ILLINOIS POLLUTION CONTROL BOARD

May

3,

1971

ENVIRONMENTAL PROTECTION AGENCY

v.

)

#70—38

MODERN PLATING CORPORATION

MODERN PLATING CORPORATION

v.

)

#71—6

ENVIRONMENTAL PROTECTION AGENCY

)

CONSOLIDATED

Fred Prillaman,

for the Environmental Protection Agency

Eckert, Schmelzle

& Eckert, Freemort,

for Modern Plating Corporation

OPINION OF THE BOARD

(BY MR.

LAWTON):

Complaint was filed by

the Environmental Protection Agency

(EPA)

against Modern Plating Corporation,

Respondent,

alleging that between

October

3,

1967 and June

30,

1970,

as

a consequence of its plating opera-

tions

in Preeport,

Illinois;

Resoondent polluted the Pecatonica River,

by the discherge of ‘cyanide,

zinc and other matter”

in violation of Sec-

tion

10 of

the

Sanitary Water Board

Act,

Rules

and Regulations

of the

Sanitary Water Board SWB5, Art.

I,

and Technical Release 20-22

of the

Sanitary Water Board.

The

complaint further alleges

that from July

1,

1970 to the date

of

the

filing

of

the

comolaint,

Resnondent

discharged

contaminants

from

its

plating

operation

into

the

Pecatcnica

River

so

as

to

cause

water

pollution

in

violation

of

Section

12(a)

of

the Environmental Protection

Act,

and

the

foregoing

Rules

and

Technical

Release

of

the

Sanitary

Water

Board, continued

in effect

by

Section

49(c)

of

the

Environmental

Protec-

tion

Act.

At

the

close of

the

hearing,

the

Agency

amended

Paragraph

2(b)

of

the

complaint

alleging

violation

of

Paragraph

1.03

of

Sanitary

Water

Board

Regulation

SMEll,

Section

10

of

sne

Sanitary

Water

Board

Act

prohibits

discharges

into

the

waters

of

the

State

so

as

to

cause

water

pollution

defined

to

require

a

showing

of

nuisance

or

likelihood

of

adverse

effect

on

the

public health or welfare.

5WB5

is

a

zero effluent 3tandard

for cyanide.

TR2O-22

is

a set of effluent criteria establishing recommended limits

for

specified

contaminants,

eromulgated

by

the

Technical

Secretary

of

the

Sanitary Water

board

but

never

adopted

by

the

Board

as

a regulation.

Section

12(a)

of

the

hnvironmental

Protection

Act

prohibits

discharge

of

contaminants

into

the

waters

of

the

State

so

as

to

cause

pollution

as

defined

in

that

Act

or

so

as

to

violate

any

regulation

adopted

by

the

Board.

Section

1.05

of

SWB-ll

is

a

set

of

water

quality

standards

for

various

contaminants

anplicable

to

the

Pecatonica

River.

1

—

531

---

The Agency asks

for the entry of an Order directing Respon-

dent

to cease and desist the causing

of water pollution

and for the

assessment of penalties

in the maximum statutory amounts permissible

during the period of

the alleged offenses.

Respondent

filed

an answer

denying all material allegations of the complaint and an affirmative de-

fense asserting that while its effluent exceeded the maximum allowable

concentrations pursuant to TR2O-22,

it was

in the process

of installing

facilities that would bring its effluent into compliance pith

the TR2O-22

limits

and that prior to completion of the control facilities,

it would

limit its effluent

to concentrations set forth in the answer,

Respondent

alleges that insistence

on immediate compliance with

the

effluent criteria

aould necessitate shut—down of

the plant with resulting hardship, unemplov-

nent

of

workers,

loss

of customers and

ultimate

lieuidati.on

of

the

com~

nany.

A motion to dismiss was

filed contending

that

tIe

Pollution Control

:~oard lacked

jurisdiction

to

assess

fines,

that

the

Environmental

Pro-

tection

Act

and

Rules

and

Regulations

promulgated

thereunder

violate

she

provisions

of

the

United

States

and

Illinois

Constitutions,

that

the

complaint

is

insufficient

in

law,

and

that

the

RuIns

and

thpul~ ~toro;,

ith

the

violation

of

which

Resoondent

is

charged;

are

void

in

that

they

violate

the

Environmental

Protection

Act,

A

petition

for

variance

was

tied

~

Res~onC

at

~hthh

~

ne

allegations

of

the

affirmative

defense

detallin

the

a manse

:1

truction

already

underway

which

would

brinq

Resoondont

a

nub

To

compliance with TR2O-22

standards

and

wuich

us

LI

he

coo

LStte

so

.tepteiriber

30,

1971,

The

variance

asks

that

Cia

OhTTTCJOS

.2n~c

the

.

ocaton

sos

P

iver

be

permitted

until

Septc anber

30,

1971

in

the

F~

I bowl.

amounts

ohich

exceed

the

maximum

concentrations

on

TR20~22..as-shown~

Concentrations

Consent.ratsons

Allowed

b

CR20

~2S

ULLT S tOO

.~55

.2

avanide

.025

oromium

(Hexavalent)

.05

pras

.2

.nrornium

(Trivalent)

opper

I

~

inc

1,0

~

Respondent

was

previously

authorize

to

1555

.7

J.

T~

stm.TIIT

7

lant

facilities

by

the

Sanitary

Water

Board

pursuant

to

.a.~rms.

t.

is

one

16,

1970,

The

Environmental

Protection

Agency

conte~ihs

that

Hiligence

these

facilities

could

by

now

have

been

in

ooomati.on,

nvironmental

Protection

Agency

recommunds

that

the

varian~

on

1

—

532

---

The Board ordered hearing on the variance which by Order of

the

Hearing

Officer

was

consolidated

with

the

pending

enforcement

proceeding.

Hearing was held in Freeport on the consolidated pro-

ceeding on March

4,

1971.

By agreenent,

the motion to dismiss was

taken with

the

case.

Before considering the merits of the enforcement action and the

variance proceeding,

we must dispose of

the

Respondent’s

Motion

to

DiS0&iSS~

which

Potion we deny.

Modern Plating argues in its motion

to dismiss that this Board

has

neither

statutory

nor constitutional authority

to impose money

penalties.

The statutory argument is quickly refuted:

Section

33

(b

of

the

Thvironmentai

Protection Act flatly provides that the

Board’s order “may include

.

the

imposition by

the Board of

:aonev

penalties

in

accord

with

Title

XII

of

this

Act,”

Title

XII

contains,

in section 42, both

a specification of

the permissible

penaite

amounts

and authorization of an alternative means of

ceflectine

then,

namely,

through

a civil action filed by the State’s

httomnca

or

by

the

Attorney

General.

The reference

to this provision

in

seotica

33

(b)quite

plainly was

intended to specify the amount

oh

she

ponaite

explicit

language

authorizing

the

imposition

of

enaities

op

the

Board

would

be

deprived

of

all

meaning

if

Title

.era

held

to

provide

the

exclusive

procedure

for

assessing

0000

h.hnooupany~ s

constitutional

argument

has

two

prongs:

that

the

power

to

ia.pose

penalties

is

a

judicial

power

that

cannot

be

helega

ted

to

an

adoinistmative

tribunal,

and

that

money

penalties

O

bfl

essenco

a

cr7winai

sanction

that

cannot

be

imposed

without

a

j

cmv

trial,

these

arpuments.

like

those

relating

to

the

delegation

of

rule—making

authority

in

Environmental

Protection

Agency

v.

flrosi,tc

data

5teel

Co.,

3

70—34

(March

17,

1971),

attempt

to

undo

-s

cst~°

oh

constitutional

history.

They

represent

a

basic

uawil

bin:

,ess

to

accopt

the

long-estahl

shed

constitutional

fact

tA at

.Le~ slaturns

may

entrust

to

ae.r:iniSfratT~ve tribunals,

under

omopur

procedural

safc1~uards,

a

greet

many

functions

that

might

rest

s~eaa1v

h~vo been

entrusted

to

trial

courts,

the

ethrol

Congress

recoonized

the

need

for

specialized

001151555

1511.55

orihsnals’

as

early

as

1887,

when

it

created

the

inter—

a

o to

ho

Otto

~o:u1:, asi on

with

jurisdiction

to

resolve

disputes

over

0-0

tO

.51,

mal

roa..

rates

and

to

make

binding

orders

on

the

0055

of

Its

mImiC

of

fact.

That

such

authority

could

have

been

so

.s

55

S

asteeo

aces

not

make

Its

grant

to

the

Commission

soenil

the

sans

titst~one2ity

of

a

erant

of

authority

to

an

~sr1cz

to

~er~tion

esse-stiall3

as

a

specializea

court

was

throbs

settled

in

the

federal

courts

by

Crowell

hcsnson,

2813

7,1.

12

l.932)

which

upheld

a

federal

workmen’s—

:oeoensat

ion

statsta

amainst

arguments

that

the

creation

of

an

S

1:

Inistrative

tricunal

offended

the

due—process

clause

and-

the

a operation

ot

powers:

1

—

533

---

It was within the power of Congress,

the Supreme Court held,

“to furnish

a prompt, continuous,

expert,

and inexpensive

method

for dealing with

a class of questions of fact which

are peculiarly suited to examination and determination by

an

administrative agency specially assigned to that task,

There

is no requirement that,

in order

to maintain the essential

attributes for

the judicial power,

all determinations of fact

shall be made by

judges.

.

.

.

We are unable to find any

constitutional obstacle to the action of

the Congress in

availing itself of

a method shown by experience to be

essential in order to apply its standards to the thousands

of cases involved,

thus relieving

the courts of

a most serious

burden while preserving their complete authority

by

judicial

review

to insure the proper application of the

law.”

These principles

have been long recognized by both

the

General

Assembly

and

the

courts in Illinois.

Numerous quasi-judicial

tribunals have been created in this State,

as elsewhere, with

authority

to

conduct

hearings

and

issue

a

variety

of

orders

in

individual

cases

that

could

have

been

entrusted

to

the

courts,

Workmen~s compensation,

handled

by

the

Industrial

Commission,

is

one

familiar

example,

se~

Ill.Rev,

Stat.

Ch.

48,

§

138.19

(1969)

upheld

against

separation-of-powers

and

jury

trial

arguments

in

Grand

Trunk

Western

Ry.

Co.

v.

Industrial

Commission,

291

Ill,

167,

125

NE

748

(1920);

Nega

v.

Chicago

Ry.

Co.,

317

Ill,

482,

148 NE 250;

See Greenarch

v.

Industrial

Commission,

10

Ill.

2d

450,

140

NE

2d

665

(1957),

The

many

quasi—judicial

functions

of

the

Illinois

Commerce

Commission,

often

sustained

by

the

courts,

are

another,

see

Sprague

v.

Biggs,

390

ill,

537,

62

NE

2d

420

(1945).

Our

predecessors,

the

Sanitary

Water

Board

had

authority

to

find

the

facts

and

to

issue

binding

cease—and—desist

orders,

see

Dunlap

Lake

Property

Owners

Assn,,

inc.

v.

City

of

Edwardsvilie,

22

ill.

App

2d

95

159

NE

2d

4

(1959)

;

City

of

Murphysboro

v.

Sanitary

Water

Board

10

Ill,

App

2d

111,

134

NE

2d

522

(1956).

The

Fair

Employment

Practices

Cornmissibn

furnishes

still

another

example.

See

Motorola,

Inc.

v,

Fair

Employment

Practices

Commission,

34

Ill.

2d

266,

215

NE

2d

286

(1966).

There

is

nothing

novel

about

the

conferring

of

quasi-judicial

powers

upon

an

administrative

agency.

Because

of

the

enormous

volume

of

specialized

cases

requiring

expeditious

treatment,

as

the

Supreme

Court

held

in

Crowd?

v.

Benson,

supra,

government

would have

a

difficult

time

getting

its

work

done

without

such

agencies.

What

is

novel

is

that

an

argument

against

such

authority

can

still

be

heard

today.

Moreover,

the

Illinois

Constitution

explicitly

contemplates

that

such

agencies

may

act

essentially

as

trial

courts,

for

it

flatly

provides

for

direct

review

of

administrative

orders in the Appellate Courts.

1

—

b34

---

There

is no special

taboo in this State against the entry

of an

order requiring the payment of money by an administrative agency other-

wise capable of functioning as

a

trial tribunal,

The award of

money

is no more inherently or exclusively judicial than

is an order

requiring or forbidding the doing of any other act,

and cease—and—

desist orders

are entered every

day by administrative agencies

without constitutional question,

That there is nothing special

about money is established by

the workmen’s—compensation cases,

supra, which have long upheld the power of an administrative agency

to order

the payment of money, subject to limited judicial

review.

Nor is there anything special or forbidding about the issuance

of an order requiring the payment of money to the State as

a civil

penalty.

No reason appears for suggesting that,

although an agency

or board may order the payment

of

money to an individual complainant,

it may not order

the payment

of

money

to the State.

All the arguments

in favor of administrative power

to enter other types of orders

apply with equal force to money penalties:

specialization, ex-

pedition, inexpensive procedures,

and the avoidance of an intolerable

burden on the courts.

The

federal

courts have upheld

the authority

of an administrative tribunal

to

impose money penalties,

see Lloyd

Sabaudo Societas

V.

Elting,

287 U.S.

329,

335

(1932)

:

“Due process

of

law

does

not

require

that

the

courts,

rather

than

administrative

officers, be charged,

in any case, with determining

the facts upon

which

the imposition of

such

a

fine depends

.

.

.

Congress

:nav

choose

the administrative rather than the judicial method

of imposing them,”

This principle has recently been recognized

as well by the Supreme Court of Utah.

Wycoff

Co.

v.

Public Service

Commission,

13 Utah 2d 123,

369P

2d 283

(l962)cert.

den.

371 U.S.

819.

Illinois

too has long allowed administrative tribunals

to

impose penalties.

The Industrial Commission

is empowered by statute

(Ill.

Rev.

Stat.

ch,

48,

§ 138.19(k)

(1969))

to award an additional

50

of the basic workmen’s—compensation

sum

as

a penalty for delay

in payment,

and penalties awarded by

the Commission have been

recently

upheld

by

the

Illinois

Supreme

Court,

See

Albert

Mojonnier,

Inc.

v.

Industrial Commission,

41

111,

2d 128,

242 N.E.

2d

184

(1968),

And the authority

of

the Department of Finance

to

impose

penalties

in

certain

tax

cases

was

upheld

in

Dep’t of Finance v.

Gandolfi,

375

Ill.

237,

30

N.E.

2d 737

(1941)

The company cites Reid v.

Smith,

375

Ill,

147,

30

N.E.

2d

908

(1940)

,

as

standing

for

the

contrary

proposition.

It

does

not.

The

court

in

Reid

found

numerous

grounds

on

which

to

strike

down

a statute requiring

the payment of

the “prevailing wage”

to

employees

on

government

contracts,

For

the

most

part

the

opinion

was

based

on

more

recently

discredited

notions

regarding

substantive

due process and

the delegation of legislative power, neither of which

1

—

535

---

is

relevant

to

our

case.

A

single

paragraph

in

the

Reid

opinion,

however,

without

stating

any

reasons,

recites

that

a

provision

author-

izing

the contracting body of

the Department of Labor

to withhold

penalties from the contractor for violations of the statute “confers

judicial

power

upon

such

bodies

contrary

to

Article

3

of

the

consti-

tution.

.

.

A”

The language of Reid gives no indication that

the court believed

there was anything special about the award of money penalties.

The

impression conveyed is that quasi—judicial functions of any kind

could not be conferred in the manner of that statute,

At

first

glance this statement appears inconsistent with

the State’s long

history of upholding the quasi-judicial powers of administrative

tribunals,

and

to

the

extent

it

is it should be viewed as

a

“sport’

and

ignored.

Quite

possibly,

however,

the

court

was

concerned

in

Reid

because

quasi-judicial

power

was

attempted

to

be

conferred

upon

purely

executive

officers,

to

be

exercised

without

procedural

safeguards

such

as

those governing proceedings before

this

Board.

The

vice

of

the

statute

in

Reid

was

not

that

money

penalties were

involved,

for

other

Illinois

cases

have

upheld administrative money

penalties and for sound reasons;

it was that the penalties

were to

be imposed without quasi-judicial safeguards.

An administrative order to pay money to either

a governmental

or non-governmental entity which Order

is granted without the right

of

a jury trial is not

a novel concept nor

in

violation of constitu-

tional principles.

The constitutional right

to

a trial

by

jury

is guaranteed by

the 6th Amendment

of the

b-nited

States Constitution

in all criminal prosecutions and the

7th

Amendment

“in

suits at

common

law,”

An administrative order

to

pay

a penalty

is not the

consequence of

a criminal prosecution,

and

such

payment

does not con-

stitute

a criminal penalty.

Helvering

v. Mitchell,

303

U.S.

391.

(1938)

Nor is the proceeding before

an administrative Agency

a suit

at

common

law,

See NLRB

v.

Jones

& Laughlin Steel Corp.,

301 U.S.

1

(1937),

where

the Supreme Court

of the

United States held that the 7th

Amend-

ment guarantees do not apply

to

a

NLR.B

award of back wages because

such an award

is

not

a common

law money judgment.

Administrative

orders entered without the

right

of

jury

trial

to

pay money

have

been upheld

against

constitutional challenge

in Workman’s Compensation

Orders entered by the Industrial Commission.

See Great Western

Railway Co.

v. Industrial~mmission, supra;

in back wages awards

under the National Laboi Relations

Act,

see

NLRB

v.

Jones

&

Laughlin

Steel Corp., supra~

in cases involving penalties

on

a’ bond determined

by

the

Department

of Finance,

see People,

ex

rel,

Rice

v.

Wilson,

364

Ill.

406

4

N.E.

2nd

847

~

~

the

immosition

by

the

Director

of

Finance

of

a

penalty

on

a

bond

required

under

the

orovi-sions

of

the

Motor

Fuel

Tax

Law

“It

cannot

be

said

that

the Act is tnvalld

as delegating legislative or judicial powers

to

the

Department

ncr

1

—

536

---

that the amount fixed in the bond was an unreasonable

exercise of

the administrative discretion vested in the department”.

A lower

court

judgment for the amount of

the penalty was affirmed.

In

People

v.

Crawford,

80

Ill.

App.

2nd

237

225

N.E.

2nd

80

(1967)

the Director of Labor was authorized under the Unemployment Compensation

Act to determine and assess unemployment compensation contributions,

interest and penalties

as provided in the Act.

In suit filed

for

the

amount

of

the

taxes

and

penalties

due,

the

Defendant

contended

that

he

was

deprived of

-a

right

to

a

trial

by

jury

in

a

determina-

tion

and

assessment

of

the

taxes

and

penalties

imposed.

In

holding

the

provisions

of

the

Unemployment

Compensation

Act

relating to

administrative investigations,

hearings, decisions

and collections

to

be

constitutional,

the

court

said:

“It is well

settled,- however,

that

a Defendant is

not entitled to

a

trial by jury in tax

proceedings before

an

administrative

agency..

.Hoffman

v.

Department

of

Finance—

374

Ill,

494,

30

N.

E.

2nd 34.. .The principles of law are

analogous to those

enunciated by the Illinois

Supreme Court

in Department of Finance

v.

Cohen,

369

Ill,

510, 516-517,

17

N.

E.

2d

327,

329, relating

to the Retailer’s

Occupation

Tax Act:

‘The statute sets forth with great detail the

matters which must go into

the monthly return,

and

lays

a guide which, when followed,

leaves nothing

open

for

arbitrary discretion.

The legislature cannot

deal with the details of every particular case,

and

reasonable discretion

as

to

the manner of executing

a law must necessarily be given to administrative

officers***The sections

of

the statute complained of

do

not

violate the constitution by investing adminis-

trative officers with judicial powers,

and the objection

that appellant

is deprived of property without due

process of law has already been adversely decided

in

Reif

v,

Barrett, supra,

355

Ill,

104, 188 N.

E.

889.

Moreover,

***the act provides

a method

of

reviewing

the action of the department***~~~,

Courts of other jurisdictions have adopted the same position.

In

Wycoff

Co.

v. Public Service Comission

of

Utah,

369

P.

2nd

283

(1962),

the Public Service Commission assessed an $18,500.00

penalty against

a carrier for violating weight restrictions im-

posed by the Commission.

in

upholding the action of the Commission,

the Court said:

537

---

“There

is

no

question

but

that

in

performing

its multifarious

duties

in franchising and regulating

public utilities,

the Commission

is required

to and

does perform

some

functions of

a judicial or quasi—

judicial nature;

nor that it is within the competence

of the

legislature to confer upon

the Commission the

power to do so and to enforce the law and

its regula-’

tions made pursuant thereto by administrative procedures,

It is well established that this includes

the imposition

of a monetary penalty

for violation

of

law or lawful

orders or regulations promulgated by the Commission

within the scope of

its administrative responsibility.

The fact that our statute provides the Commission

with an auxiliary remedy,

by going to court if that

becomes necessary,

does not mean

that the Commission

cannot impose the penalty prescribed by the Public

Utilities Act.

In that regard we have

the guidance

of decisions from other jurisdictions having statutes

similar to ours.”

Clearly,

neither the penalty provisions

of

the Environmental

Protection Act nor the Order of the Board are void for failing

to provide for trial by

jury.

The assertion that the complaint

is insufficient

in

law

is wholly without merit.

The complaint specifies all statutory and

regulatory provisions

of

which violations

are asserted,

the

dates

of the alleged offenses,

the waters affected and the character

of

the

pollutants emitted by Respondent’s operation.

Lastly,

no reason

suggests itself why any

of

the Rules and Regulations relative

to

which violations are asserted,

contravene

any

of the provisions

of the Environmental Protection Act as contended by Respondent.

We now consider the merits

of the case.

1—538

‘

---

We

find Respondent

to have violated SWB5 on the dates alleged,

and, order it to cease and

desist

the

discharge of cyanide in any

amounts from either of its plants.

We find that Respondent~sviolation

of SWB5 constitutes a violation of Section 12(a) of the Environmental

Protection Act,

We assess

a penalty

in

the

amount of $5,000.00 for the

cyanide discharges,

We find Respondent not guilty of violating Sec-

tion 10 of the Sanitary Water Board Act, Technical Release 20-22, or

Section

1.05

of Sanitary

Water Board SWB1I,

Technical Release 20-22

is a criteria document promulgated by the Technical Secretary of the

Sanitary Water Board

but

never

adopted by the Board as a regulation

and

lacking

the

attributes of an

enforceable legal stan~ard, Section 10

of the Sanitary Water Board

Act

prohibits

water pollution,

defined in the

Act to require a showing that the discharges alleged are likely to

create a nuisance or render such waters injurious to the public health

or welfare,

The record is devoid of any evidence manifesting that t~

discI~rgesalleged would produce such results,

SWBI1, Section 1.05

is

a Water Quality Standard and not an Effluent Standard,

Since the only

tests conducted were of

water from Resnondent’s

sewer ~nd

not

from the

river,

there is no evidence in the record

to support a Water Quality

Standard violation,

irrespective of what the effluent meaairement

may

have been,

We grant the variance requested by Respondent

to permit concen-

trations

of chromium, copper and zinc

in its effluent

to September

30,

1971, subject

to

the terms and conditions hereinafter provided in the

decretal portion of this Opinion,

Modern Plating Corporation, employing approxiimtely

180 employees

and having a $15,000,000.00 payroll, operates two plating plants

in

Freeport, pumping the effluent

from

each

of

its operations into the

Pecatonica River at a rate of 500,000 gallons a day,

It processes

be-’

tween 2-’l/2 and

3 million pounds of raw material each month, consisting

principally of formed carbon steel parts processed through electroplating

solutions

for decorative and corrosion protecting purposes,

The princi-’

pal operation of Respondent

is conducted at the “new~plant acquired in

1962,

The so-’called ~01d” plant represents approximately

l07~

of

Respon-’

dent’s production,

Waste water containing cyanide and heavy metals

employed in Respondent’s plating operation are discharged into privately-

owned sewers which,

in turn, discharge into the Pecatonica River,

1 —539

---

Previous efforts to connect Respondent’s

sewers with

the municipal

sewer system were disapproved by the City because

of

uncertainty

as

to the character and intensity of the effluent,

Alkaline chlorina-

tion treatment for cyanide and poly electrolyte precipitation

for

zinc are employed at both plants.

Respondent

conducts plating

operations at the new plant using several closed boa- circuits,

re-cyling the rinse water rather

than discharging

it.

Effluent

that

is discharged from

the building

is treated with sodium hypo-

chlorite

by use

of

a chlorinator.

Five tanks discharge cyanide-

containing

effluent while numerous others discharge caustic wastes,

acids

and

zinc,

See testimony of Lindstrom

(R.46-48)

.

No

specific treatment facilities

for he-ivy metals

are emolove-d

other than noted

above,

The evidence indicates that no other

industrial discharges

of hebvy metal or cyanide in the Pecatonica

River are caused by industries other than Respondent,

Tests

conducted

by

the

Environmental

Protection

1.-genes’ between

October 31,

1967

and January

5,

1971,

(EPA

i3x,

1,

2

and

3) show

the presence

of cyanide in violation of SWB5 and heavy metal

concentrations

in the effluent in excess of water

rualbts- standards

and criteria for cyanide,

copper,

cadmium,

zinc,

chromium

an-i-

iron-.

Test wa-ter was taken from Respondent’ s discharges

at manholes

in

Respondent’s

sewers located approximately

1/4 of

a mile from tha

river.

On October

6,

1970,

cyanide cc-ncentrations

wes-e recoroed

at

160 ppm, which

is 6,400 times the STE—lb and

CE.

20----22

watols oualitv

criteria and obviously

in excess

of-

the

zero effluent standard

described in SWB5,

El-A Ex.

I summarizes all tests

at tho

net-s

plant between the dates mentioned.

Later tests

masEr at

-She

‘new

plant

on

January

16,

1971, January

20,

1971

and

Februar’s-

3,

b97th- dis-

closed the discharge of heavy metals

in excess of.water o:aalhhr

standards

The absence of cyanide suggests

the efficbencv

-f its

cnlorination process

Tests mace

e

toe oat

si~rto

an~er

Cm

-e

January 27,

1971 disclose

the

dbsci-iaige of heavy metals,

in excess

of water quality standards.

In, summary,

it

is manifest that

S’WFS

the

-zero effluent standard

for cyanide, has been reoaatedbv

viobats---d.

However, while the effluent

show-s heavy metal concentrations

in amounts that exceed water quality standards,

they

do not

sf

0-5:

violation of water quality standards since

no tests were

conE.uctc

in the river itself,

Paul

Massion,

Assistant

Secretary of Respondent,

in

chassis.

of manufacturing and engineering,

testified on Respondent’s-

eSforts-

to control pollutional discharges

(R.87-ll9)

.

The

ne—a

plant,

‘-sos

acquired in 1962

and facilities

for waste water treatment

-acre in-

stalled at

a cost of approximately

$60,000.-000.

ilowever,

the vsaste

water

treatment process,while causing

a reduction in effluents,

purportedly impaired the quality of the metal plating.

A coroer

inhibitor

was

utilized

at

a

cost

of

$9.50

per gallon.

In 1966.

a

Pfaudler

cyanide

recovery

system

was

installed at

a cost of

$36,000.00.

During

the

same

year,

the State Sanitary Water Board

1

—--

540

---

advised Respondent that its effluent failed to

meet

new

guidelines.

Two

years of consultation followed.

The Nalco Chemical Corporation

of Chicago conducted a survey of the plant’s operation and

waste

water treatment

and made

its

report to Respondent in June,

1968/

which

was discussed with representatives

of the State Sanitary Water Board.

Respondent was directed to

ix-aplement the recommendations.

As

a

consequence

of the implementation of this report,

concentration

levels of certain contaminants were reduced.

Consulting engineering

firms were contacted

to submit proposals for

design- and construction

of

a complete waste water facility.

Proposals of various

types were

received from at least four concerns for waste treatment facilities.

In September,

1969,

the contract was entered

into between Respondent

and

Rock

Valley

Water Conditioning Company

for design of

a new waste

treatment

facility.

A schedule

of completion was submitted to the

State Sanitary Water Board providing for completion

of engineering

plans by January

31,

1970,

the start

of construction, by

l--iay 1,

1970

and completion by November

30,

1970.

However, because

“more

detailed

research”

was

necessary,

plans were

not submitted

to

the Sanitary Water

Board until May of 1970

(R.lOO).

10

order to acconmodate the

seoaratiosr

a-f rinse water orocesses

into

three basic

types,

two buildings were torn down and

a new One erected

and new drainage

lines have been incorporated

into

the new building.

According to the witness,

the incorporation of senarate rbastic

se-:ser

lines resulted

in

a cost of approximately $120,000.00.

A

duplex-system

debonizer

had

been

purchased

and

installed

in

1968

which

no’s controls

the rinses from all decorative chromium and hard chromium in

a closed

loop system.

The regenerate

is channeled into

a stand-ba’ tank where

it is

treat-ed and reduced through sulphonation,

Acoorciina to the

witness,

over the

past

2-1/2 years,

approximately 17,000 gallons of

zinc

plating solution have been converted to

a low cyanide or non-c

axaide

process.

The additional agents used as substitutes for

cyani-Ce allegedly

exceed the

cost of $20,000.00.

The permit was finally issued by

the Sanitary Water Board for

construction

of the waste treatment facility on June

16,

1970,

A

construction contract

was entered into with the G-arman Construction

Company on December

30,

1970.

The total cost of the new waste treatment

facility

is estimated to be approximately $550,000.00.

Construction

under the contract began in January,

1971.

Completion of the

n-loot

is anticipated by September

30,

1971, which according

to

I-Er.

I-lassion,

will provide an operation in full compliance with

all amolicable

statutes

and

regulations

of

the

state.

The

evidence

indicated

that

while

the

old

plant

would

continue

In

operation,

its effluent disch-arge

would be connected

with

the

municipal

sewer

system.

No variance

is

requested

with

regard

to

this

plant.

-

I

—-

541

---

Representatives of Rock Valley Water Conditioning,

Inc.

testified

that certain difficulty

in the preparation of bids resulted from the

allocation of responsibilities between the Respondent and the general

contractor

(R.l69).

The contract was divided into three portions,

civil, mechanical and electrical.

The civil portion was assigned

to

a general contractor with Respondent performing the balance.

Leonard Lindstrom,

of the Environmental Protection Agency, noted

that the separation of

zinc, cyanide, and

chromium

and the treatment of

cyanide by chlorination are-not new con~cepts. (R.l94).

John Anderson,

Chief Engineer of Rock Valley Water Conditioning Company responded

that the mere presence of a

treatment

system does not render its use

necessarily

feasible

“to do a good job, you must have an integrated

plant

that

can handle

the

job and

do

it economically”.

(R.179-l80).

Plant

design is for a million and one-half gallons per day of total treatment,

which

will

allow

for

future

expansion

of the facilities,

Evidence was introduced

of

a substantial fishkill which was dis-

covered in the Pecatonica River in the month of March,

1969.

While

the evidence suggested that the fishkill

was a consequence

of effluent

pollution and

not

lack

of

oxygen,

the evidence was insufficient to

sustain

a causal connection between Respondent’s

effluent

discharges

and

the fishkill.

Maurice

Mccarthy,

Vice-President

and Secretary-Treasurer

of the

Respondent

asserted

that

contamination

resulting

from

metal

plating

operation is “necessary

and inevitable”,

a conclusion we refuse

to

accept.

The record supports

the contentions

of the Agency that abatement

treatment

and

precipitation

equipment

for

heavy

metals

and

cyanide

have

been

available

since

1960,

Respondent

has

been

repeatedly

warned

that

it

would be required

to take affirmative action to reduce its pollutional

discharge.

We have before us,

as we have had

in many

cases,

a

record

of procrastination, innumerable studies and minimum efforts to achieve

compliance with

the

law.

It

is particularly inexcusable that positive

steps were

not taken to abate

the emission of cyanide in the face

of the zero effluent standard in SWB5.

We take some degree of comfort

in the fact that, belatedly, Respondent has embarked upon construction

of

a plant which will bring its effluent into compliance with

the

relevant state regulations.

In structuring its order, however,

the

Board is confronted with the fact that with

the exception of the cyanide

effluent standard,

there are

no effluent standards

in existence for

heavy metals and the Agency’s measurements

in the instant case were not

made

in the river so as

to serve as

a foundation for alleqed violations

of water quality standards.

As noted above, SWEll

is

a

water quality standard,

TR 20-22 is

not

a regulation but

a criteria document,

and violation of

the old

Sanitary Water Board Act,

Section 10,

requires

that

i-n

order to con-

stitute

water pollution,

there must be an affirmative showing of the

1

—

542

---

existence

or

likelihood of

a nuisance

or

that

the receiving waters will

be rendered injurious to the public health.

It

is highly

possible

that

the

effluent discharqes

of Resoondent would constitute violation

of water quality standards applicable

to

the

Pecatonica River

and that

such discharges would also constitute

a nuisance

and render the waters

harmful

or injurious

to

the public health or legitimate

uses,

as

pro-

vided in the old Sanitary Water Board Act.

However, because of the

absence of testing in the river

itself,

and because of the absence

of enforceable effluent standards covering

the contaminants

found

in Respondent’s

effluent, we

are limited to

a finding of

violation

only

in regard to

the cyanide emissions and

the resulting violation

of the Environmental

Protection Act,

Section 12(a),

as

a

consequence

of

a violation of Regulations SWB5,

This

is not to say that we condone in any way, what Resoondent

has been doing.

It does dramatically demonstrate the need

for adoption

of effluent standards,

a program which this Board

is diligently

pursuing.

Proper

testing

in the river will determine how Respondent’s

effluent

is affecting the water quality standards set forth in SWB11

and we direct,the Agency to make proper tests

in the river

in the

vicinity of Respondent’s outfall

to ascertain what effect Respondent’s

discharges do,

in fact, have on the water quality of the river.

At

the present time,

after five years of delay, Respondent

is

pursuing

a program which will achieve compliance with

the relevant

reculations of the state.

In consideration of Resoondent’s operation

being in full compliance by September

30,

1971, we grant the variance

as requested

(except

as

to the proposed cyanide emission)

permitting

the amounts

of effluent as set forth

in the variance petition.

Recent

tests showing absence of cyanide in the effluent indicate that

recently installed alkaline chlorination equipment

is capable of

oreventing such discharge.

Insistence on immediate compliance with

other effluent criteria would result in

a closing of the plant with

resulting unemployment of

180 persons and

the possible insolvency of

the operation.

The variance will be granted subject to the

terms and

conditions hereinafter set forth.

The foregoing opinion constitutes

the finding of fact and conclusionE

of law by

the Board,

IT

IS

THE ORDER OF THE POLLUTION CONTROL BOARD:

1,

Respondent, Modern Plating Corporation,

is found to have

violated SWB

5 and Section

12(a) of the Environmental

Protection Act as

a consequence of its pollutional

discharges of cyanide on the dates stated in EPA

Exs.

1,

2 and

3,

filed herein.

Respondent

is ordered

to cease and desist all discharges

of cyanide from

both of

its plants into

the

lecatonica River.

2.

Respondent

is assessed

a penalty in the amount of

$5,000.00

for the illegal cyanide discharges aforesaid,

and

the resulting violation of SWB5 and Section

12(a)

of the Environmental Protection Act.

1

—

543

---

3.

Resoondent

is hereby granted

a variance to Seoternber 30,

1971,

to discharge in its effluent contaminants in the

following concentrations:

(Hexavalent)

.1 opm

Chrome

(Trivalent)

.1

porn

Copper

1.5 ppm

Zinc

1.5 opm

which concentrations may result in violation of water

quality standards

as applied

to the Pecatonica River.

This variance is granted subject to the following

terms

and conditions:

(a)

Respondent

shall pursue with diligence the construction

of

its

waste

water

treatment

olant

subject

to

rlans

and soecificatiohs indentified in the record as

Resoondent’s

Exs.

1

through

15

inclusive,

and complete

the same

b~

Seatember

30,

1971.

On or before June

3,

1971, Respondent shall submit to the Board and to the

Agency detailed plans and specifications beyond those

previously received in evidence indicating

in full

the

contaminant abatement equioment and orocesses

to be

employed,

the concentrations of contaminants

that will

result from

the use of such processes

and

a

table of

costs correlated

to

the soecific abatement

ecxuiornent

and

processes

as

installed.

(b)

On

or

before

Seotember

30,

1971,

Resnondent

shall

cause

connection

of

the

sewer

from

its

old

plant

to

the Freeport sewer system so that all effluent

therefrom shall

be

pumped

into

the

municimal

sewer

system from and after

said date.

(c)

During

the period of construction,

Resaondent shall

continue the

use

of noly electrolyte

for

the

preciaitation of heavy metals

and of chlorination

to orevent

the

discharge of

cyanide

Irons

its

effluent,

(d)

Resnondent shall post with the Environmental Protection

Agency,

on

or

before

May

15,

1971,

a

personal

bond

or

other adequate security in such

form as the Aqency

may find satisfactory in the amount of $550,000.00

which

will

be

forfeited

to the State of Illinois

in

the event that either of Resnondent’s nlants are

operated after September

30,

1971 in violation of the

statutory and regulatory provisions

relative to

the

control of water pollution.

Petitioner

shall

post

a

further bond

in the amount of $50,000.00

in the

form

as above set forth

to be forfeited

in the event tnat

cyanide is found in its effluent or

that

its

effluent

contains heavy metals

in concentrations

in excess of

those permitted

by

this variation during the period of

this variation.

b44

---

(e)

Durino the neriod of this variance allowance,

Respondent

shall not increase the volume

of its pollutional discharges.

4.

The

Environmental

Protection

Agency

shall

make

tests

every

two weeks

to ascertain the strength, character and contents of Respondent’s

effluent.

Any finding

of

the presence of cyanide or contaminants

in

concentrations

in

excess

of

those permitted by

this variance shall be

grounds

for

revocation

of

this

variance

as

well

as

forfeiture

of

‘the

bond above provided.

I,

Regina

E.

Ryan, Clerk of the Board,

certify that the Board has

approved the above Ooinion this

~

day of

,

1971.

1

—

545