ILLINOIS POLLUTION CONTROL BOARD
March 7, 1972
NORTH SHORE SANITARY DISTRICT
# 71—36
ENVIRONMENTAL PROTECTION AGENCY
Opinion and Order of 1:he Board on Reversal (by Mr. Currie):
On January 6, 1971, after detailed hearings relating to
the adverse effects of phosphorus on Lake Michigan and to
the technology for controlling phosphorus discharges, this Board
adopted regulation #R 70-6, which among other things required
phosphorus in effluenis to the Lake to be reduced to 1 mg/l
by December 31, 1971, The North Shore Sanitary District, which
operates seven sewage treatment plants discharging to Lake
Michigan, indicated its intention to comply with the regulation
at its Waukegan plant but requested a variance with regard to
the others. After hearing, in an extensive opinion by Mr. Dumeile,
the Board unanimously voted to deny the variance (June 9, 1971).
On January 3, 1972 our decision was reversed by the Appellate
Court for the Second District on the ground that ‘1the Board
based its decision upon matters which are not within the record.”
(Ill, App., 2d Dist., Docket No, 71—157).
On January 17, 1972, we entered an order directing the
parties to give us written statements indicating their position
as to what action the Board should take on the basis of the
reversal of its initial order. Among the alternatives raised
for the parties~ cc isideration were to enter a new order on
the basis of the record as defined by the Appellate Court; to
hold further hearings; or to deem the case closed. We then
deferred action pending resolution of our motion for clarification
of the Appellate Court~s decision, which was denied without
opinion.
We have asked the Attorney General to seek further review
in the Supreme Court, in order to clarify how we can avoid
wasteful reintroduction of evidence received at earlier proceedings
between the same parties; to make sure that cases are remanded,
as we think the court intended, when reversed on grounds such
as in this case; to establish the right to file with the
reviewing court portions of our record inadvertently omitted;
and to protect our subsequent action in the event the Appellate
Court disagrees on a later appeal with our interpretation of its
decision.
3
—
731
At the same time, however, we
cannot wait
for the
Suoreme
Court to decide these far—reached issues if we are to have
any impact upon what is discharged to Lake Michigan in the next
year or two. Moreover, we believe, for reasons
indicated below,
that the import of the Appellate Court’s decision i~ that we
reexamine the proper record, excluding those matters cb~iected
to by the
court, and
enter an approprinte order on the r~erits.
We have
made such a reexamination
and
conclude that the District
has not established its case for a variance
on the record as
defined by the Appellate Court.
The
court’s order simply states that cur order is ‘reversed.”
In light of the court’s opinion, we do not read this as a grant
of the requested variance by the court.
For, even assuming that
the court woi-ild in an appropriate case grant a variance itself
rather than remanding for
us to do so, the court nowhere
suggested that
it found the
evidence justified a finding of
arbitrary or unreasonable hardship, the statutory requisite
for a variance. On the contrary, the court’s entire thrust
was that our decision must be
set
aside because
we relied u~pon
facts outside the record. We therefore can read the order
only as a setting aside of our order and a remand for further
proceedings consistent with the court’s opinion.
We think this requires us to reassess the evidence without
considering anything the court deemed to be outside the record.
Accordingly we shall go through the evidence again, this time
taking care to excise what the court directed us not to consider.
On the basis of what is indisputably in the present re-
cord, we remain convinced that the District has not proved that
compliance with the regulation would impose an arbitrary or
unreasonable hardship, as required by section 35 of the Act,
and therefore once again we deny the variance requested.
A summary of the evidence relevant to conclusion follows.
The District’s plants, with
the
exception of Waukegan,
which was never involved in
the
present case, have the following
capacities: North Chicago, 3,500,000 gallons per day; Lake
Bluff, 300,000; Lake Forest, 1,000,000; Park Ave. (Highland
Park)
,
1,000,000; Ravine Drive (Highland Park); 500,000; and
Carey Ave. (Highland Park), 1,000,000 (R. 8, 30). Of these
six plants only North Chicago has more than primary treatment
(id.), and all except the Ravine Drive plant are overloaded both
hydraulically and organically (R. 33-34). Measured phosphate
concentrations in the effluent from the North Chicago and
Waukegan plants (indicated in respondent’s group exhibits 2 and
3, which were admitted into evidence and whose authenticity or
accuracy was not questioned) averaged 16.6 mg/i at Waukegari and
16.7 at North Chicago as P04. The regulations limits effluents to
3.0 mg/i as P04. There is nothing to indicate that
the effluent
from the other lakefront plants is
any
better; indeed they provide
a
lesser degree
of
treatment than either Waukegan or North Chicago.
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—
732
Even
assuming, in the absence of more exact evidence, that
the effluent from the primary plants is no worse than that from
the secondary in terms of phosphate, and ignoring the admitted
problem of flows beyond plant capacity, 16.6 mg/I of phosphate
at
the
nominal capacity of the five small plants (3,800,000
gallons per day) means the input of over 200,000 pounds per
year
Theof
phosphateDistrict’sintotestimonythe Lake.as1
to the effect
of this additional
load on lake ecology was
given by two engineers, neither of
whom, admittedly, was a biologist
CR. 37, 82).
Raymond Anderson,
Secretary and General Manager of the District,
said that in his
opinion “it would cause very little
damage to Lake Michigan to
continue
this
for another year
. . .
because of the small amount
of flow that emanates from within Lake County to Lake Michigan
estimated at one per cent of the total flow reaching Lake Michigan
from all of the four states bordering on the lake” (R. 26),
Herbert W. Byers, Chief Engineer, testified
to the same effect:
“My opinion is that the phosphate not being removed will not
have any adverse effect on Lake Michigan.
.
.
The quantity is
very small, and so small that I would expect that you would get
no measurable background level of phosphorus in Lake Michigan
from this
addition” (R. 64)
.
Mr. Byers said his “own feeling” was
that Lake levels might “probably” be increased “in the neighbor-
hood of one part per
million or trillion.
I have never sat down
and figured it out, but I have got to take so many gallons in
Lake
Michigan” (R. 82). Mr. Anderson added that he knew of no
deleterious effects of phosphorus “on anyone drinking water,
unless, of course, we are talking about excessive amounts,”
which he did not expect to find.
He did not know what an
“excessive
amount” would
be (R. 48-49). That was the sum total
of the District’s
evidence as to the effect of its proposed
discharge upon the Lake.
The fact that sources in other States may be discharging
substantially larger quantities elsewhere to the Lake is simply
irrelevant. The issue is whether what the District means to
discharge will hurt the Lake. There was no evidence as to the
impact of discharges in other States on the water quality off
Lake County. The District presented no evidence as to the rate
of dispersion of contaminants once discharged into the Lake, as
to whether phosphorus could be expected to mix instantly with
water from the northern end of the Lake or to remain in relatively
high concentrations for significant periods near the point
of discharge, or as
to
the extent of the phosphorus problem
already in the Lake, Its only witness as to the effect of
continued discharges on Lake concentrations admitted he was
simply conjecturing; he had not “figured it out.”
1 We take official notice that 1 gallon
=
3.785
liters; that
1 mg
=
.0000022
lb.;
and that 1 yr.
=
365
days.
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—
733
The District did not even mention the possibility of over-
fertilization of the Lake, with consequent possibilities of
nuisance algal blooms, much less demonstrate that its anticipated
discharge would not cause or contribute to such a problem.
In short the District’s
case as to the effect of its discharge
upon the Lake consisted solely of the bare conclusions,
un-
supported by any relevant facts except the speculation that un-
known “excessive amounts” sufficient to poison drinkers would
not be likely, of two engineers admittedly without special
qualification with respect to aquatic biology. Aquatic biology
is what is at issue in this part of the case, and we do not
view these inexpert conclusions, devoid
of factual support, as
carrying any significant
weight.
Even without considering the
Agency’s evidence, therefore, we
find
the District has told us
essentially nothing to suggest that the effect on the Lake
will be small if
discharges continue.
The Agency’s evidence, moreover, reveals the following:
First, that water quality standards for phosphorus in Lake
Michigan, even before they were tightened by our recent regulation,
were regularly
and severely exceeded in waters adjacent to the
North Shore Sanitary
District. For example, the May 1970
report of the
Sanitary Water Board, introduced as Respondent’s
Exhibit 7 and not questioned,
states flatly that
The shore water did not meet the standard for total
phosphate during 1969.
Of four hundred and seventeen
samples collected, two hundred and
seventy-five (65)
exceeded the criteria for single samples. None of the
thirty beaches met the standard for annual average.
(p. 9).
The same report, on the same page, observes that “phosphates are
present in sanitary and industrial wastes, detergents and
fertilizers. They stimulate algae growth.” The corresponding
report of February, 1969 (Respondent’s Exhibit 5), is similar,
noting that “In Lake County, all beaches had 30 or fewer of
the samples meeting the criteria for daily limits.
. . .
High
phosphate values occurred frequently at the Waukegan outer beach
and the North Chicago beach. Ten of the twenty beaches sampled
on September 2 (1968) had P04 values equal to or greater than
1.0 mg/l.” The standard at the time for a single sample was
0.04 mg/i. (p. 19). Second, the Agency introduced into this
record a resolution adopted by the District itself in November
1970 (Respondent’s Exhibit 1), in which the District made the
following points:
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—
734
WHEREAS, excessive growth of algae and aquatic plants
accelerates the aging of Lake Michigan, reduces its
attractiveness for recreational uses, adversely affects
fish and aquatic life, and interferes with the quality
and procurement of public water supplies, and
WHEREAS, excessive discharges of phosphates to the Lake
contributes to excessive growth of algae and aquatic
plants, and
WHEREAS, synthetic detergents are a major source of
phosphates in sewage effluents discharged to the Lake,
.
the District urged municipalities within its boundaries consider
limiting the use of high—phosphate detergents by March 1, 1971.
Thus the District itself is on record, as shown by the evidence
in the present case, as declaring that phosphorus in its sewage
effluents is such a serious problem, notwithstanding the
District’s plan to divert its
wastes out of the Lake, as to make
it desirable to consider limiting the sale of high-phosphate
detergents as early as March 1971 in order to protect the lake
from potentially obnoxious algae and other growths.
In summary it seems to us abundantly clear that the District
has failed to demonstrate that the effect of continued phosphate
discharges from its plants as proposed in the variance petition
will have an insignificant effect on Lake Michigan. We think
the evidence is clear that phosphate can cause serious algal
problems, as indicated by the District’s resolution; that for
several years the shore waters in the area of the District have
grossly exceeded the standards for phosphate; and that to grant
the variance would allow additional thousands of pounds of
phosphates to enter this part of the Lake each year until full
diversion of the effluent is accomplished. We also think it
significant, in assessing the benefits of compliance with this
regulation, that the District conceded that treatment for
phosphorus removal would also result in a reduction ‘of suspended
solids from plants several of which provide only primary treat-
ment (R. 80-81).
Moreover, the evidence is plain that the District will
not be able to terminate these discharges by the end of 1972,
as might be inferred from Mr. Anderson’s testimony, quoted
above, that little ‘damage would be caused by allowing un-
controlled discharges “for another year.” Mr. Anderson was
questioned on this subject at pages 38—40 of the present re-
cord, as follows:
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735
Q Assuming no delays, when do you expect the effluent
from the Waukegan plant to be diverted from Lake Michigan?
A That is the one ‘that I
referred to as by the
end of
73,
Q Assuming no delays, when do you intend to have the
effluent from the North Chicago plant--
A About the middle of 1973.
Q How about Lake Bluff?
A The same for all of the remaining five plants,
about the middle of 1973,
Q
. . .
Do you feel it within the realm of likelihood
that there will be other delays?
A Yes.. I am afraid that there probably will be more
delays.
This last conclusion was based at least in part upon testimony
as to the considerable opposition and litigation faced by the
District in its attempts to carry out the diversion plan (ibid).
The District’s case, then, rests on its contention that
the sums of money to be spent are too large to be justified
in light of its very meager record as to the effects of
continued discharges on the Lake. To the evidence as to those
costs we now turn.
Chief Engineer Byers testified that temporary facilities
for phosphorus reduction at the six plants in question would cost
an estimated $350,000 in total, with minimal salvage value
CR. 51—60, 83—84). Operating costs, which included $153,000
for chemicals, were estimated to total $292,000 annually CR. 51-58).
We do not believe the chemical cost can be taken at face value in
light of the District’s own testimony that at Waukegan it plans
to accomplish phosphorus reduction by using waste pickle liquor
from a nearby industry at no cost above that of transportation
CR. 43-44). No evidence was offered to rebut the inference that
cheap pickle liquor might be used elsewhere as well. Nor do we
believe that operating costs are of particularly persuasive force
in this case. Everyone required to meet a regulation must pay
operating costs; the District’s claim for special treatment is.
bases upon its intention to abandon its lake discharge within
what it views as a short time. Operating costs, as we said
in our earlier opinion, “are not increased by the need to abandon
a capital investment in a couple of years
;
the only unique
3
—
736
hardship in the District’s case is the capital cost that
allegedly cannot be recovered” (p. 5)2
Even if we accepted the District’s cost figures at face
value, which as above explained we do not, we adhere to our
earlier conclusion, on the basis of the record
as
defined
for us by the Appellate Court, that “the total cost involved is
peanuts in the context” (p. 5) of an overall program estimated
at the time of this hearing at $86,000,000 CR. 22)
.
Taking
official notice of the population of ‘the District, we note
that even the District’s own figure for the first and most expensive
year of phosphorus control--$654,000 CR. 58) (assuming no
amortization of capital costs, as the District does, which
makes for the highest possible figure)—-is a good deal less
than five dollars per capita within the District. Our con-
clusion is that it is well worth an expenditure of that small
magnitude to avoid th~risk of worsening the already severe
violations of water quality standards in Lake Michigan with
regard to phosphorus, which the evidence in this narrow record
amply indicates the District itself agrees is a principal
cause of worry over algal and other plant nuisances.
The statute is very clear that no variance can be granted
uithout “adequate proof” that compliance would impose an
arbitrary or unreasonable hardship” and that in variance cases
“the burden of proof shall be on the petitioner” (Environmental
Protection Act, sections 35, 37). Our procedural rules,
implementing this requirement, make it clear that it is part
of the petitioner’s case to plead (and thus to prove) “the costs
that compliance would impose on the petitioner and others~
and
. . .
the injury that the grant of the variance would impose
on the public” (PCB Regs., Ch. 1, Rule 401). We have stressed
these requiremer~s as to both pleading and proof in several
cases. For example, in Decatur Sanitary District v. EPA,
#
71—37 (March 22, 1971), we dismissed as inadequate a variance
2 We think the variance request regarding North Chicago has
been mooted by our subsequent order in the enforcement proceeding
that “The District shall employ alum at the North Chicago treatment
plant in order to reduce the BOD and total suspended solids
discharged by 50 and to reduce phosphates by January
r,
1972.”
League of Women Voters v. North Shore Sanitary District,
#70—7, June 23, 1971. At this point the question of compliance at
North Chicago is res judicata. The District’s estimate of
North Chicago’s share of the capital costs is $100,000 (R. 55)
North Chicago was further estimated to account for $45,000 of
sludge—handling costs and $95,000 in chemicals annually (R. 56-58)
Subtraction of these amounts would significantly reduce the cost of
the improvements that the District objects to. In any event, if we
are wrong in deeming North Chicago no longer a part of this case,
not only the costs but also the discharges are essentially doubled,
and the benefit-cost ratio is substantially unaffected. We reach
the same result whether or not North Chicago is included.
3
—
737
petition because it did not “contain an adequate statement
of the injury that would result to the public if the
variance were granted.
. . .
It
is the job of the petitioner,
not of the Agency, to prove the
case for a variance.” In
Norfolk and Western Railway Co. v. EPA, # 70-41 (March 3, 1971)
we denied
a variance request for
want of adequate proof
that the
hardship of compliance was so great in comparison with the
benefits as to justify the extraordinary
remedy of a variance:
Section 37 of the Environmental Protection Act makes plain
that the petitioner must prove that the pollution caused
by its continued violation is not so great as to justify
the hardship
that immediate compliance would produce.
We cannot determine whether or not the costs of compliance
significantly
outweigh the benefits as the statute requires.
unless we have some idea of what the benefits are.
For
all we know on the present
record,
the railroad’s shops
may be an unbearable nuisance and health hazard.
The
petitioner
has clearly failed to meet its burden of proof.
Moreover,We have had
occasion to observe
that the burden on the
petitioner
is an extremely heavy one.
See, e.g., EPA v. Lied—
gren Foundry Co., #70-1 (Sept. 25, 1970), at pp. 6-7:
The Words “unreasonable” and “arbitrary” plainly suggest
that the Board is not to examine in every case whether
or not compliance would be
a good thing.
To do so would
completely destroy the force of the regulations
and en-
courage excessive litigation.
. * .
Accordingly, the
statute creates a strong presumption in favor of compliance.
A variance is to be granted only in those extraordinary
situations in which the cost of’ compliance is wholly
disproportionate to the benefits; doubts are to be resolved
in favor of denial.
.
For all the reasons given in this opinion, and on the
basis of our reexamination of only those parts of the record
which the Appellate Court has indicated we may properly consider,
we conclude that the District has failed to satisfy its burden
of proof and therefore once again we hereby deny the requested
variance.
I, Christan Moffett, Clerk of the Pollution Control Board, certify
that the Board adopted the bove Opinion and Order on Reversal
this,,,,7,~,,,,dayof
~
1972, by a vote of
9~-o
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