ILLINOIS POLLUTION CONTROL BOARD
November 14, 1974
FIRST NATIONAL BANK AND TRUST COMPANY
)
OF EVANSTON, TRUSTEE OF TRUST
NO. R-1692, and S.
S. KRESGE CO.,
Petitioner,
vs.
)
PCB 74—308
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Robert Cohen, Attorney for Petitioners
Barbara Sidler, Attorney for the EPA
OPINION AND ORDER OF THE
BOARD
(byMr. Henss)~
First National Bank and Trust Company of Evanston and S.
S.
Kresge Company have filed an Appeal from a Permit Denial issued
by the Agency on June 12,
1974.
Petitioners seek permission for
a sewer connection
at a new K—Mart retail store to be constructed
in the southwest section of Springfield,
Illinois.
Because of an
overload condition at the Springfield Sanitary District, which is
particularly acute during periods of precipttation, the City of
Springfield is currently under a sewer ban imposed by the Agency.
The parties are in agreement that the sole issue before the
Board is Paragraph
2 of the permit denial which states:
“since
the holding tank and telernetering equipment must be operated in
conjunction with sewers owned and operated by the Springfield
Sanitary District, the Sanitary District must assume operational
responsibility for the proper operation and maintenance of
the
closure system
(sensor, telemetering system7
shut—off valve and
valve opening).
It will be necessary to provide us with a letter
from the Sanitary District stating that it accepts
this responsi-
bility.”
All other reasons for the permit denial have been
essentially resolved, and the Agency can issue the permit when
“responsibility” for the proposed holding tank and telemetering
equipment has been established.
Petitioner will install a five day sewage holding tank at
the site of the store.
Elimination of sewage from the tank will
be controlled by means of
a remote probe which is to be installed
14—423
—2—
in a manhole at Cherry Road and Outer Park Drive.
The probe will
determine flow conditions
in the sewer system of the Sanitary
District and then transmit a signal over telephone lines to the
tank site.
When a “pump” signal is received the K—Mart system
will automatically pump sewage from the tank.
Upon receiving
a
“no pump”
signal,
the system will automatically close and the
tank will begin to fill.
A signal will be relayed inside the store
so that the retail manager
will be aware that the tank
is filling.
If the tank reaches an accumulation equivalent to three days
capacity another signal is then transmitted to the store indicating
to the retail manager that the tank has only
2 days capacity
remaining.
The manager then must arrange to have the tank pumped
out and the sewage disposed of.
The proposed system is designed to be fail-safe in that any
malfunction or loss of signal will cause the pump to shut off and
the discharge valve to close.
A manual valve accessible only
through a bolted door
is located within the tank
as required by
the
Agency design specifications.
In the event the tank fills
to
capacity, the retail manager would then have three options:
1)
arrange to have the tank pumped out,
2)
let the sewage back up into
the store,
or
3) descend into the tank and open the manual valve
thereby releasing the sewage into the Sanitary District’s sewer
system.
Petitioner asked the Sanitary District to assume the responsi-
bility for this closure system, but the Sanitary District declined
on the ground that “the facilities are benefiting the Petitioner
and they should be responsible for the operation and maintenance
of them”
(R.
48).
Petitioners profess
to have the necessary
expertise available to perform required inspections and maintenance
and are willing to accept responsibility for the proper operation
of the system.
From the record it appears that there are several reasons for
the Agency’s insistence on retaining this provision in the permit.
First,
the Agency seeks to avoid the possibility that K-Mart
personnel might attempt to override the automatic controls or open
the manual valve if faced with the possibility of sewage backup into
the store.
To this Petitioner answered K—Mart personnel cannot
override the automatic system and that illegal opening of the manual
valve would possibly subject the store to prosecution under the
Environmental Protection Act and relevant regulations.
Second,
the Agency contends that there is the possibility that
other projects may seek to install similar systems
to be controlled
by the same closure system and telemetering sensors that control
the K-Mart holding tank.
Petitioners acknowledge this possibility
but state this argument favors K—Mart control so that K-Mart could
be protected from interference with its system by another user.
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424
—3—
Finally, the Agency seeks to avoid
a possible proliferation
of such independently operated systems which could cause additional
overloading at the Sanitary District’s treatment works.
During the hearing the Agency sought to introduce testimony
regarding possible future nermit applications for similar systems.
Hearing Officer Zelle ruled that such testimony did not pertain
to
the
current issue and refused to allow the introduction
of such
testimony.
The Agency now seeks to have this ruling set aside and
to be allowed to submit the information by affidavit.
It is
the ruling of the Board that the Hearing Officer’s
decision on such speculative testimony was correct.
The
information
would
be
of
interest
to
the
Board,
but
it
has
no
direct
bearing
on this appeal.
Many “possibilities”
exist in the realm of
pollution control, but only
a
few actually materialize into real
events.
If the Agency has information showing that such independent
systems will proliferate to the detriment of sanitary districts,
perhaps
a change is needed in the Water Pollution Control Regulations.
In this
case, however,
the Motion to Overrule is denied.
Petitioners have apparently gone the extra mile to receive
this permit.
The records show that the system will be operated in
the automatic mode thus alleviating the possibility of sewage
entering the Springfield Sanitary District system during periods
when the Sanitary District cannot adequately treat the additional
load.
Maintenance for the system is available locally and
Petitioners’ witnesses have testified that such maintenance will
be provided.
Indeed,
a malfunctioning system would be
a severe
detriment to continued operation of the retail store.
Since the Acrency fears K—Mart personnel might open the manual
valve at the wrong time,
consideration should he given
to sealing
the valve with some material that must be broken in order to operate the
valve.
Petitioners’
permit could be so worded that breaking of seal
without Agency permission would he grounds for revocation of the
permit.
Routine inspections by Agency personnel would reveal
a
broken seal.
In addition, Petitioners would also be
subject
to
prosecution for violations
of the Environmental Protection Act and
applicable regulations.
It is
the finding of the Board that the Agency did wrongfully
deny permits to Petitioner.
The K—Mart system appears
to have been
designed with sufficient safeguards to preclude additional peak
loading on the Springfield Sanitary District’s
sewer system.
If
all other conditions for the permit are met to the Pigency~ssatis-
faction, the permit shall be
issued.
The Agency shall not decline
to issue the permit solely on the premise that the Springfield
Sanitary
District
accept
operational
responsibility
for
the
proposed
sewage
system.
14—425
—4—
ORDER
It
is the Order of the Pollution Control Board that the
Environmental Protection Agency shall not deny Petitioners a
permit for construction of a proposed sewage system as des-
cribed elsewhere in this Opinion solely on the basis that the
Springfield Sanitary District assume responsibility for operation
and maintenance of the proposed system.
I, Christan L.
Moffett, Clerk of the Illinois Pollution Control
Board, he eby certify the above Opinion and Order was adopted
this
\‘4~
day of
.~Jj4~
1974 by a vote of
£~
to
c
cr)r
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