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