ILLINOIS POLLUTION CONTROL BOARD

October 28, 1976

FBM COMPANY, INC.,

Petitioner,

v.

)

PCB 76—171

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

Mr. Louis M. Rundio, Jr., Attorney, appeared for the Petitioner;

Mr. John T. Bernbom, Attorney, appeared for the Respondent;

Ms. Percy Angelo, Attorney, appeared for the Park Forest South

Utilities Company.

OPINION AND ORDER OF THE BOARD (by Mr. Zeitlin):

The Petition in this matter was filed June 14, 1976, as both

a Permit Appeal .Petition and a Variance Petition. In the Variance

portion of that Petition, Petitioner FBM Company, Inc., (FEM) seeks

relief from Sections 12(a), (b) and (c) of the Environmental

Protection Act (Act) and Rule 951(a) of Chapter 3: Water Pollution,

of this Board’s Rules and Regulations, and “other applicable rules

and regulations.” Ill, Rev. Stat,, Ch. 111—1/2, §~l0l2(a), (b),

(c) (1975); Ill. PCB Regs., Ch. 3, Rule 951(a). In the Permit

Appeal Petition, FEM contests the Agency’s denial of a permit for

the construction and connection of certain sewers which would be

tributary to the Park Forest South Utilities Company’s sewage treat-

ment works.

A hearing in the matter was authorized by the Board on June 18,

1976. The Agency’s Recommendation on the Variance Petition, and its

record on Permit Appeal, were filed on August 3, 1976. A public

hearing was held in Park Forest South on August

20,

1976, at~which

the

Ilearinq

Of

Ficcr acceptcd

on stipula Lion

Uie

e~)idciiL idry (JcpOs

I

LJ0n

of

Theodore Kadievitch, taken August 11, 1976. Kadievitch deposition

hereinafter cited, Dep.

.1

FACTS

The subject of this case is a tract of land owned by FBM,

located in Will County, Illinois, immediately adjacent to the village

of Park Forest South. Although surrounded entirely by Park Forest

South, the FBM property is not within the Park Forest South municipal

boundaries, (R., 7-8). The FEM property is basically improved with

one industrial building and seven individual homes.

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149

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Water is currently provided to the FBM property by two wells

located on it, (R. 9). Sanitary service for the industrial building

is provided by its own 0.005 MCD “package” sewage treatment plant,

and the seven residences are served by individual septic fields,

(R. 11)

FBM now wishes to replace the existing water and sanitary

facilities for its property with service from the Park Forest South

Utilities Company. To this end, FBM has obtained permission and a

Certificate of Public Convenience and Necessity from both the Agency

and the Illinois Commerce Commission with regard to the installation

of water service, (R. 8), and has obtained the necessary Certificate

of Public Convenience and Necessity from the Illinois Commerce

Commission with regard to the installation of sanitary service.

FBM has incurred assorted legal, engineering and other expenses

with regard to those proceedings, and has paid a $19,000 tap-on fee

to the Park Forest South Utilities Company, (R. 15).

FBM first applied to the Agency for a sewer connection permit

for the industrial plant and seven residences on its property on

April 28, 1976, (Rec., 2). On May 12, 1976, the Agency denied

that permit application. An additional permit application was

submitted to the Agency by letter dated May 24, 1976, and was denied

by the Agency by letter of June 10, 1976, (R. 56). The Agency cited

as its reasons for denial the problems of bypassing and effluent

quality at the Park Forest South Utilities Company’s sewage treat-

ment plant.

PERMIT APPEAL

FI3M’s Permit Appeal may be disposed of summarily. FBM bases

its Permit Appeal on several grounds, but these grounds are generally

duplicative of one another; the essence of FBM’s appeal is that the

Agency failed to properly consider hardship or economic factors in

its permit determination, and that the Agency failed to adequately

weigh such hardship against the relatively small (88 PR) additional

load which would be placed on Lhe Park 1’ore~L Sou

Lii Pt

1 I i t los Company

sewage treatment plant.

Those contentions do not state a cause of action as a Permit

Appeal. The Agency’s standards for permit issuance, contained in

Rule 962 of Chapter 3, are quite specific and include none of the

points urged by Petitioner, The factors cited by FBM are properly

brought before this Board in a Variance proceeding.

24 —150

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—3—

The bulk of the Agency’s testimony and evidence in this case

(R. 69—112) proves unquestionably that there were indeed both effluent

quality and bypass problems at the Park Forest South Utilities Company.

Although such a showing was not required of the Agency

--

indeed, a

contrary showing was Petitioner’s burden

——

the Agency’s presentation

shows that its decision to deny FEM’s permit application was unques-

tionably correct under Rule 962 of Chapter 3.

Petitioner’s contention that the Park Forest South Utilities

Company’s violations are caused by a single, unpermitted discharge

into the sewer system tributary to the plant is not well taken under

the Permit Appeal. The simple fact of violation, regardless of

cause, is all that is required for the Agency’s determination under

Rule 962. This contention is, however, properly treated as a Variance

consideration, below,

Finally, with regard to the Permit Appeal, Petitioner’s contention

that no construction or operating permits are required for a sanitary

sewer designed to serve seven individual residences is plainly erroneous.

VARIANCE

FEM’s initial error with regard to its Variance Petition involves

the relief sought. In situations of this type, relief from the

various sections of the Act and Board Regulations cited in FBM’s

petition is inappropriate. Instead, the proper relief is a Variance

from the applicable sections of Rule 962, which in this instance

properly prohibited the Agency’s issuance of FBM’s permit. We shall,

therefore, analyze the FBM case as though the proper relief had been

sought.

FEM presented testimony on the following points in support of

its Variance Petition:

1. The cause for the Agency’s imposition of

Restricted Status on the Park Forest South Utilities

Company’s sewage treatment planL is influent to that

plant from a single source: the Inolox Corp. ‘s

pharmaceutical plant, which contributes 5 t.o 6 percent

of the sewage treatment plant’s hydraulic flow, but also

contributes between 85 and 100 percent of the plant’s

BOD and suspended solids treatment capacity, (Dep. 9, 10).

2. Of the Park Forest South Utilities Company

sewage treatment plant’s capacity of 22,000 PE, the

proposed connection to the FEM property would add

approximately 0,4 percent (88 PE), (R..,

48).

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151

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—4—

3. FBM’s present lessee of the industrial plant

on the subject property, The American Lock Company, may

cancel its lease if FBM does not provide water and sanitary

service from the Park Forest South Utilities Company.

4. The present water system serving the FBM property

is antiquated, subject to constant breakdowns, and quite

expensive to maintain,

5. The present septic systems serving the seven

residences on the FEM property are not fully effective,

and need constant maintenance and repair. Despite constant

repair efforts in the past, problems with the system have

caused water pollution and air pollution (odor)

problems.

6. The small sewage treatment plant presently

serving The American Lock Company plant is expensive to

maintain and, although it may be capable of obtaining a

Pfeffer exemption from the applicable standards in Rule

404, its capacity to meet Board standards is nonetheless

marginal.

7, The Board has a policy of approving the replace-

ment of small, limited capacity sewage treatment plants

which discharge to waters of the State with service provided

by larger, centralized sewage treatment,

8. The installation of water service is necessary

at the present time; the separate installation of water

and sanitary service to the FBM property would not be

economical, Construction of both water and sanitary

service connections should take place at the same time.

9. FBM has already invested a considerable amount

in engineering fees, legal fees, and

other

costs associ-

ated with designing the necessary facilities, and obtaining

the necessary permission

from the Agency.

Tn

opposi

Lion

to Lie Varimico qrir~

,

I ho ~p’ncy •iigw’s t h;~t

Pc Li I ioner has fa

tiod Lu

show Llio rug uisi Lu liardslii p.

iii

I Hut of

the Agency’s

testimony

and

exhibits as to the results of past

problems at the Park Forest South Utilities Company’s sewage treat-

ment plant, we would normally tend to agree that the balance of

possible environmental harm against hardship to the Petitioner would

favor the denial of this Variance.

24

—

152

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—5—

However, FBM presented evidence at hearing on two additional

points which lead us to the conclusion that the Variance should be

granted.

First, FBM presented evidence showing that the Park Forest

South Utilities Company’s sewage treatment plant has adequate

hydraulic capacity for both the present load and any additional

load to be provided by FEM’s property. Prior problems at the plant,

including bypassing, have been the result of extremely high surge

loadings from the Inolex plant, running as high as 20,000 mg/l of

BOD, with accompanying high suspended solids loadings. These

loadings have caused clogging of tertiary filters at the sewage

treatment plant, leading to bypassing. At the direction of the Park

Forest South Utilities Company, Inolex has recently completed the

second stage of what may be a three or four stage program to improve

its pre—treatment, and decrease surge loadings and overloadings on

the Park Forest South sewage treatment plant. Recent results at

the Park Forest South sewage treatment plant indicate that progress

has already been made,

Secondly, FEM ha c~fered at hearing to continue operation of

the small treatment plant presently serving The American Lock Company

plant (covering 60 PE of the proposed additional 88 PE), so that

discharges to the Park Forest South Utilties Company sewage treatment

plant will be accordingly pre—treated. Under this situation, the

FBM addition to the sewage treatment plant would be 0.5 pounds per

day of BOD, or 0.02 percent of the present load, (R. 51). FBM would

contribute 0.6 pounds per day of suspended solids, or approximately

0.015 percent of the present load, (idj.

Under these facts, any environmental damage resulting from the

grant of the requested Variance would be negligible. Weighing such

negligible harm against the hardship shown by FEM, we find that

there are sufficient facts in the instant case to justify the Variance

grant.

We shall require continued operation of the present, small

treatment plant on the REM properly as a condition to the Variance

grant. That condition shall he released only when the Agency has

determined that the

Park

Forest South sewage trealment plant has

adequate hydraulic and biological

capacity.

This Opinion

constitutes

the findings

of fact

and

conclusions

of law of the Board in this matter.

24

—153

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ORDER

IT IS THE ORDER OF THE POLLUTION CONTROL

BOARD

with prejudice;

2. Petitioner

FBM Company,

Inc., be granted a Variance from

Rule 962(a) of Chapter 3: Water Pollution, of this Board’s Rules and

Regulations, to allow the issuance of permits by the Environmental

Protection Agency for the construction and operation of sanitary

sewer facilities serving The American Lock Company factory and seven

individual residences on Petitioner’s property adjacent to Park Forest

South, Will County, Illinois;

3. The foregoing Variance grant is conditioned upon continued

operation of the existing sewage treatment

plant serving The American

Lock

Company manufacturing facility on said property, to provide

pre—treatment for all discharges from that manufacturing facility;

said condition to be released by and upon determination of the

Environmental Protection Agency that the Park Forest South Utilities

Company sewage treatment plant’s present bypassing and effluent

problems have been corrected;

4. Variance from Sections 12(a), (b) and (c) of the Environ-

mental Protection Act and Rule 951(a) of Chapter 3: Water Pollution,

is denied; and,

5. Petitioner

FBM

Company, Inc., shall, within thirty (30)

days of the date of this Order, execute and forward to the Environ-

mental Protection Agency, Control Program Coordinator, 2200 Churchill

Road, Springfield, Illinois, 62706, a Certificate of Acceptance in

the following form:

I, (We),

____________________________

having read

the Order of the Illinois Pollution Control Board in

case No. PCB 76—171, understand and accept said Order,

rea

izing that such acceptanc’ renders al tvnun and

SIGNED

TITLE

DATE

24-154

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—7--

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

Control Board, hereby ~

Opinion and Order were

adopted on the

day of

1976, by a vote of

____________

Illinois Pollution

.rol Board

24—155