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Airtex Products, Inc. v. Pollution Control Bd.

OCTOBER 12, 1973.

AIRTEX PRODUCTS, INC., PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



Petition to review order of Pollution Control Board.

MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:

This is a petition to review an order of the respondent, Pollution Control Board, imposing a fine of $11,000 on petitioner, Airtax Products, Inc. The order was the result of an enforcement action brought by the Environmental Protection Agency before the Pollution Control Board, an administrative agency, for alleged violations of the Environmental Protection Act and certain regulations adopted by the Pollution Control Board.

The Board found the petitioner guilty of violating section 12(a) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, sec. 1012(a)), which provides:

"No person shall: (a) cause or threaten or allow the discharge of 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 any matter from other sources, or so as to violate regulations or standards adopted by the Pollution Control Board under this Act; * * *."

Petitioner was also held to have violated Illinois Sanitary Water Board Rules and Regulations SWB-5, Article I, Rule 1.01, which provide:

"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."

Agents of the Environmental Protection Agency took water samples on May 4 and May 14, 1971, and stated that on both dates petitioner discharged cyanide into the storm sewer of the City of Fairfield. One inspector testified that samples taken on May 4 from a street drain and from a storm sewer showed 12.0 and 4.3 milligrams cyanide per liter, respectively. Another inspector testified that three samples taken May 14 from the junction of a storm sewer and a creek, a street drain, and a tributary to a creek near Fairfield, showed readings of 1.5 ppm, .3 mg/1, and .08 ppm cyanide respectively.

SWB-5, Article I, Rule 1.02 provides:

"On application by a municipality to and approval by the Sanitary Water Board, limited amounts not to exceed two (2) milligrams per liter, may be permitted to be discharged to a municipal sewer system and sewage treatment works, when determined it would not be detrimental to public health or municipal sewage treatment works operations or which would not pollute any lake, river, stream, drainage or roadside ditch or other watercourse."

On October 27, 1967, petitioner received a copy of a letter from the Sanitary Water Board. The letter was addressed to the Mayor and City of Fairfield, where petitioner's two factories were located, and advised that cyanide was found in the storm sewer and that enforcement action would be directed against the city. On December 15, 1967, petitioner was advised by letter from the Sanitary Water Board, copy to the city, that no discharge containing cyanide was permitted. Regulation SWB-5 was enclosed. The letter outlined the permit procedure to be followed in order to discharge cyanide into the city sanitary sewer system.

In 1969 petitioner applied to the State to discharge cyanide in the Fairfield sanitary sewer system. Petitioner was advised that it should apply for a permit to the city, which would then apply to the State for a permit. On July 25, 1969, petitioner formally requested authority from the city to connect to the sewer system and asked the city to obtain the necessary permit from the Sanitary Water Board. On August 5, 1969, the Sanitary Water Board wrote to the city and petitioner advising them both of the requirements to obtain a permit under regulation SWB-5. The letter stated that no construction or alterations should be started until the plans had been approved by the Sanitary Water Board.

In December of 1969 petitioner submitted its proposed plans for treating and disposing of its cyanide to engineering consultants for the City of Fairfield, but the city did not file an application because the consultants felt that the plans lacked detail. Petitioner was not informed that its plans were unsatisfactory.

The engineering consultants completed a study which revealed that the city's treatment plant would have to be enlarged in order to handle all of petitioner's industrial waste. One of the consultants stated that cyanide was considered toxic to the organisms that break down wastes in the sewage plant and that once the organisms were affected, only time could repair the damage.

Petitioner was fined under section 42 of the Environmental Protection Act (Ill. Rev. Stat. 1971 ch. 111 ...


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