ILLINOIS POLLUTION CONTROL BOARD
    October 17,
    1974
    RAYMOND
    ESKER
    AND
    HAROLD JURGENS,
    )
    d/b/a ESKER AND JIJRGENS,
    )
    Petitioners,
    )
    vs.
    )
    PcB
    74-278
    ENVIRONMENTAL PROTECTION AGENCY,
    Respondent.
    )
    Mr.
    Q.
    Anthony Siemer,
    Attorney, on behalf of Petitioners;
    Mr. John H. Rein, Attorney, on behalf of the Environmental
    Protection
    Agency.
    OPINION AND ORDER OF THE BOARD (by Mr.
    Seaman):
    Raymond Esker and Harold Jurgens, d/b/a Esker and Jurgens, (here-
    inafter Petitioners)
    filed a petition
    for variance which was received
    by the Environmental
    Protection Agency (Agency)
    on July
    19,
    1974.
    Petitioners seek relief from
    a ban imposed by the Agency (pursuant
    to the operation of Rule 921(a)
    of Chapter 3:
    Water Pollution of the
    Illinois Pollution Control
    Board Rules
    and Reg~ilations (Chapter 3))
    on further sanitary sewer extensions
    in an area served
    by the sewage
    treatment plant owned and operated by the City of Effingham (City).
    Petitioners seek relief to enable the start of development of a 45
    1/3
    acre tract of land known
    as the Shenandoak Subdivision,
    located in the
    County of Effingham,
    approximately one-half mile north of the City of
    Effingham,
    Illinois.
    Specifically,
    Petitioners seek permission
    to
    install
    and operate 1350 feet of sanitary sewer extension which would
    ultimately serve ten (10) single-family residences.
    However,
    Petitioners
    have stated that only six (6)
    residences are planned for construction
    during
    the
    term
    of
    any
    variance
    granted
    under
    the
    present
    request.
    The
    City
    is
    presently
    served
    by
    a
    secondary
    trickling
    filter
    sewage
    treatment plant which was designed to receive and treat
    a wastewater
    flow of 1.27 million gallons per day (MGD) and an organic population
    equivalent (P.E.)
    of 11,500.
    Monthly Operation Reports submitted by
    the City for calendar year 1973 show the following:
    Average daily flow
    =
    2.07 MGD
    Three
    (3) month low flow
    1.67 MGD
    Three
    (3) month high flow
    =
    2.59 MGD
    The organic loading using the average daily flow figure is 10,273 P.E.
    The
    total
    load on the plant (actual
    and permitted)
    is now 12,497 P.E.,
    14—205

    —2—
    with the hydraulic load at 1.878 MGD, or 147.9
    of the hydraulic
    capacity and 108.7
    of the organic capacity.
    A table of average
    daily flow per month for all
    available months
    in 1971,
    1972 and 1973
    is presented below:
    CITY OF EFFINGHAM SEWAGE TREATMENT PLANT
    AVERAGE
    DAILY
    FLOW
    PER
    MONTH
    (MGD)
    1971
    1972
    1973
    January
    1.49
    1.99
    February
    1.49
    2.02
    March
    1.56
    2.79
    April
    1.75
    2.96
    May
    —-
    1.33
    1.86
    June
    1.44
    1.48
    --
    July
    1.45
    1.47
    ——
    August
    1.27
    1.59
    1.78
    September
    1.60
    1.54
    1.61
    October
    1.33
    1.35
    1.63
    November
    2.02
    2.26
    Decenter
    1.81.
    --
    Because of this excessive overloading, the Agency placed
    a ban on further
    sanitary sewer extensions tributary to the City’s plant on February 19,
    1974.
    In
    fact, the Agency confirmed its own conclusions
    as
    to the hydraulic
    overload with data submitted by the City in
    its application for operating
    permit.
    It is this sewer ban from which Petitioners seek relief.
    The City’s plant discharges to an intermittent stream.
    This
    intermittent stream is tributary to Salt Creek, which
    in turn
    is tributary
    to the Little Wabash
    River.
    The intermittent stream into which the
    City’s plant discharges provides
    a dilution ratio
    of less than one to
    one.
    On September 16, 1970,
    a stream survey was conducted by Agency
    personnel on Salt Creek.
    This survey indicated that the City’s sewage
    treatment plant was degrading the aquatic biota from a balanced condition
    upstream of the plant
    to
    a polluted environment downstream of the plant.
    Semi-polluted conditions then persisted for about
    3 miles downstream
    to about
    7
    1/2 miles downstream.
    It also appeared that another pollution
    source entered Salt Creek some 6 1/2 to
    7 1/2 miles below the plant.
    Tests
    of
    a grab sample of plant effluent on that date indicated 30 mg/i BOD
    and 78 mg/i total
    suspended solids.
    Since the City’s plant has an untreated waste load in excess of
    10,000 P.E., the plant must meet the 20 mg/i
    BOO and 25 mg/i suspended
    solids standard of Rule 404(b) of Chapter
    3.
    Results of Agency grab
    sampling indicate that the City plant often fails
    to achieve the standard
    imposed by Rule 404(b), and on
    a number of occasions the tests show
    14— 206

    -3-
    exceedingly high BOD and suspended solids concentrations.
    In addition,
    exceedingly high fecal coliform counts have been obtained in violation
    of Rule 405 of Chapter 3.
    Finally Rule 203(f) of Chapter 3 contains
    an allowable concentration for ammonia nitrogen
    (as
    N)
    of 1.5 mg/i
    in
    the receiving stream.
    Since the receiving stream provides essentially
    zero dilution and the stream ammonia nitrogen concentration cannot
    exceed
    1.5 mg/i, the effluent from the City’s plant must meet
    a
    standard of 1.5 mg/i
    ammonia nitrogen as N.
    This standard has been
    violated on every date of Agency sampling in 1973.
    The following table
    is
    a
    sunrnary of Agency grab sampling results of
    the City plant’s effluent
    during
    the past year:
    In
    addition
    to
    the
    inadequacies of the treatment plant described above,
    frequent
    bypassing
    occurs
    along
    the
    transport
    system
    during
    wet
    weather
    periods.
    Furthermore, separate component parts of the treatment plant
    have frequently become overloaded
    and caused bypassing of that part.
    The City has decided
    to go forward with an interim plan to upgrade
    their treatment plant
    in
    an attempt to provide for an average flow of
    1.75 MGD (17,500 P.E.)
    and the equivalent of 2,590
    lbs. BOD per day.
    In
    addition, the City proposes to have 250,000 gallons per day of cooling
    water removed from the City’s sanitary sewer system.
    The Agency issued
    Permit
    #i974-AB-495
    on March
    21,
    1974, for these interim additions and
    modifications.
    Agency
    engineers,
    however,
    cannot
    predict
    whether
    these
    Date
    1/16/74
    3/27/74
    4/10/74
    5/28/74
    6/4/74
    7/2/74
    800
    (mg/i)
    68
    37
    55
    28
    25
    2
    Suspended
    Solids (mg/i)
    130
    110
    80
    80
    31
    50
    Anunon i a
    (as N)(mg/1)
    14.0
    13.0
    11.0
    7.5
    8.6
    15.5
    Fecal
    Coliforms
    Counts/lO0
    ml)
    700,000
    100
    920,000
    200
    100
    0
    data compiled from Monthly Operation
    The
    following
    table
    is
    a
    summary
    of
    Reports
    submitted
    by
    the
    City:
    Flow
    MGD
    Final
    Effluent
    BOD
    Month
    Average
    Range
    Average
    Range
    August
    ‘73
    1.71
    1.18—3.68
    28
    15—40
    September
    ‘73
    1.61
    1.23-2.53
    26
    15—40
    October
    ‘73
    1.63
    1.02—2.52
    24
    15—35
    November
    ‘73
    2.06
    1.03-4.38
    29
    10-60
    December ‘73
    2.52
    1.42—4.69
    23
    10—40
    January
    ‘74
    3.09
    1.70—4.57
    21
    5—35
    February
    ‘74
    2.67
    1.73-4.25
    26
    10—50
    March
    ‘74
    2.89
    2.24—4.29
    29
    6-57
    April
    174
    2.77
    1.65-3.72
    27
    3-60
    May
    ‘74
    2.29
    1.39—4.37
    30
    6—63
    June
    ‘74
    2.45
    1.60-4.05
    14
    7-30
    14 —207

    -4-
    improvements will both provide for treatment capabilities for 17,500
    P.E.
    and provide for effluent quality of 20 mg/i BOO and 25 mg/i
    suspended solids.
    The Agency issued the subject permit with the
    belief that the improvements should improve the quality of the
    effluent produced.
    However, Agency engineers cannot predict that,
    even after the improvements are completed,
    the plant will be able
    to meet the 20 mg/i BOO and 25 mg/i
    suspended solids standard of
    Rule 404(b) of Chapter
    3.
    The Agency specifically included Special
    Condition
    #1
    in the permit.
    Special
    condition
    #1
    explicitly states
    that the sanitary sewer extension restricted status must remain
    in
    effect,
    despite the issuance of the permit for interim improvements.
    The City was well
    aware that the Agency could not guarantee the
    success
    of the improvement program.
    In
    a March
    5,
    1974,
    report
    entitled Effingham Sewage Treatment Facility Interim Plan, prepared
    by the City’s Consulting
    Engineers,
    and transmitted to the Mayor
    and City Council,
    the following statement was made:
    .
    .just because they (the Agency) permit the proposed
    modifications
    to the sewage treatment facilities, that
    is
    no sign that they (the Agency) will lift the restriction.
    The restriction will be lifted only after it is exhibited
    that the plant
    is operating at
    a
    level acceptable
    to the
    EPA.
    As
    to hardship, Petitioners allege that they have resigned other
    jobs to devote themselves full
    time to the subdivision business and
    that they would lose a substantial portion of their personal
    income
    if the requested variance were denied.
    However,
    no data
    is presented
    as
    to income and no facts have been submitted to support this allegation.
    Petitioners further allege that denial
    of the requested variance
    would
    entail
    the loss of the spring and summer months for construction
    purposes.
    It
    is obvious that the whole construction season was already
    lost by the time Petitioners filed their variance petition.
    Petitioners allege that certain arbitrary hardships will
    be imposed
    if the variance request is denied,
    e.g.
    that
    “rio ban
    is imposed upon
    residential
    sewer hookups where mains already exist.”
    The Agency
    notes
    in this regard that pursuant to Rule
    901 of Chapter 3, the Agency
    only has the power to control
    those connections which would serve
    more than one residence and/or
    15 or more persons.
    Petitioners assert that they revised their plats
    at the request
    of the City Planning Commission and now cannot use septic systems as
    an alternate treatment device.
    The end result of compliance with the
    Planning Commission’s request does not result
    in total
    loss of use
    of the property to the Petitioners.
    Rather, Petitioners’ use
    is merely
    suspended or limited while the restricted status remains
    in effect.
    Further,
    Petitioners have apparently not explored the possibility of
    installing septic systems on alternate lots.
    If an easement is granted
    purchasers
    to use alternate lots for septic systems until
    sewer
    lines
    become available, construction can begin
    on about half the available
    lots.
    14
    208

    —5—
    The Agency believes Petitioners’
    use and enjoyment of the
    subject property
    is
    at most merely suspended and not terminated.
    From th9 petition, it is obvious that construction has not
    commenced.
    The Board has held in
    a number of North Shore Sanitary
    District sewer ban cases that at least substantial steps toward
    completion of construction must have taken place before the
    date of the ban
    in order for the Board
    to find the requisite
    hardship and grant
    a variance.
    As the Board said
    in
    ~j.
    Environmental
    Protection Agency, PCB 71-80
    (June 19,
    1971) and
    Feige
    v.
    Environmental Protection Agency, PCB 72-192 (August
    1,
    1972):
    “Undeniably, petitioner
    is confronted with some
    measure
    of inconvenience
    in this case.
    We
    cannot, however,
    view petitioner’s plight as
    singular and therefore arbitrary nor can we
    commiserate
    to such a degree that we grant rather
    than deny this request.
    In cases where
    a house
    has been completely built before
    the date of the
    order
    (March
    31,
    1971)
    or where substantial
    steps
    toward completion have been taken we can clearly
    judge the hardship of non-connection to be un-
    reasonable.
    The Board has followed the logic of these decisions
    in other
    ‘sewer
    ban’
    cases similar to the present situation,
    Lobdell
    and Hall
    v.
    Environmental Protection Agençy, PCB 72-511, Springfield Marine Bank
    v.
    Environmental Protection Agency, PCB 73—348.
    In those cases
    where the Board
    has granted variances
    in ‘sewer ban’ situations,
    some extreme hardship has been present of substantially grater
    magnitude than that alleged by Petitioners here:
    For example,
    forfeiture (Viking Investment Company v. Environmental
    Protection
    Agency,
    PCB 73-236); petitioners with very limited means would suffer
    a severe financial loss (Ronald H.
    and Carolyn Bower v.
    Environmental
    Protection Agency,
    PCB 73-273);
    a grossly overloaded school building
    needed more room (Meridian Community Unit School
    District #1
    v. En-
    vironmental Protection Agency, PCB 73-349); and an outbreak of hepatitis
    which could have been caused
    by maU~unctioningseptic tanks (City of
    Silvis
    v.
    Environmental
    Protection Agency, PCB 74-88).
    The Board
    finds,
    therefore,
    that Petitioners have not shown the degree of
    hardship necessary under the Act.
    This Opinion constitutes
    the findings of fact and conclusions of
    law of the Board.
    IT IS THE ORDER
    of the Pollution Control Board
    that:
    This Petition be and is hereby denied without prejudice.
    14
    209

    —6—
    I,
    Christan
    L. Noffett,
    Clerk
    of
    the
    Illinois Pollution Control
    Board, certify that the ab ye Opinion
    and Order was adopted on
    this
    I~1
    day
    of ~y-~
    ~
    ,
    1974
    by
    a
    vote
    of
    iJ_~
    14
    210

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