ILLINOIS POLLUTION CONTROL BOARD
March 11, 1976
MEDINAH INVESTORS, INC.
Petitioner,
v.
)
PCB 75-28
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
MR. RICHARD J. KISSEL, and MR. EUGENE W. BEELER, JR., appeared
on behalf of Petitioner;
MR. JOHN T. BERNBOM, and MS. BARBARA REVAK, appeared on behalf
of Respondent.
OPINION AND ORDER OF THE BOARD (by Mr. Dumelle):
Petitioner, Medinah Investors, Inc. filed a Petition for
Variance before this Board on January 20, 1975. On March 3,
1975 the Environmental Protection Agency (Agency) filed a
Recommendation to deny the petition. On August 28, 1975
Petitioner filed its First Amended Petition for Variance.
The Agency then filed a new Recommendation on September 29,
1975; to which Petitioner filed a response on October 29,
1975; to which the Agency filed a reply on November 18, 1975.
After a limited waiver of its right to a final decision within
90 days, Petitioner moved for, and was granted, a postponement
of the scheduled hearing for 37 days. The hearing was held
on January 22, 1976.
Petitioner owns and operated “Adventureland”, an amusement
park located at the intersection of Lake Street and Medinah
Road, near Addison, DuPage County, Illinois. Petitioner seeks
a variance from Rule 1113 of the Board’s Water Pollution Regula-
tions, to allow it to construct a package sewage treatment plant
to replace its present septic tank system. Only domestic wastes
generated from Petitioner’s toilet facilities are generated
at “Adventure land”.
20— 205
—2—
On January 6, 1972 the Board adopted Rules 1101-1114
of its Water Pollution Regulations, better known as the
DuPage County Wastewater Regionalization Program. These
Regulations, as implemented by the Regionalization Plan,
adopted on August 29, 1974 provide for the division of
DuPage County into 9 Regions for the purposes of reversing
the proliferation of small, inefficient sewage treatment
plants in this densely populated and rapidly developing
County. The plan further designates certain plants to be
enlarged, and other plants to be phased out. Rule 1113,
from which Petitioner seeks variance, provides as follows:
1113 Future Construction
No permit shall be granted for the construction
or operation of any additional sewage treatment
plant in DuPage County, except for interim
facilities in the event of a demonstrated emergency,
that does not conform with the principles of the
Regional Program described in Section 1108 of this
Chapter, or that is of capacity so small as to
create an insignificant risk of inadequate treatment,
according to the policies expressed in Rule 1101
of this Chapter. (emphasis added)
There are two basic issues which are raised in this
case. The first is simply whether a variance is needed. Second
is whether compliance with Rule 1113 would result in the placing
of an arbitrary or unreasonable hardship upon Petitioner. It
is clearly Petitioner’s burden to prove both of these facts.
A variance in this case is necessary only if it is shown
that neither exception in Rule 1113 is applicable. The first
exception is for “interim facilities in the event of a demon-
strated emergency”. No emergency has been demonstrated. The
second exception is where the proposed plant’s “capacity is
so small as to create an insignificant risk of inadequate
treatment, according to the policies expressed in Rule 1101
of this Chapter.” It is to this issue that we must turn
Rule 1101, which is stated to be the gauge by which
the exceptions in Rule 1113 are measured, provides:
1101 Preamble:
The proliferation of numerous small sewage treatment
plants in densely populated and rapidly developing
DuPage County constitutes a severe and intolerable
impediment to the correction of present water pollu-
tion and a continuing threat of additional pollution
in the future. Not only do the higher unit costs
of constructing and operating small plants waste
finite dollars and therefore contribute to pollution;
20—
206
—3—
small plants cannot produce as satisfactory an
effluent as can larger plants, because they cannot
~F~vide certain types of sophisticated treatment,
because they cannot practicably be adequately
supervised or maintained, and because they cannot
provide adequate standby treatment capacity to
prevent pollution in the event of a malfunction.
The establishment or continued operation of sewage
treatment plants so small as to exhibit these
deficiencies, in areas such as DuPage County where
the population density is high enough to make larger
plants economically feasible and indeed economically
far more desirable, is contrary to the anti-pollution
policy of the Environmental Protection Act. The nine
service—area concept for DuPage County proposed by the
Northeastern Illinois Planning Commission sets forth
a reasonable geographical basis upon which to base a
regionalization scheme in DuPage County and the
Board endorses this concept in principle. All regionali-
zation efforts made under this Chapter shall be directed
toward a reduction in the number of sewage treatment
facilities at the earliest reasonable deadline. A
series of regional plants, well—operated and stra-
tegically located, will greatly minimize the pollutional
load upon the DuPage County streams and assure con-
formance with the Environmental Protection
Act.
(Emphasis added)
****************
Rule .1113, from which variance is here sought, thus
allows the Agency to grant a permit for construction and opera-
tion of a sewage treatment plant in DuPage County if it is
shown not to he in conflict with the goals and policy determinations
of Rule 1101. A variance is not needed for construction and
operation of a sewage treatment plant which falls outside of the
purpose of the regionalization plan. Several factors are stated
in Rule 1101 as findings of fact which establish the necessity
of the regionalization plan. If it can be demonstrated that,
because of the small capacity of this proposed plant, these
policy findings do not apply in this case, and thus that an
insignificant risk of inadequate treatment would be created,
then the Agency is not prohibited by Rule 1113 from issuing
the appropriate permits.
20—207
—4—
Petitioner’s proposed sewage treatment plant is designed
to treat a maximum of 30,000 qallons of domestic waste per
day, and will cost approximately $75,000 (R. 36). The 30,000
gallons is the maximum daily flow based on 6,000 persons daily
attendance and a flow factor of 5 gallons per person (R. 34).
The plant could, however, treat at a rate of 75,000 gallons
per day (R. 34)
.
Given the facts that this plant would be
operated only durinq a period between approximately Memorial
Day and Labor Day CR. 43) and will treat only domestic wastes,
we must next determine effluent requirements and whether they
will be met.
Mr. John fl. Morris, Petitioner’s consulting engineer, states
that the plant’s effluent, which will be discharged into
Springbrook Creek, is required to meet a standard of 30 BOD
and 37 suspended solids (R. 32). This is based on a dilution
ration of 17 to 1 (R. 33). Mr. Morris further testifies that,
“we would expect to consistently meet a 10 parts per million of
BOD, 12 parts per million suspended solids, and perhaps
not perhaps, complete nitrification during the period the
plant is in operation.”
...
“We should have zero fecal coliform”
(R. 40)
Further, the proposed plant provides for tertiary filtration
facilities (R. 48)
Thus, given the Petitioner’s description of the proposed
plant and its effluent, the Board must next determine whether
the policy findings made in Rule 1101 will apply in this case
to indicate whether or not the risk of inadequate treatment
would be significant.
Some of the facets to be considered in applying the
policy findings of Rule 1101 are:
1. Higher unit costs of small plants, which wastes
finite dollars and therefore contributes to pollution.
2. Small plants cannot produce as satisfactory an effluent
as can larger plants.
A. They cannot provide certain types of sophisticated
treatment.
B. They cannot practicably be adequately supervised
or maintained.
C. They cannot provide adequate standby treatment
capacity to prevent pollution in the event of a
malfunction.
20— 208
—5—
A basic consideration which runs throughout this discussion
is that Petitioner is presently using a septic system. Environ-
mentally, it is possible that even a small inefficient sewage
treatment plant subject to all of the inadequacies stated above
would still be preferable to a septic system. Other considerations
deal with the possibility of a hook-up into another sewage treatment
plant. However, these considerations are not strictly relevant
to the application of Rule 1113 to the present matter. They are
more appropriately addressed to the discussion of whether a variance
is appropriate, which subject cau o,ily he addressed if it is
determined that the proposed plant is not excepted from the
prohibition of Rule 1113.
Therefore,~ we must first discuss the applicability of
the policy findings of
Rule
1101 as stated above. Factor number 2.,
the higher costs of small plants, is primarily directed at
municipalities and the use of public funds. This factor is not
applicable to the present situation where it has been determined
that the construction of a small plant is the least expensive
alternative (R. 22). Factor number 2, the production of a
less satisfactory effluent, is also apparently not a criticism
applicable to the proposed plant. The proposed plant is expected
to put out an effluent which is better than the applicable
standards. To accomplish this, tertiary treatment is included.
Also, as the plant is only to be in operation for part of the
year, it will he easy to arrange for proper maintenance and
supervision (R. 42). Further, it has not been shown that there
would be an inadequate standby treatment capacity in the event
of a malfunction. Perhaps provisions could he made to operate
the septic system in the event of a treatment plant malfunction.
it is therefore clear that the proposed plant, considering
the policies expressed in Rule 1101, may be of a “capacity so small
as to create an insignificant risk ofTi~adequate treatment”
(Rule 1113). Given an otherwise inadequate proposal for a sewage
treatment plant, the Agency is thus not prohibited by Rule 1113
from using a permit for construction or operation. The Board
therefore finds that Petitioner has not demonstrated that it
needs a variance from Rule 1113. As such it is not necessary
to address the question of hardship upon Petitioner. A variance,
which is based on hardship, will not be granted where none is
necessary.
Where the regulation in question is not applicable to
Petitioner’s activities it cannot be said to create an arbitrary
or unreasonable hardship. Petitioner in this case has failed
to show that Rule 1113 would prohibit the granting of a permit
for the construction and operation of its proposed sewage treatment
plant. It is therefore unnecessary to address the issue of whether
a variance would be granted if Rule 1113 did prohibit the proposed
activity.
20—209
—6—
The Agency states, at page 7 of the Recommendation, that:
“The Agency is of the opinion that Petitioner’s Amended Petition
sufficiently establishes that its proposed package treatment
plant is within the purview of the second exemption of Rule 1113.”
The Board agrees. Petitioner’s remedy is therefore a Permit
Application, rather than a variance. As an interim plant with
a small capacity, the instant plant apparently does fit into
the exemption to Rule 1113. However, this determination is for
the Agency to make via the permit application process. A variance
here is not required.
This Opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Amended Petition for Variance is hereby dismissed.
IT IS SO ORDERED.
Mr. Goodman and Mr. Young abstained.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Order were adopted on the
I~’
day of March, 1976 by a vote of
~
Christan L. Moffe~ Clerk
Illinois Pollutio ontrol Board
20—210