ILLINOIS POLLUTION CONTROL BOARD

March 2, 1972

NORTH

SHORE

SANITARY DISTRICT

#PCB71—343

v.

ENVIRONMENTAL PROTECTION AGENCY

MR.

MURRAY

R.

CONZELMAN and MR. JOHN R. SLOAN appeared for the

NORTH SHORE SANITARY DISTRICT

MR. RICHARD COSBY and MR.

THOMAS

W. SCHUENEMAN appeared for the

ENVIRONMENTAL PROTECTION AGENCY

MR. RICHARD M.

KATES

appeared for the LEAGUE OF WOMEN VOTERS

MR. THOMAS H. COMPERE and MR. BERLE L. SCHWARTZ appeared for

the CITY OF HIGHLAND PAE~K

OPINION OF THE BOARD (BY MR. KISSEL):

On January 31, 1972, the Board entered its order in this case

after consideration of all of the evidence and arguments by the pa:

—

ties: The North Shore Sanitary District (“District”), the Agency nd

the League of Women Voters (“League”)

.

Although the order must,

of course, speak for itself, generally it granted the District a

variance to permit the connection of 1,000 living units (4,000 Pop

lation Equivalents) on certain conditions. On February 10, 1972, .he

District filed a “Petition for Reconsideration and Rehearing” with

the Board in which it objected to the following paragraphs of the

January 31, 1972 order, and here seeks to have those orders modifi ~d.

2. “The District shall be permitted to add a total of 100)

living units or 4000 P.E. to the sewers tributary to the

Clavey and Waukegan plants.”

14. “The District shall install disinfection facilities ~

the Water Street ancL Gillette Avenue Sewers. Within 45 days

of the entry of the order, the District shall present a time-

table for the installation of such facilities to the Agency an

the Board. The Agency shall formulate a written response to t

Board within 15 days of receipt of the District timetable. T1~

Board shall then issue an implementation schedule.”

Its objections to the quoted paragraphs were numerous:

3

—

697

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I The Dlstrict would not realize

sufficient

reverues frot.

the 1000 1~vinqunits to finance the various interiff

improcerrects required by the Bosrd in previous orders,

includinc t-~u January

3~,

1972 order and particularly

the requirerrrnt for interim chlorination

at the Water

Strect ~nd ~~11ette

Avenue Bypasses;

2.

The issuance of only 1000 permits precludes developers,

cont~aetcrs and others engaged in the Lake

County hous~ng

indu.3t:~ from proceeding with concrete commitments for

construc~on in the upcoming years’ and

3. The chluriuat~on facilities required by the Board would

not rnsure the use of tue beaches in 1972 and 1973.

The League filed a brief with the Board suggesting that the Board

grant the variance for 5000 units on condition that the District

expedite the construction of the Waukegan retention basin, and cots—

plete it by June 1973. The Leagu&sposition was that if the

retention basin would be completed by that date, or soon thereafter,

there would be no need to require the disinfection facilities

at the Water Street andGillette Avenue overflows. The Agency

recommended that the Board not grant the additional variance

requested by the District. As a result of the District’s motion,

a public hearing was held before the entire Board on February 22,

1972 at the Board’s office in Chicago, Illinois, At that hearing,

the City of Highland Park sought leave to intervene in this case;

the City’s motion was objected to by each of the parties on the

ground of lack of proper notice, Opposing counsel were given five

days to respond to the City’s motion. The City remained, at the

hearing and was afforded an opportunity to present its position

for the record. After receipt of the arguments of opposing counsel,

the Board agrees that the City of Highland Park should be added

as a party to the case.

The Board has considered motions made by other parties in other

cases for reconsideration of the Board’s order against them. We have

consistently taken the position that we will not reconsider our

initial decision unless there is a significant change in the circum-

stances, or there is new evidence available after the hearing which was

not available at the time of the hearing. We think that both of those

circumstances exist in this case.

The order of January 31, 1972 was predicated on the Board’s con-

clusion that granting of the variance under the conditions detailed

in this order

would actually improve

the quality of the water of Lake

Michigan, and that had the variance not have been granted, (and therefore

the conditions are met) the Lake would have continued to show signs

of bacterial contamination near the beaches located within the District’s

bounds.

One of the most important conditions of the variance was,

therefore, “paragraph 14” which required disinfecting of Water

Stteet and GilletteAvenue bypasses by September of 1972. If met,

this would have meant that for part of the 1972 and all of the 1973

bathing season, the bacterial contamination from the overflows would

have been substantially reduced and the beaches within the District

most likely would have been useable during those periods. In its motion

3

—

698

---

r

-

-: £

. - ..~

it

‘.z. Ut .foJe-? ed tt

“u.ragt ‘iph L4” r a .tunber

.1

4L’~.

t

-.

fl.~

S,..

~

.t~:

r. n~..VeS ccnsa.lor’~d .~y

me Rcard bef~..ro

titt: J.mear

..J

~

az.ci

nov

tavrc.d

by the District, was

-

nrt

.

.~z. ~‘h’cn..i:ton

ct

“it. 4ac’s Street and’ttlletteAvenuc

TUts-~4, n

wa..t nsri

ctt

t~.t.ent1:nSasan at.. Waucegan plant.

• -~:

‘~

t

?r

-

t.a:1 ~‘:

‘io

t

~at

.t

conto iiandte the ‘~verflows, and treat

.cct. a it

‘sE11)

te.itnic’J

L

Jc.

But taeed upon the evidence in the

b

i”i at nt,rarsq, ..ac

atrr

was not e teasible alternative at that

tine

•. ‘4~~1’O

:.f the “tst’~r

;

~,g~’ry’.

~f

M.Lay

in ccmpleflng not only

‘~‘

‘ta

pro;?rts tait

this

..~c’.’cct

::.

~n’rtscular.—If the “reten—

‘fl.’”

•ltarr.atrze ‘tid

OfitA Cite ~~ne ~nLanted by ‘me Board in its

‘itsUll

~

~1

order. disinfe~t .on

:t :aa

vert

lows

would not have been

~r.nS

unt:i

~c least LeE.teIfl..cr,

t0)

and perhaps later,

knowing

~

•‘.

:Lst.rin had a ;or’...art. :or Uty in cowpleting its projects.

vi

s, in

thr

~aearing-n the

Motion

-or Reconsideration, the District s

craM~t

ra

.~t

La

•ci.sç.Let

iOn

uf

~sie

ctO~~t.L’.t

oa&in”

•‘fl

ject was strongly

nrit~t~’‘s.

lao Distract !~asacttiaity

awarded

~ie ccn.racts for the retention

I.

t

.‘

inc.!

for th~ c’-ntdant

pumping fanlities since the original

:‘~.zrLn~rn

tnt

:.~:i..-t’c

.raflanc3

~ri-ion. The ~ontrcctprovides for

1

c:mptetLin

~1at’•ttr

aLl.

ncl. fac,L.Lats:~

~f

September 1, 1973, which

the

D.strSc’t testifieC

it

would

require

cc

‘net.

Further, it may also

‘)C

possi2’le to aavancc ‘mat completion date

“~y

aeciaring

the

retention

nasin 1,rcec. at WauJce~anafl

‘emergency

~rcjcct”,as it

has

done in other

nther .tses. Since the installation of the retention basin

and

the pump-

ing fan1itsc~basicaily deternines whether or not

Lake Michigan

bathing

can

oc’ct.r

an 1973, we believe that cause ensts for the use of the

Distrtct’s “emergency” declaration powcr.

One

way of completing the

project earlier would be for the District to employ overtime whenever

that will speed up work. Another way of speeding up would be the

leasing of the necessary pumps

and

usanq

tnem

before

the

installation

of the permanent pumps. We will require, therefore, that the District

complete the retention basin no later than Sept.

1,

1S732 and

investigate all

means

available

to speed up this project, including

the availability of leased pumps,

and

tne use of overtime work,

and

report to the Board

and

the other parties the results of its investigation,

the manner in which it intends to proceed, and the reasons therefor.

Even given the availability of the retention bas.n and the atten-

dant facilities by the end of the suimner, 1973, the Board believes that

disinfection of the Water Street

and

Gillette Avenue bypasses would

have been the most appropriate measure to be

taken.

Unfortunately,

the evidence presented at the recent hearing indicated that disinfection

facilities could

not

be installed by September, 1972 as originally

forecast. vrospects

are

also

dim

for installation by sununer, 1973, the

next bathing season. In order to install the disinfoction facilities

at the Water Street bypass, the District would have to acquire rights

from

E.J.&E. Railroad. Under the Eminent Domain

Act,

this could

not be done without prior approval from the Illinois Ccnunerce

Ccnmtzssioi;

1The original contemplated oompletion date was March, 1973,

and

the contemplated date

now

is September 1, :973.

2The League has asked

u.. to

recyuir’.. a ‘~onp1cti.~ndate of June 1973,

but basea upon the presenc not

r’; •

io not xnow

~!

this can be do4

~a,

we

agree with the

League

that all

‘~,.r,

:t

thc ‘i:’tnct’s disposal

shoi.d

be used to speed up the Project

and

‘_

if

ter

Lnvesttgation the June

d.tte

can

be

jet,

we will require

it.

3— e99

---

cwo proceedings, one before the Commerce Commission and then a condemna-~

tion suit,

would

most

likely have to

occur tnen before

the District could

obtain the necessary right—of—way.

A seven—month construction period

would then he

pyramided

on top of those hearing processes The Water

Street project therefore appears to he effectively stymied~ If

that is the case, then to chlorinate at Gil:Lette Avenue will make

little sense since with Water Street still untreated, a large amount

of untreated sewage will still be cascading into Lake Michigan whei~

overflow conditions occur, Therefore, Paragraph 14 of the Board

order of January 31, 1972 will be rescinded; instead, the District

will he ordered to take the steps outlined above to advance the avail-

ability

date for the Waukegan retention basin, the pumping station, and

the interceptor and relief sewer. While

Lake Michigan will suffer

for a few more months under this new Order, the people of the county will

not he required to waste their money on a useless, and maybe, never

available project.

At the recent hearing, the District also objected to the Board~s

limitation of 1000 hookups (4000 P. E.) to the Clavey Road and Waukegan

Sewage Treatment plants. In support of this contention, the District

indicated that it would not receive sufficient revenues from the 1000

permits granted to finance the improvements which

the Board had ordered

because

the grant of only 1000 permits would preclude developers, con-

tractors and others in the housing and building industry from proceeding

with concrete coinmitmen~s for construction in 1973 and 1974, Though

the District1s first argument has been somewhat obviated by the Board’s

rescission of its order directing that disinfection take place at the

bypasses (because the disinfection facilities involved a large part of

the cost)

,

the second contention still remains a matter for concern.

At the recent hearing, the District introduced

new

evidence regarding

the need for 5000 permits. Allan Pickus, a Waukegan architect and

contractor, indicated that scheduling and financing of projects requires

that preparations be made several years in advance. Thus, for the

lifting of this sewer ban to have any beneficial economic effect, the

District would require that a sufficiently large number of permits be

granted so that construction can proceed at an appropriate pace.

This is necessary because builders need to obtain financing for the

total construction project, be it an apartment house, or private homes,

so that the costs common to the entire project, i. e., roads, sewers,

etc. can be done at once and amortized over the entire project. Without

the firm commitment to connect the entire construction project, builders

could not risk the funds for the common costs. Pickus’ testimony was

corroborated by that of Thomas A. Rostron, President of the First Federal

Savings and Loan Association of Waukegan, who stressed that developers

must be assured that sewers will be available at the conclusion of a

project before they can commit capital to a building program. He in-

dicated that no lending institution would make a mortgage commitment

unless there were written approval from the Board as to the availability

of sewer hookups. Based on this new evidence, the District shall have

the power to issue 5000 living unit (20,000 P.E.) permits for the

Waukegan and Clavey Road plants. Just because the Board authorizes

the issuance of 5000 permits does not mean that such connections will

occur within the next year; as Pickus indicated, actual connections

to the plants will most likely total between 700 and 1000 the first

3

—

700

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year, with approximately 2000 occurring in each subsequent year. of

prime consideration in limiting the original grant to 1000 units was

the Board’s desire to maintain a continuing supervision over the Dis—

~rict’s expansion program. Placing the limitation at 1000 would force

the District to return to the Board at the end of that first year in

order to renew the variance; at such a time, the District would have

to show substantial compliance with the deadlines under their construc-

tion program. Raising the level to 5000 does not preclude the maintenance

of such supervision, since in order that advance planning can take place

for construction year 1975, the District will most likely have to

return to the Board in about a year for a renewal of its variance.

If the District is not complying with our Order, or proves that it has

not exercised all good faith in trying to comply, new variances should

not be granted in the future beyond those granted today. In addition,

through the District’s monthly progress reports, the Board and the

Agency will continue to be apprised of the District’s activities.

It is important to note that the granting of a variance for 5000

living units is essentially the same grant as previously made by the

Board on January 31. In the January 31 order, the Board

granted a variance for 1000 units for the next year,

recognizing that if the District met its schedule, it would receive per-

mission to connect additional living units in the next year, probably

2000 such units, and so on. With the present grant of 5000 units, the

testimony is that not more than 1000 units will be connected in the

first year anyway. What the Board is really doing is to give the

builders the wherewithal to build the 1000 units this year. Under

the January 31 order, the manner of apportioning the 1000 unit allotment

was left to the discretion of the District. Since 5000 units will

ultimately be connected to the District system under this variance,

however, we must now take into account the relative capacities of the

Clavey and Waukegan plants. Accordingly, the District shall apportion

the loadings under this variance in the approximate one—third to Clavey,

two-thirds to Waukegan ratio proposed by the District in its original

variance request in this case.

One other point must be mentioned

---

the District’s financial

problems. Testiir~ony at the hearing established that the value of the

appraised real estate in the District had increased by 150 million dollars

since the voters in the District had passed the original 36 million dollar

bond issue in 1968. This increase in assessed valuation makes 7.5

million dollars available to the District for its programs. Such funds

are available within the five percent bonding limitation imposed on the

District under Sec. 285,, Ch. 42, Ill. Rev. Stat. (1971)

.

At present,

the District is committed to a large-scale construction and expansion

program. Those facilities are being constructed in order to abate pollu-

tion. (See Opinion, PCB7O—7, 12, 13 and 14, March 31, 1971)

.

The

facilities ordered in this variance case are also directed to abating

pollution (See opinion PCB71-343, January 31, 1972). To comply with

such an order, the District is authorized by Section 46 of the Environ-

3 — 701

---

mental Protection Act to issue general obligation or revenue bonds, if

necessary, without referendum.

1~o specific order to issue bonds is

necessary; we leave the cuestion of how to raise money to

the

District,

but the money must he raised. See Ruth

V.

Aurora Sanitary District,

17 Ill. 2d 11, 158 N.E. 2d 601 (1959).

The parties entered into a stipulation regarding

certain

matters

and the League has asked that the Board make the stipulation part

of the Board’s order. The

stipulation, inter alia, would provide

for operation of interim

chlorination facilities at the North

Chicago plant during the 1972 swirnminq season, for ample notice in

the District and

to

contractors regarding the district’s

bidding processes, and for the adoption of a fine schedule by the

District.

Such

steps~ we

believe will assure better operation

and

a higher quality effluent, as

well as possibly advancing the

completion date for the District’s expansion program.

The stipulation

shall be incorporated into the Board Order.

-ORDER-

Upon examination of the record, the Order of the Board of

January 31, 1972 in the above—entitled case, PCB 71-343, granting the

North Shore Sanitary District a variance from Paragraph

7 of the

Order of the Board in the case of the League of Women Voters, et al

v. North Shore Sanitary District, PCB 70-7, 12, 13 and 14 is

hereby

modified as follows:

1. Paragraph 2 of the Board Order of January 31, 1972 is

hereby repealed in full and replaced as follows:

2. The District shall be permitted to add a total of

5000 living units or 20,000 P.E. to the sewers

tributary to the Clavey and Waukegan plants.

2. Paragraph 4 of the Board Order of January 31, 1972 is

hereby repealed in full and replaced as follows:

4. The District shall apportion the allotment under the

variance between the subject plants in approximate

ratio of one-third of the new connections to Clavey,

the remainder to Waukegan. Such apportionment shall

also be subject to the conditions in Paragraph 5 below.

3. Paragraph 14 of the Board Order of January 31, 1972 is

hereby repealed in full.

4. The following paragraphs are hereby added to the Board Order

of January 31, 1972:

21. The

District shall have the retention basin at the

Waukegan plant (P3B), the pumping station (P3F), and

the interceptor and relief sewers (S6A) (hereinafter

called “retention basin”) tributary to the basin in

operation as soon as possible and no later than Septem-

3

—

702

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ber

1, 1973. The District shall

employ

all means avail-

able

to advance the date of operation of the retention

basin. The District shall investigate all available

means

to advance the date of operation of the retention

basin, including the use of its emergency powers, over-

time

and leased

pumps. Within 60 days of the entry of

this Order, the District shall begin reporting in its

monthly progress reports to the Board,the

Agency

and

the other parties in this case, the results of its

investigations, the steps it has taken to advance the

operation date, the manner in which it intends to

proceed, and the reasons therefor. Such reporting

shall be included within each monthly progress report

until the date of completion of the retention basin

22. The District shall abate its discharge of untreated or

inadequately treate4 sewage and its violations of the

Environmental. Protection

Act and

of regulations thereunder,

in accordance with this Order and the Board Orders of

23. Within 90 days of the entry of this Order, the District

shall sub~jt to

the Agency and the

Board a

plan assuring

financing of the program herein

and

heretofore

approved,

together

with a study

by

bond counsel discussing the various

financing alternatives available.

5.

The

24. Within sixty (60) days from the date of this Stipulation,

the North Shore Sanitary District will adopt a fine schedule

to a certain Ordinance relating to sewers and. sewer

connections to its systems and facilities.

26

•

That the North

Shore Sanitary District will study the

toxicity of

polymers

it plans to use by

making a

study

of the

literature and report

its

findings to the Illinois

27. That in connection with the interim chlorination facilities

at its North Chicago Plant, the North Shore

Sanitary

District will install and operate

such

facilities for

the

swi~nng

season of 1972.

28.

That

the North Shore Sanitary District states that it.

advertises for bids on construction contracts in the Waukegan

News-Sun and notifies the Dodge Reports. That in addition

it furnishes notices to contractors.

3

.- 703

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29. That a pilot study of ozone may be done at a plant

approved by the North Shore Sanitary District if done

by the Illinois Institute for Environmental Quality or

other governmental agency so long as such study does not

interfere with construction.

30, That the North Shore Sanitary District will file its

impact study of a sludge disposal site in Newport Township,

Lake County, Illinois with the Federal Environmental

Protection Agency as soon as a permit is issued by the

Illinois Environmental Protection Agency.

6. All other conditions of the variance granted on January 31,

1972 in this cause shall remain in full force and effect.

I, Christan Moffett, Clerk of the Illinois Pollutoin Cont~ Board,

certify that the above Opinion & Order was adopted this day of March

1972, by a vote of_______

~

~.

I

3

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704