ILLINOIS POLLUTION CONTROL BOARD

January 3, 1974

CITY OF CARBONDALE

PETITIONER

v.

PCB 73—430

ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

JOHN PAUL WOMICK, ATTORNEY, in behalf of the CITY OF CARBONDALE

DEL HASCHENIVIEYER, ASSISTANT ATTORNEY GENERAL, in behalf of the EN-

VIRONMENTAL PROTECTION

AGENCY

OPINION

AND ORDER OF THE BOARD (by Mr. Marder)

This case comes to the Board on Petition of the City of Carbon-

dale for variances from: Rule 203 A, Rule 203F, Rule 404, Rule 405,

and Rule 1002 of Chapter 3 of the Water Pollution Regulations of Ill-

inois, filed with the Board October 10, 1973. The Agency filed its

recommendation on November 20, 1973. A hearing was held and testimony

taken on November 30, 1973. No citizens appeared to be heard at the

hearing.

Petitioner made two motions at the hearing. The first was to the

fact that a hearing was taking place. It was the contention of the

Petitioner that because the Agency recommendation was filed late, that

it should be held for naught, and since there would then be no object-

ions to a grant of the variances, hearing should not be held. Section

37 of the Environmental Protection Act (Chap. 111 1/2 Ill. Revised

Statutes 1037) states:

“If the Board, in its discretion, concludes that a hear-

ing would be advisable, or if the Agency or any other per-

son files a written objection to the grant of such vari-

ance within 21 days, then a hearing shall be held...”

The Board determined that a hearing should be held and so ordered

on November 29, 1973.

The second motion related to the Agency’s failure to file its

recommendation within the 21-day limit as prescribed in Rule 403 (a)

Procedural Rules of the Illinois Pollution Control Board. The Petit-

ioner contends that because the recommendation is so late, it should

be stricken.

10

—

543

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In Benjamin Harris & Company v. Environmental Protection Agency,

PCB 73-215, the Board allowed a recommendation filed 48 days late to

remain in the record, even though it was filed only two days before

the hearing.

The Board said, “We do not interpret it (Rule 403 tafl

to mean that a recommendation must be stricken if filed after 21 days.”

The Petitioner has not shown that it was prejudiced because of late

filing of the recommendation.

Petitioner’s

motions are denied and the record as submitted by the

hearing officer shall be considered in its entirety.

Petitioner is a municipal corporation located in Jackson County,

Illinois.

It encompasses an area of approximately 10 square miles,

and has a population presently estimated at 26,756 (Pet. P. 2). It

is the home of Southern Illinois University.

The city and the univers-

ity have grown dramatically as reflected by the city’s population of

14,670 in 1960 to its present level.

Existing Facilities: Northwest Treatment Plant

This plant is a trickling filter plant with anaerobic sludge diges-

tion and sludge drying beds. It discharges an effluent, the average

quality of which is BOD, 21.2 mg/l and suspended solids 30 mg/l, to

Little Crab Orchard Creek, tributary to Crab Orchard Creek and the Big

Muddy River. The plant’s capacity is .75 mgd or a population equiv-

alent of 7500 (R. 8).

Southeast Treatment Plant:

This plant employs the contact stabilization type of activated sludge

treatment system. It discharges an average effluent the quality of

which is BOD 15.5 mg/l and suspended solids 13.5 mg/l to Crab Orchard

Creek, which is tributary to the Big Muddy River. The plant’s design

capacity is 5.0

ingd

or a population equivalent of 40,000 (R. 8).

Petitioner reports (Pet. P. 37) that the quantity and type of raw

wastewater processed is as follows (influent)

N.W. Plant

S.E. Plant

Average daily flow

0.622 mgd

3.53

rngd

Average BOD5

149 mg/i

221 mg/l

Average temp.

64° F.

64.5°F.

Average S/S

131 mg/i

145.6 mg/l

Average Set. Solids

1.1 mg/l

4.6 mg/l

Average PH

7.0

7.1

The Agency in its recommendation (Pg. 4) reports the following

data as it pertains to recent operations of both the Northwest and

Southeast plants:

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544

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AGENCY EFFLUENT

GRAB

SAMPLES

Northwest Sewage Treatment Plant

BOD

TSS

Fecal Coliform

NH -N

Date

(nig/l)

(mg/i)

(Counts/i00 ml)

(m~/l)

Jan 17/73

3

37

~i00

3.8

Feb 26/73

12

14

‘lOO

1.5

Mar 16/73

11

24

~O0

0.43

Apr 16/73

3

16

~100

1.7

May 18/73

4

21

‘~l00

0.88

Jul 12/73* 45

340

1,600

32.0

*

Samples collected after the drawing off of anaerobic digester sup—

ernatant.

AGENCY EFFLUENT

GRAB

SAMPLES

Southeast Sewage Treatment Plant

BOD

TSS

Fecal Coliform

NH -N

Date

(mg/i)

(mg/i)

(Counts/100 ml)

(m~/l)

Jan 17/73

4

6

2,900

14.0

Feb 26/73

3

1

~l00

12.0

Mar 16/73

17

6

‘100

8.8

Apr 16/73

4

18

~100

13.0

May 18/73

18

22

.l00

18.0

Jun 8/73

10

7

~l00

8.5

Jul 12/73

10

20

U00

8.0

Rule 203 (a) provides that the state’s waters shall be free “from

unnatural sludge or bottom deposits, floating debris, visible oil, odor,

unnatural plant or algae growth, unnatural color or turbidity, or mat-

ter in concentrates or combinations toxic or harmful to human, animal,

plant, or aquatic life of other than natural origin.” Petitioner re-

quests relief from this rule only to the extent that a variance from

Rule 404 would cause Petitioner to violate this rule for both the

Northwest and Southeast plants.

Rule 203 (F) provides that there shall not be a concentration of

ammonia nitrogen exceeding 1.5 mg/i. Petitioner requests relief from

this rule for both the Northwest and Southeast plants.

Rule 404 (b) as it applies to this case provides that on and after

July 1, 1972, no effluent source whose untreated wasteload is 10,000

population equivalent or more shall exceed 20 mg/l of BOD or 25 mg/I

suspended solids. Petitioner requests relief from this rule for the

Northwest plant.

Rule 404 (c) as it applies to this case provides that on or after

December 31, 1974 (this rule amended by new Rule 406 as applied to Pet-

itioner by Board Order date July 19, 1973, In the Matter of Water Poll-

ution Regulation Amendments, PCB R-73-3, R—73-4) no effluent whose dil-

ution ratio is less than five to one shall exceed 10 mg/i BOD5 or 12

10—545

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—4—

mg/l suspended solids. Relief is requested for both plants (Northwest

and Southeast)

Rule 404 (f) as it applies to Petitioner states that on or after

December 31, 1974 (amended by Board Order PCB R-73-3, R-73-4)

,

no ef-

fluent whose dilution ratio is less than one to one shall exceed 4

mg/i of BOD5 mg/i.

Rule 405 states that no effluent covered by Part 4 of Chapter 3 of

the Rules shall exceed 400 fecal coliforms per 100 ml after July 31,

1972.

Rule 1002 states that a project completion schedule for modifica-

tion of wastewater facilities to comply with effluent standards other

than Rules 407 and 408 that were originally set to go into effect on

December 31, 1973, was to be filed by September 1, 1972.

It is understood that in the past the City of Carbondale has done

a commendable job in controlling water pollution (Agency Rec. P. 7).

The problem that faces the city of Carbondale is that which faces other

municipalities in upgrading their wastewater systems: That problem is

funds. The city has been attempting to obtain grant funding from the

Federal government. In its petition the city alleges, and the Agency

denies in its recommendation, that through administrative errors and

poor advice from the Agency, the city lost an offered grant to upgrade

the Northwest plant, and a #2 priority position for FY 1973 funding was

lost by a decision of the Agency that the old Northeast plant should

be closed and cost effectiveness analyses be prepared within 7 days as

to the one plant versus the two plant concept. The city was then rele-

gated to the 21st position in the priority list. Further delays took

place which took the city past July 1, 1973. As of that date infiltra-

tion-inflow studies are required to be submitted with grant applications.

Such studies are now in progress, but their completion time is estimated

•at 12-18 months from now.

The Agency denies allegations as to its own culpability as to the

delays that the city has encountered over the past three years. The

record at hearing did not bring out these points, and so the Board

reaches no conclusions as to their truth. They are noted as one of Pet-

itioner’s reasons for delay in compliance.

The city further alleges a very tight financial situation. The

city now has a bonded indebtedness of $13 million (R. 46), which is only

$1 million away from its debt limit ceiling. Also, because of changes

in the Federal government’s arrangement with the city for supplying

water from Crab Orchard Lake, the city has had to embark on a $7 mill-

ion project to construct a new water resrvoir. Water and sewer rates

in the city have increased 63 over the past 3 1/2 years (R. 53). The

city doubts that the citizens would approve another bond issue that

would increase their rates still further. They also feel that it would

be extremely difficult to find buyers for bonds issued, since the debt

limit is already so high (Pet. P. 48).

Petitioner should be cognizant of the Board’s power to order bonding

over a community’s debt limit (League of Women Voters v. North Shore

Sanitary District, PCB 70—7, 12, 13, 14).

10

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546

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The Agency questioned the relationship of the city’s compliance plan

to obtaining grant money (Agency Rec. P. 7)

.

To this question, the

city through its treasurer and finance director, Paul T. Sorgen, stated

that if Federal money would not be available, the city would attempt to

comply by gathering whatever available money it could to meet its obli-

gation to its citizens and. the state to provide for environmental con-

trol to preserve the state’s water quality.

The Board takes notice of the fact that control of sewage is not done

oy hooking up a simple control device to a unit at a small cost and

short construction lead time. It is expensive and time-consuming work

that should be done in a thorough manner and done right the first time.

To have a “crash program” of compliance would be inordinately expensive

and wasteful.

The city has been working to bring its facilities into compliance

for quite some time in furtherance of its desire to upgrade its facili-

ties. It has retained the engineering firm of Clark Dietz & Associates

of Urbana, who prepared extensive reports as to population growth and

how the present system must

be upgraded to handle the population. These

reports contained data as to the upgrading of sewage collection facili-

ties, along with future needs of the entire wastewater system through

the year 2000. Though most of these reports are not relevant to the

questions before the Board, they are appreciated. Their inclusion al-

lowed the Board to put into perspective the magnitude of the work fac-

ing the city.

The city, with the aid of its consulting engineers, has determined

that to bring its system into compliance in the most reasonable yet in-

expensive way, the following actions must be taken:

Project I: Chlorination, effluent pump station, and outfall sewer

from Northwest plant to the Big Muddy River (this last proposal is to

allow the plant’s effluent to be discharged to a waterway where it

would have a higher dilution ratio and thusly allow for a higher BOD

and suspended solids in the effluent (R. 11).

Project II: Expansion of the Northwest plant (It is unclear from

the record whether this would be a rise to 2.5 mgd, 2.0 mgd, or 1.5

mgd).

Project III~ An outfall sewer from the Southeast

plant to the Big

Muddy River.

Project IV:

Sewer system repair and reconstruction.

These actions

are to be completed in three steps. Based on the re-

quirements to get grant money:

Step I. 1. Infiltration-inflow analysis: Northwest sewer system

begun July 1973.

2. Infiltration—inflow analysis: Southeast sewer system

work begun August 1973.

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547

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3. Sewer system evaluation

-

Northwest system.

4. Sewer system evaluation

-

Southeast system.

5. Revised preliminary design report

-

Northwest plant

and sewer system.

6. Preliminary design report Southeast plant and sewer

system.

7. Prepare and enact equitable use charge and industrial

waste recovery system as per U.S. Environmental Pro-

tection Agency guidelines.

8. Revise environmental assessment and hold public

hearings.

Step 2.

Final engineering designs based on data collected in

Step One.

Step 3.

Construction

Project I

—

Chlorination, effluent, pump station and out-

fall sewer from Northwest plant to the Big Muddy River.

Project II

-

Expansion of the Northwest plant to 1.5 or

2.0 mgd.

Project III

-

Outfall sewer from existing Southeast plant

to the Big Muddy River.

Project IV

—

Sewer system repair, sealing, and extension

required (Pet. P. 43-45).

The time schedule for compliance is as follows:

Step 1:

1. Infiltration-inflow analysis Northwest system

3/1/74

2. Infiltration-inflow analysis Southeast system

3/1/74

3. U.S. Environmental Protection Agency review and 6/1/74

analysis

4. Sewer system evaluation Northwest system

12/1/74

5. Sewer system evaluation Southeast system

4/1/75

6. Revised preliminary design report Northwest

12/1/74

plant and sewer system

7. Preliminary design report Southeast plant and

4/1/74

sewer system

10—548

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—7—

8. Prepare user charge industrial waste cost re— 10/1/75

covery system

9. Revised environmental assessment and public

10/1/75

hearing

Step 2:

1. Complete design and secure easements, project I, 2/1/75

new effluent pumping, chlorination, outfall Big

Muddy River

2. Complete design Project II expansion Northwest 5/1/75

plant

3. Complete design, easements Project III, outfall 4/1/76

sewer from Southeast plant to Big Muddy River

Step 3: Construction

1. Environmental Protection Agency Review Project I 5/1/75

2.

Open bids Project I

6/1/75

3. Award contract Project I

7/1/75

4. Begin operation Project I

12/1/75

5. Environmental Protection Agency Review Project 8/1/75

II

6. Open bids Project II

9/1/75

7. Award contract Project II

10/1/75

8. Begin operation Project II

6/1/76

9. Environmental Protection Agency Review Project 7/1/76

III

10. Open bids Project III

8/1/76

11. Award contract Project III

9/1/76

12. Begin operation Project III

12/31/77

The Board feels that this is a fair and adequate schedule, based on

the size of the job to be done, and on the financial constraints on

the city, which does not allow it to employ an army of people to do all

the projects concurrently. The Board would appreciate in the future a

breakdown as to the construction time as outlined in the schedule.

This extensive discussion of the background of the case is not nec—

10—

549

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—8—

essary to reach the conclusions that will follow. The purpose of the

discussion is to allow the city in future variance petitions concern-

ing this subject to rely on the record herein submitted with updates

as to plans and costs as each new petition is filed.

To summarize the above numerical data the city’s plans are simply

as follows: To do nothing to the Southeast plant except divert the flow

from the present receiving stream to the Big Nuddy River. This project

alone will allow conformance with the 1974 rules. This is a very im-

portant point. The existing plant is not overloaded as is the case in

many similar actions before the Board; it merely suffers from poor geo-

graphy. The regulation requiring 4 mg/i 130D and 5 mg/i S/S came into

effect after this plant was constructed and thus is a new constraint

put on the facility. The Agency noted in its investigation no visible

pollution downstream of the plant (Agency Rec. p. 4). The plant as of

now is producing effluent which would be acceptable in all but the most

stringent conditions. The same is true for the Northwest plant. The

only reason for Project II is to meet future growth

-

the plant is pres-

ently producing a quality effluent (from Agency Recent Data).

Perhaps the best indication of what the plants’ effect on the recei-

ving stream is could be gleaned from a review of the operating reports

(Appendix B & C of Variance Petition)

.

This was referred to by Mr.

Schwegman (P. 26). The following table is a summary of results.

STREAM

DATA

Plant

-

Date

D.O. Upstream

D.O. Down. BOD Up BOD Down

Southoast 1/73

12.2

12.3

4.3

5.3

2/73

12.6

12.7

4.3

4.3

3/73

—

—

3.2

3.2

4/73

13.9

13.1

4.4

3.2

5/73

8.0

7.9

7.5

7.5

6/73

7.3

6.0

—

Northwest 11/72

—

—

1.00

.75

12/72

10.0

8.3

3.1

3.6

1/73

83

68

34

79

2/73

79

70

32

80

3/73

9.1

8.7

4.2

7.4

4/73

9.9

9.2

6.8

4.1

From the above it would seem that the Southeast plant has a very

small effect on the receiving stream, and

the

Northwest plant has a

much greater effect. The Board notes that the compliance plan present-

ed calls for completion of Project I by December 1975. This will re-

move the worst offender first.

The Board finds as follows:

1. The variance from Rule 203 A is denied.

2.

The

variance from Rule 203 F is granted.

3. The variance from Rule 404 (b) is denied.

10—550

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—9—

4. The variance from Rule 404 (c) is denied.

5. The variance from Rule 404 (f) is denied.

6. The variance from Rule 405 is denied.

7. The variance from Rule 1002 is granted.

The variance from Rule 203 a is denied. The record shows that there

is no actual violation of this rule by Petitioner (Agency Rec. P. 4-5).

The granting of a variance presupposes a continuing violation of law

(N. 56). (Swords v. Environmental Protection Agency PCB 70-6.) To be

granted a variance the Petitioner must be in violation of the law (En-

vironmental Protection Agency v. Borden Chemical Company, PCB 71-23)

The variance from Rule 405 is denied for the same reason as 203 a.

There is no violation. Rule 405 states that for a violation the ef-

fluent must exceed 400 fecal coliform per 100 ml. The Agency recommend-

ation (P. 4) shows coliforms of less than 100/100 ml. To avoid future

prosecution, the City should continue to use chlorination on the North-

west plant.

The variance from Rule 404 (h) is denied for the same reasons as

above. To violate this section, the effluent source must have an un-

treated wasteload of 10,000 population equivalent or more. The North-

c~estplant has a population equivalent, as shown in the record and not

rebutted, of 7500. There is no violation.

The variances from Rules 404 (.c) and (f) are denied because there is

no violation at this time. As mentioned above, by Board order (July

19,

1973) in R 73-3 and R 73-4 these effluent standards do not go into

effect until December 31, 1974.

With no regulation in effect,

there is

no violation. When there is no violation, a variance cannot be granted

(Swords v. Environmental Protection Agency, supra, and Environmental

Protection Agency v. Borden Chemical Company, supra). The Board will

look with favor on a variance petition brought by Petitioner at the

proper time.

The variance from Rule 203 f will be granted. It is shown that Pet-

itioner is in violation of this rule. Petitioner’s hardships in bring-

ing about compliance with this rule are outlined above as to the long-

range improvements that must be done on the plants and funding for such

projects. Environmental impact data is greatly lacking on this point,

and nefore the Board will grant any future variances from this rule,

such data must be provided to the Board.

The variance from Rule 1002 is also to be granted. The city has showr

in its petition that there have been certain delays beyond its control

in formulating definite compliance plans. This variance will be limit-

ed to 120 days. At this time a plan shall be submitted to the Agency

detailing compliance, with cost figures and proposed financing arrange-

ments included. These propQ~ed fi~ncing arrangements shall be based

both on a possible federal funding and/or funding should no federal

10— 551

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10

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grants be available.

One further point will be made in closing. The Board finds that

there is confusion between the parties as to which regulations are in-

deed applicable.

It would be incumbent for Petitioner to spend some

time reviewing Regulation 404 and its subsections. This review should

be made with the full cooperation of the Environmental Protection Agen-

cy. It is clear that if both plants were to continue discharging to

their present discharge streams, Rule 404 (f) would apply. However,

404 (f) (ii) is in effect an exception clause.

It would behoove Pet-

itioner to explore the economics of meeting this exception clause in

comparison with its proposed plan.

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. Variance from Rule 203 a is denied without prejudice.

2.

Variance from Rule 203 (f) is granted for one year from the en-

try of this Order. Any subsequent variance petition from this

rule shall be filed at least 90 days before this variance ex-

pires.

3. Variance from Rule 404 (Sections (b) (c) and

(f) are dismissed

without prejudice.

4. Variance from Rule 405 is denied without prejudice.

5. Variance from Rule 1002 is granted for 120 days from receipt

of this Order by Petitioner. The compliance plan required

shall include proposed financing for the project schedule as

discussed in the Opinion.

IT IS SO ORDERED.

I, christan L. Moffett, Clerk of the Illinois Pollution Control

Board, certify that the above Opinion and Order was adopted by the

Board on the 3rd day of January, 1974, by a vote of 5 to 0.