ILLINOIS POLLUTION CONTROL
BOARD
February
3,
1972
ENVIRONMENTAL PROTECTION AGENCY
)
v.
AIRTEX PRODUCTS,
INC.
)
PCB 71-325
and
CITY OF FAIRFIELD
Honorable William J.
Scott,
Illinois Attorney General,
by Mr.
William C.
Bowen,
appear~edon behalf of the Environmental Protection
Agency;
Messrs. Charles J. O’Connor
and Walter V. Lesak,
appeared on behalf
of Airtex Products,
Inc.
Mr. Richard
C. Cochran,
appeared on behalf of
the
City of Fairfield
OPINION OF THE
BOARD
(by Mr. Dumelle)
This enforcement action was initiated by
a complaint filed by
the
Illinois Environmental Protection Agency
(EPA)
against both respondents
on October
15,
1971.
The complaint was in two counts with Count
I
directed to Airtex Products,
Inc.,
a manufactory and
an Illinois
Corporation
(Airtex), while Count II directed similar allegations
to
the City of Fairfield
(Fairfield),
an Illinois municipal corporation.
The complaint was amended and
the issues circumsci~ibedat the
hearing held on November
30,
1971 at the Fairfield City Hall
as des-
cribed below.
Count
I of the original complaint alleged that Airtex owned and
operated two factories in Fairfield for the manufacture of pumps
and other metal products
at which some metal plating operations were
carried on.
It was alleged that in connection with the manufacturing
Airtex had caused, allowed and threatened the discharge of contaminants
so as to cause or tend to cause water pollution.
Further it was
3—591
averred that Airtex had caused or allowed cyanides and cyanogen
compounds
to enter the Fairfield sewer system in violation of Section
12(a)
of the Environmental Protection Act11
and Illinois Sanitary Water
Board2~ules and Regulations SWB—5
(hereafter SWB-5), Article
I,
Rule
1.01.
Count II alleged that Fairfield owned,
controlled or operated
certain storm sewers which carried the Airtex cyanide discharges
in
violation of Section 12(a) of
the Act to
a creek which ultimately
flowed to the Little Wabash River.
It was further alleged that
Fairfield was in violation of Section 12(a)
of
the Act and certain
portions of SWB-l4
(Rule
1.03,
Sections b,c,
and d)3
inasmuch
as
11
Illinois Revised Statutes, Chap. 111—1/2,
Sec. 1012(a)
No person shall:
(a)
Cause
or threaten or allow the discharge of any contaminants
into
the environment in any
State
so
as
to cause or tend
to
cause water pollution in Illinois,
either alone or in combination
with matter from other sources, or
so as
to violate regulations
or standards adopted by
the Pollution Control Board under
this
Act;
211
Illinois Sanitary Water Board Rules and Regulations SNB-5
Article
I,
Rule
1.01
Any person,
firm or corporation engaged in manufacture
or other process, including deactivation of processes,
in which
cyanides
or cyanogen compounds
are used
shall have each and every
room, where said compounds
are used or stored,
so constructed
that none of said compounds can escape therefrom by means of
building sewer, drain or otherwise directly or indirectly into
any sewer system or watercourse.
31
Illinois Sanitary Water Board Rules and Regulations SWB-l4,
Rule
1.03
These Minimum Criteria shall apply to all waters
at all places
and at all times
in addition to specific criteria applicable
to
specific sectors.
b)
Free from floating debris,
oil,
scum and other floating
materials attributable
to municipal, industrial or other dis-
charges
in amounts sufficient to be unsightly or deleterious;...
c)
Free from material attributable
to municipal,
industrial
or other discharges producing color, odor or other conditions
in such degree as to create a nuisance;
d)
Free from substances
attributable
to municipal,
industrial
or
other
discharges
in
concentrations
or
combinations
which
are
toxic or harmful to human, animal, plant, or aquatic life.
3
—
592
it had caused or allowed the discharge of certain industrial wastes
in amounts sufficient to be unsightly and deleterious which produced
a nuisance and contained concentrations of contaminants
toxic and
harmful to
human,
animal, plant and aquatic life.
The EPA’s prayer
for relief in this case was
for
a
fine against
each of
the respondents of $10,000 for each violation
(plus $1,000
per day for continued violations)
and “such further relief that the
Board deems necessary.”
In response to
a motion filed on November
18,
1971 by Airtex
to
require
that
the
pleadings
be
made
more
definite
and
certain
(or
be
dismissed)
the
Board
on
November
29,
1971
entered
the
following
preliminary order:
Respondent Airtex moves to dismiss or,
in the
alternative,
for
a more definite statement, both
on the ground that the complaint contains in-
sufficient information.
We do not
find the
complaint totally deficient,
and additional
information can be provided by discovery.
The
motion is denied.
The hearing proceeded with no knowledge of the preliminary
order,
the hearing officer and parties were apparently uninformed of
the Board’s preliminary order.
At the hearing on November
30, much
discussion and effort was taken up with dealing with Airtex’s motion
to require greater specificity in the charges made by
the Environmental
Protection Agency.
The result of the representations,
stipulations
and hearing officer’s rulings
at the beginning of the hearing was
to restrict the Environmental Protection Agency’s complaint
to the
very narrow issue of alleged cyanide discharges on May .4
and May 14,
1971.
Subsequent to the hearings, on December
8,
1971 Airtex
filed a motion to vacate
the preliminary order stating that the
entry of the preliminary order was unknown to both
the parties and
the hearing officer at the
time of the hearing held on November
30,
1971.
Further,
the motion stated that the parties and
the hearing
officer narrowed and made more certain the charges in the complaint and
all parties proceeded to
a full hearing on the issue
of. cyanide discharges
on May
4 and May
14,
1971.
We,
therefore, vacate our preiim~~
order of November
29,
1971
and hold
it to have no force or effect in
this proceeding.
We
find both respondents to be in violation; Airtex in violation
Section
12(a)
of
the
Act
and
SWB-5,
and
Fairfield
in
violation
of
Section 12(a)
of the Act.
As part of our order
in this case we will
require that Airtex cease and desist any
and all untreated cyanide
discharges into the storm or sanitary sewer system of
the City of
Fairfield.
Also, we will require that Fairfield cease
and, desist accep-
ting any and all untreated cyanide discharges from the Airtex plant.
3— 593
Further, we will impose
a money penalty on Airtex
in the
total amount
of Eleven Thousand Dollars
(Sll,000,00)
for the
two separate occurrences
of cyanide discharges on May
4 and May
14,
1971 and
a money penalty
in the amount of Eleven Hundred Dollars
(S1,lOO.00)
on the City of
Fairfield in connection with the same occurrences
of cyanide discharge
on the same
dates.
Airtex manufacturers and reconditions parts
for the automotive
and other industries
at the two plants which
it operates in Fairfield.
The company employs approximately 1,000 persons to whom only
a small
number, perhaps
3 or
4
CR.
ill)
are or were involved
in the company’s
plating operations.
The
1971 estimated payroll of
the company was
stated to he about $6,767,000.00.
Only
the plant located at 407 West
Main Street
(Plant No.
1)
is involved in this proceeding.
Mr. Dom
Monge,
president of Airtex,
testified
that about 30,000,000 pounds of
materials were shipped from the plant in 1970 of which about 600,000
or
2
were plated
(R.
112).
Mr. Reinhardt Wesemann, Chief Manufacturing
Engineer,
for Airtex described the plating process
as
a relatively
small
operation.
Barrel plating of
zinc, copper and dichromate
is conducted.
The parts
to be plated are placed in hexagon—shaped perforated barrels
about
30 inches
in length.
The barrels are immersed
in a cleaning
tank and tumbled and then rinsed.
Plating baths and further rinsing
are
the next
steps followed by drying.
During
the rinsing cycles wastes
overflow and drain into
the sewer during the normal course of operation
(R.
152-154)
.
Mr. Monge stated that although plating was
a relatively
minor part of the company’s operations it was an essential aspect of
the
company’s work
(R.
111-112)
The company ceased its plating operations on May
14,
1971
and has since then been shipping
its plating requirements
to Evansville,
Indiana
(R.
113)
.
Mr. Melvin L.
Spencer,
Executive Vice President of
Airtex, in charge of manufacturing and engineering among other
things,
testified that at the time of receipt of
a telegram from the EPA on
May
14,
1971 stating that excessive cyanide discharges were occurring
he made the decision to shut down the already abridged plating operations
(R.
134-135,
EPA Ex.
7).
Three or four employees were laid off due
to the closing down of the plating operations
(R.
121).
Mr.
Monge
stated that having the plating done in Evansville, rather than at the
Fairfield plant, will cost the company an additional $28,000.00
per
year
CR.
113-114).
Beyond the dollars aspect of cost, Mr. Monge
said
that the
fact of not being able to conduct their own plating has
caused many other inconveniences and costs such as adding anadditional
week
to the in—process inventory and other problems of inventory con-
trol
CR.
111—115)
Mr. Monge stated that starting in late 1967 or early 1968 Airtex
began
to seek advice as to what should be done to abate
its cyanide
discharges
(R.
118).
Airtex experimented with
a no cyanide solution
which proved to be unsatisfactory because of the poor quality of
the
plated parts
CR.
119).
Nonetheless,
at the time of the hearing,
Mr.
Monge stated that Airtex was planning further experimentation with
the no cyanide process and that any future plating at the plant would
be performed on a no cyanide basis
CR.
119).
The no cyanide process
was
not successful because Airtex did not have the proper cleaning
facilities
(R.
157).
Black blotches and speckles were noted on the
plated parts
CR.
157).
3
—
S94
After
the no cyanide experiments, Airtex evaluated
a low
cyanide plating process which was in use until the plating shut down on
May
14,
1971
(R.
119-210).
Airtex went into full production with the
low cyanide process about June
8,
1968
CR.
182).
After
a period
of experimentation with the low cyanide process Airtex reduced its
usage of cyanide by over 50
(R.
158)
Mr. Henry Meisenheimer Fairfield’s consulting engineer met with
Airtex representatives
in May 1968 to discuss various water pollution
problems including the cyanide problem
(R,
161-163).
On July
25,
1969
Mr. Wesemann wrote
to the Mayor of Fairfield requesting that Airtex
be allowed to divert the rinse water from the plating operation
to
the sanitary sewer system
CR.
169-170, Airtex Group Ex,
9).
Mr.
Wesemann represented that the cyanide concentration of
the wastes
was below the allowable
limit
(R.
170, Airtex Group Ex.
9)
.
The
letter requested that Fairfield act to obtain the necessary permit
from the Sanitary Water Board
CR.
171, Airtex Group Ex.
9).
Mr. Wesemann had plans drawn up and forwarded to Fairfield so the
city could then apply for the cyanide discharge permit
CR.
171—172)
.
The
City informed Airtex by letter of August
8,
1969 that Airtex would be
kept informed of developments with regard to the sewer discharge
permit
(R.
172—173)
.
On August 19,
1969 Airtex forwarded certain
other engineering information to the City relating to
the permit
CR.
173).
Mr. Meisenheimer stated that he did not feel
that
the plans submitted
by Airtex
to Fairfield were sufficient to the point where his engineering
firm could recommend that the City accept the plant’s cyanide wastes
(R.
199—200)
.
This opinion was never communicated to Airtex
(H.
212)
The City then authorized their consulting engineers
to undertake
a
study of the City’s facilities to determine under what conditions they
could accept cyanide and other industrial wastes
(H.
201).
The
engineer’s report concluded that it would be necessary
to increase
the capacity of the treatment facilities
in order
to handle
all the
industrial wastes from Airtex’s
facilities
(H.
202)
Mr.
Harold Meisenheimer sent
a letter
to the Mayor of Fairfield
on May
21,
1971
(R.
191—192, Airtex Ex.
10)
in which he referred to
a preliminary engineering report dealing with industrial waste dis-
charges
to the sanitary
sewer system.
The report was never given to
Airtex
CR.
192).
The City of Fairfield never indicated that the plans
and other materials submitted by Airtex were anything but satis-
factory
CR.
189).
On the subject of discharge into
the City’s storm
sewer system, and not the much discussed sanitary sewer system,
the
company had never requested nor had they ever received permission to
dump cyanide wastes into
the storm sewer in which
they had been dis-
charging
CR.
189).
Mr. Clinton C. Mudgett,
an environmental control engineer
for
the EPA,
testified to taking
a sample on Nay
4,
1971 of the Airtex
plating effluent at the point where
the waste was being discharged
from the plating room to
a street drain at
the northeast corner of
the plant
CR.
45,
46).
At the
time of extracting
the sample from the
3
—
595
waste
stream, Mr. Mudgett noted that the
flow was fairly high,
indicating that plating operations were in progress
(H.
46).
Mr
Mudgett also
took
a sample from the Fairfield
storm sewer
on May
4,
1971 located near the intersection of Union and Main Streets
about
3 or
4 blocks
from the plant
(R.
47—49,
74, Airtex Ex.
1)
.
He
noted the rate of discharqe of waste to the storm sewer
and observed
a slight oil film on the surface of
the water
(H.
48)
After analysis
it was determined that the cyanide concentration
of
the Airtex plant discharge was
12.0 milligrams
per liter
and that
the cyanide concentration of the wastes in the storm sewer at Union and
Main Streets was 4,3 milligrams per liter
(H.
53—56, EPA Ex.
1,2)
Mr. Mudgett returned to the plant on May
20,
1971 and noted that
there was only
a very
small amount of
flow, estimated to be about one-
half gallon per minute, coming
from the plating operations
(H.
57-58).
The plating had apparently stopped and the comparative trickle of
waste flow was thought to be due
to a final cleanup of the equipment
(R.
58).
No samples were taken on May
20.
Mr. Bob Samuel,
a Sanitary Inspector for the EPA visited the
Airtex plant on May
14,
1971 for the purpose of collecting samples
of
the plant discharge and the receiving stream
CR.
85).
He extracted
a sample from the same Airtex discharge point that Mr. Mudgett had
previously taken
a sample
(P.
88)
from.
Mr. Samuel estimated the
discharge
rate to be about 75 gallons per minute.
The cyanide concen-
tration
in the sample was
.03 mg/i
CR.
89, EPA Ex.
3).
On the
same
day, Mr.
Samuel also took
a sample at the discharge from the
storm sewer at about the same place where the May
7 sample was taken
(H.
90-91).
He estimated the
flow at the storm sewer
to be about
75-100 gal per mm.
CR.
91)
The cyanide concentration at that point
was
1.5 mg/i
(R.
91,
EPA Ex.
4).
Mr.
Samuel also
took
a sample from the receiving stream,
an
unnamed branch tributary
to Pond Creek.
The sample was collected
near the east city limits of Fairfield from a bridge on Illinois
Route No.
15
CR.
93).
The cyanide concentration in that sample was
.08 mg/i
(R.
93, EPA Ex.
5)
.
Plating operations were in progress at
the time
and date of Mr. Samuel’s sample collection
CR.
96).
Other
samples taken by Mr. Samuel on the same day from the Little Wabash
River
and Pond Creek showed no cyanide to be present
(R. 99-102).
At the close of the Agency’s
case, counsel for Airtex moved
for
a finding for the respondent and moved
to strike the testimony
relating to sample analyses
on grounds of irrelevancy
CR.
104)
.
Airtex
maintained
that there had not been any introduction of regulations
which were alleged to be violated
and no connection was made between
the sample analyses
and violation of regulations.
The City of Fairfield
also moved
to dismiss and find
for the respondents
(H.
107-108)
We deny both respondents’ motions
in both aspects.
3
—
596
The waters of the State of Illinois are
a broad concept.
They include both public and private waters.
For purposes
of the cya-
nide regulation,
they include sewers and other
such closed conduits.
The statute defines “waters”
to be
“all accumulations of water, surface
and underground,
natural, and artificial,
public and private,
or parts
thereof, which are wholly or partially within,
flow
through,
or border
upon this State.”41
The regulation which has been violated
in this case is very plain
and quite simple.
SWB-5 was enacted by
this Board’s
(and. the
EPA’s)predecessOr,
the Illinois Sanitary Water Board,
Rule
1.01 of
SWB-5
is clearly
an effluent standard which prohibits
the discharge
of cyanides to any water course in any concentration.
Airtex had
a duty to prevent the discharge of any amount of cyanides into any
sewer system or other water course.
Rule
1.01 is
a zero discharge
standard,
it prohibits the dumping of
any and all cyanide-bearing
wastes whatsoever.
Because cyanide is toxic to aquatic and other organisms its
presence in treatment plant influents can impair the biological
treatment efficiency of the plant by inhibiting the growth and acti-
vity of the necessary treatment organisms
(H.
202)
.
Once the organisms
are killed, the efficiency of treatment can drop off severely and
it
may
take considerable
time for the plant to be fully effective again
(H.
203)
.
Present regulations
(including SWB-l4)
contain
a limit on
cyanide as
a water quality standard of 0.025 mg/i.
It
has been pro-
posed that this standard be lowered to 0.01 mg/i because of cyanid&s
toxicity as regards fish and other forms of life.
The fact that the
water quality standard
as regards cyanide
is placed at
.025 mg/i
for intrastate waters
in no way
takes away from the
force of the
effluent standard in SWB—5 which proscribes
all cyanide discharges
e~tceptthose specifically allowed for under
further explicit provi-
sions of SWB-5.
Rule
1.02 of SWB-5 contains
a procedure whereby
a cyanide dis-
charge up to
2 mg/i could be discharged to
a sanitary sewer system
which
led to
a sewage treatment plant.
The regulation
is clear
that the permit
to discharge cyanide must be obtained by the munici-
pality from the
State.
Nonetheless,
the City’s lack of action does
not relieve Airtex from complying with
the
no discharge provision.
Airtex could have availed itself of legal remedies such as mandamus
to force the City to apply for the cyanide discharge permit.
During
the period that SWB-5 was was under
the jurisdiction of
the Illinois
Department of Health
a permit application form was available
to
be used by
a municipality to obtain approval from the Sanitary Water
Board to accept cyanide—bearing wastes in sanitary sewer systems
(H.
130).
Such
a procedure
is still available through the EPA.
Without the proper permission the City of Fairfield could
no
more legally accept cyanide—bearing wastes than could Airtex
discharge such wastes.
In this case both respondents
are liable
for the excessive cyanide discharges found
to have occurred on May
4
and May
14,
1971.
We will therefore enter cease
and desist orders
aqainst both respondents
in this case.
4
Ill. Rev.
Stat., Ch.
111—1/2,
Sec.
1003
(o)
3
597
Taken together
the testimony of Airtex and Fairfield tends
to put
the liability for the cyanide water pollution on
a continuously
moving circular belt.
Airtex is not liable because
‘they have applied
for
a permit through the City and the City has not acted.
Fairfield
is not liable because
they are not discharging any cyanide-bearing
wastes.
We have already dealt with the premise of Airtex’s liability
and concluded that they are clearly responsible
for the violation
of
the regulation by the act of discharging cyanide bearing wastes.
The City’s liability for the water pollution in this case derives
from its knowledge of the cyanide discharges and the provisions of
Section 12(a)
of the Environmental Protection Act.
That section
makes it
a violation to ‘cause or threaten or allow the discharge
of any contaminants
into
the environment.. .so as to cause or
tend to
cause water pollution.
.
.
~‘
Although the City did not generate the
contaminants but only allowed their transport in its sewers the
City
is liable for allowing the cyanide wastes to cause water pollu-
tion.
Under
the Act the City has an obligation to take affirmative
action to abate pollution attributable
to material flowing
through
its sewers.
As we
said in EPA v. City of Champaign
(PCB 71-510,
September
16,
1971)
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.
(Opinion,
p.
17).
Further
as regards the verb
“allow”,
we said in that case and reiterate
here that:
The use of the word “allow expresses
a legis-
lative 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 techni-
cal 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
3
—
598
advantageous position than is
the Agency
to perform routine policing
of its own sewer
system.
(Opinion p.
18-19).
This opinion constitutes the Board’s findings of fact and
conclusions of
law in this proceeding.
3
—
599
ORDER
Having considered the record in this proceeding it is HEREBY
ORDERED:
1.
That respondent Airtex Products,
Inc. cease and desist
from discharging any and all cyanide compounds from its opera-
tions at
407 West Main Street in Fairfield,
Illinois in viola-
tion
of
5WB-5
and
Section
12(a)
of
the
Environmental
Protection
Act.
2.
That respondent City of Fairfield cease and desist from
accepting wastes from the Airtex plant to its storm sewer
system in violation of Section 12(a)
of the Environmental
Protection Act.
3.
That Airtex pay
to the State of Illinois by March
1,
1972,
the sum of Eleven Thousand Dollars
($11,000.00)
as
a penalty
for the violations found
in this proceeding.
Penalty payment
by certified check or money order payable to the State of
~
Illinois
shall be made to the Fiscal Services Division,
Illinois
Environmental Protection Agency,
2200 Churchill Drive, Spring-
field,
Illinois 62706.
4.
That Fairfield pay
to the State of Illinois by March
1,
1972
the sum of One Thousand One Hundred Dollars
($1,100.00)
as a
penalty for the violations
found in this proceeding.
Penalty
payment by certified check or money order payable to the State
of Illinois
shall be made to the Fiscal Services Division,
Illinois Environmental Protection Agency,
2200 Churchill Drive,
Springfield,
Illinois 62706.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control Board,
hereby
certify
the
Board
adopted
the
above~Opinion
and
Order
on
the
—
day
o.f F~bruary, 1972 by a vote of
‘~
F
~/
-
2
~
k
‘
/1
)
‘y’~2’
E (~
Christan
L.
Moffett~,-~?rk
Illinois Pollution Control Board
3— 600
