ILLINOIS POLLUTION CONTROL BOARD
    March
    22,
    1973
    ENVIRONMENTAL PROTECTION AGENCY
    #71—340
    v.
    ALUMINUM PROCESSING CORPORATION
    JOHN
    U.
    BICKLEY,
    JR.,
    STEVEN C.
    BONAGUIDI AND DOUGLAS
    T.
    MORING,
    ASSISTANT
    ATTORNEYS GENERAL,
    ON BEHALF
    OF ENVIRONMENTAL PROTECTION
    AGENCY
    LANBERT M.
    OCHSENSCHLAGER OF REID,
    OCHSENSCHLAGER,
    MURPHY
    & HUPP;
    JOI-IN
    0.
    IIEIMDAL, APPEARED ON BEHALF OF RESPONDENT
    RICHARD
    L.
    COOPER, APPEARED
    ON BEHALF
    OF INTERVENOR, HERBERT DE KING
    OPINION AND
    ORDER
    OF THE BOARD
    (BY SAMUEL
    T.
    LAWTON,
    JR.):
    Complaint was filed
    on October
    29,
    1971
    by
    the Environmental Pro-
    tection Agency against Aluminum Processing Corporation,
    with respect
    to
    two facilities
    operated by Respondent,
    one in Aurora and one
    in Batavia.
    The complaint alleges
    that Respondent operates
    an
    aluminum processing
    facility at Aurora and
    that as
    a result of
    its opuratiori there,
    has,
    on certain specified
    dates,
    emitted con-
    taminants
    into
    the
    air,
    creating
    a public
    nuisance and causing air
    pollution
    in
    violation
    of naragraph
    240.3 and 240.2(a)
    and
    (c)
    of
    the Illinois Air Pollution Control Act and Section 9(a)
    of
    the Illi-
    nois Environmental
    Protection Act
    (Act)
    The complaint
    further alleges
    that Respondent used
    its site at
    Batavia
    for
    the disposal
    of
    solid waste,
    particularly aluminum oxide
    and iron wastes,
    in violation of
    the same provisions of both Acts afore-
    said,
    and
    in addition, created
    a water pollution hazard
    in violation
    of Section
    12(d)
    of
    the Environmental
    Protection Act,
    caused water
    pollution in violation
    of Section 12(a)
    of said Act and caused open
    dumping and committed other violations
    contrary
    to
    the Rules and Regu-
    lations
    for Refuse Disposal
    Sites and Facilities,
    with respect
    to
    registration,
    absence of fencing sanitary facilities,
    posting,
    shelter,
    hours of operation and adequacies
    of final cover.
    The violations
    are
    alleged
    to have commenced
    in June of 1966 and generally continued
    to
    “the close of
    the record” which form of pleading we have previously
    held
    to be improper,
    unless
    specification
    of
    the events
    of alleged
    violations
    occurring after the commencement
    of hearings
    is made. Air
    pollution violations
    occurring before July
    1,
    1970 are deemed
    in vio-
    lation
    of
    the Illinois Air Pollution Control Act and those subsequent
    thereto,
    in violation of
    the Illinois Environmental
    Protection Act.
    7
    331

    Water pollution violations are asserted
    for
    a period subsequent
    to July
    1,
    1970 and are alleged
    to be
    in violation of the Environmental
    Protection Act.
    Solid waste disposal violations,
    as alleged, com-
    menced
    on
    June
    7,
    1966
    and
    continue
    prospectively
    in
    violation
    of
    the
    Rules
    and
    Regulations
    for
    Refuse
    Disposal
    Sites
    and
    Facilities,
    which have been
    in force and effect both orior and subsequent
    to
    the enactment
    of the Environmental
    Protection Act
    (Section 49(c),
    Environmental Protection Act)
    .
    In addition,
    violation
    of Section
    21(f)
    of
    the Environmental Protection Act subsequent
    to July
    1,
    1970
    through September
    25,
    1970,
    is alleged,
    which trovision re-
    quires compliance with relevant regulations
    for refusedisposal
    sites.
    In summary,
    the initial complaint alleges air pollution violations
    relative
    to
    the Aurora
    site and
    air,
    water and solid waste violations
    with respect to the Batavia site,
    for
    a period commencing
    on June
    7,
    1966
    with
    respect
    to the Batavia site and commencing Nay
    21,
    1970
    with respect to the Aurora
    site.
    Offenses prior
    to July
    1,
    1970 are
    alleged
    to violate
    the
    Illinois Air Pollution Control Act,
    and the
    Refuse Rules; offenses after July
    1,
    1970 are alleged
    to violate the
    Environmental Protection Act with respect
    to air pollution, water
    pollution and disposal of solid waste and
    the Refuse Rules, which have
    been
    in force and effect during all periods
    of violations
    alleged.
    An amendment to the complaint was filed on January
    10,
    1973,
    alleging that Respondent
    in the
    operation
    of
    a
    “Jefferey
    unit”
    used.
    for
    the treatment of industrial waste generated to the Aurora site,has
    caused water pollution i~violat~on cf Section
    12(a)
    of
    the Act
    since July
    1,
    1970, and
    in addition thereto,
    has
    failed
    to meet water cuality and effluent standards
    set forth
    in
    SWB-ll.
    This amendment conformed
    the pleadings
    to the proof.
    The first hearing
    in this matter was held before Edward
    C.
    Kent,
    Hearing Officer,
    on December
    27,
    1971,
    at which
    time Respondent was
    represented by Lambert M.
    Ochsenschlager,
    who moved for
    a
    jury
    trial.
    It does
    not appear that
    the Board has acted at any time on this demand
    and,
    accordingly,
    the motion
    is denied.
    Cf.
    C.
    M.
    Ford v. Environmental
    Protection Agency,
    Appellate
    Court of Illinois,
    Third
    i)istrict,
    #12—60,
    February
    4,
    1973).
    Respondent represented
    in substance that it had ceased
    its
    Aurora
    operation
    and
    that
    it
    would
    take
    the
    necessary
    steps
    to
    abate
    air
    and
    water
    Pollution at both sites
    and would remove minerals
    from
    the
    Batavia
    site
    to
    bring
    its
    operation
    into
    comnliance
    there,
    as
    well.
    Robert
    Arundale,
    II,
    President
    of
    Aluminum
    Processing
    Corpora—
    tion,
    testified
    that subsequent
    to the
    shutdown
    of
    the
    Aurora site,
    the premises would be leveled
    and all
    operations would
    cease
    by
    January
    15,
    1972,
    with the
    exception
    of
    one
    structure
    which would
    remain
    standing,
    that
    a
    berm
    or
    parapet
    would
    be
    built
    to
    prevent
    water
    pollution
    in
    the
    Fox
    River,
    that
    comparable
    steos
    would
    be
    —7—
    7
    332

    taken at the Batavia
    site
    to prevent the flow of aluminum oxide
    into the Fox River,
    that steps would be taken
    to remove the alum-
    inum oxide that was presently
    in the land at the Batavia site
    and that procedures would be employed
    so that such removal would
    not cause air pollution during the period when removal took place.
    (R.3l-36,
    12/27/71).
    In addition,
    dredging and excavation would
    take
    place
    at
    both
    sites
    to
    remove
    the
    aluminum
    oxide
    that
    had
    flowed from Respondent’s property into
    the river and was located
    on the river bottom for
    a distance of approximately
    100 yards
    beyond both premises
    (H.
    38-42,
    12/27/71)
    .
    Water lines presently
    running from the Aurora Plant into the river would be removed.
    In summary,
    Respondent agreed
    to terminate
    its operation and take
    all necessary steps
    at both locations
    to terminate
    air, water and
    solid waste pollution,
    to take precautionary measures during removal
    of solid waste from Batavia to prevent air pollution,
    to cover
    all
    exposed aluminum slag at both locations
    and
    to dredge the river con-
    tiguous with
    its facility
    to remove aluminum oxide that had flowed
    from
    the Respondent’s land into the river.
    At the December
    27,
    1971 hearing,
    it was agreed that the sub-
    stance
    of the agreement
    to which Mr. Arundale testified, would be
    embodied
    in
    a written document and submitted
    to the Air,
    Water and
    Land Divisions
    of the Environmental
    Protection Agency,
    and possibly
    to the State agency having jurisdiction
    to authorize the dredging
    aforesaid.
    (R.43,
    12/27/71)
    The hearing was continued
    to January
    14,
    1972.
    This hearing
    was continued by agreement until
    January
    31,
    1972 and thereafter,
    continued generally,
    pending resolution
    of
    the settlement program.
    For all
    that appears
    in the record,
    nothing further
    took place
    until October
    6,
    1972 at which time Hearing Officer Kent requested
    that,
    because of illness,
    the case be reassigned
    to
    a new hearing
    officer.
    The case was reassigned
    to George A.
    Lane,
    Hearing Officer,
    who on October
    27,
    1972,
    reset the case for hearing on November
    16,
    1972.
    A written motion
    for continuance was
    filed, alleging the un-
    availability
    of Mr.
    Ochsenschlager,
    because of convalescence from
    surgery.
    The case was continued
    and reset
    to January
    3,
    1973.
    The motion for continuance
    filed
    by Respondent
    contains
    “Proposal
    of Respondent”,
    embodying
    the oral agreement
    submitted at the Decem-
    ber
    27,
    1971 hearing.
    The proposal
    is
    signed by
    Mr. Arundale on
    behalf of Respondent
    and recites
    that Respondent will remove all
    buildings
    from the Aurora site and level
    the entire area pursuant to
    a plan attached
    to
    the proposol,
    that grading would be done
    in
    a manner
    to prevent erosion and flow
    of water from the land
    to
    the river.
    The
    Fox River would be dredged in an area
    extending from the Old Pump
    House,
    100 yards
    to the south adjacent
    to
    the subject property,
    two
    ninelines
    extending
    into the river from the subject properties would
    be removed,
    and production
    of aluminum oxide or aluminum ingots would
    cease
    on the site.
    No aluminum dross would be ordered
    to the site
    —3--
    7
    333

    and no aluminum oxide would be removed from the facility.
    No further
    lines
    would
    be
    run
    into
    the
    Fox
    River
    at
    this
    location
    without
    Agency approval.
    All existing aluminum slag or oxide piles would
    be covered in accordance with Board requirements, which would be
    completed by the spring season
    (1972).
    With respect to the Batavia property,
    aluminum oxide will be re-
    moved as quickly as
    “the demand for the same will permit”, it being
    Respondent’s intention to sell this product as orders are placed.
    Steps will be taken during such removal to prevent the development of
    a slough.
    Removal will be accomplished as rapidly
    as possible.
    The
    area will be leveled and covered to prevent erosion and dust.
    In
    addition, Respondent will erect a berm or dike to prevent the flow
    of aluminum oxide into the river.
    The submission
    is dated January 14,
    1972, but does not appear to have been acted upon in any way by the
    Agency.
    On December 13,
    1972, Lambert M. Ochsenschlager withdrew his and
    his firm’s appearance as attorneys for Respondent.
    On January
    3,
    1973,
    John 0.
    Heimdal, Secretary of the Respondent corporation,
    appeared
    initially as Secretary of Respondent and then entered his appearance
    as counsel.
    (R.
    5,
    1/3/73).
    He filed a plea of nob
    contendere stating
    (H.
    3,
    1/3/73)
    that he did not intend to contest the allegations on
    behalf of Respondent but was not making all admissions
    of violation.
    Upon
    being
    told
    by
    the
    Attorney
    General
    that
    the
    Board
    Rules
    would
    not
    embody
    such
    procedure,
    an
    oral
    general
    denial
    was
    imposed and the hearin
    proceeded
    on
    this
    basis.
    The
    Agency
    introduced
    a
    substantial
    number
    of
    exhibits in support of its complaint and the amendment thereto.
    (Conipl.
    Group Ex.
    1 through’l4).
    We consider the allegations in the order
    specified in the pleadings.
    We are unable,
    on the state of the record,
    to find air pollution violations at the Aurora facility as charged.
    No
    evidence has been introduced either with respect to numerical emissions
    or impact on surrounding property that would justify a finding of nui-
    sance or interference with the enjoyment of life to sustain
    a finding
    of air pollution,
    as defined in both statutes.
    The mere introduction
    of photographs
    is insufficient.
    The same finding must be made with
    respect to the allegations of air pollution from the Batavia facility.
    The evidence is sufficient
    to support a finding of violation with
    respect to Section 12(d)
    of the Act in the creation of
    a water pollution
    hazard at Batavia, between September,
    1970 and April,
    :L972.(Compl. Group
    Ex.
    3, Laboratory reports of composition of Fox River bottom samples
    adjacent to the Batavia site;
    Compi. Group Ex. 7, photographs of alum-
    inum dross disposal site adjacent to Fox River)
    .
    For the same
    reasons as stated above, however, we are unable to find
    a demonstrable
    violation of the Water Pollution Provisions of the Environmental Pro-
    tection Act at either location.
    There
    is no question that Respondent’s
    Batavia operation has violated the refuse regulations during 1970,
    1971
    and 1972, and has violated the Environmental Protection Act in operating
    a Refuse Disposal Site without the necessary permits,
    as charged in the
    complaint.
    (Compi. Group Ex.
    2,
    3 and 4).
    —4—
    7
    334

    We also find that the evidence(Compl.Group Ex.ll&l2)supports
    the alle-
    gations of the amendment to the complaint as to SWE—il, Rule 1.03(a)
    and
    (b) relative to the Aurora facility.
    However,
    we are unable
    to find violation of paragraph
    (c) thereof because no nuisance
    condition has been established.
    We also find that the operation
    at the Aurora site has violated Rule 1.08, paragraphs
    10(a)
    and
    (b) (1),
    (2),
    (3)
    and
    (4)
    of SWB—ll, with respect to effluent dis-
    charges in excess of~applicable BOD,
    suspended solids and other
    limitations therein cohtained,
    between July
    1,
    1970 and the date of
    the last hearing.
    The evidence indicates that the Aurora site has
    been shut down and that the Batavia site has been sold since the
    commencement of the hearings.
    Respondent has made no effort to refute the allegations, but
    has introduced evid~ence~ndicatinga condition of insolvency which
    would, of course,
    go -~othe matter of ultimate penalty but not to
    the question of violation.
    Respondent’s counsel has also reaffirmed
    the proposal previous1y,~madeby Respondent and has indicated that
    it
    will perform all of the ~undertakings assumed by it in the proposal.
    We believe that no useful purpose would be served by the imposition
    of a substantial penalty, particularly in view of the sequence that this
    case has taken,
    the steps already taken to achieve abatement of the
    pollutional discharges and the insolvency of the company.
    We recognize
    further that to the extent the ownership of the Batavia site has
    changed, enforcement of our order may present certain difficulties.
    However, we can only act on the basis of what is before us and direct
    compliance against those who have been brought in
    as party—respondents.
    We must leave any further implementation of the enforcement pro-
    cess
    to the Attorney General.
    It will be our order that a penalty
    in the amount of
    $1,000
    is assessed against Respondent for the vio-
    lations
    of
    SWB-ll,
    the
    creation
    of
    a
    water
    pollution
    hazard
    in
    vio-
    lation
    of
    Section
    12(d)
    of
    the
    Environmental
    Protection
    Act
    and
    for
    violation of the Rules and Regulations Governing Refuse Disposal Sites
    and Facilities.
    We will direct that Respondent cease and desist from
    all violations of the relevant statute and regulations with respect
    to the causing of air and water pollution and comply with the Rules
    and Regulations Governing the Control of Refuse Disposal Sites and
    Facilities.
    Lastly, we will
    require that Respondent take all steps
    that it has agreed to do in its proposal, which have been outlined
    above,
    to assure that no air or water pollution will continue from any
    of its operations or will result from the operations
    that it contem-
    plates
    in the closing of its facilities.
    This opinion constitutes the findings of fact and conclusions
    of law of the Board.
    IT
    IS THE ORDER of the Pollution Control Board:
    —3—
    7
    335

    1.
    Respondent shall pay to the State of Illinois the
    sum of $1,000 as a penalty for the violations
    of
    SWB-11,
    the Rules and Regulations for Refuse Disposal
    Sites
    and
    Facilities
    and
    Section
    12(d)
    and
    Section
    21(f)
    of
    the
    Environmental
    Protection
    Act
    as
    found
    in
    this proceeding.
    Penalty payment by certified check
    or money order shall be made to:
    Fiscal Services
    Division, Illinois Environmental Protection Agency,
    2200 Churchill Drive, Springfield,
    Illinois 62706,.by April
    27,1973.
    2.
    Within
    60 days from receipt of this order, Respondent
    shall cease and desia from all violations
    of the Environ-
    mental Protection Act and all applicable Rules and Regula-
    tions relative to the causing of air pollution, water pollu-
    tion and the conduct of
    a refuse disposal site and facility.
    Respondent shall construct a dike or berm at both its
    Aurora site and its Batavia site to prevent pollutional
    discharges
    from such sites
    into the Fox River.
    3.
    Respondent shall dredge the Fox River in proximity with
    both sites to remove deposited aluminum oxide, pursuant
    to the provisions of paragraph
    2 of the “Proposal of
    Respondent” with respect to the Aurora site and will
    take comparable steps with respect
    to the Batavia site,
    as agreed upon on page 42 of the December 27, 1971 trans-
    cript of hearing.
    Respondent shall remove all exposed
    aluminum oxide from the Batavia site and shall fill and
    cover said site in compliance with relevant regulations.
    4.
    Respondent shall level and apply cover to the Aurora site
    to bring it into compliance with all relevant regulations.
    5.
    Respondent shall take such further and additional steps
    at both its Aurora and Batavia sites as may be necessary
    to prevent any and all emissions of effluents
    or contam-
    inants into the water and air that may cause water pollution
    or air pollution or the threat thereof and shall cause such
    steps
    to be taken so that all areas presently or formerly
    owned by it and subject to this proceeding shall be in
    compliance with all relevant statutory provisions and
    Rules and Regulations with respect to air and water pollu-
    tion,
    the emission of contaminants both into the air and
    water and the relevant regulations with regard to refuse
    disposal sites and facilities.
    No excavation, removal or
    loading of materials shall take place at any time when wind
    conditions will create the likelihood of nuisance.
    I,
    Christan Moffett, Clerk of the Illinois Pollution Control Board,
    certify that the above Opinion and Order was adopted on the
    ______
    day of March,
    1973,
    by a vote of
    ~
    to
    ________
    —6—
    7
    336

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