ILLINOIS POLLUTION CONTROL BOARD
    June
    27, 1972
    GODFREY
    TOWNSHIP UTILITY BOARD
    v.
    )
    #72—68
    ENVIRONMENTAL PROTECTION AGENCY
    ROBERT W.
    GRAHAM
    v.
    )
    #72—154
    ENVIRONMENTAL PROTECTION AGENCY
    LEWIS
    &
    CLARK COMMIUNITY COLLEGE
    )
    V.
    )
    #72-246
    ENVIRONMENTAL PROTECTION AGENCY
    Ronald C. Mottaz for Godfrey Township Utility Board
    James
    T. Mohan for Robert W. Graham
    Thomas Immel, Assistant Attorney General for the Environmental Protecti
    Agency
    R.O.
    Birkhimer
    for Lewis
    & Clark
    Corrtmunity
    College
    OPINION OF THE BOARD
    (BY MR. CURRIE):
    Following our request for additional information in an
    order entered March
    11,
    1972, Godfrey Township Utility Board
    (“Godfrey”)
    filed an amended variance request
    (#72—68)
    seeking
    until February, 1974 to comply with standards respecting
    discharges from five sewage treatment lagoons in Madison County
    and asking permission to connect a number of additional waste
    sources
    to sewers tributary to
    the lagoons in the meantime.
    A hearing was held,
    and
    the requirement that we decide the case
    within 90 days was expressly waived on
    the
    record in order to
    give us time to consider the merits
    (R. 158-59).
    The Graham
    (#72-154)
    and Lewis
    and Clark College
    (#72—246)
    petitions request
    relief on behalf of persons seeking to discharge sewage into the
    Godfrey system.
    A hearing was held in Graham;
    the College
    petition was recently filed.
    On June
    10,
    1965,
    following investigation of an extensive
    fish kill
    on Warren Levis Lake,
    the Sanitary Water Board wrote
    to Godfrey indicating that its Warren Levis lagoon was over-
    loaded by 25
    beyond design capacity and stating that;~the
    SWB
    would be “reluctant to issue additional permits to install and
    operate sewer system extensions
    in the Warren Levis Sewer
    District”
    (EPA Ex,
    1).
    On May
    25,
    1967,
    the
    SWB after
    a further
    inspection
    (prompted by the desire of developers
    to make
    4
    709

    additional sewer connections)
    observed that “one of the two
    aqualators was not functioning” at Warren Levis;
    that the first
    cell “showed an appreciable amount of floating septic sludge,
    the formation of gas and other evidences of an overloaded
    lagoon”; that the dissolved oxygen in the effluent was “nearly
    depleted”; that the effluent BOD was two hundred parts per
    million,
    said to be”250
    of the then acceptable level”;
    and
    that the SWE had “no alternative but to refuse issuance of
    permits for sewer extensions tributary to the Warren Levis
    lagoon until such time as additional treatment is provided.”
    (EPA Ex.
    2).
    An
    SWB
    letter of July 18,
    1969 extended the
    sewer extension ban to the Monticello lagoon, noting that it
    had been extended to the Black Creek lagoon earlier the same
    year, on the ground that both had rea~~hed
    or exceeded their capacity
    (EPA Ex.
    3).
    On September 24, 1969
    the
    SWI3
    indicated that
    the situation with respect to the three named lagoons “may
    become critical in the near future” and asked Godfrey to
    “limit further connection to each of the subject areas,”
    adding
    that permits would in the future have to be obtained for connect-
    ing buildings housing 15 persons or more or from which a flow
    over 1500 gallons per day was expected.”
    (EPA Ex.
    4).
    This
    last
    letter had the effect of extending scrutiny to Include buildings
    to be connected to existing sewer lines, while
    the
    earlier EPA
    prohibition had applied only to the construction of new sewer
    extensions.
    Godfrey hired consulting engineers in late 1966, with the
    initial task of solving the problem of Warren Levis lagoon
    (R. 111-12).
    Recognizing that “there were more probl~msin the
    Township than just that lagoon,” the engineers proceeded with a
    “master plan” for sewage collection and treatment, which first
    contemplated a single primary treatment plant to discharge to
    the Mississippi River
    (R.
    112-13).
    The Sanitary Water Board then
    having required secondary treatment for discharges to the Mississippi,
    the plan was revised to provide a secondary plant to treat
    the wastes now discharged to three of the five lagoons--Warren
    Levis, Monticello, and Youngblood--, and to provide for
    interceptors
    to carry the flow now going to the other lagoons--
    Black Creek and Coal Branch--to the City of Alton’s treatment
    plant.
    All the lagoons are to be abandoned except Warren Levis,
    which
    is to serve as a holding basin in connection with the
    secondary plant
    (R.
    113,
    144).
    The variance petition alleged
    that final plans for the plant would be submitted to the Agency
    by April
    1,
    1972, with construction to start September 11,
    1972,
    and operation by February 11, 1974,
    all contingent upon federal
    and state financial assistance.
    At the date of hearing, (May 30),
    however,
    plans had still not been completed;
    they were expected
    to be within the next “ten to twenty days”
    (R.
    116), with
    construction and operation schedules not expected to be affected
    (R.
    118)
    .
    Permits for the facilities needed to
    transport wastes
    to Alton have been received
    (R.
    115), but as of the date of
    hearing Alton had not agreed to accept the wastes.
    A letter
    4
    710

    dated June 16,
    1972 from an interested citizen who participated
    in the hearing states that Alton’s City Council has approved
    the acceptance
    of Godfrey’s wastes but that a legal dispute
    relative to the effect of annexation on the Godfrey Fire
    District was holding up execution of the agreement.
    Construction
    of the interceptors to Alton is expected to take nine months
    (see amended petition).
    The estimated cost of the whole project
    is $3,200,000,of which Godfrey is contemplating about $2,000,000
    (and possibly another $500,000) will be provided by federal
    and state grants
    (R.
    119-20).
    On
    the assumption that Alton will provide adequate treat-
    ment to those of Godfrey’s wastes which
    it
    is expected to accept,
    the completion of the above program would result in compliance
    with applicable effluent standards
    so far as the record dis-
    closes.
    Moreover, there
    is no evidence to indicate that, at this
    late date,
    the completion date of February 1974, which allows
    about
    18 months for construction, could be improved upon.
    But
    there are disturbing gaps
    in the program even now.
    First, we
    do not know whether Alton will accept the additional waste.
    Second, we do not know whether Alton is
    in a position to treat
    that waste adequately.
    It is
    no answer to Godfrey’s problem
    to ship wastes
    to Alton unless they can be adequately treated
    there.
    Third,
    there appears to be some uncertainty still
    as
    to whether Godfrey is going to proceed with the project,
    as the
    petition makes everything contingent upon someone else’s footing
    a large part of the bill.
    The record does
    not dispel this
    doubt.
    Fourth, Godfrey’s
    almost total rejection of any attempt
    at interim improvements because they would reduce the sources
    of revenue for the long—term project
    (R.
    121-22;
    Petitioner’s
    Ex.
    D) suggests that the situation is not going to improve until
    the interceptors and treatment plant are finished,
    in contrast
    to cases in which relief has been granted on the basis of interim
    improvements
    (North Shore Sanitary District
    ij,
    EPA,
    #71-343
    (March
    2,
    1972);
    Danville Sanitary District v.
    EPA,
    #71-28
    (May 26,
    1972)
    : Metropolitan
    Sanitary District v,
    EPA,
    #71-166
    (Sept.
    16,
    1971)
    Orland Park
    .
    Finally,
    the entire situation
    seems to have become fluid in light of Godfrey’s request,
    since
    the hearing,
    for an additional sixty days
    in which to study an
    alternative proposal
    for tertiary treatment
    (Public Ex.
    4)
    put forward by interested citizens
    (see letter of Marjory M.
    Nelson,
    June
    16,
    1972).
    The
    sum of these deficiencies
    is that
    we do not find adequate assurance that the problem will be
    licked by February 1974 or that
    it will be reduced as
    much
    as practicable in the meantime.
    A satisfactory program is
    a
    requisite for extension
    of
    a compliance date,
    see Mt.
    Cannel Public Utility Co.
    v.
    EPA,
    #71—15
    (April
    14,
    1971)
    York Center Community Coop.
    v.
    EPA,
    #72-7
    (Jan.
    17,
    1972);
    Fiintkote Co.
    v,
    EPA,
    #71—68
    (Nov.
    11,
    1971)
    ;
    Metropolitan
    Sanitary District v. EPA, #71-183
    (Nov.
    11,
    1971)
    Moreover, the time for commitment to
    a program of improve-
    ment was some time ago.
    The inadequacy of the Warren Levis
    4— 711

    lagoon was formally pointed out seven years ago.
    Sanitary Water
    Board Rules and Regulations SWB-l4,
    adopted several years ago,
    required facilities to be constructed by July 1972
    to meet
    effluent standards prescribing no less than secondary treatment
    and disinfection.
    As EPA observes
    in its recommendation,
    Godfrey
    does not meet those standards now and will
    not in July
    (see also
    the several EPA exhibits indicating the quality of effluent from
    the several lagoons)
    .
    No real effort was made
    to excuse the
    loss of over a year and a half
    in meeting
    the standards.
    We
    see no justification for the delay
    in the record.
    As we held
    in Decatur Sanitary District v.
    EPA,
    #71—37
    (March
    22,
    1971)
    One cannot qualify
    for
    a variance simply by ignoring the
    timetable and starting
    late.
    While compliance within the
    remaining time may be impossible,
    any hardship suffered
    as
    a result is,
    so
    far as is alleged,
    due
    to the District’s
    own inaction.
    To allow
    a variance
    on the basis of
    the
    present allegations would establish the preposterous
    proposition that the very existence
    of
    a violation is
    a
    ground
    for excusi1ng it.
    We cannot give Godfrey
    a shield against penalties
    for continuing
    to pollute for a year and
    a half beyond the regulation deadline
    on the basis of the present record.
    Insofar as the petition
    seeks approval
    of the 1974 date
    for compliance
    it must be
    denied.
    The remaining questions concern
    the extent to which new
    waste sources may be connected to the already overloaaed lagoons.
    As already recited,
    the Agency indicated
    in 1965 that it
    would be reluctant to permit further sewer extensions~banned
    extensions tributary
    to Warren Levis
    in 1967
    and to Monticello
    and Black Creek in
    1969; and asked Godfrey to limit connections
    to existing sewers serving those three lagoons later in 1969.
    The principle underlying the Agency’s actions
    is clear and correct:
    Overloaded
    sewage treatment plants
    do not give adequate treat-
    ment, and additional loads make the situation worse.
    See League
    of Women Voters
    v, North Shore Sanitary District,
    #70-7
    (March
    31,
    1971)
    .
    We have allowed exceptions
    to connection bans on
    the
    basis
    of hardship in certain situations whose applicability
    to the several distinct categories of connections sought in
    the present cases is considered below.
    In the North Shore Sanitary District case the sewer
    connection ban was imposed by this Board after an enforcement
    hearing.
    In today’s cases
    the petitioners
    seek relief from
    a
    connection ban imposed by
    the Agency in the exercise of its
    permit powers.
    The issue before us is,
    however,
    the same:
    whether the prohibition on connections imposes an arbitrary or
    unreasonable hardship in light of the particular
    facts.
    Relevant facts include the need for the facility sought to he
    connected, expenditures made
    in reliance on the ability to
    4— 712

    connect, possible health hazards that a connection would eliminate,
    and the seriousness of the additional pollution that would be
    caused if a connection were made.
    This last factor is substantially
    affected by interim treatment improvements, and by how long inadequate
    treatment is expected to continue,
    In today’s cases we have essentially
    no information as
    to the present condition of
    the
    receiving streams or
    as
    to the additional adverse effect of further connections.
    We therefore
    resolve the present cases on the basis of precedents concerning other
    waters,
    for lack of better evidence as to the harm that connections
    would cause.
    The burden of prOof that on balance the burden of
    compliance
    is unreasonable
    is
    on
    the
    petitioners.
    More specific proof may
    be presented if further proceedings are brought.
    The strongest case for allowing a connection is that of the
    nursing home, presented in #72-154, Graham v.
    EPA.
    The stipulated
    facts establish that construction of the home was begun in August,
    1969,
    before the Agency had extended, its concern to reach connections to
    existing sewers,
    as is the case here.
    Considerable expenditures were made
    in
    reliance
    on
    the
    ability
    to
    connect
    before
    the
    ban
    was
    imposed.
    Moreover,
    a
    letter from the state Department of Public Health attests
    to the necessity for additional nursing home beds in the area
    (Ex. H
    to
    petition,
    #72-154).
    The hardships of good faith construction prior
    to imposition of the connection ban and of the need for a quasi—medical
    facility
    bring
    the
    Graham
    case
    within
    the
    precedents
    of
    Wachta
    v.
    EPA,
    #71-380
    (March
    7,
    1972),
    in
    the
    absence
    of
    any
    showing
    that
    the
    connection
    will
    bring
    about
    a
    serious
    worsening
    of
    the
    situation.
    The
    variance
    in
    #72-154
    must
    be
    granted,
    as
    the
    Agency
    agrees.
    Godfrey
    asks
    that
    connections
    be
    allowed
    for
    “all
    lots
    within
    the
    existing
    sewerage
    systems
    where
    a
    connection
    contract
    has
    hereto-
    fore
    been
    entered
    into.”
    The
    Agency
    concurs
    in
    this
    request
    only
    to
    the
    extent
    that
    “contracts
    for
    home
    construction
    on
    said
    lots
    have
    been
    ex-
    ecuted
    or
    construction
    has
    commenced”
    (recommendation,
    p.4).
    We
    agree
    with
    the
    Agency
    that
    the
    Township’s promise to provide sewer service is
    insufficient
    to
    create
    the
    kind
    of
    reliance interest necessary to justify
    additional
    pollution.
    We
    view
    the
    connection
    contract
    as
    roughly
    equiv-
    alent
    to
    a
    connection
    permit,
    which
    we
    held
    insufficient
    in
    the
    Wachta
    case,
    noted
    above.
    Nor
    do
    we
    think
    the
    mere
    entry
    into
    a
    contract
    to
    construct
    a
    building
    constitutes
    the
    sort
    of
    irreparable
    change
    of
    position
    that
    is
    required,
    Wagnon
    v.
    EPA,
    #71-85
    (July
    26,
    1971).
    We
    add
    that
    individual petitions will be resolved on the basis of individual hardships
    proved;from this record we cannot tell that additional steps in reliance
    on
    the
    ability
    to
    connect
    have
    been
    taken.
    The
    start
    of
    construction
    in
    the
    good
    faith
    belief
    that
    connection will be permitted
    is sufficient,
    as
    held
    in
    Wachta.
    Construction
    must
    have
    begun
    as
    of
    the
    date
    the
    ban
    was
    imposed,
    but
    we
    do
    not
    read
    the
    Agency’s
    letter
    of
    September
    24,
    1969,
    as
    imposing
    a
    flat
    ban
    on
    additional
    connections
    to
    existing
    sewere.
    That
    letter
    stated
    that
    permits
    would
    be
    required
    for
    larger
    construction
    4
    713

    and
    requested--rather
    than
    ordered—-that
    connections
    to
    existing
    sewers
    be
    “limited.”
    People
    starting
    to build after that,
    if
    they
    already
    had
    connection
    contracts,
    would
    so
    far
    as
    the
    record
    shows
    have
    had
    no
    reason
    to
    make
    further
    inquiry
    of
    Godfrey
    as
    to
    whether
    they
    could
    connect,
    and
    no
    Agency
    permit
    was
    required
    if
    the
    building
    was
    to
    serve
    fewer
    than
    15
    persons.
    We
    think
    the
    good faith start of construction
    prior
    to
    today’s
    order
    constitutes
    sufficient change of position
    in
    reliance
    upon
    the
    ability
    to
    connect
    so
    that denial of a
    connection
    would
    impose
    an
    arbitrary
    or
    unreasonable
    hardship.
    The
    further
    request
    for
    permission
    to
    connect
    to
    existing
    sewer
    lines
    even
    in
    the
    absence
    of
    contracts
    to
    connect
    must
    be
    denied.
    These
    cases
    have
    even
    less
    to
    support
    them
    than
    those
    denied
    above.
    The
    argument
    is
    made
    that
    additional
    connections
    should
    be
    allowed
    in
    order
    to
    help
    raise
    money
    for
    the
    improvement
    project.
    We
    rejected
    a
    similar
    argument
    in
    City
    of
    Silvis
    v.
    EPA,
    #72—141
    (June
    14,
    1972),
    and
    we
    reject
    the
    present
    argument.
    1The
    situation
    should
    not
    be
    permitted
    to
    get
    worse
    before
    it
    gets
    better.
    There
    is
    inadequate
    proof
    that
    the
    project
    cannot
    be
    financed
    without
    allowing
    additional
    pollution,
    and
    if
    that
    were
    the
    case
    the
    answer
    might
    be
    to
    procure
    adequate
    money—raising
    powers
    for
    the
    Utility
    Board,
    or
    to
    send
    all
    the
    sewage
    to
    a
    municipality
    with
    adequate
    powers,
    not
    to
    pollute.
    We
    would
    be
    in
    a
    better
    position
    to
    evaluate
    the financial issue
    if a~furtherpetition, with specific figures,
    were submittd committing Godfrey to a more specific program.
    The final request is
    to connect a college, a high school,
    and an existing subdivision to the Godfrey lagoons.
    It
    is
    clear that to do
    so would worsen the already unsatisfactory
    effluent.
    rt~
    is also ~1éat that at pr~sentth~wastes
    from both the college and the subdivision are inadequately
    treated in small local plants.
    We have allowed connections to
    overloaded plants to eliminate specific health hazards from
    poorly functioning septic tanks, see City of Silvis v.
    EPA,
    #72-141
    (June
    14, 1972), upon proof that was the lesser of
    two
    evils.
    There is no such proof in the present record; we simply
    cannot tell whether it would be worse to stick with
    the present poor plants or to impose further overloads on Godfrey.
    As for the high school, we know nothing about its present waste
    disposal at all.
    We cannot grant a variance without further
    proof on these issues.
    The college has recently filed a variance
    petition of its own
    (#71-246), seeking relief from its applicable
    deadline for improved ‘treatment on the ground that ultimate
    connection to Godfrey is the best answer to its disposal
    problem.
    We have authorized a hearing on this petition, and
    the question of immediate connection can be explored in that
    proceeding.
    Other parties similarly situated are invited to
    intervene.
    4
    714

    The hearing officer allowed until June 30 for comments
    by the parties and interested citizens on the alternative
    proposal for tertiary treatment noted above.
    Godfrey has since
    asked for another 60 days.
    Having examined the record, we see
    no reason for our decision to be further postponed,
    since it
    is not clear that anything such comments may reveal would affect
    our decision on any of the issues presentl~’before us, and
    since there is need to allow certain connections now and to
    inform the parties of our views in order to avoid further
    delay.
    If any party at a later date wishes us to give further
    consideration to these or other matters,
    a new proceeding may
    he filed.
    We trust Godfrey will move with all expedition to
    eliminate the present unsatisfactory situation.
    Mr. Kissell concurs except that he would allow connections
    for those with connections contracts who have entered contracts
    for construction.
    He and Mr. Aldrich will file separate opinions.
    ORDER
    #72-68:
    The request for variance is hereby granted to the
    extent that waste sources under construction as of June 27,
    1972 on lots covered by existing sewer connection contracts
    may be connected to existing sewers tributary to Godfrey Town-
    ship lagoons, and in all other respects the variance is
    hereby denied.
    #72-154:
    The request for variance is hereby granted
    #72-246:
    A hearing will be held.
    I, Christan Moffett, Clerk of
    the Pollution Control Board,
    certify that the Board adopted the above Opinion this
    ~7
    day of June,
    1972, by a vote of
    ~_./
    —715

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