ILLINOIS POLLUTION CONTROL BOARD

June 

1971

North Shore Sanitary District

v.

)

PCB 71—36

Environmental Protection Agency

Mr. Murray R. Conzelman for the petitioner,

Mr. Thomas Scheuneman for the respondent

Ocinion of the Board (by Jacob C. Dumelie)

On March 4, :L97l the North Shore Sanitary District (District)

petitioned the Illinois Pollution Control Board (Board) for a variance

to be exempt from the operation of a certain regulation CR 70-6

Phosphorus Water Standards) adopted by the Board on January 6, 1971,

amending SWB-7 and dealing with phosphorus as a water contaminant. The

regulation is both a water quality and effluent standard as follows:

Water 

Quality Standard. Existing

Board Regulations

snecitying 

water quality standards for Lake Michigan,

Wolf

Lake 

and the Calurnet River (lakeward of the OtBrien Locks)

are hereby amended

to

provide that the concentration

of

total

phosphorus measured on unfiltered samples

in

these waters

shall

not exceed 0.02 mg/i as phosphate

(PU4) or 

0.007 mg/i as

phosphorus

(P)

Effluent Standard.

Except

for

unavoidable combined sewer

overflows during bhe interim 

period

before their complete

elimination, no effluent to the waters of Illinois listed in

Section 

above, shall include phosphorus in excess of 3.0 mg/i

as phosphate (P04) or 1.0 mg/l as ehosphorus (P) after December

31,

1971. Di:Lution of effluents shall not

be

acceptable

alternatives to treatment.

Where water

is addea to streams of

waste water and cannot 

he reasonably seParated? then its quantity

shall he measured and effluent concentrations recomputed to

exclude its diluting effect.

The

District requested that

it be granted 

a variance

for

six

:f its 

seven lakeside plants to

be

allowed tc discharge

effluents with

excessive phosphorus concentrations beyond the 

December 31,

1971

Thadline.

The District requested that the effective date for the

effluent

standard he extended to December 31, 1972 for all except

its

Waukegan plant.

1 —

673

The District has provided sewage treatment since 1914 and at pre-

sent provides treatment for most of Lake County with treatment plants

which discharge into Lake Michigan (R.7-8). The largest is the

Waukegan Plant for which no variance is sought (R,l7). Proceeding

southward the plants and their capacities are as follows (R.8,3D):

PLANT            

TREATMENT PROVIDED    

CAPACITY

Gallons pe~~

North Chicago         

Secondary         

3,500(000

(Trickling Filter)

Lake Bluff

Primary

300,000

Lake Forest

Primary

1,000,000

Park Ave. (Highland Park)

Primary

1,000,000

Ravine Drive 

(Highland Park)

Primary

500,000

Carey Ave. (Highland

Park)   

Primary

1,000,000

All except the Ravine Drive Plant are both organically

and hydraulically

overloaded (R.33-34).

A witness for the District stated that it ex-

pects to divert the effluents from Lake

Michigan 

the middle of 1973

for all the plants for which the variance was sought (R.38)

Mr. Raymond Anderson( the District’s

Secretary and General Manager

stated that although the District was ready to expand. its facilities

in 1963 it was prohibited

from doing so by the Sanitary Water Board

because of the Lake Michigan diversion case then being heard by the

U.S. Supreme Court.

The District

proceeded with its expansion plans

immediately upon the conclusion of the case in :L967 (R.9)

$35,000,000 bond issue was passed upon by the voters in 1968 to allow

the District to build new facilities

and to improve the existing

level of treatment

(R,9—ll)

Both Mr. Anderson and Mr. Herbert W. Byers, Chief Engineer of

the

District

testified

that

in

their opinion there would be no

substantial

detrimental effect, on Lake Michigan as a result of the

District

continuing phosphorus inputs

into

the Lake (R,25—26, 63—64)

Countering these opinions are the statements of Dr. Eugene Stoermer

in ~

District

PCB 70—7, 12, 13, 14 (March 3, 1971) and the eloquent testimony of

Dr. A,F. Bartsch at the

Phosphorus Water Standards rule-making 

hearing

(R 70-6) 

which he concluded that, “If you like this Lake the way

it is, then you ought to 

quit insulting

it with all this junk you

are putting 

in; and if you keep the level down to

the lowest you 

can

maybe you can even turn 

hack in time.” (R 70—6,R.305), The Board

has commented on the District?s phosphorus discharges in another

proceeding. In League of ~

District (supra), the Board said:

—

674

“The standard in SWB-7.. .was that total phosphate

shall not exceed 0.03 mg/i on an annual average

basis and 0.04 mg/l on a single value or average.

65 of the samples taken exceeded the standard with

the highest readings being taken in the area of the

Lake used by the District. In fact, samples indicated

a total phosphate content of as high as 3.9 mg/i,

which is 90 times higher than the standard would allow,

The standard has since been tightened by this Board

to 0.02 mg/i...”

“It is obvious from the facts recited above that in-

adequately treated discharges by the District into

Lake Michigan, particularly with regard to bacteria,

viruses, phosphates, and unsightly floating matter,

have created a nuisance and rendered the waters of

the Lake injurious to public health and to domestic,

recreational, and other legitimate uses, and therefore,

that the district has caused and continues to cause

water pollution in violation of Section 12(c) of the

Environmental Protection Act, as defined by section 

3(n).

It is equally obvious that these discharges have also

caused violations of the numerical standards of Rule

and Regulations SWB—7, Rule 1.02, with respect to bac-

teria, floati,ng solids and debris, total phosphates,

ammonia nitrogen, and MBAS. Opinion at 5,7-8, emphasis

added.

cannot say that the continued input of phosphorus from the

lakeside plants for at least another year or year and a half is

de minimus, The nominal hydraulic capacity of the five smallest

plants is 3,800,000 gallons per day. Using the commonly accepted

concentration of 10 mg/i of phosphorus in domestic sewage the total

daily input of phosphorus without any reduction is 335 pounds 

122,000 pounds per year. While it is true that such a quantity mighk

have little impact on the accelerated eutrophication of the Lake if

the input were evenly distributed it is also known that the mixing

of in—shore and deep water areas is a slow process. Local problems

could occur in the shoreline areas which are used for recreation and

other important purposes. The already very high concentrations of

phosphorus along the North Shore beaches indicate that this area can

ill afford the risk of any continued additions. Compliance now mi

be what is needed to prevent a more serious algae problem in the are~,

The premise for this variance request is that in order to provi

the treatment for phosphorus removal which the regulation requires t

District would have to construct temporary facilities and provide

chemicals for addition to the treatment process at what the District

considers unreasonable cost. The District’s Chief Engineer outlinec

the program as to needed facilities, and chemical and labor costs.

Buildings would have to be constructed at the various sites for an

estimated aggregate cost of $350,000 including tanks and associated

1

—

875

hardware. The cost of chemicals was estimated at $153,000 per year.

It was stated that additional sludge handling would annually add

$127,000 to the District’s operating costs and labor costs would be

increased $12,000 annually (R.51-58). The cost to the District

for the first year for the temporary phosphorus treatment facilities

was thus estimated to be $654,000 while the annual expenditure

thereafter was estimated to 

$292,~00O 

(R.58). 

The salvage value

of the temporary facilities was estimated to he minimal (R.59-60,

83—84)

Beyond cross—examination the above cost estimates were not

challenged at 

the

hearing 

on April

6. However, 

at a 

later

learing

on April 

29 in

connection with the 

compliance schedule

resulting.

from the previously cited case (PCB 70-7. 12, 13, 

14)

the District 

made

a representation which substantialty 

changes this

variance 

request

and results 

a very substantial lowering 

of the

above cost estimate.

Through 

Mr. Matthew Riddell,

a

consulting

engineer 

for the

District,

the

District withdrew 

its

request for a variance for 

the

North Chicago

plant. 

Mr. Riddell

stated 

that

the 3.5 

MCD of sewage

treated at that

plant 

would.

he in compliance 

with the regulation (POE 70—7, 12, 13, 14;

R.,145l—2)

The Board takes otfic~al notice of this .statement

made 

under oath

at a 

public hearinq in a matter dealing csi th the same facIlities.

The

3

str~.ct i~ ettec~ souct’L tu an~r LHe r ~etiticn

~o remo~e the ‘io~t

Chicago 

Plant from the variance reguest and we allow this amendment

~ti~h

~emo~e~~ almds~ i:al o~ th~ :‘~erao~i.~can~cati from t~ C

str ~t’

request. 

To make so:ae realistic appraisal of the

cost of 

phosohorus.

removal we must now re—evaluaf a the Din, rick’ e t•est.imony

as

to cost.

Before we do so several considerations

not. fully die’cussed at tliehearic:.~

should be dealt •with such as the mac:nitude of t.he building and hardware

cosi: estemates, tke ctemicai costs ancL the zero salvage value. It was

estimated to cost. $50

000 per site for a buildinc,

tank and metering

pUfl:ip and assocIated hardware.

The necessity for the various iroposed

buildings, was not shown in any instance.

Questions such as the use of

ewast~nah~~±.~ircrs

c’

~tsuiareo

LCPth

oct

adc~’~s~e

Neithei

the seemmnoly ex.orhit.ant’ cost c.f $50 ,000 7.er site broken down in ary

detailed way..

The chemical crecipitana

selected for the six plants for ehi.ch

the variance was sought was alum (R~59)

Very little

was said. regarding

the

use

free 

waste tickle liquor at other than t:oe Waukeaan plant

(P.78) 

At

the Naukegan plant the District will be effectang phosphorus

removal 

in time to meet. the Phosphorus Water

Standards 

December 1971

deadline.

The trocess used at

that 

plant is the application

of

waste

nickle 

licuor obtained at no cost excect transportation

from a local

steel processing 

plant

(P.43—44)

The phosphorus removal is accomplished

at what Mr.

Anderson described as “very 

nominal” cost

(R.4~)

Why

not free pickle 

liquor at the other plants :Lnstead of the annual

expendl-

‘n.re

$L33,000 1o~ uhoc~

The zero salvage value ascribed to the capital equipment 

by the

District’s witness appears to be unrealistic for at least two reasons.

If, for the temporary facilities, the District chose tanks and pumps of

a size which could be used in their expansion plans the equipment

could not then be thought to have no salvage value. Additionally,

if, as appears likely, phosphorus removal becomes a more widespread

requirement throughout Illinois the District might find a willing

buyer for its used system in a nearby Sanitary District or 

other

municipality.

Upon reappraisal of the District’s cost 

estimate by elimination

of those costs related to the North Chicago plant the estimate 

capital costs is decreased from $350,000 to $250,000. The other costs

are virtually cut in half, The District’s estimate of the first 

year

costs is thu~ reduced to $396,000. Use of 

the

free chemical 

supply

(waste pickle liquor) and a realistic 

view of

the salvage value and

sludge handling 

costs 

would put 

‘the

District’s costs within the usual

range of cost for treatment for phosphorus removal. 

At its rule-

making hearing regarding Phosphorus Regulations, 

the Board

heard

testimony 

that phosphorus rernova:1 

can

easily be accom~1ished at a cost

in the 

range 

of 2-44

per 1000 gallons. In that proceeding the Board

concluded that the co~tsof operation were quite minor 

in relation to

the amounts of phosphorus that treatment. 

will keep

out of 

the Lake

Nothing in the District’s case indicates 

that

operating costs 

will

be more burdensome for them 

than

for anyone else. Operating costs

are not increased by 

the

need to 

abandon a capital investment in a

couple of years; the only unique hardship element in 

the

District’s

case Is 

the

capita? cost that allegedly 

cannot

be recovered. Even

~t

the

Dascr~ct ~s light 

ever~,one 

of us

co~ ~str’na~es 

un~’Ia..~.

operating costs, the total cost 

involved is

peanuts 

in the context.

an overall $95,000,000 program1 especially since the 

total

cost

for phosphorus removal is only 

one or two dollars ter catita. To

spend $95,000,000 to clean up 

the Lake while begrudeing $1 cc $2 per

capita to avoid worsening 

the Lake

‘s most serious problem in 

the

meantIme would 

foolish 

indeed.

The District,’ a prediction of a maximum 

of one year’s use from the

temporary facilities

is tenuous 

best. 

On the

record we 

have

no

assurances that the effluents 

for which the variance is sought will

be

diverte~ o~ 

the eth

197 ~

o~’e Lte Distr ~ct’

! eprecen~a

intends that this be so 

but

we know also that many 

of the

Districts

recent activities

have been stymied by litigation.

Thus we

can

have

no real confidence

that if 

we grant a variance

in

this

case 

we would

not be 

in a similar

position a 

year

from now being asked to 

grant an

extension of 

the

variance. This is a significant aspect 

of our decisic

to deny this request for variance.

In fact, 

the District,

itself. 

has

stated at the later hearing on April 29, that it would not be until

August 1973, at the earliest,

that the five small plants could he

diverted to the Clavey

Road Plant(PCB 70—7, 12, 13, 

14; P. l.340~ 1343,

1358)

~1

.—

677

We have considered the legal arguments of res adjudicata and

collateral estoppel raised in this case by the Environmental Protection

Agency. The Agency asserted that the issues raised in this case had

been litigated in League of Women Voters et al v. North Shore Sanitary

District (supra) and further that the standard by which the variance

request must he judged could have been raised as a defense in the prior

cited case. The Board has not made its decision on considerations

inherent in the doctrines of res judicata and collateral estoppel

such as identity of claims and issues and identity of parties.

Res judicata or collateral estoppel, that body of law which

prevents the relitigation of the same issue in a different proceeding,

was deemed inapplicable in this case. The regulation from which the

variance was sought was not in existence before the start of the

previously cited case. The determination of that case can therefore

not make the instant proceeding superfluous and a nullity. There are

intimate connections between the two matters and we have had

occasion to reference some of these;nonetheless we have decided this

case not on procedural grounds but on the merits of the issues.

The District adopted a resolution on November 28, 1970 in which

the Board of Trustees unanimously recognized that “excessive growth

of algae and aquatic pJ~antsaccelerates 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 that “excessive discharges of phosphates

to the Lake contributes to excessive growth of algae and 

aquatic

plants.” Further, the District admitted recognition of the fact that

“synthetic detergents are a major source of phosphate in sewage

effluents discharged to the Lake.” By 

that resolution the District

recommended “that municipalities within the District consider the

adoption of.. .ordinances” to limit and ultimately ban,the use and

sale of high phosphate detergents.

With the Board’s 

order today denying the requested variance 

are acting with the purpose expressed in the District’s own resolution.

We are’ acting also in furtherance of the purposes of the Environmental

Protection Act which in part are “to restore, maintain, and enhance the

purity of the waters of this State in order to protect 

health, welfare

property, and the quality of life, and to assure that no contaminants

are discharged into the waters without being given 

th~ degree of

treatment or control necessary to prevent pollution”. 

Further the act admonishes the Board to grant variances only in

cases wherein an arbitrary or unreasonable hardship resulting from 

the

application of the rule from which the variance is sought is

shown.,

Mere imposition of a money cost standing alone cannot be considered an

1  Environmental Protection Act, Section 11

—

678

unreasonable hardship. In Springfield Sanitary District v. EPA,

P03 70—32 (January 27, 1971) we denied a variance which requested this

Board to sanction the open bypass of 10 million gallons per day of

raw sewage during a period during which sewer repairs were performed.

The Springfield Sanitary District was compelled to undertake the

project at approximately double the cost which it had estimated had

the variance been granted and the District been allowed to bypass the

raw sewage. The phosphorus effluent standard from which the exemption

is sought imposes no arbitrary hardship on the District. Technology to

cope with the problem is readily at hand. Several alternative ways

are open to the District aside from its planned use of alum precipi-

tation. Apart from its own successful experimentation with pickle

liquor other chemical precipitation methods are available. To ask

the amount required for capital expenditures and other costs is

a reasonable one is the same as asking as to the worth of Lake Michigan.

There is a bonus to be derived from phosphorus removal that was

only touched.upon at 

the hearing. On cross—examination Mr. 

Byers

stated 

that 

increased suspended solids removal would be accomplished

with treatment for phosphorus removal (P.80-81) 

This is of 

course 

well

known and 

should 

not he overlooked in this ease of greatly overloaded

facilities. 

When

alum is added to sewage it forms a flocculent pre-

cipitate 

which enmeshes 

and

adsorbs both 

the

suspended particles and

colloidal matter. Such chemical 

treatment 

by enhancing coagulation

of

sus ended

solids 

has the effect o±

increasing 

the capacity of the

treatment facilities

thus allowing the overloaded facilities

to provide

more nearly complete treatment.

The instant case appears to be the kind of situation which a

prominent civil engineer was particularly

referring to recently when

addressed his fellow 

engineers:~

I air ashamed to admit that

the old. “pros” in the

field of water pollution control appear to be lagging.

The

ceople. 

. .

appear to

have 

swept by us. We seem

willing 

settle for too little,,. 

We

build sewage

treatment faci1ities~but we fear expenditures that

exceed what is absolutely necessary to maintain minimum

stream quality.

We tolerate poor operation.

We are

satisfied with less 

than

modern treatment techniques, and

confine our new, advanced, waste treatment technology to

pilot plants and research, laboratories... 

We take some

enforcement actions, 

but

we do not make “unreasonable”

requests. Is “reasonableness” ar~ excuse for weakness, and

“prudence” another word for timi6itv? The cases in which

a major polluted stream or lake has actually been restored

can be 

counted 

on one hand.,.

2

Eugene T.

Jensen, Operations Chief, Water Quality Office, Federal

Environmental Protection Agency, in an address to the American

Society of Civil Engineers National Specialty Conference, Los

Angeles, 1971;

quoted 

Saturday Review, May 1, 1970, 

p. 47.

—

679

The problem will not be solved merely by enactment of

legislation, no matter how well conceived or how expertly

drawn... 

We, the professionals in the field of water

pollution control, are going to have to change ourselves,

our concepts, and our way of doing things... 

First and

foremost perhaps, we must stop being satisfied with yester-

day’s technology. New technology is available. Until it

is transferred into actual treatment facilities, it is of

little value. Just because we have relied on trickling

filters and activated sludge plants in the past does not

mean that we should continue to do so today.

If we are going to clean up, 

if

we are going to stop pollution, if

we are going to save Lake Michigan 

—-

let’s do it. Let’s not be

satisfied with doing only the absolute minimum which is forced upon us.

And let us do it now.

This opinion constitutes

conclusions 

of law.

the Board’s findings of fact and

I dissent:

I, Regina E. Ryan, Clerk of the Illinois Pplluticn Control Board,

certify

that the Board adopted this Opinion on ~.~‘.‘day

of June

1971.

~roIEoard

concur:

—

680