ILLINOIS POLLUTION CONTROL BOARD
July 11, 1985
CITY OF SYCAMORE,
Petitioner,
v.
)
PCB 83—172
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
MR. CHARLES L. FIERZ, CITY ATTORNEY, APPEARED ON BEHALF OF
PE~TITIONER; and
MR. E. WILLIAM HUTTON and MR. THOMAS DAVIS, ATTORNEYS, APPEAREI.J
ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board on a petition filed by
the City of Sycamore (Sycamore) requesting a variance from 35
Ill. Adm. Code 306.304 in order to modify its NPDES permit to
allow a sanitary sewer bypass pursuant to 35 Ill. Adm. Code
309.184. The original petition was filed on November 17, 1983
and then amended pursuant to Board orders for more information on
January 17, 1984, March 12, 1984 and July 3, 1984. Supplementary
information was filed on November 14, 1984.
The Illinois Environmental Protection Agency (Agency) made
several recommendations and motions that the petition be denied
or dismissed for lack of information. Agency Rec., April 16,
1984 (recommending denial); Agency Motion to Dismiss, August 1,
1984 (no action taken, J. Anderson dissenting, August 2, 1984);
Agency Second Rec., August 20, 1984 (recommending denial or
dismissal); Agency Supplemental Motion to Dismiss, December 20,
1984.
The Agency’s Supplemental Motion to Dismiss was taken up at
the Board’s January 10, 1985 meeting. However, the motion failed
to muster the four affirmative votes required under 35 Ill. Adm.
Code 101.109 to become a “final determination.” Consequently, no
action was taken on the motion and the case proceeded to
hearing. Hearing was held on January 28, 1985 and briefs were
subsequently filed by the Petitioner on May 1, 1985 and by the
Agency on June 3, 1985.
Before discussing the variance petition itself, it is
necessary to address an objection raised by the Agency to the
admission of a written study prepared by Sycamore’s present
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engineering consultants, Greeley and Hansen, on the grounds that
it is hearsay (R. at 126—7). The Agency also objects to each
anh
every exhibit tendered by the City at hearing on the grounds of
hearsay and lack of foundation.
The Agency argues that the Hearing Officer improperly
received this evidence contrary to the dictates of 35 Iii. Adm.
Code 103.204 (Ag. Brief in Opp. at 2). Section 103.204 provides
that Hearing Officers “shall receive evidence which is admissable
under the rules of evidence as applied in the Courts of Illinois”
and “may receive evidence which is material, relevant and would
be relied upon by reasonably, prudent persons in the conduct of
serious affairs
. .
First, the Board notes that Sycamore claims that the report
was not offered to prove the truth of the matter asserted
therein, but only to illustrate what steps were being taken to
correct the City’s overflow problems. Assuming however that the
study was submitted as proof of the facts therein, it does
constitute hearsay. The Board finds, however, that it was
properly admitted under Section 103.204 as material and
relevant. The Board notes that the Agency itself made a written
cequest for the entire report (Second Rec. at par. 2) which
request was apparently met (R. at 34—5). The Board also finds
that the rest of the exhibits were properly admitted under this
Section.
The City of Sycamore is located in Dekalb County,
Illinois. Sycamore has a sanitary sewer system and owns and
operates three wastewater treatment plants at two locations, the
North Site and the South Site. According to the Greeley and
Hansen report, the rated capacities of. each of the plants, in
millions of gallons per day (MGD), is as follows:*
Plant
Flow Rate
Design
Design
Average
Maximum
North Site
Original Plant
0.8
2.5
New Plant
3.5
9.64
South Site
Southwest Plant
.45
1.0
The plants serve a population of approximately 9,800. The
subject of this petition are the two plants, the “original” and
*At the outset, the Board wishes to note that where information
supplied by the City is unclear or contradicted by other filings
made by the City, the Board has generally referred to that
information submitted last in time.
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“sew” plants, located at the North Site. These facilities
generally consist of two largely separate treatment plants with
grit removal, primary clarifiers, aeration tanks and final
clarifiers. While the design average flow (DAF) to these two
plants is 4.3 MGD the actual average daily flows to the site
range from 1.0 to 1.5 MGD, far below the rated capacity.
Sycamore explains that two water—intensive industries, with a
combined impact of 0.9 MGD, have departed from the City (Third
Am. Pet. at 2). Since both plants were not needed, all flow was
sent to the new plant and the original plant was taken out of
service. The new plant is more than adequate to handle all
normal dry weather flows and in fact, produces effluent of a
higher quality than that mandated by its NPDES permit (Second
Rec. at par. 13). However, during wet weather flows, shortfalls
in capacity at the new plant occur which the City contends
results in sewer surcharging and the subsequent back—up of sewage
in basements. Consequently, the City requests a variance to
permit the use of a 24 inch diameter bypass pipe during periods
of extreme wet weather to “Martin’s Ditch” which is a tributary
of the East Branch of the Kishwaukee River.* The variance is
requested for five years or until rehabilitation or
reconstruction of the system is accomplished.
The cause of the sewer surcharging and subsequent basement
flooding, and whether the bypass will, in fact, alleviate these
problems is vigorously disputed by the Agency. Moreover, the
Agency contends that the petition should either be dismissed or
denied because Petitioner has not met its burden of proof.
Specifically, the Agency points to the lack of a definite
compliance plan, and an inadequate consideration of 1) possible
measures to minimize any adverse impact; 2) the extent of any
environmental impact; and 3) possible compliance alternatives.
Apparently, the City has had basement flooding problems
which predate construction of the new plant (R. at 14). However,
the City contends that the new plant, which was intended to
ameliorate the flooding, has only exacerbated it (R. at 14). The
plant was constructed with grant funding pursuant to an
engineering study prepared by W. Duechier and Associates. The
study concluded that there was excessive infiltration and inflow
(I/I) in the collection system and recommended 1) reduction of
1/I on cost—effective basis; 2) construction of a new treatment
plant at the North Site; 3) expansion of the North Cross Street
Pumping Station; and 4) replacement of the old Parkmoor Lift
Station with a new East Interceptor (Greeley and Hansen report
at 3).
*Additionally, the City requested that it be able to use eleven
existing small portable pumps as well as a 10” portable pump but
conceded that this request should be dismissed. (Objections to
Motion to Dismiss, August 13, 1984). Accordingly, the Board
dismisses the requested relief with respect to these pumps.
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The City contends that the whole system is now a “lemon”
because during at least two rainfalls “extensive, tragic, flooded
basements occurred”. (Pet. Brief at 2). According to the City,
sewer surcharging occurs during wet weather because the entire
system was not designed for peak hourly flows. Inadequate
capacity exists at the treatment plant, pumping station,
interceptor sewers and lift station (R. at 35). For instance,
the design maximum pumping capability at the North Site is 18.16
MGD and the peak flow rate during a 2.9 inch rainfall is 25 MGD
(Third Am. Pet, at 3). The Board will not reiterate here all of
the alleged design shortfalls.
The City further contends that all cost—effective I/I has
already been eliminated to no avail and thus, has concluded that
“only massive reconstruction of the entire system offers a real
cure.” (Pet. Brief at 6). A schedule for compliance was
submitted as follows:
ITEM
DATE COMPLETED
Research and Report on Design Error
August 1984
Planning and Report on Various
January 1986
Alternatives and Solutions to Problems
with Cost—Effective Analysis
Design of Excess Flow Facilities
July 1987
and/or Flow Reduction Measures
Construction of Excess Flow Facilities
July 1989
and/or Flow Reduction Measures
The only cost estimate provided was that of an 8.0 million gallon
bypass storage tank estimated at $2.7 million.
The City contends that the schedule as submitted is the only
responsible course of action. The City asserts that it is
committed to a long term solution but that it needs time to
develop its alternatives. As proof of its commitment the City
has proffered a study prepared by its new engineering
consultants, Greeley and Hansen. However, this engineering study
concerns itself solely with alleged design flaws made by the
previous engineers. While the identification of possible flaws
may be a necessary prelude to correcting the overall problem, the
study fails to demonstrate what positive steps will be taken to
correct the problem as required by the Illinois Environmental
Protection Act (Act). The Board notes that this petition has
been pending for close to two years without any progress towards
a compliance plan.
The Agency is correct in maintaining that a compliance plan
is to be submitted as part of the petition and not developed over
the pendency of the variance itself, Modine Manufacturing
Company v. IEPA, PCB 79—112 (August 18, 1982). The compliance
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plan, as submitted, does not satisfy this requirement. In
reality, the plan is nothing more than a vague sketch which fails
to commit the City to a specific course of action. In specific
instances, where there is no apparent solution to the problem,
compliance plans may include time for research leading to an
ultimate but as yet unidentified resolution. However, in this
instance, sufficient time to study as well as develop a
compliance plan has already transpired. The “plan” also fails
because no explanation is given as to why it will take five years
to correct the problem or why the time intervals between each
“step” are so lengthy. The Board finds the City’s failure to
proceed with a permanent solution surprising in light of the long
history and gravity of the situation.
Also surprising is the City’s apparent failure to take into
account possible measures to alleviate the impact of the flooding
on its residents and on the environment. For instance, the
Agency feels that the old plant could be better utilized to
provide some level of treatment for at least 18.16 MGD. The City
states that the old plant is used during wet weather but its
usefulness cannot be determined without re—engineering studies
(Third Am. Pet. at 3). The Agency also contends that an
aggressive program to reduce illegal connections and seal leaking
manholes would have a positive impact and is a relatively low—
cost measure available to the City in the interim. While the
estimated maximum total daily I/I during wet weather was about
12.34 MGD, only 1.44 MGD was eliminated during the sewer
rehabilitation program. More than 70 percent of the I/I was
unlocated and “speculated to be on private property and beyond
the scope of the study” (Greeley and Hansen report at 8). As
early as 1976 it was known that an estimated 1,200 footing drains
were connected to the sanitary sewer system at unidentified
locations (Ex. E at 39). The City’s failure to investigate and
eliminate these sources of I/I, then and now, remains
unexplained. While the City initially had professed to commit
itself to eliminating excess I/I as part of this variance, by the
hearing date this plan had been abandoned in favor of
investigating “design flaws”. Given the apparent extent of
Sycamore’s I/I and the relative ease, low cost and timely results
which could be expected from an aggressive program to reduce it,
the City’s explanation for rejecting the program is simply
unconvincing.
The City apparently sees its dilemma as either bypass and
“kill a few fish” or risk the health and safety of its citizens
(R. at 118—120). However, because the bypassing does not cure
basement flooding the City continues to risk both its residents
and the environment. The City has made no formal assessment of
the environmental impact of its bypassing activities. The City
simply argues that any environmental impact will be minimal
because the bypasses are expected to occur only once or twice
yearly and at such times when the Kishwaukee is at extremely high
water levels. The City estimates the dilution ratio during these
occasions to approach 5000 to 1. It expressly rejects the
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necessity of performing a more detailed impact analysis because
it argues that this would entail breaking the very regulations
from which the variance is sought (R. at 39). The Board rejects
this argument as specious; bypassing activities have been going
on for a number of years, each event presented an opportunity for
data gathering.
The Agency questions Sycamore’s conclusions that any
environmental impact would be minimal. The Agency feels that the
petition grossly underestimates the actual amount of bypassing
and that the dilution ratio provided is unreliable since it is
founded on only one date. The Board also notes that the dilution
ratio, on its face, appears highly questionable. Also lacking is
a plan of operation for the bypass. Limitations as to how much
and how often is to be bypassed under various rainfall conditions
are necessary to minimize the environmental impact attendant with
bypassing raw sewage. The Act requires that Sycamore do more
than make conclusory statements as to the “minimal” effect on the
K ishwaukee.
The crux of Sycamore’s hardship claim is that its faulty
sewer and treatment system causes basement back—ups and that j~~o
facto bypassing is justified to protect the health and welfare of
its citizens. The Board notes that the first flooding incident
attributed to the new plant occurred on May 23, 1983, over 2
years ago, and yet the City has not proceeded to identify a
viable compliance option, much less embark on a course toward its
implementation. Moreover, the City apparently intends to take no
measures to alleviate the continuing impact of the sewer
surcharging on its residents while developing options. As
previously noted, the relatively low—cost alternative of reducing
excessive I/I has been expressly rejected. The Board is highly
concerned about Sycamore’s declared resistance to active pursuit
of any interim measures, which would alleviate the plight of its
residents during heavy storm conditions, other than a crisis
response that, at best, only partially addresses the potential
health and other problems resulting from basement backups, and
fails to address the environmental consequences at all.
Compounding the situation is Sycamore’s less than aggressive
pursuit of a compliance plan to ultimately cure the problem.
Consequently, it appears that much of Sycamore’s hardship is
self—imposed.
Even were the Board to ignore the gross factual deficiencies
in this variance petition, a grant of variance would be
inappropriate and, indeed, could serve to aggravate the
problem. Any variance which would be granted by the Board would
require interim compliance measures and demonstrable progress
towards ultimate compliance: the record makes clear that these
essential conditions of the variance have already been either
rejected or resisted by Sycamore. To grant the type of variance
as requested by Sycamore, thus fostering Sycamore’s otherwise
non—complying actions and removing the threat of enforcement,
would be an unacceptable encouragement of the status quo.
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The City asserts that “to not grant a hardship variance to
the City of Sycamore would be manifestly inconsistent and unjust”
relying on variances granted by the Board in City of Farmington
v. IEPA, PCB 83—63, October 6, 1983; Village of Bourbonnaisv.
IEPA, PCB 83—71, October 19, 1983; village of Seneca v. IEPA
PCB 83—76, November 18, 1983 (City’s Brief at 4—5). However, the
petitioners in the above matters were in substantially different
circumstances than Sycamore and succeeded in meeting their burden
under the Act.
In the City of Farmington, a variance for bypassing was
granted to allow the City to conduct a flow monitoring study.
The bypassing was simply the only mechanism available to the City
to gather the data necessary to solve its severe environmental
problem. Accordingly, the variance was only granted for the
short period necessary to collect the data. The Board
specifically noted that should the City request a variance
extension beyond the data collection period a compliance plan
would be necessary.
Although the village of Bourbonnais case presented a more
similar situation to that of Sycamore’s, in that matter the
Village identified and committed itself to a compliance
alternative. Specifically, it was contemplated that within four
years of the grant of the variance a new plant would be finished
capable of treating all of Bourbonnais’ waste. In the interim,
the Village had made provision for treatment of 2.0 MGD above its
treatment capacity by constructing an interceptor sewer
connecting it to another treatment plant. The imposition of
other expensive short—term solutions was found to constitute an
arbitrary and unreasonable hardship. However, the Village was
ordered to aggressively reduce I/I and deadlines were imposed for
reduction of flows and use of the bypass.
Finally, the Village of Seneca is also inapposite because it
was demonstrated that the creek discharged to was already
considered “degraded” and that elimination of the bypass would be
of minimal beneficial effect. More importantly, it was
contemplated that a sewer rehabilitation project, although
principally concerned with dry flow, would eliminate enough I/I
upstream of the bypass to offset the flow discharged from the
bypass. The Village was also in the construction grants program
to correct its wet weather flow problems.
Although Sycamore’s pumping activities may have minimized
the extent of basement flooding, as testified to, it did not
serve to prevent it and thus is ineffective as a long—term
solution. Rather, the health and welfare of Sycamore’s citizens
depends primarily on the the City’s commitment to identify long—
term solutions and then proceed to implement them as
expeditiously as possible. Unfortunately, the ease of the “quick
fix” approach has apparently slackened the City’s commitment to
find an ultimate solution. For example, Mayor Johnson testified
that he feels more bypasses are warranted (R. at 118). Variance
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may only be granted where it is demonstrated that the timely
compliance called for by the Act and regulations is to be
achieved. Sycamore has not made such a demonstration. For all
of the foregoing reasons, the Board finds that Sycamore has
failed to demonstrate the arbitrary or unreasonable hardship, as
balanced against environmental harm, necessary to justify grant
of variance. Accordingly, variance from 35 Ill. Adin. Code
306.304 and 309.184 is hereby denied.
The Board notes that this denial does not preclude Sycamore
from initiating a new variance proceeding by filing a petition
remedying the deficiencies outlined in this Opinion.
This Opinion constitutes the findings of fact and
conclusions of law of the Board in this matter.
ORDER
The City of Sycamore is hereby denied a variance for its 24
inch diameter bypass pipe to Martin’s Ditch and its eleven “small
portable pumps and 10” portable pump from 35 Ill. Adm. Code
306.304 and 309.184.
IT IS SO ORDERED.
B. Forcade and J. Theodore Meyer concurred.
J. D. Dumelle, R. Flemal and W. Nega dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
/rc~~ day of
_________________,
1985, by a
vote of
~‘—3
.
~
4
~
~
/~t~ ~
Dorothy M. ~unn, Clerk
Illinois Pollution Control Board
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