ILLINOIS POLLUTION CONTROL BOARD

April 19, 1971

)

GAP Corporation

)

)

v.

)

IPCB

71—11

)

Environmental Protection Agency

)

Opinion

of

the

Board

(by

Mr

•

Dumelle)

GAP

Corporation

filed

a

petition

for

variance

on

January

27,

1971.

After

a

hearing

we

grant

the

petition

subject

to

certain

conditions

enumerated

below.

G~PCorporation

(GAP),

a

multi-plant,

diversified

chemical

•and manufacturing company, operates a plant located on the Des Plaines

River immediately north of the City of Joltet in Will County.

At

that plant GAP manufactures asphalt rqofing products, felted

roofing paper, and automobile insulation.

The company has petitiohed

the Pollution Control Board

(Board) for a variance to be allowed

to discharge wastes into the Des Plaines River in excess of the

amount allowed by regulation and to be allowed a further extension

of time, before underteking

cnnstrnntinn

of secondary treabaent

facilities for their nUll and manufacturing waste water.

The aqueous wastes discharged from the GAP plant cone from

four sources;

(l)felt mill,

C2)roofing mill,

(3)automobile

products plant and (4)power house.

The several waste streams

are combined

and

discharged into the river through a single outfall

pipe in a daily volume of 3,000,000 gallons.

Mr. Horace Holloway, Corporation Environmental Engineer for

GAP

testified that the biochemical oxygen demand

(BOD) discharge

from

the

plant

is

presently

approximately

20

times

the

maximum

permitted

by

existing

regulation.

The

plant

is

discharging

600

mg/i

(milligrams

per

liter)

while

the

limit

imposed

by

regula-

tion

SWB-8,

is

30

mg/l.

Expressed

another

way this

amounts

to

approximately 15,000 pounds per day.

At present the plant’s

effluent is wholly untreated

(R. 49).

The burden of the plant’s

BOD effluqnt is equivalent to the waste discharge of 90,000

persons)4

This represents a greater pollution load on the river

11

One population equivalent is equal to 0.17 pounds of 5-day

biochemical oxygen demand.

That is, it will require 0.17

pounds of oxygen in water to supply the needs of the micro-

scopic biological organisms which feed upon, over a 5-day•

period, the bodily wastes of one person for one day.

1-481

---

than

if the

entire

population

of

the city

of Joliet were

to dump

its sewa~euntreated into

the river.

2

Mr. Holloway further

testified

that the amount of suspended

solids being discharged from

the plant

is approximately

23 times

the amount allowable.

The plant

is discharging approximately

800 mg/i

while the regulation sets

35 mg/i

as

the

maximum

allowable

(P.50-51)

Mr. Anthony Meichiorre,

senior staff engineer

for

GAP

and

project

engineer

for

the

treatment

facilities,

testified

-that

the

suspended

solids

of

800

mg/i

amounts

to

approximately

15,000

pounds

per

day

(R.l33).

Simple arithmetic and a later witness, however,

tell us

that

this

figure is more like 20,000 pounds per

day

of

suspended

solids

(P.209).

Using the accepted population equivalent of

1 person generating

0.2

pounds of suspended solids,

this waste stream

is ecuivalent to

the

raw sewage discharge of

a community

of 100,000 persons,

Another

perspective

in

which

the

GAP

pollutional

load

on

the

river

can be

viewed

is

to

consider

that

the

amount

of

stspended

solids

being

dis-

charged

from

GAF

is

equivalent

to

that

amount

which

would

he

coming

from

the

treated

(secondary

treatment)

~ffluunt

of a community of 1,000,00

persons.

In

addition

to

BOD

and

suspended

so.ids

there

is

tes’t:inony

that

t1~e

plant

diSCiLctLjCS

about

10

times

the

amount

of

luau

allo;:.aiI

1w

regulation.

The

discharGe

of

lead,

which

appears

to

come

in

with

Lieu

ink

on

the

waste

paper

used

in the

proces~,

is

aparoximately

1

mcj,’l.

This

amounts

to~approximately

25

pounds

per day

(P.135—136).

Initially

it

should

be not~d

that

GAL~‘s

filing

of

its

petition

for

variance

was

not

timely.

The

netition

was

filed

on

January

27,

1971

seeking

relief

in

the

nature

of

being

allowed

a

further extension

of

time

in

which

to

pollute

the

Des

Plaines

River

while

the

constructimo

of

treatment

facilities

was

begun

and

comoauted.

The

last

day

by

which

the

company

had,

under

earlier

variances

c~ranted,

to

begin

conotrucLicru

of

secondary

treatment

facili

ties

was

December

1,

1970.

In

its

cc Liti~n

the

company

stated

that.

it was

seeking

“a

variance.,

specifically

limited

to

the

date

of

the

start

of

the construction’.

Yet it filed its oetition

almost

2

months

after

the

previous

variance

had

run

out.

2

1970

census,

preliminary

report,

population

78,623.

I

—

482

---

Rules

and

Regulations

SWB-8,

setting water quality standards

for the lower section of the

Des

Plaines River, were adopted in

1966.

In March, 1968, the Sanitary Water Board adopted as part of

SWB-8 an implementation plan that specifically required of industries

the equivalent of at least secondary treatment and a reduction of BOD to

30

mg/i

and

suspended

solids

to

35.

The implementation plan specifical-

ly

listed

GAP’s

predecessor,

The

Ruberoid

Co.

(GAP

purchased

the

operation in May,

1967),

specifying

that

biological

treatment

must

be provided and that construction of the necessary facilities must begin

by July 1,

1969.

The plan further provided that plans and specifica-

tions were to be completed 18 months and construction contracts

awarded 12 months before the scheduled date of completion.

Thus,

roughly equating the award of contracts with the start of construction,

plans for primary and secondary facilities were due February 1, 1969,

and completion of the facilities by July 1, 1970.

(SWB—8, Rule 1.08,

paragraphs 8, llb, 12 and

is.)

GAP testified that it knew of these requirements as early as

1967

(R.23).

Pirst believing that the size of necessary secondary

facilities could be reduced by “the installation of a disc filter

and

revisions to the plant’s Felt

Mill

Water System”.

The Company

abandoned this idea in October,

1967, upon discovery that it would

result in a buildup of solids detrimental to the product (R.23—24).

In November, GAP began inquiries as to the possibility of putting’.

its wastes into Joliet’s municipal system.

In Narch,

1968, the

company reported

that

pre-treatmont would be utcessarf iD order to

accomplish such a connection and the Sanitary Water Board advised

that this avenue be pursued

(11.25).

In January, 1969, the City

formally spelled out the conditions of a connection, which would

require

annexation,

pretreatment,

payment

of

current

rates

and

the

installation

of a connecting sewer

(11.27).

GAP’s

consultants then

prepared a study, submitted in April, 1969, that showed “major

advantages” to a city connection but subject to verification by

company management as to “certain economic assumptions concerning

GAP’s corporate tax and fiscal policies” and to evaluation of the

consequences of annexation, the availability of land, and the securing

of an easement (R.28).

At the same time, according to GAP, it

engaged a consultant “to determine the feasibility of extended aeration

for biologically treating effluent.”

The results of this study,

reported in December, 1968,

“necessitated coimnencement of a survey

to

determine

the

factors

influencing

design

and

the

location

of

the

aerated

stabilization

basin

process.”

(R.26).

In July, 1969, upon this record,

GAP

obtained from the Sanitary

Water Board an extension of six months,-until January

L,

for the start of construction

(11.29).

Bids

were

then

solicited

for

the

design

of

primary

treatment

facilities

alone,

but

prospective

contractors

reported

that

inpufficient

1—4n

---

effluent data was available for this purpose, and in October, 1969,

a consultant was hired to make a “waste characterization study as a

prerequisite to determine the most appropriate type of facility to

be constructed.”

(R.29-30).

On the basis of the consultant’s report

and of GAP’s “inability after many attempts and meetings

to acquire

either the land or an easement for the installation of a connecting

sewer,” the company in January,

1970, abandoned the thought of con-

necting to Joliet’s sewer and decided to employ a contractor to

design

and

construct a complete treatment facility

(R.30-’31).

The

Sanitary Water ~oard, reciting that GAP “had shown diligence,” granted

a

further

extension

of

the

deadline

for

starting

construction

of

facilities to meet SWB-8 until December 1, 1970

(see letter of

C.

P1. Klassen to GAY Corp., April 10, 1970, appended to EPA recommenda-

tion).

Armed

with this second free pass, GAP proceeded to negotiate

in October, 1970, a sublease of property on which to build the

secondary treatment facilities.

The land is owned by the Metropolitan

Sanitary District of Greater Chicago, which

is withholding approval

of the sublease pending state approval of

the proposed facility

(R.33-34)

At the same

time,

the company says,

it could not obtain plans and

designs for the secondary facility because “tho use of the Sanitary

District land was in doubt” and because nanufacturers

were

“delayed”

in

submitting

reports

respecting

altoctatave

trc~atment

prc:cesses

(R.34—35)•.

Thus,

the

Geptcr.bcr,

1070

chztc

in

the

latest

extensdon

agreement

for

the

submission

of

fiscal

nlano

w:ts

not

tnt

(R.35).

In

November,

G2W

informod

the

:~ency

that

five

tc

seven

months

more

would

be

required

for

engineering

and

purchase

o~the

primary

facilities

and

that

it

had

decided

to

abandon

the

proposect

aeration

lagoons

for secondary treatment in favor of “the more efficient and reliable

activated sludge process”

(R.36—37).

Installation of the primary

fac±lities,GA~conceded in tCoveznber, could not begin before April 1,

1971; although “some preliminary work, such as site prcparation prior

to beginning equipment installation,” was to be done starting Dacezntzr 1

“so other work associated with the solids removal system cn GAP

property

(i.e.,

the

prinary system) could proceed when Catalytic com-

pleted the necessary construction drawings”(R.38-39).

Building

permits for the primary facilities were to be obtained later in the

week of the hearing

(March 22, 1971)

(R.43).

Installation was

to have

begun April

1 and be ccmpleted by November 30

(R.48—44).

As for the secondary facilities,.

GAP

says it cannot oven complete

the plans

for construction until the sublease is approved by the

Sanitary District and permits for the discharge are obtained from

the State Division of Waterways and the Army Corps of Engineers

(R.43).

1-484

---

Thus,

GAF

is unable

even

today

to give us

an indication of when it

expects

to

have

the

secondary

facilities under construction,

two months

are estimated for completion of design

and another eleven months

for

the construction

itself,

all

after

the permits

and

the sublease

are

approved.

GAP

has no idea

wnen

that

will

be

(B. 75)

and,

indeed,

was

told

by

the

Corps

on

March

22

of

this ycar

——

the date

of the

hearing

——

that

the

Cots

had

not

yet

established

guidelines

for

the

issuance of permits

(R.47)

This history demonstrates beyond

cavil

that GAP has been,

as the

Agency says

in

its

r000rnmendat:Lori,

“incredibly dilatory.”

The Sanitary

Water Board

was

most

ientent

wtth

rereatea

excuses

ror

non—performance,

Yet,

ciccpite

t~oextent ions,

GAl

has missed sti.~Ianother coadline.

Construction

of

both

primary

and

secondary facili Lies was to begin,

under

the original

schedule,

Jul

1’

1,

1969

,

and completion of both

was rope trod by July

1

,

1970.

Under the

:Lates a extension,

GAP was

required

to

begin

construction

of both by December

1,

1970,

and to

con~n1etethem

by December

1, 197.

It concedes

it

has

not

even

corn—

oleted

the

design

of

ilie

secondar’i

facilities

$

much

less

started

building

them;

its

own

schedule

(13

monthc

from

the

grant of permits not yet

in

hand

shows

it

intends

to

miss

the

deadline

for

final

compliance

55

xcii.

Morsover

,

even

the

construction of

01.

imarx

:Ihicilitiss

which

would

110

L ccl Aice t:ndor SUP— 0

was

nc

t conmencct

by

the

specified

exleasion

date.

ihi

Ject.

is conolesicc I p

shown

b:tbe

Company

s own

Lostinonv,

real Led

aboce

.

despi t:c GAP

s

ci

fort

to

counte

the

Looting

dnwr,

of

old

buildinosx:ii

Lha

erection

of

now.

The

accord

shows

that

three

weeks

o

ci

e

oreraration

weal:

Loop

oLace

in December,

in an

obvious

effort,

1

.~.

ii

~

ftc:r

a

ci

u

a

‘

is

of

innct:ivi

ty

actual

ins t:ilnti

on

at

the

nrir~:o:v

laci

lities

,

the

company

ackno:iledgcd,

was

not

to

begin

anta

1

Aril

I.

.

On

December

1

,

by

its

own

admission,

GAP

had

no

plans

and

no

huiidiui~

ac:rmit;

it

did

not

know

what

it.

was

going

to

bucif,

ancico start

buildiac

it

xi thout

a

crriit

u’

I

V

c

L.

I

As

he

~curL

s

i

in

~‘

i o~

Ccr:ntructicn~ITnc.

V.

Ci:aissoe,

112

Ill.

Acp.

2d

277.

282

(1969)

Cons cructi.c’n

,

at

the

very

loast,

means

c4etti

ncj

off

the

ground

by

going

either

up

or

down,

not

just:

thinking

about

it

“

The

cc:meanv

1~

~ttomvt

to show it

was

in

compi lance

with

the

latest

extension

is

frivolous.

1 —485

---

Equally without merit

is the company’s attempt to justify

its lack of progress.

The

delay in starting construction of the

primary facility GAP blames

on

an unexplained delay

in receiving

additional reports from its suppliers as

to alteimate treatment

prOcesses.

But

we

have held elsewhere that

one

cannot

simply

shift

the onus of performance to a contractor without exercising

any supervision to assure that

the schedule is

met.

See Marble-

head Lime

Co.

v.

EPA, #70—52

(March

17,1971); City

of

Mattororrv.

EP~~Th~AprilT’i,

1971).

The

burden of

proof

in a

~

is

on

the petitioner,

and

GAP has made no effort

to

show

it

did

what

it

should

have done

to meet the

December deadline.

We think

it

had

a

special

obligation

to

be

diligent

in light

of

the

special

and

repeated

disoensation

given

it by the

Sanitary

Water

Board.

The

time

for

deciding

what

treatment methods

to

use

was

long

since

past;

the

extension

called

for

getting

down

to

the

nitty—gritty

of

actual

design

and

construction.

But

even

if

we

could

find

excusable,

as

we

cannot,

the

delay

in

starting

construction

of

the

rimar

facilities

,

we

could

by

no

stretch

of

the

imagination

condone

the

continuing

delay

with

regard

to

the secondary.

In

addi. Lion

to

the same unexplained de-

lay blamed upon equiptont

manufacturer:;

,

xlii eh we

have

alr’eady

held

as inadequate

cxc as c

,

Ots’ .re1~es in

cais

regard unon

the

do~~’t,

la~t

t~.

~,

‘or

t

‘1

ntl

‘

If’

tix

~til

i~

—

trict

‘

s land

due

to

a pending lawsuit over

the

rents payable

to

the

District

by

its

lessee

(B.

33_3);)

pnd

avon

the alleged nec as—

sity for obtaining, several permits oefcre

getting

down

to

busi-

ness.

But

the former excuse is

feeble; GAP failed

to show it

had

tried

to

obtain

DistrIct

approval

of’

the

subleaSe

last

fall,

as

the

District

:Lswi

111mg

to

grant

now

,

conditioned

upon

what-

ever

rent

adjustment

comes

out.

of the

lawsuit

(B.

95);

there

is

no

attempt

to

explain,

and

it

is

not

obvious,

why

a

d:Lspute

over

the

lessee’

s

rent

should

make

the

land

potentially

“unavail—

ab?e~

to GAP.

The excuse relating

to

the present

riced

for icafes and

permits

is

wholly

circular.

GAP

in one breath argues that

it

cannot complete its

plans because

it

has

rio sublease and that it

cannot get

:1 ts

sublease because

it;

has

not

got

its

plans

approved.

A

polluter

may

not

thus play

governr.iental agencies

against

one

another

in

order

to

go

on

dumping

wastes

indefinitely.

It has

been

GAF~

s

obligation

for

some

time

to

further

its

plans

and

submit

them

for EPA

apuroval;

the

fact

it

might

have

to

make

a

few

changes

later

on

satisfy

the Janitary District,

even

if

this

is a real danger,3

is a risk the company

was

obliged

to run,

3

1

The District itseLf testified that its interest was “to be sure

-

before the sub—lease was issued that Environmental

Control had

ap-

proved

t;he plans

for such

const;ructi•on~’

(R.9~4).The District indi-

cated

no

desire

to

conduct

an

independent

plan

review.

1

—

486

---

The argument respecting permits from

other

agencies

is

subject

to the same objection.

There

is

no

reason

given

for

wai

tino,

until

the

lat;e

date

to consider

applying

for

such

per-

mits exceot

that they may

be contingent

on

EPA

approvaa

and

that

iric:’eclb ly

,

GAP

was unaware

of the need

for such permits

un Lii. October

1970

(P.

37).

Ignorance

of the long—standing

Iil.i

nets requirement

of

a

1:)er1rJ~t from

the Division

of

Waterways

cannot

be

utausabie

for

a

corcoration

of GAP’s

size

arid sophis-

tication.

As

for

the

Corps

of

Engineer’s

permit,

the

cornoany

is

apuar’ently

osepai’ed

to

do lap

eonstr’uc

tion

until

the

Corps

gets

around

to

establishing

cermit

pracedurec

at;

some

indefinite

fu-

ture

time,

it

has

cxh2bited

no

intention

to

shut

off

its

present

~itreated

discharge

~“~‘-

laid:

of

the

federal

permit

that

has

been

required

since

1899.

It

is

also

noteworthy

that

both

the

Corps

and

Waterways

rierc:its

rccu:Lrc’merlts

apply to

the

primary

as well

as

to

the

secondary

facilities,

and

that

construction

of

the

forcer

,

whi. Ic

delayed

for

other

reasons

,

is

to

bevin

before

such

permits

are

procured.

The

co1ea;:~ny

is

attemuting

to

pervert

the

new

federal.

ricaruit

policy,

designed

as

a

weapon

against

pollu-

ter:;

,

an

a

defense

for

prolonginG

pollution.

Finally,

GAP’s

repeated

insistence

that

approval

by

other

agencies hinges

on

acp:’oval

b’’

the

EPA

has

a

very

hollow

ring

in

view

~of

the

ad-

mit

Lois

ict

toe;;

.iw

rica

nevc: r’

yet

apr x.ted

to

nAil

or

a

permit

incceri

1:1 p

rnattica Ins

it

noon.

not

know

an

Pill

rerral t

is

re—

O

ci ~ed

(P.

61)

.

it

is

riot

osqo ‘ca:; lye

I cigal

recu

irernents

that

:110

llOldirLc

an

the

coriatractiom

of

GAP’ a

facilities

;

11;

:Ls

the

ii

omuo.nv

‘

5

dilatory

faliure

to

get

off

its

inanimate

backside

aiid

fulfill

its

civic

obligations.

The

rt;atute

provides

for

variances

only

if

tho

petit

loner

aff’ir mat I v::1.y

demerit trat.e

s

that

camp 1 i.aoc’e

xi

Lb

the

len,’

and

re:;u.ation:;

would

macso

arm

“arbitrary

ct

anreasonable

hard—

To

asses

s

whether

tue

ha:’dehio

of

compliance

would be

:ir’bitrary

orunreemoonacile

requires

a

balancing

of’

the

cost;

of

compliance

against

the

harm

to

the

community

if’

the

discharge

continues.

The

balance

,

as

ice

have

held

in

east

cases

,

is

not

an

ever

one

;

the

rirosur.pti..’en

is

strong

:1 n

favor’

of

compliance.

See,

e.g.

,

.sn1:ionmrnncaPretec~j~on~:jffrgfy

V.

Lindgreri Foundry

#70—1

(

dept

.

25

,

1970)

-

T1ie

burcen

is

on

the

nctiticner

to

demonstrate

that

the

balance

is

heavily

in baa

t’~1JCY

This

r’eQuLres

,

as

our

rules

make

clear

allegat

ion

ant

proof’

of

both

the

costs and

the

benefits

of’

coempi Lance.

Too

present

petition

is deficient

in

that

it

faiis

to

allege

the

met’f’ect

em’

uncontrolled

discharges

on

the

river

,

and

the

record

is

alemoet

comreletc

ly

silent

on

this

crucial

poInt.

Coo

iii

titers

OpPosing

the

variance

and

two

favoring

it

said

the

river

we:

in

bad

shape,

and

we can

take

official

notice

that

it

is.

~ ~This

stream

receives

the

entire

effluent

L’r’oa.

the

treatment

plants

of

the

Metropolitan

Danitary

District

of

Greater

Chicago,

teether

with

a tormwater

overflows

—

487

---

4)

In an

ancient

but

prescient

Illinois

Supreme

Court

case

the

court

took

judicial

notice

of

the

incidence

of stream pollution

that

is

greatly

less

severe

than

the

instant

situation.

The

court

in

Hayes

v.

Village

of

Dwight

150

Ill.

273,

37

N.E.

218

(1894)

stated:

“Despite

witnesses’

testimony

that

in

their

opinion

the

proposed

discharge

of

sewage

would

not

have

the

affect

of

materially

polluting

the

stream,

the

court

held

that

little

weight

is

to

be

given

to

the testimony

of

witnesses

who

attempt

to

swear

contrary

to

known

and

established

natural

laws.

That

the

sewage

of

a

village

of

1600

inhabitants,

discha

‘1ed

into

a

snmall

stream

will

materially

pollute

the

waters

ol

the

stream

and

render

it

unfit

for

dosiostic

use,

for

at

locaL

a

few

rods

below

the

point

of

discharge,

is

a

oroposition

too

plain

and

too

thoroughly

verified

by

ordinary

experi-

ence

and

observation

to

admit

of

rensonabic

doubt.

1

—

488

---

of

raw

sewage

at

many

points

(see

transeriet,

#R70—l2,

Tertiary

rj~I.e;.tJfl:~flt

,

Des

Divines

River)

.

Despite

secondary

treatment

of

t~ie c:’i’iuenta

,

those

di. scharges

place

an

enormous

burden

of

oxy-

gen

demand

on

the

river,

to

the

extent

that

the

dissolved

oxygen

standard

is

set

below

that

required

to

support

fish

life,

and

the

stream

has

been designated

for

i nidustrial

use

only.

Unfortunately,

therefore

,

it

is

all

too

probable

that

even

the

immediate

cessa-

tion

of

GAP

a

effluent

would

leave

the

river

in

a

condition

far

less

than’

satisfactory.

The

.Lmnrovertent

would

not

he

as

drama-

tic

as

in

the

case

of

an

equivalent

discharge

to

arm

otherwise

clean

stream.

On

the

other

hand,

however

bad

the

river’

s

condi-

tion

,

adding

wastes

equal

to

the

raw

sewage

of’

90

,

000

people

cannot

but

have

a

markedly

adverse

effect.

If

there

is

oxygen

enough

in

the

stream

above

GAD’

to

avoid

nuisance

conditions,

the

d:uchargeis

bound

to

dctolete

it

substantially.

:f

the

stream

i

ii

essentially

devoid

of’

oxygen

already,

the

discharge

stands

to

make

the

nui canee

much

worse.

And

in

either

event

the

discharge

means

it

will

take

she

river

additional downstream

miles

in

which

to

recover’

frets

its

troubLes.

GAP

has

not

adequately

informed

us

as

to

its

effect

on

the stream.

Eutwe

know

enough

to

indi-

cate

that

the

effect

is

grits.

Oh-:

hardship

that

comalianie

ii

today

would

entai

I

it;

that

the

plant;

;coej.b

c

shut:

loan.

This’,:ould

result

in

lost

profits

mci Lb

ahich

on

the

record

we

have

no

concern

whatsoever.

GAP

by

its

uriccoac

ionv:

lc

delay

has

brought.

this

loss

upon

i

LselI’

,

arid

we

have held

more

than

once

that

a

self—inflicted

narc,ship

is

not

to

be

cons

Idered

in

a

varIance

case.

e

-

g’.

,

EPA

v.

Lindoren

i’om:ode

Co.

,

stapra.

Mare

serious

is

the

testimony

that

closing

the

plant

m’,’ouj ci

cause

the

layoff’

of

700

employees.

We

have

com—

merited

in

the

nast

that

the

employees

are

riot

altogether

innocent

if’

they

fail

to

utilize

their

bargaining

power

to

put

an

end

to

pa iJutlon;

the

throat

that

eel

:LUL

mom

may

put

them

out

of’

work

~liot.ili

make

labor

onions

are

angressive

force

for

cleaning

the

‘emit.

dJcomtt__Atcel__Prods.

v.

EPA,

# 70—SO

(‘arch

22

,

1971)

Nor’

is

it

w:itimout

relevance

t;hat

an

slum; loyce

who

loses

his

job

through

the

e::pl.oyer’s

deliberate

or

negligent

failure

to

meet

his

obLiaations

to

tIme

environment

may

have

legal

remedies

against

his

em!: loyer.

Of’.

Ci ty

of

iattoon

v.

EPA

it71_8

(April

1 4,

1971).

More over’,

th’~”e

are

analogous

fields

in

which

empcoyees

mdst

suffer

undca:er’ved

losses

as

a

result

of

t:ree

comr’any’

a

transgressions.

A

plant

is

shut

down

if’

the

owner

fails

to

pay

his

taxes

or

his

Light

bill;

a

time

must

also

come

when

at

;Ls

shut

down

because

he

.ramls

to

sLot;

polwuoang.

itos

also

orue

arm

the

present

ease

that,

as

the

co:.muany

to’s tif’ied,

the

roof’ing

operation

could

be

kept

going

even

if

the

col,lut

lag

felt

nmill

were

shut

down,

if

felt

cousci

he

ootaanod

.

roe;

another’

source.

GAP

tells

us

that

none

its

to

be

bad,

but

we

are

not

convinced

by

the

company’s

bare

conclusion

in

the

absence

of

supporting

facts.

If

felt’

1 —489

---

can

be

bought,

closing

the

felt

mill

would

riot

cost

700

jobs.

We

are

left

with

considerable

doubt

wmet~ior

the

cios:tns;

of

the

felt

mill

wouLc~

impose

an

ar’b I t,r’ir’v

or’

mmmii’.nsormab Jo

imarbsliip

because

GAD’’ a proc

1’

leave:;

:miucl’i

to

in;

deal cam

.

Io:m”ovmer’

,

the

statute

imooses

an

adcliti.on:r.L

‘ago

I m’ea:ent

Lu:’

the

a;eL.’imaioni

01’

a

variance

,

as

:~ri

the

pro aante

use

:

In’’ Lbo’’’

U .1mm.’

tie’,’

h

a

ill

lowomi

only

“ii.’ satisfactory

pro~r’ecm:;

hems

‘an

~ho:’:u’

-

The

:e:’:t’mecions

granted

by

the

Saul tarp

eta:’

i:;o ari

‘se:’

me

Va:’

I’~ic~a

in

i’ai;

t

,

meinca

they allowed

what

would

otherwise

move

bu~n

e’.~olai;i’ou:

of

the

regulat;ioi;s.

CL’.

‘hAlt

v.

Cmmmon’so:.ti

Li

lila-no

I’a.

;i7’O~-a

,

(eU.

1971).

This

statutory

pr’s’ii

a loim

re’:’

smit~ th’po:icy

~U:.ked

else—

where

in

this

00111

,0fl,

I;:mel;

tue

saline

e

o C

oa,;l~a

arid

lane

U

1, to

shifts

over’

tiec:,

arid

them;

a

hlmr’dami

a

a. nsa:;

to

Lu

emnit:asnable

after’

a

nol

lute

r

bit;:

failed

to

mci” e

us ::~

of

‘,ti:;

.1

t

opi;oetimn

I tie:;

br drh~

vinc

J

Li

1~r a

I

h

u

i

J

~

U

and

eOrie,1.LiSiOflS

re

cited above

that

L J”h::s

flu

t

made

mc at

ii;

tic

tory

progress.

Thus

we

would

have

an;: ILe,j ast

if’

aim

t ion

for

deny log

the

v,’m.r’:L—

ance

request

outr’ieht.

Artd

ice

do

:‘c:’Lu:;e

to

;““ent

tho’::’:t’,:nm.;iv

and

e;’irm—c:ndred

:‘:e,Lic:C

i’eaneateei,.

h:,

eml;

1,;

eli_n’’;

ineie’l’iat:’

pi

0)1

~

)

PC

~

“i~L

,

u.,,.

:

--;-

‘e.~

let

to

deny

re

leO

el together’

I.:

on’,

a

‘,‘Auil,v

~aat

Lsm’veto:’y

solution

oil;her.

;t

:‘ui_c:mU

i_i

thee.

mu;

naIL’

urea

ac

find

the

imprnve::;ermt.

in

UP;

1::;’;:’

‘Ira’

anlo’:,:.’di’ttc’

not yet

worth

‘,‘OO jabs.

hor’s

l~,ucj’Le,As.

,

:1:’:

‘cc’

dad:

nor

iii

the

habit

si”e;ly

of

;ilioe’dLo:

r’re”m’;a

i’ime

‘a

,er’

ui.

_:

latter’s ~bo

have

failed

to prove

their can,

It

1,.;

reeL

cereal.

mt

eLate

a

blasl”at

denial

‘~‘~‘ould

beebe

:tmi

eli_ste

nova::

e,v,:at’i

eat

.ic1_a’e::it

ci’

P11’

:5

pollut:orm.

For

a

~

a’a.i’eJ

,

:;rm.J.e

::~,,:.:m.;’ei’’je

trm~t

die-’

elmargeie

Lr

excess

of

Lace

.‘

‘ge

‘U

lam::’:

‘‘ii

LI,

;mot

I.e

•ea,—m,ioime’d

,

1:,

not

itself

a:;

order

to

shut

nc’’m’iri.

ue:t:Lo:ee’~

1’

nIgh;

ccrecei.’i’ahiy

dcic:Lde

to go

on vioJatir:g

rem::

law

in

emcee

Peon

that.

or.

::mi:’oroe—

merit

proceeding

:sI::ht

not

Ut:

Om.’:eoPt

,

or

in

the

cemsa’

of

a

La:

oueration

like’ this

one)

.1:

toe

U

‘I.

‘sO

sPeLt

~he

eene~ U

lets

ul-

timately

asscsseo,

even

aim

tie

:it,::tmla. ‘,‘e’,’:eai:,:C~,

;‘;oc.Ld

be

tear:;

than

made

up

for’

by

:rrcfi.sa

du;’i.n;

the

r’rc::tii;:

bn’o:’c;

a

;C000i’lU

proceeding

could

be concludeef

.

Jail

sires

emcee

em::’.:

ld’eceuoar’

highly

appropriate

in

snob

a

sit’aition,

of

;eim:’e’e,

but

a

p’ati’-

tioner

might

gambLe

on

tell’

t;’aciitixs’il

aol

i.ca:’;c:::li,’lu

r’elucteno:.;

of’ judges

to out

“r’osueotahie”

consi::

like

mmii

Lutec’s

,oh.Lrd

lees,

In

any

evcnt,

it;

,nco;rme;

b’e’:;t

while

LaP,’

is

Uut’uc’e

us

en

see

to

It

the

com:ean,l’

get:;

to

eerIe

one::,

er~’:i since

Ida

case

oef’on’e

us

1.:;

a variance

case,

this

sea

heat

b’:

dene

lie’

OPCIitltit

a

lImited

‘cart—

anee

subject

to

::tme’iregcrn.

cordariens

I

—

490

---

We shall allow OAF

two

months

in

which

to

continue

polluting.

At

the

end

of

that

period,

in order

to obtain

more

time,

the

coinpany

must

show that

it

has

complied

with

the

following

corthtjons,

violation

of

which

will

also

be

gr’oLlnds

l’or

x’evocati,on

of the

present variance.

First,

GAP

arid

its

contractors

shrill

work

double

time

and

move

toward

completion

of

its

pi’i mary

neil

secondary

facilities.

This

fact

shall

be

demon-

strated

by

detailed

ti;ne

sheets

showing

flint

the

maximum

number

of

men

were

employed

at

least

sixteen

hoes’s

each

day,

seven

clays

each

week,

on

these

projects.

At the

end

of the

two

months

CAT’

shall

have

progressed

with

construction

of the

primary

facilities;

completed

the

designs

of

the

secondary;

obtained

all

necessary

leases,

permits,

and the

like;

and commenced the

actual

installation

of the

secondary

facilities.

Second,

GAl’

shall

post

a

bond

or

other

adequate

security

with

the

Agency,

in

time:

amount

of

$2,

600,

000.

,

‘to

be

forfeited

in

the

event

the

company

violates

tin:

order.

rlle

bond

is

required

by

statute,

and the

amount

is

set

to

make

it

as

expensive

for

ClAP

‘to

violets:

the

order

as

to build

the

needed

facilities.

Anything

less

would

be

insui’l’i ciexit

incentive.

See

Marquette

Cement

D,’Ifg.

Cc).,

v.

EPA,

I/

PCB

70-23

(J

anuat’y

6,

1971).

-

Third,

OAF

shall

pay

ci

;‘c’nalty

in

tic;;

amount

of

$1.0,

000.

pius

tel, 000,

a

day

froni

the

expiration

of

the

inst

extcn’;ion

cmi

J)eeenibcr

1

La today,

for

a

total

of

$l49,

000.

We

cannot

forgive

OAF

mm

e;miiuous

cli.si’ega rd

for’ its

obliga-

tions.

To

let

the

company

off

soot

free

would

encourage

others

——

and

OAF

itself

--

to

be

dilatory

in

the

future,

.

The

amount

involved

is

none

too

large

for

such

a large

and

profitable

business,

causing

such

enormous

pollution,

after

such

a history

of

clisobecllence.

TI

would

be

larger

had

not

the

Sanitary

‘Water

Board

forgiven

substantial

delays

in

the

past.

To

pay

the

sum

now

will

avoid

the

imposition

of

aclclitioncml

money

penaLties

for

operation

during

the

next

two months.

Fourth,

GA?

shall

submit

to

the

Board

and

to the

Agency,

in addition

to the

progress

reports

requic’ecl

above,

a petition

for

fur’ther

variance

containing

a

complete,

quiek,

end

detaiteal

sehedute

for

the remaining

work

and

accompanied

by

affidavits

respecting

the

availability

of felt

from

other

sources

and

the

effect

of’

its

cliscliat’pe

upon

the

river,

A

second

hearing

will

be

held

at

which

the

corrmpary

must

p1-or-c

its

progress

and its

entitlement

to

additional

time.

Upon

Ii rc;el’i receipt

of’ such

a petition

the

Board

may

extend

the

variance

briefly

withoLit hearing

pending

resolution

at’ the

merits.

1

—

491

---

The

statute

expressl~- authorizes

the

Board

to

!mpose such

conditions

on

the

grant

of

a

varrance

as

may he

r’cqu.u’ed

by

the policy

at

the

Act.

The

Act’s

stated

policy

is

to

reduce

pollution;

the

conditions

we

impose

today

are

necessary

in

order

to

achieve

compliance as

m~ui.ck1vcs

jssihle

and to

deter

future

violations.

‘We

have

inepased

sinni

tim’

conditions,

including

the

payment

of money,

in

numerous

prior

e:msc,sbl

‘Jo

la

so

also

;a(rveS

to

avoid

the

delays

and

reli’tigation

of

is sues

ti

sit

wool

d

occur’

if

we

simply

denied

the

variance

and

waited

for

an

enforcement proceeclinit.

Without

‘this

power

a

variance

would

be nothinC hut a

license

to

pal liii

cm,

while

the

statute

contemplates

it

as

a means

of

achieving

oonuliance.

Arid

without

the

power

to

impose

conditions

we

would

not

be

disposed

to grant

a variance

at

all

in

the

present

case.

This

opinion

constitutes

the

hoard’ s

findings

of

fact

and

conclusions

of

law.

ORDER

The

Boa ni,

having

considered

the

petition,

reed)

IC

rnendation,

trans

cript

and

exhibits

in tEds proceeding,

it.:

rehv

grarmt:; the

petition

of

(hA’

Corpoi’ert:on

for’

a varian cc,

subject

to

the

following

conditions:

1.

This

grant

of

m-r:r’imencc

‘extends

to

Tune

19,

1971

La’

;‘Jfm,w

ch’scm;er’ge

of

sirspendeci

studs,

130.1.)

:Cttl

lead

ildO

the

Ihon

Fill

rc’es

Rivet’

in

excess

of the

.:i

reoutit

rd

lomc’’d by

r’ c’e~mlation.

TI;

:~‘V:ir’

1:10Cc

is

gr’anted

to

allow

the

conepan’’

‘to

nral’:c’

progress

‘toward installing’

ten

mary

and

secondary waste

Li’r’atm;’rnt

facilities

ice

meet

all

‘applicable

effluent

and

w;ier’

quality

standards.

2.

GA F

shall

submit

to

the

Envir’onmentai Protect

ion

Agency

ann

11cc’

Boa

cml

b clone

•,bune

1 0,

1971

a

supni

emental

petion,

togetl

it’d’

et’ltli

Si

ippOntlfllf

tumidr’

-

mation as

describe

:1

fri

the

Ibard

a

api neon.

So

cli

teat i

tioni ~Iii1l

c:on:t;min

:;

firm

program

for

em; do clog

lead

di

sciou’gcs to

ae cc.’plabie

It

‘cia.

3.

GA?

and

its contractors

shall

work

sisteen

hours

each

day,

sever

cl.:iwscm;cch

week,

to

concplet a

its

prince

s’.’

ii

rich

smccoidary

tree trnent

foci Liii

is,

and

a hell

have

completed

plans,

obtained

all

leases

and

permits

and

h0~00comrstn’ en etionn

~

36

(a).

“In

granting

a

variance

the

Ioar’d

nitty

:mpose such conditions

mis the

policies

of

this

Act

may

t’equir’e.

Environmental Protection Act, ~ 2

(b

).

‘it

is

the

purpose

of this

\CT

*

.

to

r’c store,

protect

and

enlctuice the

qisulit

of the

erivironmen

I,

and

to

asahi’

cm

that

aulvei’se

ef:m:ets

upon

the

environment

are

fully

considered

and

borne

by those’

who

cause

them,

6

See

)Jar’curtte

Cement

~

Cc.

V.

iP;\,

PCII

7023;

CII

~‘

of

~‘‘i”in;’iinidl

‘a

~

~

b

~t

—

i

am

;liU~

1

r

I

r

U

(

it

1

l”oundr’ies,

1mm:.

v.

i’llA,

LaCk

‘iU-tdm

(be’;

sf

Li:

lmsnnv.

Hf’’,

Phil

fl--I.,

1

—

492

---

of the secondary facilities,

by June 19,

1971.

4.

GAP shall

post

with

the Environmental Protection

Agency

on or

before

May

19,

1971,

and

in

such form

as is

satisfactory to the

Agency a bond or other

adequate security in the

amount

of

$2, 600, 000.

which sum shall

be

forfeited to the State of

illinois

in the event

that

the

conditions’of the Qrder are violated

or the

manufacturing

pant

is

operated

and

wastes discharged after

June 19.

1971 without

an extension of

this

variance

and

without

primary

and

secondary treatment of wastes

sufficient to

reduce

the

concentrations of

pollutants

below

the limit

allowed by regulation.

5.

GAP

shall pay to the State of illinois,

on or before

May 19,

1971

the sum of $10, 000.

plus

$1, 000.

per

clay for

each day from

December 1,

1970 to the present day,

as

a penalty for failure

to

commence construction of secondary treatment facilities by the

extended deadline for

doing so~andfor

continued violations of the

statute

and

regulations

with regard to the discharge of BOD,

suspended solids

and

lead into the

Des

Plaines River from their

manufacturing plant.

The

total

amount of

this

penalty

is

$149, 000.

6.

During

the period that this variance Is

in effect

GAP shall not

increase the pollutional nature of its

discharge

either in

or in

volume.

7.

GAP shall

take whatever measures arc feasible,

short of

cuçtailing

production to reduce its

pollution of the Des

Pialnes River

during

the period of the construction of the primary

and

secondary treatment

facilities.

8.

The failure of the petitioner to adhere to any of the conditions of

this

order

shall

be grounds

I concur:

Dr.

Samu!l

Aldrich will file a

separate

concurring opinion.

I,

Regina

E.

Ryan,

Clerk of the

minois

Polution

Control Board,

certify that

the Board adopted the above opinion

and

order this

/!‘~..

day

ol

April,

1971.

~‘1Ié~in’a

E.

Ryan1.

Clerk

mihois

Pollutibn

Control Board

1—493