Petition for review of order of Pollution Control Board.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
On July 16, 1979, the Illinois Environmental Protection Agency (IEPA) filed a four-count complaint with the Pollution Control Board (the Board) against Citizens Utilities Company of Illinois (Citizens) arising out of the operation of its West Suburban No. 1 sewage treatment plant in Bolingbrook. Count IV of the complaint charged Citizens with violating the operation and maintenance standards contained in its NPDES permit, Rule 601(a) of the Board relating to maintenance of facilities, and sections 12(a) and 12(f) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, pars. 1012(a), (f)). After extensive hearings before the Board's hearing officer, the Board ordered, inter alia, a $1,000 penalty against Citizens pursuant to violations of its permit and the Board's rules alleged in count IV. It is from this penalty alone which Citizens appeals.
West Suburban No. 1 treats municipal waste, primarily from sewer connections located in Bolingbrook. The basic operation of the plant begins with the influx of the sewage into two primary tanks. Solids settle to the bottom of the tanks, while floating materials rise to the top. Wooden planks called flights are chain-driven along the bottom and top of the primary tanks. Settled solids, or sludge, are pushed along the bottom into hoppers for further treatment. The flights then rotate up to skim the surface and push scum to the end for removal. Sewage then flows into an aeration tank, where it is bubbled with air and metabolized by the biomass. From there the sewage flows into five secondary tanks, where flights similar to those in the primary tanks operate. Flow from the secondaries passes either to a polishing lagoon or a chlorine contact tank for disinfection prior to discharge to Lily Cache Creek. Any sludge removed from the primaries or secondaries is either transferred to aerobic digesters or returned to earlier stages for additional treatment.
Citizens was granted an NPDES permit to operate the plant and discharge wastewater by IEPA in 1975. The permit sets forth various limitations on the contents of effluents that Citizens is allowed to discharge. Primarily at issue here are the operation and maintenance standards set out in section 3 of the permit:
"3. Facility Operation and Quality Control
All waste collection, control, treatment and disposal facilities shall be operated consistent with the following:
(a) At all times, all facilities shall be operated as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants.
(d) The permittee must provide optimum operation and maintenance of the existing waste treatment facility to produce as high a quality of effluent as possible."
Also applicable here are the Board's rules concerning operation and maintenance. Rule 601(a) provides:
"All treatment works and associated facilities shall be so constructed and operated to minimize violations of applicable standards during such contingencies as flooding, adverse weather, power failure, or maintenance, through such measures as multiple units, holding tanks, duplicate power sources, or other such measures as may be appropriate."
On February 28, 1979, IEPA sent Jack Barnette, an emergency response specialist, to West Suburban No. 1 to conduct a compliance evaluation inspection. Barnette's report, which was admitted as an exhibit in the hearing before the Board, found that both primary tanks were out of service due to breaks in the chains that power the flights. One secondary tank was found to be out of service due to a broken flight. Barnette further observed what he believed to be sludge 600-700 feet downstream from the outfall pipe to Lily Cache Creek, although he could not testify with any degree of certainty that the alleged sludge emanated from the plant.
Further inspections were conducted on June 25 and July 2-3. The former was characterized as a "reconnaissance" inspection by Ted Denning, an engineer with IEPA and Barnette's supervisor. Denning accompanied Barnette on this inspection. Barnette alone inspected the plant on the latter dates. Numerous deficiencies were cited. At least one primary tank was still out of service. Scum removal was "poor." Solids were seen passing over the weirs in the secondary tanks. Excessive foam was observed in the aeration tank, and the chlorine tank was found to be "quite dark."
These observations were related in similar fashion at the hearings before the Board. On cross-examination, both Barnette and Denning based their conclusions of excessive scum, excessive foam, poor scum removal and a dark tank on their experience in inspecting other such facilities. While both recounted numerous ways in which the operation and maintenance deficiencies might cause the system to discharge an unacceptable quality of effluent, neither could testify with much certainty as to actual adverse environmental impact which could be causally related to system breakdown. Furthermore, both witnesses exhibited a certain degree of ignorance as to exactly what components were out of service at what times. Finally, neither witness seemed particularly familiar with how the plant actually functioned in the absence of the inoperative components.
At issue in this case is the liability of a permittee for alleged violations based upon mechanical breakdowns. The record is not entirely clear as to the causes of the breakdowns, nor does it reflect any valid justifications for the failure to remedy these conditions promptly. However, it is our opinion that the ...