent,
Illinois Central Railroad Company, alleging
violation of Section
12
(a)
of the Environmental Protection
Act and various rules and regulations,
including:
Rules
1.03
(a)
,
1.03
(b)
,
1.03
(c)
,
1.07
(2)
of SWB—14 and Rules
2.03
(a),
402 and 403 of the Rules and Regulations of the
Pollution Control Board.
On or about March
29,
1973, Respondent filed a Motion
to Strike and Dismiss and to Compel
a More Definite and
Certain Complaint.
The Agency filed its response to said
Motions on April
3,
1973.
On April
2,
1973,
the Hearing
Officer ordered the Agency to file
a more definite and certain
complaint.
On April
4,
1973,
the Agency filed a Motion
to Expunge Order of the Hearing Officer.
Although this Board
did not rule directly on the Motion to Expunge,
it did deny
Respondent’s Motions on April
5,
1973.
Said denial had the
same effect as expungement.
Hearings on this
cause were
held on May
1 and May
8,
1973.
On August
30,
1973,
the Board,
on its own motion, ordered oral argument to be heard on
September 13,
1973.
9—493
—2—
Respondent has owned and operated a locomotive servicing
facility and a railroad car repair and construction shop at
its Wamac, Illinois,
yards for several decades.
Respondent’s
facilities are located several miles south of Centrailia,
County of Marion,
Illinois.
To the east of Respondent’s
facilities is located a residential area commonly known as
Wamac and portions of the old oil fields commonly known as
Centrailia Field.
Through this old oil field and residential
area flows Fulton Creek in
a westerly direction.
Fulton
Creek enter6
a culvert on the east side of Respondent’s
property and exits on the west side of Respondent’s property,
approximately due west of the point of entry.
Fulton Creek
is underground for the entire distance through Respondent’s
property.
From its exit on the west side
of Respondent’s property,
Fulton Creek flows south along the west side of Respondent’s
property a distance of approximately 700 feet,
and then flows
west to its junction with an unnamed tributary.
This unnamed tributary to Fulton Creek exits on the
west side of Respondent’s property and has its origin in the
confluence of two streams
(North Branch and South Branch of
the unnamed tributary)
which flow generally east to west.
Both the North Branch and the South Branch of
the unnamed
tributary are completely underground while crossing Respondent’s
property and it is important to note that the confluence
of the
two Branches occurs thereunder.
The South Branch of the unnamed tributary is in fact
composed of two separate drainage ditches which join before
reaching Respondent’s property.
These drainage ditches have
their origin southwest of Respondent’s property at a plant
operated by North American Rockwell.
The North Branch of the unnamed tributary originates in
what is termed the Old #5 Mine Pond, several hundred feet
east of
Respondent’s property.
In summary of an admittedly confusing fact situation:
1.
Two separate bodies of water exit from beneath
the west side of Respondent’s property:
A.
Fulton Creek
B.
Unnamed tributary to Fulton Creek
2.
Fulton Creek and its unnamed tributary merge at
a point further west of Respondent’s property.
9—
494
—3—
3.
Three separate bodies of water enter Respondent’s
property on the east side and flow beneath it.
A.
Fulton Creek
B.
North Branch of the unnamed tributary which
originates at the Old #5 Mine Pond and merges with
the South Branch of the unnamed tributary somewhere
beneath Respondent’s property.
C.
South Branch of the unnamed tributary which
merges with the North Branch somewhere beneath
Respondent’s property and which is,
in turn,
formed
by the confluence of two drainage ditches originating
at the North American Rockwell Plant.
We have exercised ourselves at some length because
a precise understanding of the spacial relationships described
is crucial to the disposition of this cause since the Agency’s
case
is founded upon an attempt to show that the waters which
exit Respondent’s property are more polluted than the waters
which enter it.
As cited above,
the Agency has alleged violation of
numerous rules and regulations.
Specifically,
it is charged
that Respondent caused
•or allowed its alleged effluents to
contain settleable solids, floatinq debris, visible oil,
grease,
scum or sludge solids and color, odor and turbidity
above obvious levels, thereby causing or contributing to the
pollution of Fulton Creek and its unnamed tributary.
In support of its allegations,
the Agency presented a
lengthy and detailed case—in-chief which included evidence
in the form of expert testimony,
photographs, water samples
and diagrams.
The Agency presented testimony, water samples
and photographs regarding the relative condition of the waters
of the North Branch of the unnamed tributary as it entered
Respondent’s property and as it exited therefrom.
However,
no evidence whatsoever was offered pertaining
to the South
Branch of the unnamed tributary.
In fact,
counsel for the
Agency stated,
during oral argument of the cause on September 13,
1973,
that neither he nor any of the Agency personnel involved
in the investigation or preparation of the case were aware of
the existence of the South Branch of the unnamed tributary.
9
—
495
—4--
As described above,
the North and South Branches
of the unnamed tributary commingle at a point beneath
Respondent’s property.
It is, therefore,
clear that
evidence intended to prove that waters entering Re-
spondent’s property are cleaner than waters exiting
therefrom must be accorded little value where the
character of certain of the entering water is completely
unknown.
This is particularly true since Respondent
offered evidence that the South Branch of the unnamed
tributary is heavily pOlluted.
As regards Fulton Creek, however,
we feel that
the evidence presented by the Agency is adequate to
support
a finding of violation.
In particular, the
testimony of Joseph N. Mahlandt, an Agency engineer
and investigator,
as to his observations of Fulton
Creek tends to show Respondent has at least contributed
to the pollution thereof
(5-1—73 R.40—48,
66,
67,
83,
109—116,
207)
Mr. Mahlandt testified that on at least eight
separate occasions he observed Fulton Creek to be
“normal” on
the
east
side
of
Respondent’s
property
and
polluted as it exited on the west side of Respondent’s
property.
His observations included such characterizations
as “reddish brown scum,”
“light clear oil,”
“petroleuTa
odor” and “orange bottom deposits.”
Agency photographs
tended to corroborate Mr. Mahlandt’s testimony.
This Opinion constitutes the findings of fact and
conclusions of law of the Board.
ORDER
IT IS THE ORDER of the Pollution Control Board that
Respondent,
Illinois Central Railroad Company, shall:
1.
Cease and desist from the violations found
herein.
2.
Respondent shall pay to the State of Illinois
the
sum
of
$1,000.00
within
35
days
from
the
date
of
this Order.
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,
Springfield, Illinois
62706.
9— 496
—5—
3.
Within 60 days,
file with the Agency
a report
detailing the abatement procedures it intends to
implement.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, certify that the above 0 inion and
Ord r was adopted by the Board on the
______
day of
__________,l973byavoteof~
___
to
C
9—497
.
.