ILLINOIS POLLUTION CONTROL BOARD
July 24, 1980
C. IBER & SONS, INC., THE
WARREN COUNTY HOUSING AUTHORITY,
and THE CITY OF MONMOUTH
Petitioners,
v.
)
PCB 80—82
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board on a petition for variance
from Rule 962(a) of Chapter 3: Water Pollution (Chapter 3). The
petition of C. Iher and Sons, Inc. (Iber) and the Warren County
Housing Authority (WCHA) was filed April 18, 1980. Pursuant to
the Board’s Order of May 1, 1980, the City of Monmouth (Monrnouth)
joined in this petition by a filing dated June 2, 1980. The
original Recommendation of the Environmental Protection Agency
(Agency) was filed June 12, 1980 and opposed this variance.
However, the Agency’s First Amended Recommendation, filed July 9,
1980 supports grant of the variance with conditions. The public
has filed no objections to this petition. Hearing was waived,
and none has been held.
The WCHA currently owns and operates a 120 unit low rent
housing project for the elderly. Since 1978, WCHA has been engaged
in the development of an additional fifty units to serve this segment
of its community. This project, which is being funded by the U.S.
Department of Housing and Urban Development (HUD), was designed to
discharge ordinary domestic sewage through a sewer extension to the
sewage treatment plant (STP) owned and operated by Monmouth. Pursuant
to HUD requirements, on August 7, 1978 the WCHA entered into a “Co-
operation Agreement” with Monmouth which contained provisions for
Monmouth to furnish services. By letter of December 18, 1978
Monmouth further assured the WCHA of the availability of adequate
public facilities to serve the project. (Pet. 2) Iber is the
general contractor engaged by WCHA to construct this housing
project.
Variance relief is requested here because the Monmouth STP
is currently on restricted status, with the result that new sewer
construction and connection is banned pursuant to Rule 962(a) of
Chapter 3.
2
The Monmouth STP had been placed on the Agency’s “critical
review” list on July 11, 1976. Also, on April 6, 1979 the Agency
filed a complaint with the Board against the City of Monmouth
citing effluent and water quality violations. The parties’ proposed
stipulated settlement of this still pending action, PCB 79—79, has
been specifically incorporated by reference into this proceeding.*
It states that Monmouth’s design average capacity is 1.5 mgd.
Flows in excess of 1.5 mgd are bypassed at any or all of four
bypass structures. (The Agency’s Amended Recommendation
however,
states that Monmouth’s design maximum capicity is 2.5 mgd at p.
5.)
In dry weather, Monmouth allegedly has caused approximately 1 mgd
of sewage to bypass part or all of its treatment processes and to
be discharged into Markham Creek. Even greater flows are bypassed
in wet weather (PCB 79—79, Stip. 3—4).
On September 27, 1979 WCHA and Iber entered into a turnkey
contract requiring Iber to complete construction of the project
by September 26, 1980. On October 5, 1979 pursuant to the
contract, Iber acquired the site by warranty deed from the WCHA.
Layout work was begun on October 9, 1979 and excavation was
commenced on October 16, 1979 (Pet. 7).
As of September 30, 1979, the Monmouth STP was still formally
listed by the Agency as having critical review status and a remaining
capacity of 217 P.E. However, on October 10 the Agency notified
Monmouth that restricted status proceedings were pending, and on
October 23, 1979 Monmouth was placed on restricted status. Pe-
titioners Iber and the WCHA alleged that they were not informed
of Monmouth’s restricted status until December 4 during the course
of a meeting with Monmouth concerning a storm sewer connection.
They further allege that it was not until December 11, 1979 that
Iber and the WCHA were made aware of the need to obtain a permit
for the sanitary sewer line construction and connections. By that
time, Iber had expended some $200,000 in project costs, and had
issued purchase orders totalling some $472,000 (Pet. 11, 8—9,
Rec. 2).
The Board finds petitioner’s plea of lack of awareness
concerning the need to obtain a permit unacceptable. However, it
is understandable that Iber and WCHA relied on the Agency’s critical
review list and Monmouth’s estimates of its remaining capacity at
the time of the September 27, 1979 contract. Nevertheless, these
are not the most important issues here.
There is a demonstrated community need for additional low—
rent housing for the elderly in Monmouth, as evidenced by the fact
that WCHA has 87 applications for the 50 units involved here, and
anticipates receiving more as the project nears completion. Al—
*The Board has not considered the merits of this settlement.
This reference to it is not to be construed as indication of
approval of the proposed settlement.
3
ternative treatment is not feasible, as HUD will accept only
connection to City sewer facilities. Iber, as well as the
community, especially its elderly, contemplate financial hardship
if this variance is denied.
The Agen9’s original negative Recommendation was based on
1) petitioners original estimate that its project would discharge
an additional 31 P.E. into Monmouth’s system, 2) Monmouth’s con-
tinued hydraulic overloading,
3)
the resulting poor water quality
of Markham Creek, and 4) the fact this this Board has recently
granted variances allowing 3 additional connections to the Monmouth
STP in City of Monmouth v. EPA, PCB 79—36, 33 PCB 467, (May 10, 1979)
(0 to 62.5 P.E.), City of Monmouth v. EPA, PCB 79-261 (March 6,
1980)(12.5 P.E.), H.J. Bergman Builders v. EPA, PCB 79—264 (April 17,
1980)(72 P.E.).
In response to this Recommendation, petitioners expended $2500
for a water conservation report and analysis. This study explains
that if identified conservation devices are installed in the WCHA’s
existing 120 unit building, and in the 50 unit Iber construction,
that the combined water consumption and sewage flow from these 170
units can be reduced below the current levels of the existing 120
units. It is not clear what additional costs will be caused by
installation of necessary equipment in the 50 unit building under
construction, but petitioners’ engineering consultant estimates
that costs to rework the existing 120 unit building will be
approximately $8,000 (Response, Exhibit A). The Agency has
verified the accuracy of these findings, and the practicability
of the conservation plans (1st Am. Rec. 5—7).
The Board finds that grant of variance with conditions is
particularly appropriate here. Although Monmouth has received
funding for the upgrading of its plant, work is not anticipated
to be completed until October, 1981. Petitioners have proven that
they can reduce their discharge to this overburdened plant. In
light of this, and of the additional recognized need for low—income
housing for the elderly, possible loss of federal funding for the
project, and WCHA and Iber’s stated reliance on the Agency’s
critical review lists and Monmouth’s representations, it would be
both arbitrary and unreasonable to deny this petition. Variance
from Rule 962(a) of Chapter 3 is therefore granted, subject to
the conditions outlined relating to the implementation of water
conservation measures.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioners C. Iber & Sons, Inc., the Warren County Housing
Authority, and the City of Monmouth are hereby granted variance
from Rule 962(a) of Chapter 3: Water Pollution, subject to the
following conditions:
4
1. Within 90 days of the date of this Order, Petitioners
shall install a) plastic dams in the water closets of the existing
120 unit building, b) water saving closets in the 50 unit building,
and c) water saving faucets and shower heads in each building.
2. The Warren County Housing Authority (WCHA) and the
Environmental Protection Agency shall develop a schedule for a
reasonable number of inspection tours of the two buildings by
Agency personnel who are to monitor the installation of the water
conservation devices. WCHA personnel shall accompany Agency
personnel during these inspections, which shall include random
inspection of units in each building. All reasonable measures
shall be taken to minimize inconvenience to the elderly residents
of these units.
3. Within 45 days of the date of this Order, the Petitioners
shall execute and forward to the Illinois Environmental Protection
Agency, Variance Unit, 2200 Churchill Road, Springfield, IL 62706,
an executed Certification of Acceptance and Agreement to be bound
by all conditions of the variance. This forty—five day period
shall be stayed if Petitioners seek judicial review of this
variance pursuant to Section 41 of the Environmental Protection
Act. The form of said certification shall be as follows:
CERTIFICATION
I, (We,)
,
having read
the Order of the Illinois Pollution Control Boardin PCB 80—82,
dated
_____________________,
understand and accept the Order and
agree to be bound by all of its terms and conditions.
Petitioner
By __________________________________
Authorized Agent
Title ___________________________
Date ______________________________
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the bove Opinion and Order
were adoi~tedon the
~ day of
____________,
1980, by a
vote of
~
Christan L. Moffeft Clerk
Illinois Pollution ontrol Board
