ILLINOIS
POLLUTION
CONTROL
BOARD
May
17,
1972
ENVIRONMENTAL
PROTECTION
AGENCY
)
)
)
v.
)
1
71—291
)
)
JAMES
McHUGH
CONSTRUCTION
CO.
at
al.
)
William
7. Scott, Attorney General, by Richard Wade Cosby, for
the Environmental Protection Agency; Richard L. Curry, Corporation
Counsel, by Michael S. Jordan, for City of Chicago; Messrs.
O’Eeefe, Ashenden, O~Brien
&
Hanson, by John F. Ward, Jr., for
Kenny Construction Con~any,Joint Venture.
Opinion & Order of the Board
(by Mr. Curr±e):
The amendod ,complaint charges three construction
companies engaged
in a joint venture, along with the City of
Chicago, which otnployod them, uith causing water pollution
ansi
creaLinçi
a
water
pollution
hazard
in
violation
of
sr.cI:ion
12(a)
ctnd
(d)
of
tho
Environmental
Protection
Act.
Tfle~eare
no
conflicts
in
the
evidence.
The
City
employed
the
cantractors
to
cOTts t’-uct
a
so-called
underf low
sewer
at
Lawsci,ce
?s7a1su0
in
Chicagu,
for
the
purpose
of
creating
a
storage
spnce
for
avrrPlows
from
combined
scwers
that
would
otherwise
be
di~chargecidirectly
to the streams.
In the course of tunneling a quantity oC ground
water is encountered, and city water is used to cool the drill-
ing machinery.
When this water is pumped to the surface for
disposal,
it
contains
suspended
limestone
from
the
tunnel.
The
City’s
contract
with
the
contractors
required
them
to construct a settling basin with a half hour’s retention
time when half full, in orc~crto allow the suspended material
to
settle
out
before
discharge
to
the
North
Branch
of
the
Chicago
River.
A
City
engineer
was
art
the
site
at
all
times
to see to it the contract specificationc! were adhered to.
An Agency inspector testified that on three clays in
September, 1971, ho observed the dischitrge of grayish liquid
from a trcugh on the work site dir•~ctlyinto .the North Branch
c~the Chicago River,
and
that it resulted in a discoloration
of
the
River
itself.
He
took
samples
of
the
effluent,
which
reve&led
suspended
solids
of
5200
mg/i,
iron
of
23.3,
and
lead
4—511
of
0.56.
Eniployces of the City
and of the contractors
left
no doubt that
the
source of the discharge was
the effluent from
the settling pond.
The inspector also testified
to
the presence
of large amounts
of thick material of
a similar color
near
the
riverbank on the work
site, which respondents’
witnesses con-
firmed constituted material dredged
from the settling
pond. in
order
to maintain
its capacity.
Before discussing the legal significance of the fore-
going facts, we turn to several ancillary
issues raised by the
parties.
The City argues that it is immune from Board jurisdiction
because
it is
a borne rule unit under Section
6 of Article
7
of the
1970
s.tate Constitution.
This argument
is totally lack-
ing in merit.
Even the most cursory examination of
the Con-
stitution reveals that
its purpose and effect are
to confer
governmental authority on local governments,
not
to limit
state authority nor to exempt local governments from complying
with state
laws
in their
own p±oprietaryfunctions.
Thus
section
6(a)
provides that
“a home
rule unit may exercise any
power
and
perform any function pertaining to its government
and affairs,” with certain exceptions;
section
6(i) makes clear
that
no unexpressed negation of state authority is intended by
specifying that home rule powers are
to be exercised ‘con-
currently with
the State.”
The State did not in adopting the
new Constitution abdicate its responsibility
for
the public
health and welfare.
The City argues that application of the pollution
laws
in this
case would be “harsh and unreasonable in light
of the objectives
of the respondents
in
this case.”
The
suggestion seems
to be that because the purpose of the construction
is the prevention of combined sewer overflows that cause
pollution,
anything goes.
This contention
is unacceptable.
Of course
the project
is commendable, but
like everything
else it must be done
so as
to minimize adverse effects on
the environment.
Sewage treatment plants reduce pollution too,
but they
are not exempt from pollution control
laws requiring
them to do it right.
Cf.
also EPA v.
John T.
LaForge Co.,
#70-39
(May
3,
1971)
(rendering plant); Buerkett
V.
EPA,
#71—303
(Feb.
17,
1972) (recycled oil).
There was no suggestion
that means could not have been found
to prevent the disc~harge
in this case while continuing
the project;
indeed
the discharge
has since been directed to a municipal sewer.
The City further argues that the State
is precluded.
from complaining about discharges
from the work site because
the
4
—
512
contract
specifications
were
approved
by
the
Sanitary
Water
Board.
The
Agency
says
the
evidence
does
not
show
SWB
approval,
merely
that
that
Board
reviewed
the
specifications.
In
any
event,
what
the
SWB
did
is
no
defense.
Even
the
issuance
of
a
permit
for
the
discharge
would
not
have
authorized
violations
of the
law
or
regulations
such
as
are
here
charged.
Such
a
permit
would
merely
have
meant
the
Board
believed
the
ecuip-
ment
could
be
operated
so
as
to
avoid
violations;
responsibility
for
any
resulting
violations
remains
upon
the
permit
holder.
A
driver~s
license
is
no
defense
to
a
charge
of
speeding.
The
City
next
argue~
that
it
cannot
he
held
for
any
violations
that
may
have
occurred
because
it
employed
in-
dependent
contractors
to
do
the
job
for
it.
We
do
not
believe
that
independent—contractor
cases
drawn
from
unrelated
fields
of
law
are
especially
relevant
in
determining
the
persons
on
whom
the
statute
imposes
a
duty
to prevent pollution,
Govern-
mental
policies
respectinq
the
allocation
of
insurance
burdens
in
personal-injury
cases,
for
example,
hear
no
necessary
relation
to
the
polici~s
made
explicity
by
the
Environmental
Protection
Act.
The
statute
makes
it
unlawful
not
only
to
“cause”
but
also
to
“allow~
pollution.
We
think
this
language
goes
heycon
the
common law and i:r~~ocesan
affirmative
dot
on
persons
10
a
position
of
potential
control
to
Lake
action
to
prevent
pollution.
We
hold
that
the
common
law
of
indenendenc
contractors
is
not
incoroorated
as
sech
into
the
statute,
but
that
the
question
for
our
decision
is
whether,
in
light
of
statutory
policy,
a
respondent
is
in
such
a
iulzttionsh:ip
to
the
transaction
that
it
is
reasonable
to
expect
him
to
exorcise
control
to
prevent
pollution.
In
applying
this
test
we
recognize
that
there
are
cases
in
which
a
person
who
receives
economic
benefits
fro~n a
transaction
so
lacks
the
caeacit.v
to
control
whether
or
not
pollution
occurs
that
it
woolcl
be
unfair
to
hoid
him
responsible.
We
doubt,
for
examplo
that
one
who
halls
a
tanicab
could
be
he hi
for
its
smoky
caheust,
or
the
hoycr
of
a
pair
of
shoes
for
water
pollution
at
the
tannery.
But
the
City
is
in
no
such
holpless
position
in
the present
case.
A
review
of
our
prior
decisions
in
~hi.sarea
reveai:s
several
cases
in
which
we
have
held
the
statutory
term
“allow”
imposes
n~:rirmat ire
dot
es
that
may
in
some cases go
beyond
those
of
the
common
law
to
enercise
care
t.o
prevent:
others
from
causing pollution.
For
cxa~aple,
EPA
v.
Amigoni
,
f70—l
5
(Feb.
17,
1971)
hold
a
I andfill operator resnonsibi e
for ooen
burning
anpareritly
ceusad
by
others
using
his
property
4
—
513
An owner of a refuse disposal facility must be
responsible for the actions of those who he allows
td dump refuse on his property.
If such persons
use open burning to dispose of their refuse on
his facility, it will be presumed that such is
allowed
and
consented to by the owner of the re-
fuse facility.
An owner of such a facility has
a duty to sppervise its operations and to stop
open burning on his premises whether by himself
or by those who he allows to do so.
In EPA v. Clay Products Co., #71-41 (June 23, 1971), we held
a landfill owner must exercise
some
control over those operating
the facility under lease:
“Zn order to assure that the
owner
exercises cue that improper operations do not occur on his
property, we think it appropriate that the prospective provisions
of our order apply to it as well as to its lessees.”
In EPA
v. City of ~‘Jaukcgan,
#71—298
(Dec.
31, 1971), we held the
trustee of a land trust not reaponsible for landfill operations
by others on its property because “this kind of ownership,
without involvement inthe management of the property itself,
is not enough to impose liability
.
.
.
.
No proof existed
that
thJs trustee
.
.
.
participated in, or had anything to do
with1
decisions
concerning
the
use
of
the
property.”
In
the
same
case,
however,
two
trucking
companies
were theld
for
dumping
at a landfill site whose owner had not obtained the requisite
permit:
“We think they should be held to the responsibility
of inquiring as to whether a
permit
has been issued for the site
and
therefore whether it is a proper place for the disposal
of
refuse.
.
.
.
To allow
them
to
go
free
in
this
case
would
give carte blanche to all haulers of refuse in the state to
dump anywhere they wish
and
say
‘I didn’t know.’”
Guided by these precedents and by the statutory policy
that tho~ein a position to prevent pollution must do so, we
believe the City can properly be held responsible for the
violations alleged in the present case.
This is not a case
of an unsophisticated citizen who hires a contractor to build
his
home;
this is the Public Works Department of a great city,
manned with
qualified
engineers
and
in
an
excellent
position
to
oversee
the
operation
so
as
to
prevent
pollution.
Indeed
the City recognized its responsibility in this regard by in-
serting in the contract a provision requiring construction and
maintenance of a settling basin, by placing an engineer on the
site to
enforce
the contract, and by participating in later
decisions to improve the treatment facilities.
The City fully
4—514
involved itself
in pollution control planning and implementation
on
this project,
and
it was jointly responsible with
t-he
contractors
for preventing pollution.
We
would
reach
the
same
result
if
the
contract
had
attempted
to
absolve
the
City
ol:
responsibility,
for
we
do
not
believe
the
policy
of
the
statute
can
be
evaded
by
contract
in
a
case,
such
as
this
one,
in
which the City is so clearly
in
a position
to contra,
its
contractors
in regard to pollution.
The City commendably accepted
that responsibility;
in any event its capacity for control
made it responsible
for such violations
as may have occurred.
The
contractors
suggest
the.
converse
of
the
independent-
contractor
principle
on
their
behalf:
that
they
simply
relied
on
the
City’s
specifications
for the
settling
basin
and
there-
fore
should
not
be
held
responsible
if the
basin
was
inadequate.
But
the
statute
forbids
the
contractor
to
caose
pollution;
he
cannot
avoid
responsibility
by
relying
on
the
advice
of
others.
Both
the
City
and
the
contractors
are
responsible
for
any
violations
in
this
cas~.
This
brings
us
to
the merits.
We
note
the
Agency
s
contention
that
the
amended
complaint
charqes
a
con tinuinc~
violation
evc,r
5
nec
July,
1 970
,
but.
that
s
not.
thc
way
we
read
it.
It
charges
that
discharges
occurred
from
September
17
to
September
27,
1971,
and
that
“the
afeccsaid
discharge”
(that
is,
in
September,
1971)
caused
water
pollution
and
a
water
pollution
hazard
“or’
or
after
July
1,
1970.”
The
allegation
is
that
September
1971.
di scharges
caused
water
pollution
after
July
1970——a
date
whose
relevance
appears
to
he
that
it
was
the
effective
date
of
the
statute.
We
do
not
think
the
addition
of
the
single
word
“thereafter”
in
paragraph
2
(“thereafter,
and
specifically
on or
about
September
17,
1971.
.
.“)
constituted
fair
warning
that
other
dates
were
involved.
The
clear
implication
was
that
“thereafter”
meant
September
1971,
when
the
discharges
were
observed.
The
Agency
should
be
more
careful
in
drafting
if
it
means
to
charge
a
continuing
violation.
The effluent contained
5200
mg,’l of suspended
solids,
23.3 of iron,
0.56
of lead;
the regulations.allowed
25,
10.0,
and
0.1
respectively.
Rules and Regulations SWB-lS,
Rule 1.07,
paragraphs
10,
12.
The violations were clear and,
in the case
of suspended
solids, extreme.
However,
they were
not charged.
The amended complaint,
like
the original complaint,
says
nothing about any effluent standards, but speaks only of water
pollution and of water pollution hazard.
The Agency has proved
violations it has
not pleaded,
and we cannot find violations on
that basis.
EPA v.
Holland Ice Cream Co.,
#71-319
(Feb.
3,
1972).
While
violation of
the
regulations
constitutes
a
4—5i5
violation of the statute
(* 12(a)), some reference to the re-
gulations is necessary as a matter of adequate notice and
opportunity to defend.
Similarly, while the
Agency
clearly
proved a failure to remove color of an effluent to below
obvious levels before discharge, as required by paragraph
10(b) (3) of Rule 1.07, this violation too was not pleaded
and
therefore
cannot
be
found.
The charge is water pollution, which
8 3(n) of the
Act defines is such a discharge or alteration of the
stream
“as will or is likely to create a nuisance or render such
waters
harmful
or
detrimental
or
injurious
to
public
health,
safety or welfare, or to domestic, commercial, industrial,
agricultural, recreational, or other legitimate uses, or to
livestock, wild animals, birds,
fish,
or other aquatic life.”
We
have
had
occasion
before
to
observe
that
this
definition
requires
proof
as
to
the
detrimental
effect
of
a
discharge
upon
the
stream:
In order to
constitute
water
pollution,
there
must
be an affirmative showing of the existence or like-
lihood of a nuisance or that the receiving waters
will be rendered injurious to the public health.
EPA
v. Modern Plating Corp.,
*71-38
(May
3,
1971),
finding
no
water
pollution
because
the only testing was of the effluent
itself
and
not
of
the
river
alleged
to
have
been
polluted.
See also EPA v. Holland Ice Cream
&
Custard Co., supra:
“No
evidence
was
introduced
as
to
the
condition
of
the
stream
that
was
alleged
to have been polluted,
and
such proof is necessary
on these charges.”
No stronm samples were taken either up-
stream or downstream of the discharge; the
Agency
offered no
evidence
as
to
interference
with
any
uses,
present
or
potential,
of the stream; the sole testimony as to the condition of the
river
was
that
it was somewhat discolored by the dischaçge.
The material discharged was limestone; we cannot infer, in the
absence of any evidence, that it would have a detrimental effect
on
the
stream.
Our
new regulations, PCB
Regs.,
Ch.
3,
Rule
203(a), make it unlawful to create unnatural color or turbidity
in
a
stream,
but
that
provision
was
not
in
force
at
the
time
of
the events in this case, nor was any comparable provision
pleaded,
Once
again
the
Agency
has
pleaded
water
pollution
and
proved
something
altogether
different
that
was
not
pleaded.
We
suggest
more
care
in
the
preparation
of
coátplaints
or
of
evidence,
or
both.
See
also
EPA
v.
Koppers
Co.,
*71-49
(July
22,
1971); EPA v. City of champaign, 471-51C
(September
16, 1971);
EPA v. Ayrshire Coal Co., #71—323
(April
25,
1972).
4—516
We
are
left
with
the
allegation
that
the
acts
of
the
respondents,
as
alleged
in
the
complaint,
created
a
water
pollution
hazard
in
violation
of
section
12(d)
of
the
Act.
Proof
of
actual
pollution
is
unnecessary
under
this
provision,
which
is
designed
to
catch
incipient
pollution
threats
before
the
actual
harm
has
occurred.
See
EPA
v.
Ayrshire
Coal
Co.,
supra.
But
it
cannot
mean
that
every effluent containing high
concentrations
of contaminants
is
prohi.b
ted
without
further
proof,
for
that
would
render
meaningless
the
restricted
de-
finition
of
water
pollution.
The
proper
application
of
that
provision to
a case like the present
alec
is rho application
the
agency urges in
its brief, namely,
that
the
tiling
of
limestone
slurry
on
the riverbank after dredging the settling pond created
a
risk
that
the
material
might
be
washed
into
the river.
Cf.
EPA
v.
Ayrshire
Coal
Co.,
supra,
anplying
the
hazard
iov~~~on
to
piles
of
con i—mine
refuse
placed
where
storm
runoff
could
wash pollutants
into the
stream.
But the evidence
here
falls
far
short
of
that
in
Ayrshire
in
terms
ci
shoud ag
that
a
true hazard
of
pollution
existed.
Substanti:lJy
au
cc
know
is
that
the
material-—
limestone
rather
then
as
i o:nii no
cee.
refuse——was
pJ.rced
near
the
riverhan3:
.
We
knee
nothing
of
drainage
pattereis
,
in
contrast
to
Ayrshire,
wh~ee
P
LVCtS1OV,
ditches
were shoes to have
been
constructed
and
to have
f,~iled
so that runoff
in fact
was
reaching
the
stream.
A
wi. leers
J:or
toe
rosponcien~
con-
tractors
testified
somewhat
vaguely
to
the
possibility
of
runoff
during
a
rain:
Q
At the
time it
was
Pcpos:
ted
on
the
river
bank,
did
the
drying
process
involve
also
same
running
off
into
the
river
of
some
of
the
more
liquid
portions
of
the
sludge?
A
Only
if
it
would
rain
or
something.
if
we
cleaned
it
up,
it
wouldn’t
run
off.
Q
Was
it
so
solid
when
it
was
deposited
on
the
bank
that
it
wouldn’t
run
off?
A
It
wouldn’t
run
off,
no.
We do not
think
this
some~hnt
ambiguous
testimony
established
the
Agency’s burden of
showing
a
significant
risk
of
runoff
from
the
sludge
pile
to
the
river,
as
is
required
to
prove
a
water
pollution
hazard.
4
~-
517
Moreover,
the complaint does not adequately give
notice that runoff
from
the sludge pile was an
issue
in the
case.
One reading that document would be led
to believe
that
the “aforesaid actions” alleged to create
a pollution hazard
meant
the discharge of contaminants into the North Branch,
which is the only action, apart from generalities
about
the
drilling operation,
that
is mentioned.
This aspect of the case
is governed by EPA
v.
Commonwealth Edison Co.,
#70-4
(Feb.
17,
1971)
,
in which we held that invocation
of
the statutory air
pollution ban was inadequate
to support evidence
as
to sulfur
dioxide problems
in a case otherwise dealing explicitly and
exclusively with particulates:
The natural implication of this paragraph, tucked
away as
it
is
like
a boiler—plate catchall provision,
is
that
it is
just another handle
for establishing
excessive emissions of
the type already charged in
the complaint,
namely
smoke and other particulates.
We
do not
ask that the Agency plead
all its evidence;
we do think
it
is not too much to insist that the
words
“sulfur dioxide” be mentioned
if
that sub-
stance
is to be brought into a case otherwise dealing
with i~articulates alone by reference to the general
prohibition against air pollution.
So herc~,the implication of
the complaint
is that the charge of
water pollution hazard
is based upon
the discharge of
effJ.uent
from
the
settling pond.
Fair warning requires mention of the
sludge pile if
it is to be brought into the case.
Thus we conclude
the Agency has failed to prove any
of its allegations
as to violations,
and therefore that our
judgment must be for the respondents.
We note that the dis-
charge complained
of has since been terminated and
the effluent
directed into
a sewer leading to a treatment plant,
and that
the sludge piles have been moved away from the river bank.
The problem has therefore been corrected.
The Agency having failed
to prove its case,
the amended
complaint is hereby dismissed
for want of proof, with prejudice.
Mr. Dumelle dissents.
I, Christan Moffett, Clerk of the Pollution Control Board, certify
that the Board adopted
the above Opinion and Order
this
/7~/~)
day ofMay,
1972,
by
a vote of
‘~—
/
~
~
4—618