ILLINOIS POLLUTION CONTROL BOARD
June 7,
1973
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 72—109
)
ALLIED CHEMICAL COMPANY,
Respondent.
Mr. Jack W.
Leskera, Special
Assistant
Attorney General, on
behalf of Complainant;
Mr. Edward G. Maag on behalf of Respondent.
OPINION
AND
ORDER OF THE BOARD
(by Mr. Lawton):
This enforcement
action was filed with the Board on
March
23,
1972, alleging that Allied Chemical Corporation
(Allied) operated its facility in St.
Clair County near
Fairmont City,
Illinois,
so as to cause water pollution in
violation of Section 12(a)
of the Environmental Protection
Act
(Act);
so as to render the waters of the State unfree
from objectionable sludge deposits,
from unsightly or
deleterinus floating materials,
from color, odor or other
nuisance producing conditions, and from substances harmful
to human, plant or aquatic life,
in violation of Rules 1.03
(a),
(b),
(c)
and
(ci)
of SWB—l4 of the Illinois Sanitary
Water Board
(SWB-l4), remaining in effect pursuant to Section
49(c) of
the Act; and so as to cause the pH of the receiving
water
to be below
5 and the temperatures of the water to be
excessive
in violation of Rules 1.05(b) and
(c)
of SWB-l4.
Allied’s Fairmont City operation produces aluminum
sulfate, sodium aluminum sulfate, and sulfuric acid.
Alliedts
aluminum sulfate and sodium aluminum sulfate operations are
the largest in the United States.
The sulfuric acid plant
was constructed to provide the Shell Oil Company refinery
in Wood River,
Illinois, with sulfuric acid, and it was
the changing business relationship between Allied and Shell
that Allied claims is in part responsible for its failure to
comply
with
environmental regulations.
B
—
179
—2—
Approximately three years ago, Allied and Shell started
to renegotiate their contract whereby Allied provided Shell
with sulfuric acid
(R.
128-129).
Allied determined that it
could comply with environmental regulations if it would
improve in-plant housekeeping procedures
(R.
129)
,
but Shell
decided to have
a sulfuric acid plant built at its Wood River
facility, and so the contractual relationship between Allied
and Shell would terminate at the end of the existing five
year contract.
After the business relationship with Shell
was clarified,
Allied decided that it could be economically
viable even if it did in fact close down its sulfuric acid
plant
(R.
132-133)
,
presumably
in May or June of 1973
(R,
267).
Allied applied for a permit for the aluminum sulfate and sodium
aluminum sulfate operations on August 14,
1972,
(Respondent
Exhibit 2), and its permit application was approved by the
Agency
(R.
139).
Allied concedes that there was no problem with the
necessary technology
to abate pollutional discharges
from
its operations
(R.
272); however, Allied claims that it could
not commit itself to the necessary upgrading until its
deliberations with Shell were concluded.
By letter dated
February 12,
1971,
(Complainant’s Ex. C), Allied stated
that it would submit the necessary permit information to the
Agency by April of 1971, but in fact made no further response
to the Agency until
a letter of March,
1972 to the Agency
(Respondent’s Exhibit
1), which letter reiterated Allied’s
problems with Shell.
This letter repeated the promise of
February,
1971 that there would be plans forthcoming for con-
trol of Allied operations.
At the hearing on November 17, 1972, Allied stated that
all necessary upgrading would be completed by June 1,
1973
(F.
267)
,
and that after completion
of all of the abatement
equipment,
there would be no effluent discharge to Rose Creek
(F.
359).
At the date of hearing,
the effluent had a pH of
approximately
5
(F.
360),
and Allied in fact admitted that
it did discharge an acidic effluent
(R. 365-366).
Rose Creek, otherwise known as the Pennsylvania Ditch,
is
the body of water into which Allied discharges.
Rose Creek
is
a man—made body of water created more than 60 years ago.
Photographs
taken by Allied show vegetation surrounding the
banks of Rose Creek
(Respondent Ex.
12).
This same exhibit.
shows the orange color of the water in Rose Creek.
Rose
Creek flows from the Allied area until it adjoins an addi-
tional artificial creek which together flow to the Cahokia
canal.
There are other discharges into Rose Creek, the source
of which is unclear, although they are either storm water
drains from the City of Fairmont, possibly some industrial
discharges, and perhaps as many as
17 natural drainage points,
all
of
which
may contribute
to the condition of Rose Creek.
8
—
180
—3—
A brief summary of the inspection reports admitted into
evidence indicates the miserable quality of Allied’s dis-
charges.
On 13 different dates
for which inspections were
made,
the pH of Rose Creek ranged from 2.2 to 6.9,
Sulfates
were as high as 12,000 mg/l on July 21, 1972,
iron was as high
as 100 mg/l on July 21,
1972, and total
solids were
as high
as
6400 mg/l on May
2
,
1971
(Complainant’s Ex. A).
At all
times the discharges were milky in color and at all times
a white to orange sludge was noted along the banks of Rose
Creek downstream of the Allied effluent.
At no time was any
in—stream biota observed.
A summary of the inspections made by the Agency investi-
gators indicates that the ph provisions of Rule 1.05(b) of
SWB-14 were violated on the following dates: October 26,
1970,
April
28,
1971, May 6,
1971, May 25,
1971, May 28,
1971, June
29,
1971, August
4,
1971, December
8,
1971
(Complainant’s
Group Exhibit
A).
We
find no violations of Rule
1.05(c) of SWB-14.
The
evidence relating to water temperature
is inadequate to show
whether the temperature elevations
above 900 which in October
of 1971 and the temperature elevations
in excess
of 600 in
December of 1971 are attributable to the discharges from
Allied.
In fact,
the record does not show whether
the measure-
ments were of the effluent or the creek,
or if in the creek,
where.
In the absence of such affirmative proof by the
complainant,
the Board cannot proDerly find such violations.
Violations
of Rule 1.03
(a)
,
(b)
,
(c)
,
and
(d)
are
easily demonstrated as having occurred on the following dates:
October
26,
1970, November 24,
1970, May
6,
1971, May 25,
1971,
May 28,
1971,
June
28,
1971,
June
29,
1971, August 4.
1971,
October 19,
1971,
October 27,
1971, December
8,
1971
(Complanaint’s Group Exhibit A)
On all of these dates,
the investigator specifically
noted that there were whitish sludge deposits around the Allied
discharge,
which continued downstream, that Allied’s discharge
consistently contained large amounts of noticeable and ob-
jectionable floating materials,
that the discharges were not
clear, but were consistently milky white or orange in color,
and which contained contaminants in such concentrations
so
as
to prohibit any in-stream biota.
It should be noted that the reports
for June 29, 1971
and August
4,
1971 were comprehensive surveys going far down-
stream of Allied’s discharges.
On these dates, the investicator
noted that he could see a marked difference
in the quality
of the water in Rose Creek and the quality of the water in
the Cahokia Ditch,
into which Rose Creek
flowed.
This
difference is graphically shown
Lr~ the photographs introduced
by Respondent as Respondent’s Exhibit 12, photograoh 22.
8
—
181
—4—
That these discharges did more
than pollute the water
is demonstrated by the testimony of the Illinois Highway
Department
(R.
60 et
seq.).
In sum,
the testimony intro-
duced that Allied’s discharges caused the disintegration
of
a culvert downstream of Allied.
From the date of the first inspection, October 26,
1970,
Respondent has clearly and continuously, because of its
highly contaminated discharge into Rose Creek, caused water
pollution in violation of Section 12(a)
of the Act.
Rose
Creek does not support aquatic life (Complainant’s Exhibit A-l5)
and as
long
as Allied’s discharges continued as highly
contaminated, Rose Creek could not support any meaningful
aquatic life.
Allied,
in its brief and argument, states that
Rose Creek
“was never a natural water course, nor did it ever
support aquatic life as a naturally occurring stream any
more than
a gutter along a city street can be characterized
as
a stream capable of supporting aquatic life”.
Artificial
waters are defined as waters of the state in Section 3(a) of
the Environmental Protection Act,
and accordingly, Rose Creek
is entitled to the protection provided by the Act and the
regulations.
Protected waters are not to be considered open
sewers.
We are unable to find violations
for the inspection made
on July 21,
1972, because of a defect of pleading.
SWB-14
had been repealed by the Board prior to that date, and
Chapter
3 of the Board’s regulations had been adopted.
Accordingly, we are precluded from finding any violations of
SWB-l4 to have occurred on that date,
and because the complaint
was not amended to include violations
of Chapter
3, we cannot
find those violations.
The inspection of July 21, 1972 does
indicate that the highly contaminating discharges from Allied
had not improved.
Allied,
in mitigation, stated that it would close down
its sulfuric acid plant and that the controls for the remainder
of
its facility would be operational,
all to occur by June
1,
1973.
Although several years of inactivity are inexcusable,
at least Allied apparently,
at long last, recognized its
responsibility to protect the environment of the State in
which it does business.
We trust that Allied will adhere to
that program and schedule.
Allied,
six
months after the conclusion of hearings in
this
cause, filed
a motion to reopen the record to submit
subsequently acquired information.
To the extent that this
motion would require any departure by Allied from its proposed
compliance program, and to the further extent which the relief
requested in this motion would cause any departure from any
of the provisions of the Act or regulations,
the appropriate
avenue for Allied to take would be the prompt filing of a
8
—
182
petition for variance.
In that way, the Board could make an in-
formed decision as to the validity of the allegations in Allied’s
motion.
The motion of Allied to reopen the record is therefore
denied.
For the many serious and continuing violations of the Act
and SWB-l4, we are imposing a money penalty of
$7,500.
IT IS THE ORDER of the Pollution Control Board:
1.
For the violations of Section 12(a)
of the Act
and SWB-l4, Allied shall pay to the State of Illinois
a money penalty of $7,500.
Payment shall be made by
certified check or money order within 35 days of the
entry of this Order, and sent by certified mail to:
Illinois Environmental Protection Agency,
2200 Churchill
Road,
Springfield,
Illinois 62706.
2.
Within 30 days
from the date hereof, Respondent shall
submit to the Agency,
a program setting forth the steps
to be taken by Respondent to bring its operation into full
compliance within 90 days from the date hereof, with all
relevant regulations and statutory provisions with respect
to water pollution.
Within 15 days from the date hereof,
Respondent shall post a bond in the amount of $25,000
in form satisfactory to the Agency, guaranteeing the
submission of said program.
Said bond shall
further
provide for a forfeiture of $10,000
in the event Respondent’s
facilities are not in compliance with the relevant
regulations and statutory provisions with respect to water
pollution within 90 days from the date hereof.
3.
Within 90 days from the date hereof, Respondent shall
cease and desist from all violations of Section 12(a)
of
the Act, from violations of those provisions of SWB—l4 which
have been substantially re-enacted in Chapter
3: Water
Pollution,of the Board’s Regulations,
and shall further
cease and desist from violations
of all other relevant
provisions of Chapter
3: Water Pollution.
I, Christan Moffett, Clerk of the Pollution Control Board, certify
that the above Opinion and Order was adopted on the
~
day of
June,
1973, by a vote of
4.’
to
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