but not to that which went into the stream or to stream quality
itself, we find no violation on this date.
6. September 30, 1970.
7. October 14, 1970.
8. February 18, 1971.

ILLINOIS POLLUTION CONTROL BOARD

September16, 1971

ENVIRONMENTAL PROTECTION AGENCY

v.

)

 PCB 71-51C

CITY OF CHAMPAIGN,

 ILLINOIS et al

Dennis K.

 Muncy of Champaign,for

 the Environmental Protection Agency

Albert Tuxhorn of Champaign,

 for City of Champaign

Opinion of the Board

 (by Mr.

 Currie):

This

 case was originally brought as

 a consolidated action by

a complaint filed by the Environmental Protection Agency

 (“Agency”)

on March

16,

 1971,

 against the City of Champaign

 (“City”)

 and the

City of Urbana for causing or allowing the pollution of Boneyard

Creek.

 On May

13,

 1971,

 the Hearing Officer entered an order of

severance dividing the complaint against the cities into

 two sep-

arate cases and,

 subsequently,

 the Board of Trustees of the

University

 of Illinois

 (“University”)

 and Alpha Material and

Fuel Company,

 a corporation

 (“Alpha”)

 were joined to these pro-

ceedings.

 A number of preliminary questions

 and jurisdictional

objections have been raised and will be considered here first

before we discuss the merits of the case.

The City,

 in its Motion

and

 Amendment to Motion to Strike

and Dismiss First Amended Complaint, raises

 a series of objections

to the procedure followed by the Agency

 in filing this

 case,

all

of which we

 reject.

The City claims that the Agency failed to comply with

the

provisions of Section 8—102 of Article VIII

 of Chapter

85,

 Ill,

Rev.

 Stat.

 1969, regarding the required notice in actions against

local public entities,

 That section, however, pertains specifically

to

 a “civil action for damages,” which

 is not the case here.

 This

proceeding

 an adjudication before an administrative agency and

the procedures

 to be followed are clearly defined

 in the Illinois

Environmental Protection Act

 and in the Procedural

 Rules

 of the

Illinois Pollution Control Board.

 Similarly,

 the City~sreference

Section

2-102

Chapter

totally

inapplicable

since

that

section

deals

with

“punitive

 or exemplary damages,”

 a technical

term having to do with additional payments

 in private civil damage

actions.

The

penalties

which

the

Board

may

invoke

pursuant

the Environmental Protection Act are,

 on the other hand,

not

 in the

nature of “damages,” but are, rather, administrative sanctions the

precedent for which has been well established for many years.

The City further contends that the Agency did not serve

piocess on the City pursuant to the requirements

 of the Civil

Practice Act in that the Agency failed to leave

 any summons with

either the Mayor or the City Clerk.

 The original combined complaint

2

—411

against both Cities had been Served on

the

 Mayor

 and Council of

the

City of Champaign by registered

 Nail

 pursuant to Rule 305

Ca)

of the Procedural Rules

of

 the I,P.C.B.

 and, after the cases were

severed, the First Amended Complaint was served by registered mail

on the City Attorneys who had already entered

 their

 appearances.

These procedures

 are thoroughly adequate and are consistent with

the Statute and with the rules of the Board,

 The notice requirements

of the Civil Practice Act are inapplicable.

We also reject the City~stechnical argument that the

 complaint

is insufficient

 in that it fails

 to specifically allege that “any

contaminant” was caused,

 threatened, or allowed to be discharged.

Pleadings before this body shall be judged by their substance and

not by their form.

 Similarly,

 the City~sargument that the complaint

is insufficient for failure

 to specify

 the pollutants

 involved, for

failure to allege sufficient

 facts

 to apprise respondent of the

particular provisions

 of the statutes or regulations allegedly

violated,

 for failure to allege the

 facts complained of with sufficient

particularity,

 for failure

 to allege sufficient

 facts

 to support the

“many conclusions of law and

 fact” contained therein and for failure

to allege sufficient

 facts to raise any

 duty or legal obligation owed

by

 the City to the complainant,

 are all rejected.

 Even if true

 (and

we

 are. not convinced that they

 are true)

 the points raised by these

arguments could have

 all been covered,

 and actually were covered,

by

 the ample discovery procedures afforded to all parties by the

Hearing Officer pursuant to the Rules of the Pollution Control Board.

The

 City also raises various constitutional arguments

challenging the entire Environmental Protection Act and the very

existence

 of the Pollution Control Board,

 Basically,

 the City

argues that the complaint which is brought pursuant to the Act

denies the respondent due process and equal protection of the

 laws

in violation of the U.S.

 and Illinois Constitutions;

 that

 the Board,

“which acts

as

 a court,”

 has been unconstitutionally delegated

judicial powers;

 that the section of the Act providing for a review of

Board decisions by the Appellate

 Court, thereby skipping the Circuit

Court

 level,

 unconstitutionally

 “discourages review”

 and “places

an

undue burden on respondents”;

 that the Board~sauthority

 to impose

“civil penalties”

 is unconstitutional

 and that respondent

 is unconstitu-

tionally “denied the right to jury trial and other procedural safeguards.”

While we have answered similiar arguments before,

 we will briefly

address ourselves to the contentions of

 the City individually:

1.

~

 The City asserts that the Environmental Protection

Act denies

 it due process and equal protection of the

 laws.

It claims that

 the Board has been delegated judicial powers

 “comparable

bo those of the Circuit Court” in violation of the Illinois Constitution.

Presumably this argument refers to the Board~s authority to

conduct hearings

 and to impose appropriate penalties.

 As we have

pointed out at length,

 (see E.P.A.

v.

 Modern Plating Corporation,

2 —412

PCB

 70—38,

 71-6,

May

3,

 1971)

 the precedent

 for the

creation of quasi-judicial tribunals in this state

 is well-established,

Workmen~s compensation cases, handled by

 the Industrial Commission,

are the most obvious examples

 of the proper

 and reasonable exercise

of quasi—judicial powers by an administrative agency but similiar

functions have been and still are being performed by the Illinois

Commerce Commission,

 the Fair Employment Practices Commission,

the

Department of Finance, and,

 indeed,

 by our

 own predecessor,

the

Sanitary Water Board.

2. Jur

 Trial.

In

 addition,

 for the reasons detailed

 in the

Modern

 P ating

 ecision,

 we reject the

 jury trial argument

as

incorrect.

 As we said in Modern Plating:

“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 constitutional

principles.

 The constitutional right

to

 a trial by

 jury

 is guaranteed

by the

 6th Amendment of the United States Constitution in all criminal

prosecutions

 and the 7th AmendmentLin

 suits

 at common law.~ An adminis-

trative order to pay

 a penalty

 is not the consequence of a criminal

prosecution,

 and such payment does

 not constitute

 a criminal penalty

.Nor is ~he proceeding before

 an administrative agency

 a suit at

common

 law.

“

3.

 Penalties.

 The City~s further argument

 that the Board has

been granted the power

 to levy “civil penalties. ..far in excess

of many

 of the

 fines provided for the Criminal Code

 of the State

of Illinois

 for misdemeanors”

has

 no merit.

 While we recognize

that certain misdemeanors

 are more serious than others, we are

not prepared to compare the seriousness to the community of an

isolated case

 of pollution with

 the seriousness

 of any given mis-

demeanor.

 The heavy-thumbed butcher who cheatingly

 tips the scales

commits

 a misdemeanor, but who would seriously compare the penalty

he risks

 to the penalty provided

 for one who endangers the health

and welfare of the entire community by causing or allowing pollution

of our environment?

 The legislature has

 a good deal

 of latitude

in making the sanction fit the offense,

and

 its judgment here is

not unreasonable.

4.

 Review.

 Finally,

 the City~scontention that “denial of the

right of review in the Circuit Courts...

 discourages review, places

an undue burden on respondents

 and denies equal protection of the

laws,”

 is patently wrong.

 If anything,

 the ouportunity afforded

to respondents under the Environmental ProtCction Act to have adverse

administrative rulings

 reviewed directly by the Appellate Court

encourages rather than discourages review.

 Under our Act, there is no

need for

 a repetitive,

 lengthy and costly rehashing of the

 same

~

 (PCB

 70—38,

 71—6,

May

3,

 1971)

p.6

—413

litigated matters at the Circuit Court level since the public hearing

conducted by the Board pursuant

 to the Act and its

 own Procedural

Rules guarantees to

 the parties

 a full,

 fair,

 impartial, complete,

inexpensive and speedy trial on the merits with all

the

 procedural

and substantive constitutional guarantees which could be afforded by

any court

 in the land.

 To the contrary,

 a requirement that the

parties conduct

 a new trial at the Circuit Court

 level would cause

the undue burden referred to by the

 City and would result in expensive

and time-consuming protracted litigation while

the

 issues raised by

the

 case would be undecided and the public,

 and presumably the environ-

ment, would suffer.

 But the short answer is that direct review in

the Appellate Court is flatly authorized by the Illinois Constitution

and cannot therefore be ~aid

 to violate that same document.

The

federal Constitutional question

 is settled against the City by the

long

 accepted and upheld practice

 of direct appellate review of

comparable federal agencies.

5.

 Parties.

 The City has also stated that

 the complainant in

this

 case

 is the Environmental Protection Agency whereas the Act

requires that such actions be brought in the name of the People of

the State of Illinois.

 We reiterate

 once again that our primary

concern

 is with substance and not form,

 In any event,

we

 specifically

refer the City

 to Rule 303

(b)

 of the Pxocedural Rules

 of the Illinois

Pollution Control Board which states that:

“Misnomer of

 a party

 is not

 a ground

for

 dismissal,

the

 name

of

 any party may be corrected at any time.”

There

 are,

 additionally, several preliminary matters raised by

the Third Party Respondents,

 to which we now turn.

II.

The University

 has scattered several points among

a

series of objections

 and briefs challenging the Board~s

authority

 in this case.

 We shall

 deal beiefly with each

point.

As the Hearing Officer correctly ruled,

 the Third Party Complaint

as ordered by the Hearing Officer and served by

 the City on the

University

 in this case was

 an appropriate means

 of joining the Third

Parties pursuant to Rule

 309 of

 the Procedural Rules

 of the Illinois

Pollution Control Board to

 a proceeding already authorized for hearing

by the Board.

 The procedure thus followed insured

 a “convenient,

expeditious,

 and complete determination”

 of the

 claims, and, since

the Third Party complaint raised no new or additional charges

of

pollution to change the substance

of

 the initial complaint upon *qhich

the Board had authorized

 a hearing, the University cannot claim prejudice

or surprise.

 In effect,

 the Third Party complaint incorporated the

First Amended Complaint by reference, thereby fully apprising the

University of the essentials of

 the case against it.

 Additional infor-

mation relied upon by Respondents

 and Third Party Respondents to

adequately prepare their cases could have been,

 and in fact actually

was,

 as we have already indicated, obtained by

 the ample discovery

allowed prior to the hearing on

 the merits.

2

—

414

We

 also note

 that consultation with all parties was

 conducted

before

 a final hearing date on the merits was established and that

no motion for

 a continuance on behalf of the University was ever

submitted to

 the Hearing Officer or to the

 Board.

 Finally,

we

reject the University~sobjections based on sufficiency

 of the

complaint for

 the same reasons we rejected

 similar

 objections

by

the City.

The University has submitted documents entitled

(1)

 Entry of

Special Appearance of Third Party Respondent,

 the Board of Trustees

of the University

 of Illinois,

 and Motion to Expunge and Strike or,

 in the alternative,

 to Dismiss

 for Want

 of Jurisdiction,

and

(2)

 Brief in Support of Motion on Special Appearance of Third Party

Respondent,

 the Board of Trusteesof

 the University of Illinois,

to Expunge and Strike or,

 in the alternative,

 to Dismiss

 for Want

of Jurisdiction.

 The principal thrust of these arquments

 seems

to be that the University

 of Illinois is exempt from and not

subject to the operation of the Environmental Protection Act.

This

 is wrong.

Section

 47 of the Act quite clearly states that:

“The State of Illinois and

 all its agencies,

institutions,

 officers and subdivisions shall

comply with

 all requirements, prohibitions,

and

other provisions

of

 the Act and of regulations

adopted thereunder.”

In its

 Brief,

 the University states that “if

 all of the

provisions of the Environmental Protection Act were made applicable

to the State of Illinois,

 its agencies,

 institutions, officers

and

subdivisions,

 there would exist

 an impossible

 and illogical situation

in which the

 State, through the Pollution Control Board, would be

levying Lines against the State

 itself,

 and the group

 it supports,

for failure to take an action which could not be taken because

 the state had not appropriated

 the money therefor.

 Presumably

the state would then have to aopropriate the money

 to pay the fine,”

It was clearly the intent of the Legislature

 in adopting

Section

 47 of the Act to ensure that all state agencies would

comply with

 all,

 provisions

of

 the Act

and

 the Rules and Regulations

promulgated thereunder.

 To construe

 this section as merely requiring

reporting by the Agencies would be tantamount

 to emasculation of

the

section and would virtually exempt state agencies

 from compliance

with state

 laws pertaining

to

 the protection of the environment.

As

the statute says,

 the State should ensure that its own hands

are

clean before penalizing others for soiling the environment.

The Legislature,

 in adopting

 the Environmental Protection Act,

recognized the inadvisability

of

 exempting certain special interest

groups from compliance with the Act.

 The City of Chicago and the

2~-415

Metropolitan Sanitary District of Greater Chicago,

for

example,

which had been generally exempted from prior state environmental

legislation, are no longer granted such exemptions under the new

Act.

 Similarly, state agencies at all levels must comply

 with

all

requirements

 of the Act,

 Many state agencies, such

 as penal

institutions, must comply with applicable regulations promulgated

by

 the state Department of Health, among others,

 and we

 see no

inconsistency in requiring state agencies

 to adhere to the

provisions

 of the Environmental Protection Act as well,

 especially

since the Legislature so clearly intended this result.

We need not decide whether

 it would be appropriate,

 if other

facts so indicated,

 to impose money penalties on another state

agency,

 for as discussed below we see no cause

 for money penalties

in this

 case.

 The University~s argument that equipment cannot

be purchased unless the General Assembly appropriates money

 for it does

not destroy the appropriateness of an order to comply;

 it does under-

line the heavy responsibility of the General Assembly to fulfill

its specific promise

of

 state compliance by making the necessary

appropriations.

The University further challenges

 the jurisdiction of the

Board by asserting that if the University

 is amenable

 to suit on

the claim asserted by the Agency, such

 suit may only be brought

 in the

 Court

 of Claims.

 In support of this assertion,

 the University

states that this

is

 a proceeding which “sounds

 in tort”

 and that

the

 Court

 of Claims has exclusive jurisdiction over all tort claims

against the Board of Trustees

 of the University of Illinois.

In actuality,

 these proceedings are neither criminal

in

nature nor are they actions

 in tort.

 This

 is an administrative

adjudication under authority of the Illinois Environmental Protection

Act, which

 quite clearly states,

 as we have indicated above,

 that

all state agencies must comply with

 all the provisions

 of the Act

and Rules adopted thereunder.

 Exclusive jurisdiction of

 “tort”

claims against the University may well

 be in the Court of Claims but

the action we

 are dealing with here is not

a

 “tort” claim but

rather

 a new,

 statutory action, which did not exist at commOn

 law,

The Pollution Control Board

 is the proper body to hear

 this matter,

as the Environmental Protection Act plainly provides.

III.

Finally, we address ourselves

 to the motions filed by the

Third Party

 Respondent,

 Alpha

 Material

 & Fuel Company.

Alpha~smotion for

 a summary order

of

 dismissal, based on

technical objections

 to the nature and form of the

 Third Party

2 —416

complaint,

 is denied.

 As we stated above,

 the Hearing Officer

correctly ordered

 the Respondent

 to serve

 a Third Party Complaint

on the University

 and Alpha as

 a means

 of joining these parties to

a proceeding already

 instituted,

 The claims against these third

parties were neither duplicitous nor frivolous.

 The Third Party

Complaint, together with the First Amended Complaint and the

voluminous documentation exchanged on discovery, was more

 than

adequate to fully apprise Alpha of the charges against it and of

the issues

in

 the case.

Alpha~sMotion challenging the jurisdiction

 of the Board is

based on arguments we have already considered,

 Alpha repeats the

City~s

assertion that

 the Act improperly confers legislative and

judicial powers upon the Board, which we once again reject as

erroneous.

Alpha states that Sections

 12 and 13 of the Act are invalid

because they unlawfully delegate “arbitrary” powers to the Agency

and the Board

 and, essentia~~lly,because they

 are vague,

 lacking

in preciseness

 and indefinite.

 In EPA v.

 Granite

 City Steel

Co.

(PCB 70—34, March

17,

 1971) we considered these points and rejected

them.

 The Act defines the clear limits of the

 Board~s authority

and

 is as precise

as

 a statute can be without including numerical

standards,

Furthermore,

 as to whether or not

 the Act requires testimony at

the hearings

 to be given under oath, we point out that such testimony

was,

as

 a matter of

 fact, given under oath.

 Therefore

 we’ do not

see

 the need to comment on the question of whether or not testimony

before the Board must at all times be given under

 oath.

Alph&s

 objections contained in paragraph five of its

Motion Challenging Jurisdiction

 filed on June

1,

 1971, are also

rejected.

 The procedures followed and

 the time allowed the

parties for discovery and

 for preparation of their cases herein were

more than adequate.

 Furthermore,

 at no time did Alpha ever request

additional time or

 a continuance to prepare its

 case more

 fully,

and, when specifically asked by the Hearing Officer whether

 it was

ready

 to proceed on June

8,

 1971, Alpha replied that

 it was.

 Never-

theless, additionaltime

 was granted to all parties by the Hearing

Officer Lto assure adequate preparation

 of their

 cases,

and

 a more

meaningful exchange on discovery and

the

 full public hearings on

the merits of the

 case did

 not begin until June

28,

 1971.

 Further

delay would have been counterproductive.

The objection raised by Alpha to the provision of the Act

allowing direct review of Board decisions by the Appellate

 Court

is rejected once again

 for the same reasons stated above.

Finally, Alpha claims that Sections

27

 and 35 of the Act

violate

 the U.S.

 and Illinois Constitutions by depriving Alpha of

7~417

equal protection of the

 laws since they apply differently in

different geographic areas

 of the State.

 While these sections

are not even remotely at issue in this case,we would point out

that if Alpha’s argument

 were accepted, it might also be utilized

to hold that different speed limits

 for different highways

in

different portions

 of the state are also unconstitutional.

We

are dealing with the health and welfare of the public and the

quality of the environment and therefore must take into consideration

a variety of circumstances

 and conditions which may well be

different in different areas

 of the state.

Not

 to take

 such

variations into consideration might lead to unfairness,

 or at worst,

impossibility in attempting

apply

the

law

effectively.

Alpha’s

contention

therefore

rejected.

now

consider

the

merits

the

 case.

IV.

The

Agency

has

alleyed

that

eight

separate

occasions

the

City

violated

Section

(a)

the

Environmental

Protection

Act

 (“Act”)

and

Rules

1,05

and

1.08

the

Rules

ax~d

Regulations

of

 the Sanitary Water Board, SWB-l4,

 continued

in

 effect

by

Section

49

(c)

 of the Act.

 Section

12

(a)

of

the

 Act states

that

 “no person shall cause

or

 threaten

 or allow

the

 discharge

of any contaminants

 into the environment

any

State

to cause or tend to

cause

 water pollution in Illinois, either

alone

 or in combination with matter

 from

other

sources,

as

 to violate regulations or standards adopted

 by the Pollution

Control Board,.,”

 Rule

 1.05 of SWB-l4 states the

applicable

criteria

 for “aquatic

 life sectors”

 in terms

 maximum

and/or

minimum permissible levels of dissolved oxygen, pH,

 temperature

and toxic substances.

 Rule

 1.08

 SWB—l4 is the State’s

imuiementation and enforcement plan designed

to

 control and

orevent pollution of the waters of

 the State of Illinois.

The specific dates of the alleged violations are August

7 and 18,

 September

18,

21,

23

 and 30, and October

14,

all

during

 1970,

 and,

 in addition, February

18,

 1971.

 In its

Third Party Complaint,

 the City alleged that the University

caused

 the violations of August

 7 and 18 and that Alpha was

responsible for

 the violations

 of September

18,

 21 and

23,

if,

 indeed, there were violations

 on any of those dates

at.

all.

 By stipulation, however, Alpha admitted causing

 a violation

on September

21

 and the

City

 agreed to amend its Third Party

Complaint

 deleting

 any allegations against Alpha pertain-

ing

 to the alleged violations of September

 18 and 23,

We will examine each

of

 the dates of alleged violations

individually,

 leaving till afterwards

 the question

 the City’s

responsibility for them,

1.

 August

7,

1970

The Agency

 alleges that or~August

7,

 1970,

 the City

“caused or allowed”

 the discharge of waste waters from

 a sewer

it operates and maintains located south of Green Street between

—

418

Locust and First Streets

 into Boneyard Creek

 “so as to cause

tend

cause

pollution”

Boneyard

Creek

violation

Section

(a)

the

Act

and

Rules

1.05

and

1.08

SWB-l4.

support

its

allegation,

the

Agency

offered

ten

samples

taken

over

period

1/2

hours

the

morning

August

1970.

The

results

the

laboratory

analyses

performed

the

samples

indicated

the

Special

Analyses

Report

Forms

the

Agency

(E.P.A.

Exhibits

through

13,

inclusive)

were

follows:

EPA

Exhibit

Samples

Time

Taken

Temperature

Suspended

Solids

Ex—4

9:03

a.m.

88°F

2.2

mg/i

Ex—5

9:30

a.m.

84°F

2.3

mg/i

Ex—6

9:50

a.m.

84°F

2.4

mg/i

Ex—7

10:10

a.m.

82°F

2.5

mg/i

Ex—8

10:30

a.rn.

80°F

2.7

mg/i

Ex—9

10:50

a.m.

80°F

3.0

mg/i

7

 Ex—lO

 li~i5 a.m.

 80°F

6.0

34

mg/i

Ex—li

11:30

a.m.

82°F

6.1

mg/i

Ex—l2

11:50

a.m.

82°F

2.9

mg/i

Ex—l3

12:20

p.m.

84°F

11.8

mg/i

According

Mr.

Wallin

(R.

122)

 the ten samples were

all

taken

from

the

same

location,

south

Green

Street

between

Locust

and

First

Streets,

some

feet

downstream

from

the

point

which

the

Boneyard

Creek

and

the

City’s

storm

sewer

system

merge

(R.

122).

Test

results

indicated

readings

ranging

from

 extremely

low,

2.2

(E.P.A.

Ex.

extremely

high,

11.8

(E.P.A.

Ex.

13).

Temperature

changes

much

4° F.

less

than

hour

were

recorded

and

suspended

solid

measurements

were

low

mg/i

(E.P.A.

Ex.

and

high

mg/i

(E.P.A.

Ex.

13).

Testimony

indicated

that

the

water

was

slightly

turbid

(R.

113),

with

blackish

deposits,

thick

film,

and

the

evident

formation

sludge

banks

the

bottom

(R.

113).

Mr.

Wailin

testified

that

normal,

unpolluted

stream

should

have

readings

ranging

between

6.5

and

8.5

(R.

133)

;that

waters

showing

values

high

low

the

extremes

measured

August

would

detrimental

not

fatal

aquatic

life

(R.

140,

182);

and

that

low

values

would

also

corrosive

concrete

and

corrugated

metals.

further

testified

that

clear,

unpolluted

streams

should

produce

 suspended solids test

results

between

5

and

10

mg/i

(R.

 143)

and

that

higher

read-

ings would

 tend

 to cause the formation of

 “sludge banks” which

would

also

extremely

detrimental

aquatic

life

causing

2 —419

the clogging of

 the air intake structures of small fresh water

aquatic iife organisms and resulting

 in the reduction of food

sources

 for higher aquatic iife,

 such as fish

(R.

 145)

Mr.

 Waiiin further testified that he believed

 the University’s

Abbott Power Plant was

 the actual source of the contaminants

on August

 7 due to regeneration

 of its demineralizer system

and to operation of

 its dust control device

(R.

 215)

and

the

City alleged as much

 in its Third Party Complaint.

 But no

proof was adduced by any party to substantiate this claim or

to exclude the possibility of alternative

 sources,

Counsel for

 the City and for the Third Party Respondents

repeatediv stressed

 the apparent deficiencies

 in the testing

methods employed by

 the Agency

 and the departure of such methods

from the techniques specified

 in Standard Methods for the

Examination of Water

 and Waste Water, Twelfth Edition,

1965

 (“Standard Methods”).

(R,

 273—299),

 They pointed out that

Rule

 1,01 of SWB-i4 indicates that Standard Methods should be

empioyed where applicable although other methods may be required

in certain cases.

(R.

 638-9).

 Specifically,

 Standard Methods

was

 not followed with respect

 to turbidity or color tests,

emptying and preparation of the sample bottles, temperature

measurements

 (the Agency used an

 alcohol

 thermometer whereas

Standard Methods calls

 for the use of

 a mercury thermometer)

and time elapsed between extraction of the sample and laboratory

analysis of pH concentrations,

 They also argue that the samples

were taken too near the outfalis under regulations allowing a

mixing zone.

 We will discuss the alleged violations

 in terms

of suspended solids,

 temperature changes,

pH,

 and settleable

solids,taking into consideration these variations

 from Standard

Methods:

(a)

 Suspended Solids:

 Suspended solids readings ranged

from 16 to

52,

 At present we have no stream standard for suspended

solids;

 if one

 is desirable, we invite the Agency to propose

it,

 Rule 1,08 of SWB-l4, specifically subparagraph

 lib,

 is an

effluent standard for treatment works.

 We cannot find

 an effluent

violation where measurements have been taken not of the effluent

 but of the water some

30

 feet downstream from the outfall.

It

is also doubtful

 that

 this standard, which specifically refers

to treatment plants,

 is applicable

 to storm sewers.

 It would

be helpful

 if the Agency would propose

 a clarification.

As

for the general allegation of water pollution under ~ 12

(a)

of the Act,

 the Agency failed

to

 adequately

 show

 the detrimental

relationship between the recorded levels

 of suspended solids

and the gills of aquatic life organisms,

 much less the bottom

biota

 in Boneyard Creek, which

 are affected principally by the

settleable portion of the suspended solids.

 Therefore, we

 find

no suspended solids violation.

—

420

(b)

Temperature

Changes:

Temperature

variations

4°F

 within

less

than

 one hour exceed the limits specified

in

Rule

 1.08

(4)

of

 SWB-l4,

 In the

 case of thermal discharges

to

the Illinois

 River,

 we have held the 600’

 mixing zone described

 in Technical Release 20—22 accurately expressed the purposes

of the Sanitary Water Board.

(In

 the matter of Commonwealth Edison

ç~pany,

Dresden

Unit

No.

3,

 PCB 70—21,

 3/3/71).

 In the present case

measurements were taken only

 30 feet from the outfall

(R.

 248).

 When

dealing with small streams

 such

as

 the Boneyard however,

it

 is reasonable

to question whether

 a 600’

 mixing zone could have been intended.

Conceivably,

 the mixing

 zone could be the entire length of the

stream if there are numerous outfalls,

 so the regulation would

apply nowhere.

 The Agency’s witness stated that he believed

30 feet was enough

 to insure adequate admixture

(R.

 248).

In

any case,

 the City’s argument that

the

 standard does

 not apply

even beyond 600

 feet

 if there is

no

 dilution water is incorrect

since the mixing

 zone concept is based on assumption

 that dilution

will occur; and the regulations make clear that the less there

is to dilute with,

 the less may be discharged.

But

we

 need not decide the size of the mixing zone applicable

 temperature changes

 in the Boneyard,

 since

 the Agency failed

to follow the prescribed testing method.

 Not only were temperature

measurements made with an alcohol rather than

 a mercury thermometer,

so that it could not

 shaken down below the air temperature,

but tests were made

 in the sampling

 jar rather than in the

stream as required

(R.

 280).

 We do

not

 know how

 serious

an

effect these departures had

on

 the results, but the alleged violation

is of only

 a few degrees,

 and we have nothing to show the change

cannot be explained by testing inaccuracy.

 We therefore

 find that

no temperature violation was established.

 We urge the Agency

to propose

 a suitable regulation

 if the required testing methods

should be modified.

(c)

pH:

 The reported pH values ranging from

2.2

 to 11.8

greatly exceed thelimits prescribed by Rule

 1.05 of SWB-i4

 (6,0

to

 9.0).

 That rule applies to

 “aquatic life sectors”

 and,

 since

the Boneyard has never been excluded from such designation,

the

standards for aquatic life sectors are applicable

 (see Springfield

Sanitary District v.

 EPA, PCB

 #70-32,

 1971).

 We recognize that

the Boneyard

is

 not presently in a condition to support aquatic

life;

 but that

 is the reason the case was brought,

 not an excuse

for leaving the creek polluted.

 The regulations require that streams

now in bad shape be upgraded to support aquatic

 life.

As we pointed out above, we have previously acknowledged the

reasonableness of the 600

 foot mixing

 zone in some cases.

Tests here were taken

30

 feet from the outfall.

 Rule 1,05

however,

 contains

 its own definition of

 a mixing

 zone,

 excluding

from protection only

 “areas immediately adjacent to outfalls.”

Whether in the context of the small Boneyard the area “immediately

adjacent” extends

600

 feet seems doubtful.

 But we need not decide

—

421

whether

feet

“immeidately

adjacent”

since

such

extreme

pH levels

 as here measured clearly constitute water pollution under

Sec.

 12(a)

 of the Act because they are likely to be lethal to fish

life and corrosive

 to metals

 and concrete and extremely hazardous

to people as well.

 Neither TR 20-22 nor SWB-l4 can be read to repeal

Sec.

 12(a)

 of the

statute

allowing

water

pollution

within

600

feet

outfall;

the

statute

 is clear that

water

pollution

forbidden

every

point

the

stream.

Standard

Methods

says

that

 readings can change rapidly and

that, therefore, testing for pH should be done in the field

(Standard Methods,

p.

 32-3).

 The samples taken by the Agency

here were allowed to sit around for several hours before they

were transported to the Agency’s laboratory.

 However,

 no proof

was introduced

 to show that such extreme values

 as these could

be accounted

 for by the testing deficiencies.

 The United States

Department

 of the Interior publication A Practical Guide to Water

Quality Studies

 of Streams

 (1969),

 of which we take official notice,

states that if there are delays in testing pH values,

 “such data

may vary by

0.3

 to 0.5 units or more from the values in the stream”

(p.

 32).

 This

is

 a much smaller range of deviation than would be

necessary to explain the readings in the present case.

 We find the

extremely low and high pH values found August

 7 constitute water

pollution as described in Section

 12(a)

 of the Act.

We find no violation of Rule 1.08 since that rule contains

no pH standard.

(d)

 Settleable Solids:

Since no effluent settleable solids tests were run,

 Rule

1.08 does

 not govern.

 In addition,

 Rule 1.05 contains no set-

tleable solids standard so no violation of that rule can be

found either.

 We would point out, however, that Rule

 1.03 of

SWB-i4 does apply to settleable solids and that

 it explicitly applies

at all places,

 not being limited by

a

 600 foot mixing zone.

 Further,

that rule clearly indicated that no nuisance of

 a pollutional

nature will be allowed anywhere.

 Violations

 of Rule

 1,03

of SWB-l4 were not charged here.

 Our procedural rules require

invocation of the regulations relied on, but we have forgiyen their

omission in the absence of surprise.

 In any event,

 the presence

of settleable solids and their harm to the biota was amply shown

and their only source on the date in question was

 the City’s sewer

system.

 It is thus our opinion that the evidence justifies

a

finding of water pollution under Sec.

 12(a)

 of the Act due

 to the

presence of settleable solids

 in the Boneyard.

In summary, therefore, we

 find water pollution under Sec.

12(a)

of

 the Act on August

7,

 1970 by virtue of extremely low and

extremely highpH

 levels and of settleable solids that interfe~e

with aquatic

 life.

2.

 August

18,

 1970.

The Agency collected only one sample on August

18,

 1970,

that being taken from the exact location from which the August

 7 samples

were

 taken.

(R.

 193-6).

 The sample was taken at

 4:45 pm and results of

laboratory analyses revealed

 a pH reading of 10.1

—

422

and

 a suspended solids reading of

 40 mg/l

 (EPA Exhibit

 17).

Dark color,

 odor,

 and turbidity observations were made

(R.

 195)

but there was no showing that these were sufficient

 to interfere

with aquatic life.

 Sludge banks were observed but could have been

there

 for quite some time,

 and they were not shown to be related

 to the

City’s discharge.

 The City maintained that the University was

 responsible for any violation although no proof

 to that effect

was adduced and other sources could have existed.

The Agency dropped its allegation that Rule

 1.05 had been

violated

(R.

 526) although

 the stream had been sampled.

 Finally,

the Agency did not allege any violation

 of Rule 1.03 of SWB-l4.

For reasons outlined above,

we

 find no suspended solids viola-

tion on August

18,

 1970.

 We think, moreover,

 that

 a single pH

reading of 10.1,

 far less extreme than the repeated results on

August

7,

 does

 not sustain

 a water pollution finding in light of

the uncertainty

 of the tests performed.

3.

 September

18,

 1970.

On this date the Agency collected two samples.

 The First

was taken

 at 4:25 pm from the main channel of the Boneyard at

a point located near the First Street Bridge, somewhat down-

stream from the sewer located on the west bank of the Boneyard,

north of Green Street between Locust and First Streets.

 Labora-

tory analysis

 of this sample revealed readings of 10.1 pH and

18 mg/l suspended solids.

The

 other sample

was

 taken from street water entering a

storm sewer catch basin at the northwest corner of Healey and

Locust Streets.

 Results of analyses showed 12.0 pH and

 3,220

mg/i suspended solids,

As above we

 find no suspended

 solids violation; we cannot find

the City violated any effluent standard on the basis

of

 a sample

of its influent.

 Indeed it

 is unclear whether we

 can deal adequately

at present with discharges

 to storm sewers either at the inlet or

at the outlet of the sewer.

 We should welcome

 a proposal foL

new

regulations.

The

 pH test results here

 are even less reliable than on the

earlier dates,

 since

 the bottle containing the

 sample was kept

under artificial refrigeration

 for three full days before lab

tests were run on its contents.

 Moreover,

 there was but one stream

sample,

 and its

 pH was

 less extreme than on August

7.

 We think

the pH evidence insufficient on September

18

 and hence

 find

rio

violation on that day.

4.

 ~mber

21,

 1970.

Three samples were taken on September

21,

 1970:

the

 first,

at

approximately 4:10

 pm, was taken from Street water entering

a

storm sewer catch basin at the northwest corner of Healey and

Locust Streets and

 lab analyses showed pH levels of

 12.0 and

total suspended solids of 1.060 mg/i

 (EPA Exhibit 21).

The

second

sample

was

taken

4:17

from

the

effluent

being

discharged

from

the

twelve-inch

tile

located

the

west

bank

of the Boneyard some eight feet north of the Green Street storm

sewer

tunnel.

Laboratory

analyses

this

second

sample

showed

a pH reading of 12.0 and

 824 mg/i suspended solids

 (EPA Exhibit

 20),

The third and final sample taken on September

21,

 1960 was taken

at 4:18 pm at

 a point some eight feet upstream of

 the outfall

from which the second sample had been taken,

 and tests results

were 21 mg/i total suspended solids

 (EPA Exhibit 22).

 As correctly

pointed out by the City,

 no samples whatsoever were taken down-

stream of the outfall.

The pH reading of 12.0

 and suspended solids reading of

824 mg/i are extremely high, but here they came from an effluent

sample.

 It is impossible to determine the effect such high

readings would have

 on a stream without first knowing the amounts

 of discharges and the volume of dilution water.

 EPA v. Denny,

#71-32

(August

30,

1971),

addition,

while

the

suspended

solid

levels

greatly

exceeded

the

standards

for

treatment

plants

specified in Rule

 1.08

 (which, as we have noted, does not contain

a

 pH standard), we are not here dealing with treatment plants,

but rather with storm sewers.

 While

 a discharger cannot avoid

these standards simply by having no treatment plant to handle waste

sources of the type contemplated by the regulations,

 storm sewer

discharges are not intended to be covered.

 And there were no samples

taken below the outfall from which water pollution could be found.

Nevertheless, Alpha

admitted

its

Supplemental

Answer

 that

improper operation of its truck washout facility on September 21

caused a violation of Rule

 1.08 and of Section 12(a), and

 the City

agreed

stipulating

(R.

599)

that

the

statements

Alpha’s

Supplemental

Answer were true.

 Furthermore,

 the evidence substantiates

the

 Sec.

 12(a)

violation due to the white turbidity settling on the bottom

 (R. 3634)

traceable to the City’s outfall,

Therefore, we find that excessive amounts of settieable

 solids

entered Boneyard Creek from the City’s sewers on September 21,

1970

polluting

the

creek

under

Sec.

12(a)

the

Act,

and

that

the same date Alpha violated Rule

 1.08 of

 SWB-l4 and ~ 12(a) of the

Act.

5.

 September

23,

 1970,

The Agency took one sample on this date at 4:03 pm from

water entering the same catch basin located at the northwest

corner of Healey and Locust Streets.

 Results of lab analyses

run on this sample showed pH levels of 11.8

 and total suspended

solids of 1,692 mg/i

 (EPA Exhibit 23).

 Since the only evidence

offered by the Agency relates to water which went into

 the sewer

2

—

424

but not to that which went into the stream or to stream quality

itself, we find no violation on this date.

6.

 September 30,

 1970.

In support of its allegation of violations occurring on

September 30, 1972,

 relating toa sewer located on the east side

of the Fifth Street Bridge, the Agency introduced only one sample,

taken from approximately two feet inside a twelve-inch storm tile

bearing the designation “#22”.

 Results of tests run on the sample

were

 65 mg/i total iron and pH of 5.6

 (EPA Exhibit 24).

 A wit-

ness testified that the discharge was slightly red ~nd contained

particles of rust which settled rapidly and covered a portion of the

stream bed for 10 to 15 feet downstream •(R.386).

As we have already noted,

 in order to properly evaluate the

effect of measured effluents, the Board must also be given some

idea of the amount of dilution involved.

 Therefore, our observa-

tions concerning the pH level in the effluent on September 21,

1970, are equally applicable here.

There is no effluentstandard for iron at the present time, ex-

cept as a settleable solid, but we need not decide whether that

applies here since these particles apparently settled on the creek

bed to interfere with aesthetic uses of the Creek and aquatic life,

causing pollution under Sec.

 12(a)

 of the Act.

 But notwithstanding

such finding, the City denies ownership of the tile in question,

and since no proof was put forth by the Agency concerning such

ownership, we must find that the Agency has not proved that any

violation occurred on September 30,

 1970.

 The Agency

 flQW

concedes

this point

 (Brief, p.4).

7.

 October 14,

 1970.

With respect to its allegation that the City caused or allowed

the discharge of waste waters from a sewer located at the southwest

corner of Second and Springfield Avenue on October 14, 1970, in

violation of

 law, the Agency offered one sample, taken some two

feet beyond the point of discharge from the sewer.

 Test results

showed a fecal coliform reading of 1,220,000 per 100 milliliters

and BOD of 19 mg/l

 (E.P.A. Exhibit 25).

The E.P.A.’s witness testified that the fecal coliform test

results were indicative of a discharge of raw sewage into the stream

(R.

 597),

 We believe that such an extremely high fecal coliform

reading suggests the strong possibility of a severe health hazard.

The water was polluted under Section 12.

 But there was no evidence

to show that this stream condition was traceableto effluent from

the City’s sewers,

 and therefore we cannot find the City responsible.

8.

 February 18,

 1971.

The Agency took one sample from the Creek on February l8~

1971 from approximately the same location as the sample of October

14, 1970.

 Test results showed a fecal coliform reading of 120,000

per 100 milliters and BOD of 21 mg/i

 (E.P.A. Exhibit 26).

2

—

425

As on October 14,

 1970,

 the high fecal coliform readings indicate

a health hazard, but again there was no evidence tying this condition

to the City’s sewers,

Summary

 summary,

we

find

the

following:

1.

 ~j,~l2j,Q

 Water pollution under ~ 12(a) of

 the Act

by virtue of extremely high and low pH and setteable solids;

2.

 September 21,1970

 Water pollution under ~ 12(a)

 of the

Act by virtue of setteable solids; violations by Alpha

of Rule 1.08 and of ~ 12(a),

In addition to the specific instances of pollution found

above both the City and the University have stipulated to the

polluted nature of Boneyard Creek generally and

 to their part

in

its condition,

 although both disclaim legal responsibility in this

proceeding.

 The stipulation signed by both

 (at p,3)

 states:

The Boneyard has,

 for more than 40 years, been

 a polluted

drainage ditch oi water source unsuited

 for domestic, commercial,

agricultural or recreational uses or to livestock, wild animals,

birds,

 fish or other aquatic life.

 A substantial portion

of the polluted waters discharged into

 the Boneyard flow

through various outlets of storm sewers owned by

 the City of

Champaign.

 The University of Illinois has contributed

to the pollutional problems of the Boneyard by virtue of

discharge from its Abbott Power Plant to the extent and manner

and nature

 set forth

 in the alternative motion of the Board

of Trustees of the University of Illinois

 to dismiss the

Third Party Complaint for want of jurisdiction and in the

affidavits

 and exhibits attached

 thereto.

The affidavit of Mr.

 Kretschmer, Director of

 the University’s De-

partment of Plant

 and Services,

 concedes the necessity

 for control

equipment

 to bring

 the power plant into compliance with the laws

and regulations, reporting that its fiscal year

 1971 budget re-

quest “included an item of $100,000.00 for installing the necessary

equipment for treatment of the demineralizer waste waters of

the Abbott Power Plant to insure that, when discharged,

 such waters

would be of the quality prescribed by state and local water pollution

laws and regulations.”

 Moreover,

 on the basis

 of samples collected

in April,

 1970,

the

 Sanitary Water Board on June 17 of that year

informed the University that “a pollutional discharge is occurring

from the Abbott Power Plant

 to a storm sewer system tributary to

the Boneyard Creek” in violation of statute

 (Letter of C.W.

 Kiassen

to V.L.

 Kretschmer, June

17,

 1970).

 The University’s response

was

 to concur that

 “the

 results obtained from the samples collected

during

your

investigation,

general,

agree

with

information

have previously collected”

and

 to promise

 to eliminate the problem

(Letter

 of V.L, Kretschmer

 to C.W. Kiassen, June

29,

 1970).

(Both these letters

 and the affidavit are appended to the University’s

Entry of Special Appearance of Third Party Respondent,

 the Board of

Trustees

the

University

Illinois,

and

Motion

 tO Expunge and

Strike

or,

the

Alternative,

Dismiss

for

Want

Jurisdiction.)

In short,

we

 find that the University has conceded and never

denied

the

existence

 of Boneyard pollution from its power plant and

has committed itself

 to solving the problem.

 We further find that

the City has conceded that material from its storm sewers contributes

 to the pollution of the Boneyard.

 To the issue of the City’s legal

responsibility

 for what comes from its sewers we now turn.

V.

Section 12(a)

 of the A~ctmakes

it

 a violation to “cause or

allow”

 the discharge

 of any contaminants

 into the environment

so

cause

water

pollution

Illinois.

The

City

points

the

evidence that the City did not generate

 the waste but only transported

(R.

530)

and

the

stipulation

signed

the

Agency

agreeing

that

In no instance has

 the City of Champaign originated,

 authorized,

acquiesced

in,

 licensed,

 or ignored any poliutional ~ischarges

into

 the Boneyard

 or failed

 to take any positive action to

prevent any continued poliutional discharge of which it had

knowledge or which has been called to its attention.

(R.

 614)

Citing the compilation Words

 and Phrases to the

 effect that

 “To

‘allow’

 a thing to be done

 is to acquiesce in or tolerate; know-

 ledge, express

 or implied, being essential”

 (Brief,

p.

42)

the

City argues that because

 “if all illegal connections to the storm

sewer were eliminated,

 as they are in the process of being so

eliminated,

 no effort

 on the part of the Respondent could prevent

pollution from storm water urban runoff,”

“

 to impose upon

municipalities the duty to insure against the occurrence of such

pollution is unthinkable.”

 (Brief,

p.

 48).

To hold that the City has an obligation to take affirmative

action to limit the pollution attributable

 to material flowing

through

its

sewers,

however,

does

not

necessarily

make

the

City

an “insurer”

 that no such pollution will ever occur.

 It cannot

be

 a complete defense that the City

 did not itself generate

any

wastes

 or discharge anything into

 its own

 sewers;

 so to hold would

absolve any municipality

 from the need to

 treat domestic sewage

depOsited by others into

 its sanitary sewers,

 a plainly untenable

proposition.

 We think the City,

 by undertaking

 to carry storm

waters from lands within its borders, assumed

 a certain duty to

 avoid unnecessary pollution as

 a result.

 Indeed in

 the practical

 —427

sense,

 if not in the legal,

 the City has accepted this principle,

for it has taken action on numerous occasions, according

 to its own

statement,

 to prevent others from dumping unauthorized pollutants

into its storm

 sewers;

 its stipulation, quoted above, stresses

that the City has never failed

 “to take any positive action to prevent

any continued pollutional discharge of which it had knowledge or

which has been called to

 its attention.”

We believe this principle

 is embodied in the statutory term

“allow.”

As

 the Agency says in its brief

(p.

 12),

 “To allow an

act is generally an act of omission and not commission.

 People

v. Harnson,

 170 N.Y.S.

 876, at

 877, 183 App.

 Div.

 812.

 The verb

denotes an abstinence

 from prevention.

 Board of Education

v.

Board of Education,

 3 Ohio

S.

 C.P. Dec.

70

at

 71.”

W~

have

 consistently

so held in

 regard

 to the identical word

 “allow”

 in connection with

the

statutory ban on open burning

 (Environmental Protection Act,

 Section 9(c)).

E.g., Environmental Protection Agency

 v. Amigoni,

 #70-15

 (Feb.

17,

 1971):

An owner of

 a refuse disposal facility

 must

 be responsible

for the actions of those

 whom he allows to 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 refuse facility.

The owner of such

 a facility has

 a duty to supervise its

operations

 and to stop open burning on his premises whether by

himself or by those who he allows to do so.

Similarly,

 in~Environmental Protection Agency v~Clay Products

 Co.,

#71—41

 (June 237T~7Y~

As we held in EPA v. Cooling,

 #70—2

 (December

9,

 1970)

the

statute and the regulations are not limited to deliberate

violations,

 Care must be exercised to prevent fires from

occurring and to extinguish

 them if they do.

We believe these principles are equally applicable

 to water

pollution.

 The use of the word

 “allow” expresses

 a legislative

policy requiring affirmative action by

 the owner of such property

as refuse dumps or sewers to prevent unnecessary pollution.

 This

does not make him an insurer;

 it does not mean the Board will

impose monetary penalties every time somebody pours oil into

 a city’s

sewer in the middle of the night.

 The question of technical

and

practical feasibility of control enters into the determination

of

 a city’s obligation here, just as

 it does in every other case

under

 the statute

 (Sections 31 (c)

33

 (c)).

 We will not require the

City to do what is unreasonable; but we do hold that the statute

requires

 it to do its level best to prevent pollution from

its

sewers.

 This conclusion

 is buttressed by the fact that the City,

as owner,

 is in a far more advantageous

 position than is the Agency

2

—

428

to perform routine policing of

 its own sewer system.

 This

 is not

to say,

 as the City argues, that

 the Agency is attempting by this

 ~proceeding

 to shift its own responsibilities

 to the City,

The

Agency remains ultimately responsible to see to it that the pollution

laws are enforced.

 But the statute is quite clear that the Agency

is not expected to go it alone:

 Section

 44 specifies

 that “It shall

be

 the duty of all state and local law—enforcement

 officers to

enforce such Act and regulations.

.“

 The battle cannot be

won unless all levels of government cooperate

 to reduce pollution.

Defining the precise scope of

 a sewer owner’s responsibility

cannot be done in

 a single case.

 Preliminary guidelines,

 however,

can be stated.

 Most clearly,

 it is the City’s obligation

 to do what

it can to prevent others from discharging inappropriate materials

into its sewers.

 The enforcement of

 a sewer discharge ordinance,

such as Champaign has,

 is one step in furtherance of this duty.

It is not enough to take action after an instance of creek pollution

has been brought to the City’s attention;

 the City must not only

correct what it knows about,

 it must also make

 an effort to find

out what needs correction.

 It must police

 the creek itself

 to deter-

mine its condition;

 it must police the sewers to determine any

illegal sources of pollution;

 it must then take corrective action,

which may include the filing of complaints with this Board as well

as local remedies.

In the case of the pollution caused by the University and by

Alpha,

 the City has quite commendably traced and discovered the

source of pollution and brought to us for appropriate action the

parties responsible.

 However,

 the City’s concession that the

Boneyard is polluted as

 a result of

 its sewers creates an obligation

to institute a program of policing and enforcement, beyond any that

was described in the record,

 to prevent further pollution from the

sewers

 to the extent practicable.

 We do not hold that the City

must necessarily terminate every bacterial discharge, or that

it must run all its stormwater through

 a sewage treatment plant.

The issues of practicable methods

 of reducing pollution can be

addressed when the City reports to us its findings as to the causes

of Boneyard’s pollution.

 We shall therefore order

 the City

to

institute

 a program of surveillance and policing and to report to

us within six months as to the sources of pollution and what can

be done about them.

As

 for Alpha, that company has completed an improvement

program that results in complete recycling of its wastewater and

should eliminate further discharges.

 We commend the company for

2

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429

its effective action,

 and we believe effective operation of the new

system can

stimulated

the

entry

 order forbidding future

discharges.

As for

 the University,

 its intentions appear clearly

 in the

direction

cleaning

the

power

plant

problem

soon

can get the appropriation.

 We urge the General Assembly to make

that appropriation, and we think

 it appropriate to stress our con-

cern by entering an order requiring

 the University to correct the

problem within the shortest practicable time.

 Moreover,

the

University’s

 plans at present,

 as described

 in the record,

 are not

sufficiently specific; we shall order that the University

 tell us

in the immediate future just what

 it intends

 to build, what

effluents can be expected, and when completion will be achieved.

We do not

 find

 a case for imposing money penalties against

any of the respondents

 at this

 time.

 Alpha promptly and effectively

remedied

 its problem, which resulted

 from

 a one—shot accident;

the

 University has done what

 it can until

 its moneys

 are appropriated;

the City has

 in good faith pursued many problems created by others

through the use of its sewers,

 and we think no significant purpose

would be served by taking money from any

 of them now.

This opinion constitutes the Board’s findings

 of fact

and

conclusions

law.

ORDER

It

is

 the order

 of the Pollution Control Board that:

1.

 The City of Champaign shall, by no later than March16,

1972, submit to the Environmental Protection Agency and

to the Pollution Control Board

 a report containing, but

not limited to,

 the following:

a)

 A description of the condition

 of the Boneyard and,

to the extent reasonably

 determinable,

 the sources

of its pollution;

b)

 A description of steps taken by the City in the

intervening period to deal with cases of pollution

of Boneyard Creek;

c)

 A detailed program for the policing of Boneyard Creek

and of

 its sewers

 in order to prevent the discharge

of unnecessary pollutants

 into the Creek through the

Storm sewer system operated and maintained by the City;

d)

 A detailed program designed

 to clean up and improve

the quality of the water in Boneyard Creek within

a

reasonable but fixed period

 of time, to

 the extent

practicable;

2

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430

2.

 The University of Illinois shall,

 by no later than

December

3,

 1971,

submit to the Environmental Protection

Agency and the Pollution Control Board

 a report containing,

but not limited to,

 the following:

a)

 A program detailing the corrective measures to be taken

in the future by the University

 to control the dis-

charge of contaminants

 from the Abbott Power Plant

into sewers tributary to the Boneyard C~-eek.

 Such

plan shall include measures

 for the interim control

of pH and settleable solids and shall indicate

 a fixes

time schedule for

 the implementation and completion

of the program.

3.

 Alpha Material and Fuel Company shall cease and desist

the discharge of contaminants

 into the Boneyard Creek

so as to cause or tend to cause water pollution of the

Creek.

4.

 Upon receipt of the above required reports the Board

will decide what further proceedings are appropriate~

I,

 Regina

B.

 Ryan, Clerk of the Pollution Control Board, certity

that the Board adopted the above Opinion this

16

 day of

1971.