ILLINOIS POLLUTION CONTROL BOARD
October
28,
1971
ENVIRONMENTAL PROTECTION AGENCY
v.
)
#
71—25
CITY OF MARION
CITY OF MARION
V.
)
#
71—225
ENVIRONMENTAL PROTECTION AGENCY
)
Mr. William
J. Novick,
for the City of Marion
Mr. Deneen
A. Watson,
for the Environmental Protection Agency
Opinion of the Board
(by Mr.
Currie):
The Agency~s complaint
(#
71-25)
charged
Marion with discharging
inadequately treated sewage to a tributary of Crab Orchard Creek
and
with missing January and July
1970 deadlines
for submission of plans
and award
of construction contracts
to meet
the overflow and
advanced—treatment requirements
ot regulations
SWE—I4.
h~erej~c~ed
a settlement proposal on the ground that
it had not been approved
by
the Agency
(#
71-25, May
12,
1971),
and
a hearing was held
June
30,
1971,
The
facts
are not
in dispute.
The City operates
a trickling
filter treatment plant with chlorination, producing
a good secondary
effluent in dry weather
(June 30,
pp.
26-27,
31)
,
when the average
flow
is 500,000 to 800,000 gallons per day
(June
30,
p.
25).
In wet
times, however,
as much as 11,000,000
to 13,000,000 gallons
per day reach
the plant
(June
30,
pp.
24,
158).
The hydraulic
capacity of the plant
is 1,300,000 gallons per day,
and flows
in excess
of that quantity
are bypassed directly to the creek
without treatment
(June
30,
pp.
21,
24,
39-40).
An Agency witness
personally observed the bypass of objectionable materials on December
16,
1970,
a date charged in the complaint
(June
30,
pp.
114-18).
Rules and Regulations SWB-14,
adopted by our predecessor
the
Sanitary Water Board
and continued
in force by
the Environmental
Protection Act,
require the provision of additional
(tertiary or
advanced)
treatment
in Marion~s case even as to dry weather flows,
because
the flow of the receiving stream is
too small
to assimilate
secondary effluent without harm to stream quality,
They further
require that “control of pollution caused by combined sewer over-
flow
or storm
flow bypassing
at sewage treatment works be provided
at
the
time
of
improvement
or expansion of sewage treatment works,”
The
date
for
compliance
with
both
these
requirements
is
July,
1972,
with
plans
to
be
submitted
and
contracts
awarded
substantially
in
advance
in
order
to
assure
timely
completion,
Plans were due
in January 1970
for plants treating more than
10,000 population equivalents,
and the City’s population
is about
12,000
(June 30,
p.
55).
In any event, the record
is clear, and
the City admits
(June
30,
p.
161), that no plans were submitted
before August of
1971, which
is late regardless
of the size of the
plant, and that contracts have not yet been awarded, which
is also
late in any
case.
In its proposed settlement agreement,
and subsequently,
the
City promised to submit plans for both bypass control and tertiary
treatment by August
1,
1971;
to advertise
for bids by November
1;
and to complete construction by July
1,
1972
(see petition for
variance,
# 71-225), which would mean that the admitted delay in
getting started would not delay the operation of the required
facilities.
The City’s program at that stage consisted of the
addition of two aerated lagoons
to capture, retain, give
50
treatment
to,
and chlorinate bypasses
up to ten times normal dry
weather flow, with one of the lagoons to serve
in normal times
as
a tertiary facility
(June
30,
pp.
162—67).
A few days before the proposed August
1 date
for plan
submission the City received word
(Oct.
16,
p.
16) of
the Agency’s
just revised Technical Policy
20-24, which among other things
states that when waste, stabilization ponds such as those proposed
are used “provision must be made
to remove algae
and other suspended
solids to meet the intended treatment requirements and effluent
criteria”
(Section XII
C).
The theory apparently underlying
this
provision was suggested by an Agency witness
(June 30~, pp.
184-
85)
Presently we
are requiring permits for lagoon type
systems
for ter?iary
treatment.
It’s been kicked
around out in the field that lagoons sometimes
don’t provide the treatment necessary in that
respect.
Sometimes they tend to grow
algae, which
would increase possibly the suspended solids coming out
of it
.
.
The growth of algae
in the lagoon,
in other words, might result
in
a biochemical oxygen demand
and suspended solids
in excess
of the applicable limits of
4 and
5 ppm iespectively.
Confronted with
the new technical policy,
the City filed
its
original plans
according to
its proposed schedule
(Oct.
16,
p.
18), set
to work immediately
on new plans to meet
the provisions
of the Technical Policy
(Oct.
16,
pp.
21-23),
and filed for
a
variance that would extend the dates for plans, bids,
and corr~liance
by eight weeks
(Oct.
16,
pp.
23-24)
because of the algae pr’~vision.
We held
an additional hearing October
16
on the variance petiLion
(#
71—225).
The City’s revised plans were submitted September
30
(Oct.
16,
p.
23)
,
within the proposed eight-week extension.
The tertiary
lagoon will be replaced by sand filters
that should do
the
job
~with dry-weather
flow without creating
any
algae nrohlem
(Oct.
16,
pp.
16,
26).
Flows
in excess of plant capacity will he retained
in
a single aerated lagoon and chlorinated before any discharge
to the stream
(Oct.
16,
p.
16).
Although the treatment plant
together with
the byrass retentian system will be able
to handle
a flow at
the rate of no more than 8,640,000 gallons per day
(Oct.
16,
p.
43)
(which is roughly ten to fifteen times dry weather
-flow),
the City will also replace
a half mile
of leaky interceptor
sewer
that
is responsible for
a “great amount”
of infiltration
(Oct.
16,
p.
44).
The
City
therefore
predicts
that
“when
we
finish
this project and eliminate some
of
our
sources
of
pollution
infiltration
,
we will be able
to give either complete treatment
or primary treatment
to all of the flow that comes to the plant
in wet weather”
(Oct.
16,
o.
45).
Finally,
the City has agreed
that
“after the peak flows
pass,
we have provisions
for draining
the contents of the storm water pond back to the plant during
periods of
low flow and giving
it complete treatment”
(Oct.16,
p.
46).
The comoletion date proposed
for this
improved system
is
September
30,
1972, with bids
to he sought by December
30,
1971
(Oct.
16,
p.
24).
The improvements
in the revised program
are considerable and
commendable;
the City has substantially upgraded
its provisions
with
regard
both
to
tertiary
treatment
and
to
stormwater.
The
tertiary
standards
will
be
more
certainly
met;
infiltration
re-
ductions will
greatly
reduce,
if
not
eliminate,
the
proportion
of
flow receiving no treatment;
some retained stormwater will be run
through the plant
for full treatment.
We
think the
two months’
delay
to
prepare
this
revised
Program
well
worth
the time,
and
certainly
we
will
not
penalize
the
City
for
those
two
months.
While
the
Agency
is
quite
right
in
its suggestion
(Oct.
16,
pn.
30-37)
that
the
regulation
itself
made
relevant
the
question
whether
a’gae
would
make
lagoons
inadequate
to
meet
the
effluent
standard,
the
record
shows
that.
up
until
the
issuance
of
the
revised
Technical
Policy
in
July
1971
the
Agency
had
been
willing
to
grant
permits
for
lagoons
in
similar
circumstances
(June
30,
c.
185;
Oct.
16,
p.
34).
The
law
was
not
changed,
but
the
Agency’s
understanding
for
applying
it
was,
and
no
nenalties
are
in
order
for
those
‘who
in
good
faith
did
what
the
Agency
said
was
sufficient.
At
the
same
time,
we
cannot
find
fault
with
the
Agency
for
publishing
its
revised
policy
statement.
~Jhenever
new
policies
are
promulgated,
someone’s
plans
may
be
affected;
desirable
changes
cannot
be
deterred
by
that
fact.
Jima
allowances
have
to
be
made
in
such
cases,
as
here,
to
avoid
hardsliin,
But,
if
the
Agency
is
right
in
its
new
algae
nosition,
the
change
has
succeeded
in
arresting
at
the
drawing—board
stage
the
construction
of
an
inadequate
facility.
We
can
only
view
that
accomplishment
as
a
plus.
2
--
703
The City also tells us that, with
a reasonably dry Spring,
it may be able
to complete the retention lagoon by July of
1972 despite the change of plans
(Oct.
16,
pp.
40-41).
We shall
require that it do
its best
to do
so,
in light
of the importance
of eliminating the existing raw sewage discharges.
We need not today decide whether the Agency is iight that
lagoons are insufficient to meet the standards without algae
removal,
since
the City has committed itself to
a more certain
solution.
This question,
together with that of the degree of
treatment
that will ultimately be required of excess flows,
is
being thoroughly explored in the pending rule-making proceeding
#R71-14.
Nor need we decide whether the requirement that bypass
flows be given primary treatment and chlorination means just what
it says,
or whether,
as the City says itwas orally informed
by the Agency, no more
than ten times the normal flow must receive
even this much treatment.
That figure appears neither
in the
regulations, which govern,
nor
in the Technical Release.
Since we are here considering only primary treatment,
any flows not-
captured will go raw to the stream;
even
a high degree of dilution
(June 30,
p.
176)
can hardly avoid a nuisance when the ingredients
of raw sewage are considered.
It
is therefore gratifying that the
City has committed itself to
a program of reducing infiltration
as well as providing retention eaoacity
so as to enable it
to
give at least primary treatment and chlorination
to all flows
reaching the plant, and we shall require it to adhere to
that
program.
Although SWB-l4
states that
bypass flows “shallbe given
primary treatment,
and chlorination
if necessary,”
it also requires
“the control of pollution” resulting from bypasses,
and at the
time
of required treatment plant improvements.
The Agency interprets
this
(Technical Policy 20-24,
Section VII-A)
to require more than
primary treatment when primary treatment
is
inadequate
to prevent
pollution.
Because of
the enormously heavy organic
load
in the
“first flush” from
a storm
(see June
30,
p.
32)
,
that portion,
the Agency
says,
should receive
full plant treatment; whether
primary treatment for
the remainder suffices
is to be determined
on
a case—by—case basis according
to such factors as the
flow
of
the receiving stream in order to avoid violations
of the
water quality standards.
We agree that primary treatment of bypasses cannot in all
cases be
a complete answer under the regulations.
In many cases
it
is
feasible and reasonable
to retain
a large percentage
of the
excess
flow
to be run through the plant later on for complete
treatment
(see,
e.g.,
League of Women Voters
v.
North Shore Sanitary
District,
# 70-7, March
31,
1971).
Whether in Marion’s case more
is required than
is now proposed cannot be determined from
the
present record.
The Agency will make an initial determination of
adequacy in passing on
the permit application now pending before
it.
Even
if greater retention capacity
is ultimately required,
the present plan seems
a most likely intermediate step that should
eliminate
a
large part
of the present nuisance,
and its construction
2
—
704
ought
not
to
be
delayed.
In sum,
from the vantage point of today,
we
find the City’s
program an appealing
one, in terms both of time
and of ultimate
performance,
with reservations only as to whether additional re-
tention capacity may later prove necessary.
We therefore approve
the City’s program schedule on the conditions spelled out
in
the order.
This leaves for consideration
the question of money penalties
for missing
the deadline
for submission of plans.
There is no
satisfactory explanation
for this failure:
The City knew of
SWB—l4’s requirements
in 1968 or 1969
(June
30,
p.
161), and
the
Agency’s alleged
char’
in policy respecting the
size of the
retention basin
(June
,
p.
158)
and the acceptability
of
tertiary lagoons came alter the plan deadline had already been
missed,
The
importance
of
the
interim
dates
for
submitting
plans
and letting contracts
is well illustrated by
this case.
Had
plans
been
submitted
when
required,
the adequacy of the proposed
bypass facilities could have been fully examined,
and any inadequacy
corrected, without jeopardizing compliance with
the ultimate operation
deadline of July 1972.
As
it
is, discounting the eight-week post-
ponement
that.
is
not the City’s fault,
if
the lagoon is too small
there will ‘vu~’y likely be
a further delay-before
it can been-
larged.
Thus
the seriousness of the City’s failure to file timely
plans should not be underrated,
On the other hand, Marion’s
position
is more fortunate than that of some,
for, apart from the
Agency’s revised effluent lagoon policy and
the question
of lagoon
size, Marion was able
to promise that it would suffer no delay
in meeting the most important deadline, that for compliance with
the effluent
and treatment requirements.
To do so
it has shown
a high degree of commitment and energy,
especially
in its prompt
and constructive
response to the Agency’s revised policy,
that
cannot go unnoticed.
The question of
a penalty
in this
case, moreover,
is
a part
of a most disturbing larger picture.
Marion
is far from alone
in
missing
its plan deadline,
nor
is
it among the worst offenders.
Without condoning past lapses, we think it appropriate
to encourage
those who have fallen behind to make every effort to make up
for
it.
We
shall
therefore
look
with
some
indulgence
upon
local
governments that
file programs
in the immediate future that will
result in compliance within
a short time after the ultimate deadline.
For
those
whose
violations
will
substantially prolong pollution
and who even now fail to come forward with as expeditious
a program
as
is
practicable,
the penalties may be quite severe.
Cf.
GAF
Corp.
v.
EPA,
#
71-11
(April
19,
1971);
EPA
v.
Incinerator,
Inc.,
# 71-69
(Sept.
30,
1971)
;
Lloyd Fry Roofing
Co.
v,
EPA,
# 71-4
(Oct.
14,
1971).
We do not exclude
the possibility
in such cases
of
penalties
cumulating
each day ultimate compliance
is postponed.
2
—
705
In
light
of
these
policy
considerations
we
penalize
Marion
the nominal sum of
$100.
It was not until after
the date
for
submitting plans had passed that the City
took serious steps
to
live up
to the obligations of SWB-14
(June
30,
p.
156),
and we
cannot let
the serious violation
of the important interim deadline
pass altogether.
But Marion’s exemplary response to’the filing
of the complaint,
its excellent record
for operation of its existing
plant,
and the critical
fact that
its error is not expected
to result in continued pollution greatly mitigate the offense,
We sincerely trust that others
in similar circumstances will follow
Marion’s example immediately without waiting to be prosecuted.
Any
substantial
delay in
cleanitig up our waters resulting from
the failure of municipal
officials
to
obey
the law would be
a
tragedy not only
for the environment but
for public confidence
in government
as well.
The City
in the final hearing raised the question of financing
(Oct.
16,
p.
57).
The
Agency
described
the
chances
of state aid
as
very
good,
and
the
City
hopes
for federal assistance
as well,
As we have said before
(see City of Mattoon
v,
EPA,,#
70-8
(Feb.
17,
1971)
;
Sanitary District of Durand
v.
EPA,
# 71-317
(October
18,
1971)),
outside help
is
all very well, but the obligation
is
that
of
the local government,
and
the unavailability or post-
ponement or outside money cannot oe
an exeu~e for
poi..iutlon
r~C
view the City’s program
as
a commitment to build the necessary
facilities, with no ifs,
ands,
or huts,
If it were not such
a
commitment, we cbuld not .approve
it’.
Our otder today requires
the City to construct those facilities
in order
to abate pollution
violations.
To comply with such an order
the City is authorized by
Section
46
of
the Environmental Protection Act to issue general
obligation or revenue bonds,
if necessary, without referendum and, we have
held, witnout regard to
any existing merely statutory limit otnerwise
applicable
to bonded indebtedness,
League of Women Voters
v,
North Shore
Sanitary District,
# 70-7
(March
31,
1971).
No specific
order to issue bonds
is necessary; we leave
the question of how to
raise money
to the City, but the money must be raised.
See Ruth
v.
Aurora Sanitary District,
17
Ill,
2d 11,
158
N.E.
2d 601
(1959).
We shall require,
as agreed,
‘the submission
of
a plan
for financing the necessary improvements
(Oct.
16,
p.’ 74),
A few procedural matters require brief mention.
The City
challenged the Board’s
jurisdiction on the ground that no Board
member was present at the hearing
(June 30,
pp.
48-51)
,
The motion
is denied.
The Rule referred
to
(Board Procedural
Rule 204)
applies only to rule-making proceedings
of general applicability,
not
to individual adjudications.
To require
the attendance
of
a
Board member at each of the hundreds
of hearings held each year
would be
a physical impossibility,
and both the statute and
the
rules
are plain that individual cases,
apart from rule—making,
may be handled by hearing officers who are not Board members.
The
decision
is made
by the Board alone
on the basis of the
record.
We also deny
the motion
(June
30,
pp.
51-53)
that the Board view
the premises.
Viewing
is
an extraordinary procedure that is
2
—
705
authorized
but
not
required
by
Procedural
Rule
322.
To view
in
every case would impose an intolerable burden.
We
see nothing
in the present case
to suggest that a viewing would contribute
materially
to the resolution
of any of the issues.
The motion to
dismiss on the ground
that Board decisions
are
to be reviewed in
the Appellate Court
(June
30,
p.
191)
is also denied;
the suggestion
is premature,
since any invalidity
in the appeal process would
not affect
the Board’s ‘authority,
and erroneous,
since the
governing provision
is the ‘Environmental Protection
Act, which
incorporates
only certain portions
of the Administrative Review
Act.
Direct Appellate Court review
is
flatly authorized by the
Illinois Constitution.
Finally, we
see no merit
in the attacks
on the admissibility
of certain samples
(June
30,
pp.
90,
193),
but in any case those samples were not necessary
to the violations
found and played
no part
in our decision.
This opinion constitutes
the Board’s
findings of fact
and conclusions of
law.
ORDER
1.
The petition of the City of Marion for
a variance extending
the
date
for
compliance
with
the
treatment
and
effluent
standards of SWB-l4 until September
30,
1972,
is hereby granted,
on condition that the following provisions
of this order are
met.
2.
The City of Marion shall abate its discharge of untreated
or inadequately treated sewage and its violations
of the
Environmental
Protection
Act
and
of
regulations
there-
under with regard to tertiary treatment and stormwater by-
passing in accordance with it~revised program as
submitte’d
September
30,
1971,
and with the following schedule:
a)
Advertisement for bids:
December 30,
1971;
b)
Completion and operation of facilities:
September
30,
1972.
3.
The City of Marion shall make every reasonable effort to
complete
the facilities
for stormwater bypasses by July
31,
1972.
4.
The City
of Marion shall replace the interceptor
sewer described
at
p.
44
of
the
October
16
transcript
in
accordance
with
its program as submitted September
30,
1971,
and shall actively
pursue
a program to discover and eliminate other sources of
infiltration subject
to reasonable abatement.
2
-‘
/07
5.
If the above measures prove inadequate
to eliminate raw
sewage
bypasses
by
September
30’;
1972,
the City of Marion
shall present
to the Agency and to the Board within thirty
days thereafter
a program for additional pumping and retention
capacity.
6.
If the bypass control measures
in the above program do
not provide adequate treatment to satisfy the Agency,
the
City
of
Marion
shall
seek
Board
review
of
the
Agency’s
determination
or shall submit
a revised program,
in either case within the
time allowed by statute
for, appeal from
a permit denial.
In either case, unless the present bypass program
is wholly
incompatible with that required
to meet the Agency’s objections,
the Agency shall issue
a permit conditioned on additional
measures to be taken in the future, and work shall
proceed
on
the present program as
a first phase of compliance
in
accordance with the present schedule.
7.
The City of Marion ~hal1 within
35 days after receipt of
this
order post with
the Agency
a bond or other security
in the amount
of $100,000
to assure compliance with
the terms and
conditions of this
order,
8.
The City ‘of Marion shall within
35 days after receipt of this
order
pay
to the State
Of Illinois
the sum of $100 as
a
penalty
for its failure
to meet the requirements of SWB-14
with respect to the submission of plans
and
the award of construction
contracts~
9.
Within
60
days
after receipt of this order,
the City of Marion
shall submit to the Agency and to the Board
a plan assuring
financing of
the program herein approved,
together with~
a study
by bond counsel discussing
the various financing
alternatives
available,
10,
Further proceedings
in this matter will be held
if
circumstances
so require,
and
jurisdiction
is retained
for
that purpose.
I,
Regina
E,
Ryan, Clerk
of the Pollution Control Board,
certify
that the Board adopted the above Opinion this
28
day of
October
,
1971.