ILLINOIS POLLUTION CONTROL BOARD

December 13, 1973

BUTTERFIELD WEST HOMEOWNERS ASSOCIATION

COMPLAINANT

v.

)

PCB 73—347

VILLAGE OF GLEN ELLYN

RESPONDENT

RONALD MEHLING, ATTORNEY, in behalf of BUTTERFIELD WEST HOMEOWNERS

ASS OCIATION

KENNETH STONESIFER, ATTORNEY, in behalf of the VILLAGE OF GLEN

ELLYN

OPINION AND ORDER OF THE BOARD (by Mr. Marder)

This action is brought on the complaint of the Butterfield West

Homeowners Association against the Village of Glen Ellyn, and was

filed with the Board on August 17., 1973. A hearing was held on Oct-

ober 31, 1973, and continued on November 6, 1973.

The complaint alleges violations of Section 9 (A) and 9 (B) of

the Environmental Protection Act, in that the Village operated a

“sludge lagoon” without a permit on file with the Environmental Pro-

tection Agency, and “continued dumping wet grit or sludge” and’~part—

ially dried sludge” into said lagoon after informal complaints from

both the Agency and from individual homeowners directly adjacent to

the lagoon.

Complainant further alleged that such dumping causes malodors

in the area surrounding the plant and was a breeding area for rats

that entered onto the property of such adjacent homeowners.

The complaint is the only pleading we have in this case. No

answer was filed by the Respondent. There were no closing arguments

or briefs filed in this matter. This kind of record makes it very

difficult for the Board to come to a decision in this matter.

The Complainant is an association of homeowners who live south

and southeast of the Glen Ellyn sewage treatment plant.

10

—

341

—2

The

testimony of Complainant at the hearing was directed at the

odors coming 

from the sludge lagoon located along the southern bound-

ary of the plant’s property. The testimony consisted of homeowners

testifying to the malodors and to a rat problem developing around the

sludge lagoon. The Board takes notice of the rat problem as shown in

the

testimony of Terrence Molloy, an engineer for the DuPage County

Health Department (R. 

8-9),

David Wolff (R, 57) 

and Raymond Glass,

also of the

DuPage County Health Department (R, 292). Mr. Glass did.

follow up inspection of the plant site and testified

that upon inform-

ing the vitLiage of the rat problem corrective measures were taken

(R,

294)

The corrective

measures 

include~ the

contracting with a pest

control firm on a yearly contract to maintain

pest control on the

site; cuttinq

of

weeds on the site to eliminate breeding grounds for

the rats; and placing grit in

sealed 

containers

in

order to have it

hauled away and deprive the rats of their food source,

The Board

notes this uroblem and the abatement of it, hut will not render a de-

cision on one matter because the complaint is inadequate on this

count~ Ho orcier will me entered involving this area. To have the

Board consider this matter~ Complainant sho~~ldhave referred to Rule

314 (t) of Thapter 7, Solid Waste Regulations.

This would have

brought mt.o issue whether the Village is or should be operating a

sanitary landfill

as the regulation covers.

The Board strongly urges

the Respondent to maintain its abatement procedures so as to foreclose

future actIon on this count.

The record contains a great deal of

testimony on this point, whochis wh it is discussed at all.

9

(A) (B) Violation

There was a great deal. of testimony as to :calodors emanating from

the s ludge laqc’ ,n.

The plant is an act:Lvatec s. Lodge type plant.

The

sludge is removed from the water in thu secondary treatment of the

~ utcJ Iautn 

ut thy in ~,uto oths

~ i3~I P.~ruicJJy d~od

sictlqe is nauleci ~ the si. udge pot (A. :L19

Most of the testimony

was

that of the homeowners.

lEt

was all

similar

in the tact that the homeowners noticed odors that were characterized

aS  “rotten stinking odors 

(A.

43) ; putrid (A, :35 91)

;  like an

“outhouse

on a farm” (A, 80) 

; like ~huimer~. waste” (R.2 04)

The odor

is ncl:iced mostly in the. evening hours (R~ 136

204)

and test—

stony showed that coot was flOtiC~d by some witrncsse.s every day (A.

136)

and :O3~ others

a least

4 times per week (A. 64, 93, 236—

40)

The smel:L comes to this area usually when the wind is from the

north or northwest

(A. 67, 83, 94~ and the smell gets stronger as one

walks north toward the plant (A, 278, 222)

Two of the witnesses, Pr,

Wolff and Mr. LinelLi, drove to the p.lant end anon arriving

at the

sludge pit they noted that tIe odor emanated from there (A.

36,

243)

The witnesses showed cenerally the same kind of restricted

use of

their uroperty because of the ohor~ They could not use their back

~au~

(

‘

~‘4 98,

212,

~.2,

2i J~

T’~

~‘m

o~ autea~ed b

—3—

the

odor CR. 98, 212, 283) 

Other problems centered around embar-

rassment at having visitors (R. 98) and odor 

in

clothes CR. 98).

The expert testimony of Charles Corley of the Illinois Environ-

mental Protection Agency was very informative CR. 114). Mr. Corley

is an environmental specialist with the Agency. He began investigating

citizen complaints of odors and rats from the treatment plant on June

21, 1973. He saw a Mr. D’Andrea at the plant who told him that part-

ially dried sludge was being hauled to the sludge lagoon CR. 119).

D’Andrea stated. that this 

was being done because of inadequate drying

space on the plant site CR. 120).

Corley then talked to Mr. Galligan, the village administrator,

who told Corley that the dumping would stop and the sludge would be

hauled to the village golf course (R. 122). On his last inspection,

Corley noted that the sludge lagoon was still being used (R. 124).

Complainant failed to elicit sufficient proof as to whether Re-

spondent does, or does not, have a required permit from the Environ-

mental Protection Agency to operate its sludge lagoon. The record

indicates that the sludge lagoon was shown on the plans submitted to

the

Agency for the plant’s construction permit in 1969 CR. 193). The

record is totally inadequate as 

to this point, and we do not consider

this point further. The Board does not prove up Complainants! case

for them when the record is 

not provided to make a determination.

The Agency recommended certain 

actions for elimination of the

odor problem in a letter written to 

Administrator Galligan on July

1973. (Comp. 

Exhibit

#4, A. 195) This letter suggested that

sludge dumping be discontinued, the 

lagoon drained, and that it be

covered and sealed. On the witness’s most recent 

inspection of the

plant before the hearing, sludge was still being dumped in the la-

goon (R. 174-5).

Corley testified as to two methods for disposal of 

the sludge:

1) Dewater and incinerate the sludge; and 2) dry the sludge and

haul it away (A. 141).

The sludge problem at the plant is not one that will go away.

According to the record, as part of the DuPage County Regionalization

Plan proposed by the Board, the Glen Ellyn plant is potentially slated

to go from a capacity of 6 mgd to a capacity of 18 mgd (R. 193-5).

The witness testified that there is no room now in the plant site to

increase drying bed capacity (A. 185).

Frank Reno, Director of Public Works for the Village of Glen Eli-

yn, testified as to what the village is doing to correct the prob-

lem (A. 342-6) 

These included:

—

343

—4—

1) Opening up the bank of the lagoon to

allow the water to drain off;

2)  Drainage tile will be installed to pre-

vent water from running into the lagoon;

3)  Drying bed use will be changed so that

sludge hauled to the lagoon will be of

drier quality;

4) Investigate other methods of sludge dis-

posal while deferring action until plans

for the plant’s expansion can be consid-

ered under the county regionalization

plan. These include incineration and

sludge farming.

5) Removal of sludge presently on the site

to Glen Ellyn Golf Course as fertilizer.

After this sludge is hauled away, the

lagoon will be used again for on-site

storage of future sludge.

6) The grit is now being removed from the

plant after storage in sealed. containers

by a private scavenger service.

We feel that Complainant has presented ample testimony as to the

nuisance caused by odors originating in 

the sludge lagoon at Respond-

ent’s plant. “Whether a nuisance exists will depend largely upon the

reactions of citizens 

of the community to the odors emitted from Re--

spondent’s plant.” (Environmental Protection Agency v. Tee-Pak Inc.,

PCB 72—81)

Respondent has elicited testimony from most of the homeowners

that when they bought their homes, they did not inspect the area to

determine whether there was a problem in the area (A. 86, 106, 215).

The validity of its defense that Petitioners impliedly consented to

the odors caused by normal operations of a sewage treatment plant had

been dismissed by the Board in Enders v. Village of Glendale Heights,

PCB 72-252. The doctrine of “Caveat Emptor” is on the wane under mod--

em trends of law, and we do not feel that any property owner should

be subjected to odors from a plant such as Respondent’s on a regular

basis.

Odor from sewage treatment plants constitutes air pollution as

contemplated by the Environmental Protection Act. (Environmental Pro-

tection Agency v. Danville Sanitary District, PCB 71-28.)

Therefore we find that Respondent is in violation of Section 9

(A) of the Environmental Protection Act. There is an inadequate

record to determine if there is a 9 (B) violation.

Perhaps the most unfortunate aspect of this action is, as men-

tioned above, the inadequacy of the record. The Board notes that a

10— 344

—5—

very serious problem exists. Further technical data is necessary to

indicate how this problem should be resolved. The parties deserve a

final adjudication of this matter, and one will be given. The Order

will direct that Respondent cease and desist from violating Section

9 (A) of the Act, such Order to take effect 120 days from the entry

of this Order. There are many waste treatment plants of this type

in the state. This vast utilization of similar technology has con-

vinced the Board. that it is not necessary for a facility such as this

to generate malodors.

The monetary penalty assessed in this matter is a small one. First,

the Board feels that money that would be used for a monetary penalty

would be better spent in abating this violation. Secondly, Respond-

ent is a municipality, and to penalize a municipality is an action

teat penalizes innocent citizens.

This Opinion constitutes the findings of fact and conclusions of

law of the Board.

ORDER

IT IS THE ORDER of the Pollution Control Board that:

1. Within 60 days from the date of this Order, Respond-

ent shall submit to the Environmental Protection

Agency a compliance plan for bringing its facilities

into compliance 

with Section

9 (A) of the Environmen-

tal Protection Act.

Within 120 days from the date of this Order, Respond-

ent shall cease and desist from violation of Section

9 (A) of 

the

Environmental Protection Act.

2. Respondent shall pay to the State of Illinois the

sum of $200 within 35 days from the date of this Or-

der. Penalty payment by certified check of money

order payable to the State of Illinois shall be made

to: Fiscal Services Division, Illinois Environmental

Protection Agency, 2200 Churchill Road, Springfield,

Illinois 62706.

IT IS SO ORDERED,

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control

Board, certify that 

the

abo e Opinion and Order was adopted by the

Board. 

on the J~~day of

___________,

1973, by a vote of ~ 

to

10

—

345