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