ILLINOIS POLLUTION CONTROL BOARD
November 29, 1973
FIELDS, GOLDMAN
AND
MAGEE
PETITIONERS
v.
)
PCB 73—362
ENVIRONMENTAL PROTECTION AGENCY
RESPONDENT
MR.
JERRY
SMITH,
ATTORNEY,
in
behalf
of
FIELDS,
GOLDMAN
AND
MAGEE
MR.
FREDERICK HOPPER, ASSISTANT ATTORNEY GENERAL,
in
behalf
of
the
ENVIRONMENTAL PROTECTION AGENCY
OPINION AND ORDER OF THE BOARD
(by Mr. Marder)
This action involves a variance request on the part of Fields,
Goldman and Magee.
Relief is requested from a ban imposed by the
Agency on construction and operation of additional sanitary sewer
extensions in an area tributary to the city of DuQuoin’s
(City)
sewage treatment plant.
The Agency recommends denial.
Fields, Goldman and Magee are an architectural firm which was
contracted to provide architectural services for an 80—unit housing
development in the City of DuQqoin.
The project includes a five-
story high-rise building of
40
‘tanits and a cluster of
30 additional
units.
These
facilities
are
to
be
used
by
elderly
and
low-income
people.
This petition for variance
is
a result of an earlier petition
dismissed without prejudice by the Board.
In PCB 73-219 the petit-
ion
was dismissed
for a number of reasons.
Questions were raised
and
left
unanswered
as
to
the
status
of
the
city’s
sewage
treatment
plant,
both
from
a
point
of
effluent
quality
and
from
a
point
of
sewer line hydraulic capacity.
Question
as to whether Fields,
Gol&nan
and
Magee
was
the
proper
party
to
petition
for
this
variance
was
also
a
key
unanswered
question.
In
PCB
73-219
the
Board
stated:
“We
feel
the
best
course
is
to
dismiss the
instant
case
without
prejudice
as
being
in-
adequate.
The
Petitioner
can
refile
and
pro-
vide
more adequate information in
a new pro-
ceeding.”
A new petition was filed by Fields, Goldman and Magee and is the
~.ssuein the instant case.
Much correspondence from PCB 73-219 was
10—165
—2—
incorporated into the instant case,
and was made part of the variance
petition.
The
case
was
set
for
hearing,
after
denial
of
Motion
for
Waiver
of
Public
Hearing
filed
by
the
Petitioner.
Said
denial
was
on
order
of
the
Board,
dated
October
4,
1973.
Hearing
was
held
on
October
17,
1973,
at which time
a large amount of clarifying evidence was eli-
cited.
Perhaps the most pertinent question which must be answered is:
Has Petitioner proven that it has fulfilled its statu-
tory obligations under which it would be an acceptable
party to file a variance petition?
Title IX, Section
35,
of the Environmental Protection Act clear-
ly states that:
“The
Board
may
grant
individual
variances
beyond
the
limitations
prescribed
in
this
Act,
whenever
it
is
found,
upon
presentation
of
adequate
proof,
that
com-
pliance
with any rule or regulation,
requirement or
order of the Board would impose an arbitrary or unreas-
onable hardship.”
The Petitioner must therefore prove that it would suffer the above-
mentioned arbitrary or unreasonable hardship, or be the legal represent-
ative of the party which incurs a hardship.
To best understand which parties are involved in the planning, de-
velopment,
construction and financing of this project the following
list was elicited from testimony.
This interrelationship was given
by Mr. A. Henderson
(R.
4-7):
A)
City of DuQuoin
-
Applied to Department of Housing
and Urban Development
(HUD)
for a housing allotment
and funds in 1967.
B)
H.U.D.
-
Granted to local housing authority,
in 1971,
a grant for the project,
C)
Perry County Housing Authority
-
This
party
would
own the project under the H.U.D. grant.
D)
Midwest
Mortgage
Consultants
-
Arranged
financing
for
project
(bonding).
E)
DuQuoin Lease Housing Corporation
(D.L.H.C.)
-
a non-
profit organization formed at the request of Midwest
Mortgage to act on behalf of the Perry County Housing
Authority.
F)
Paul Pieper Construction Company
-
Firm hired by D.L.H.C.
to construct the actual facilities.
G)
Fields, Goldman and Magee
-
Architects for the project
hired by the D.L.H.C.
At present the project
is ready for occupancy,
save sewer connections.
Bonds
are outstanding and payment will be required.
It is alleged
that if the ownership of said project
is not transferred to the Perry
10—166
—3—
County Housing Authority by November 1,
1973, expenses in the amount
of $400 per day will be incurred.
The following line of questioning
is
a key factor in whether Fields,
Goldman and Magee would itself
suffer
a hardship.
Mr. Bersch is hearing officer and Mr. Siros
is
an employee of Fields, Goldman
and
Magee.
Mr. Bersch:
Will Fields, Goldman and Magee have any
loss if the petition is not granted?
Mr. Siros:
No,
Q.
The loss would fall on whom?
A.
This
I will leave up to the attorneys.
I
am not sure how the money situation is
established.
Mr. Hopper (attorney for the Agency):
Mr.
Siros,
as a matter of fact, it might
turn out to be a dogfight between the
construction company and the DuQuoin
Lease Housing as
to who gets the lucky
$400 a day..prize.
A.
I really hive no opinion on that.
On the basis of the above Petitioner has clearly failed to comply
with the statutory requirements
as to a show of hardship upon itself
and must therefore prove that it represents the party who would in-
deed suffer said hardship.
Fields, Goldman and Magee has stated that they are suffering from
a mislabeled petition in that they are actually seeking relief for’
the Paul Pieper Construction Company and the Perry County Housing
Authority
(R.
22).
Petitioner also states
(R.
21)
that he was not
aware that the petition was in its name, and when this
fact was
brought to his attention the clerk of the Board suggested that the
name remain Fields, Goldman and Magee to avoid confusion.
The above
relates
to the original petition PCB 73-219.
However, both the Agency
recommendation and the Board’s order in PCB 73—219 were very clear as
to
the
fact
that
Fields,
Goldman
and
Magee
was
possibly
not
the
cor-
rect
party
to
pursue
this
matter.
The
Petitioner
has
responded
by
filing
a
new
petition
with
the
same
caption.
The Board feels that until title
for the project
is transferred
to the Perry County Housing Authority,
the Paul Pieper Construction
Company would be the party suffering hardship.
On November 28,
1973,
the Board received a sworn Affidavit stating that Fields, Goldman and
Magee are indeed acting as agent for the Paul Pieper Construction
Company in attempting
to obtain
a variance for the project.
On the
basis of this Affidavit and the following facts elicited during pro-
ceedings, the Board finds that the Petition should be granted.
Status of DuQuoin Sewage Treatment Plant:
The City of DuQuoin owns and operates a sewage treatment facility
10—167
—4—
consisting
of
a
trickling
filter.
The
final
effluent
is
unchiorinated
and
discharges
into
Reese
Creek,
an
intermittent
stream.
The
design
flow is 1.0 mgd and has a BOD loading of 14,000 Population Equivalent.
The most significant single source of effluent to the plant was the Du
Quoin Meat Packing Plant which contributed between 1/3 and 1/2 of the
plant’s total loading.
The following data was taken by the Agency, but
may not be indicative of present loading due to the removal of the Meat
Packing Company load.
Date
BOD
S.S.
F.C.
m~7T
mg/l
counts/i00 ml
October
‘72
35
110
580,000
Nov.
55
210
16,000
Dec.
55
85
400,000
Jan
‘73
19
18
21,000
Feb.
24
24
400,000
Mar.
65
24
550,000
Apr.
——
20
500,000
May
50
21
560,000
The applicable rules call for DOD
4 mg/i,
S.S.
5 mg/i.
The City has received federal funding and is proceeding towards up-
grading their facilities.
Testimony
(H.
32)
is that funds
are available
and the revisions should be accomplished within one
year.
One
of
the
major jobs which must be done
is replacement of the existing filter
beds
in
the
trickling
filters.
The
Environmental Protection Agency
has
testified
(H.
50)
that the present filter medium is over
30 years
old.
and is “absolutely not adequate to do an efficient job of treatment.”
Status of Sewer Lines Tributary to Plant:
The question was also raised as to the hydraulic capability of the
sewage line to handle flow to the plant in any event.
The following
facts were elicited to clear up this problem.
The DuQuoin Meat Packing plant has stopped flow to the city plant,
thereby reducing the flow by some 40~in the existing lines.
The high-rise building can be hooked into an existing sewer with
no hydraulic problems.
The other units would require
a new lift station in order to function
properly.
Also
a rerouting of the force main would be required.
Test-
imony
(R.
66)
was
entered
that
the
new
lift
station
has
been
constructed
and is ready for operation.
The force main could and would be installed
within two weeks after
a variance or agency permit is granted.
It would
seem that a viable solution to the hydraulic problem has been achieved.
This
problem
would
seem
to
be
moot
in
view
of
the
evidence
presented.
10—166
—5—
Status of DuQuoin Meat Packing Plant:
The record shows
(H.
27)
that the packing plant
is not now dis-
charging into the city treatment plant.
It was,
all along,
the inten-
tion of the packing plant to construct and operate their own treatment
facilities.
These
facilities
would have been completed earlier, but
due to financial problems brought about by
a strike, the completion
date was moved up.
Agency investigations of the packing plant
(R.
48)
show that no
flow
is now going to the city but that the procedure used to discon-
nect
is temporary and could easily be connected again.
The City of DuQuoin has stated
(R.
32)
that an ordinance
is
in
effect that would allow the city to block off the packing plant’s
sewer
line
if they attempted to use the city’s plant.
The mayor of
the city stated
(R.
34) that
it
is the intent of the city to enforce
said ordinance.
From the above it would seem that the adverse effects
on the
city’s treatment plant generated by the DuQuoin Meat Packing Plant
no longer seem to be an is.sue in this case.
Effect of Additional Load on Existing Plant:
As mentioned above, the existing plant, while of sufficient de-
sign capacity to handle the influent load
(now that the meat packing
plant is off stram)
,
still suffers because of degraded filter bed
quality.
Although no samples of effluent were taken minus the pack-
ing plant
(R.
54)
,
expert testimony by the Agency indicates that the
4
mg/i,
5 mg/l
(BOD,
SS)
criteria will not be met without the
replace-
ment of the filter bed media, and other steps.
It was conceded, how-
ever,
that
the
total
increase
(maximum)
on
the
plant
would
have
no
significant change at all
(R.
49)
The 271 PE figure may indeed he very high.
Testimony was ent-
ered that about 90
of the applicants are from within the City of
DuQuoin
(R.
36)
.
It was also added that the applicants
are mainly
living in what could
be
considered
substandard
housing.
It
is un-
likely
that
these
substandard
housing
units
would
be
reoccupied
(H.
37)
and
the
increase
in P,E. would not be an increase but merely
a
relocation of existing sewage sources.
This type of argument has been used before
(PCB 72-59 Tennis De-
velopment,
inc.,
v. Environmental Protection Agency, PCB 71-314 Wau-
kern
Park District
v. Environmental Protection Agency)
and has been
accepted
by
the
Board
as
grounds
for
a
variance
grant.
All of the
above
shows
that
a
good case has been made for the
grant of a variance.
If this petition were denied, the greatest
hardship would fail on the applicants who will be forced to
remain
in
substandard
housing
until
this
issue
can
be
resolved.
Because of this,
and in spite of the
fact
that
Paul
Pieper’s
10—169
—6
case of hardship may be somewhat weak, the Board will grant the var-
iance.
This Opinion constitutes the findings of fact and conclusions of
law of the Board.
ORDER
IT IS THE ORDER of the Pollution Control Board that a variance
be granted to allow sewer hookup of the project in question.
IT
IS
SO
ORDERED.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board, certify that the above Opinion and Order was adopted by the
Board on the 29th day of November,
1973, by a vote of
5 to
0.
/