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
    ~
    ~
    i~
    ~
    ~4,,
    ~.
    —5—
    8—
    183

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