ILLINOIS POLLUTION CONTROL BOARD

April

13,

1978

CITY OF WYOMING,

)

)

Petitioner,

v.

)

PCB 77—252

ENVIRONMENTAL PROTECTION AGENCY,

)

Resoondent.

DISSENTING OPINION

(by Mr.

Young):

After consideration of the record in this matter,

the

Board determined that an arbitrary and unreasonable hardship

would occur if the variance requested were not granted;

I

am unable to reach the same conclusion.

There

is absolutely no evidence in the record and nothing

in the petition concerning the environmental effect of the

discharqe on the receiving stream, despite the fact that the

olant is biologically and hydraulically overloaded.

The record

indicates that primary effluent is being bypassed directly to

the stream;

the fraction treated far exceeds the applicable

BOD5 standards

(by a factor of at least 4);

fecal coliform tests

are not being run;

and, as

is usual with overloaded plants, the

flow meter is not operational.

The record contains some very general testimony given at

hearing concerning a potential public health problem occasioned

by the poor performance of existing septic tank disposal fields

within the unsewered portion of the City~sFirst Ward.

There

is

also evidence of the existence of a continuing problem of

sewer

surcharging

and

the

flooding

of

basements

within

the

areas

currer~L1

y

sewerod.

Since

this

basemenL

sew~e

I

I

oodinq

occurs

downstream

of the unsewered area

for

whi

oh

sorvi

CO

~5

souqht,

the

back-ups

can only

be

aggravated

by

any

additional

load.

The

standards

for the grant of

a variance were established

by

the

Board

in

1970

in

Environmental

Protection

Agency

v.

Lindgren

Foundry Company,

1

PCB

11,

which

states

at

1

PCB

16

that

a

variance

is to be granted only in those extraordinary situations

in

which

the cost of compliance is wholly disproportional

to the benefits;

30—17

---

—2—

doubts are

to he resolved in favor of denial.

It is essential

in deciding

a variance petition to compare

the

good effects

of

cnmnliance

with

the

bad.

1~s set

forth

in

Norfolk

&

Western

Railway Company

v. Environmental Protection Agency,

1 PCB 281

(1971),

the

petitioner has the burden to prove that the ultimate

harm is tolerable or excusable when balanced against the effect

of

a denial.

In my opinion, it is not possible

to weigh the

prooriety of the grant of the variance unless the effect of

the discharqe has been adequately presented;

only then can the

determination of arbitrary and unreasonable hardship be made.

Petitioner having failed in his burden of proof,

the petition

should have been denied.

It

is

noted

from

the

record

that

the

City

proposes

to

immediately extend the sewer but does not have sufficient

funds

to pay the owner’s share toward upgrading the treatment works

and rehabilitation of the collection system.

They must be

aware that any funds expended for a sewer extension under

this

variance will be ineligible for any reimbursement under the

state and federal grants program and will not be included as

part of

the City’s 25

share

in any future grant program.

N

~

Jarn~sL.

Young

I, Christ~eL. Moffett,

Clerk of

tiie Illinois Pollution

Control Board, hereby certify the above Disse ting Opinion

was submitted to me on

the ~

—

day of

__________________—,

1978.

Christan L. Moff~X~Clerk

Illinois Polluti6’,i~tontrol Board

30-18