ILLINOIS POLLUTIC:: CONTROL

BOARD

April lL, 1971

CITY

MATTOOJ

)

V.

)

171—8

ENVIRONMENTAL

PROTECTION

AGENCY

)

Opinion of the Board (by

Mr.

Curr~.e):

This is a most depressing case in which the City asks for a

variance because it thought the state was not serious when it

prescribed deadlines for the conctruction of additIonal sewage

treatment facilities.

 Lefl any dcubt remain, we declare once

more that the state is indeed serIous about expecting obedIence

to the

lawd

 It is high time people reco~n!zedthat the persuasive

demand for

 lat: and order applies to polluters as well as to

burglars.

 110w municipal and corp~rateofflcials can cluck their

tongues

over

wayward

youth

while

 çayiiag no attcntlon to their

own legal responsibilities is beyond our comprehension.

The City of Mattoon operates a seriously overloaded sewase

treatment plant fed by an overloaded sewer system

(B.

86—87,

165).

 Secondary treatment is provided to whatever flows the plant

can handle, but additional flows are given only primary treat,ent

(which removes the

larger

hunks)

bypassed

raw

sewage

dIrectly

to Xickapoo Creek from the plant or from the sewers themselves

(R.

88—89,

 113).

 Such overflows

occur

 five or six times per

month

(R.

 139).

Kickapoo Creek is

small

 intrastate stream w±thlittle

capacity to assimilate wastes.

 The undisputed testimony is that

the creek is seriously polluted below the plant and does not

completely recover for six miles downstream

(R.

 186).

 Fish have

been missing for years

(R.

 179,

 191$,

 & EPA recommendation);

there are complaints of odors

CR.

 168, l72)~the stream is in-

habited by organisms tolerant of pollution

(R.

 186, 191—93),

it is troubled by sludge banks, t:ilet tIssue, and fecal materIal

(R. 167).

 The EPA without contradictIon attributed these con--

ditions to the Nattoon sewage failit~esCR.

 182, 187).

The Environmental Protection Agenty in its recommendation reported

that one

person

lntervlet;ed

 sa!t

“he

 had seen his cows leave a

standing

position

tha

creek

~:cor.

 wa)k to a nearby

sprln—

fed

pool

order

obtain

drInk~.ngwate:’.”

1

—441

It was no idle whim, therefore, that prompted the state

Sanitary Water Board in March, 1968 to prescribe that on such

streams as Kickapoo Creek secondary treatment was insufficient

and that bypasses must be eliminated.

 The implementation

schedule in Rules and Regulations SWB—111, Rule 1.08 paragraphs

9,

lib, and 111, requires that advanced treatment to produce an

effluent with biochemical oxygen demand (BOD) of ilmg/l and

suspended solids of

5

mg/i must be provided, and bypasses given

primary treatment and chlorination, by July,

 l9’72.

 In order to

provide interim checkpoints to determine whether progress was

being made, the regulations also reqgired that for cities above

10,000 population (such as Mattoon) plans and specifications be

completed 30 months before the deadline for completion of construction

and construction contracts be awarded 21 months before..

 Notice

of these requirements was admittedly received by the City in the

spring of 1968

(R.

 160).

The~preparationof plans, the City now agrees, is a task

that can be done within one year, and construction within another.

The City was given by the regulation four years for a job it

concedes can be done in two.

Yet today it stands naked before

this Board with no plans or specifications for advanced treat-

ment even begun, much less completed, and with construction

not slated to begin for more than another year in the

 t,,ture.

The City acknowledges that it is “slightly” behind schedule and

asks us placidly to approve a new schedule that would allow

the filing, of plans in March 1972, the letting of contracts

in, May 1972, and the completion of facilities in June 1973.

The statute provides for variances only upon a showing by

the petitioner that compliance with the, law would impose an

“arbitrary or unreasonable hardship” (Environmental’Protection

Act, section

35).

 We have often made clear that whether the

hardship of compliance is arbitrary or unreasonable can only

be determined by a comparison of the benefits and of the costs.

bf compliance:

 “The statutory variance test of unreasonable

hardship is not satisfied by proof of hardship alone; it must

be demonstrated that the hardships of complying with the law

are disproportionately large in comparison to the benefits to

the public of so doing.”

 Texaco,’Inc. v.

 EPA, #70—29

 (I!eb,

 17,.

1971).

 This is made clear by our procedural rules, which in

Rule llOl(a)(2) require the petitioner to include in his petition

“a descriptio4 of the costs that compliance’would impose on the

petitioner and others and of the injury

 tI~iatthe grant of the

 variance would impose on the public.”

1—442

The

petition

this

 case does not comply with the

rules.

contains

no

debcription

the

injury

that

 grant

the

variance would impose on the public, and it includes no estimate

of the contaminants discharged, as required by Rule I10l(a)(1).

In light of the evidence developed at the hearing, however, we

shall proceed to consideration of the merIts.

The hardship complained of is that, since the City has

already missed the deadline for the submission of plans

 (January

1970) and the letting of contracts (September 1970), it cannot

possibly meet them and that the time remaining before the final

deadline for completion of the facilities is too short to permit

that date to be met either (R.

 75).

 We have already held, as

should have been obvious, that “one cannot qualify for a variance

simply by ignoring the timetable and starting late.

To

allow a variance on the basis of.

 (such

 allegations would

establish the preposterous proposition that the very, existence

of a violation is a ground for ‘excusing it.”

 Decatur Sanitary

District v. EPA,

 # 71—37 (March 22, 1971).

The City attempts to avoid this conclusion by arguing that

its delay was excusable.

 The record shows that the City was

notified of the SWB—l11 requirements in May, 1968.

 Having i4ecently

raised its sewer rates, the City decided to do nothing about

comp.ylng

 with ‘the new regulation until it had a year’s experience

to determine the amount of revenue available from the increased

charge, which would affect the extent to which improvements

could be financed out of revenue rather than general obligation

bonds.

 The City also sought a federal grant

 (R. 31—32, 58).

In 1969 the City employed the consulting firm of Wilson and

Anderson to prepare a report

 (due in January 1970) determining

what heeded to be

 doile to comply with SWB—lJI (R.

 311_35, 60_610.l

1.

 Wilson and Anderson were also authorized to proceed with

the construction of primary sedimentation tanks that will

help to alleviate the bypass problem.

 Bids have been

let for this construction, and its completion is expected

about September,

1971

(R.

 66—67).

1—443

January’ 1970 came and went with no report from Wilson and

Anderson.

 In April of that year the City told its consultants

they would have to have the report in by a “very strict” dead-

line or lose the contract; the new deadline was not met either;

 in June the firm conceded it could not perform; in Atagust 1970

a second firm was hired, which submitted the desired report

the night before the hearing in this case——in March, 1971 CR.

69—73).

 This report does not contain designs for the construction

of the needed facilities; design work is to start now and take

ten months

(R.

 1311—36), and construction is to commence after

permits are obtained.

 Compliance is ‘expected, as stated above,

by June 1973.

The City attempts to shift the blame for its delay to

its first contractor, Wilson and Anderson.

 There is no

doubt that the contractor was derelict in its obligations toward

the City.

 But, as we have stated before, the obligation to meet

deadlines

for

abating

pollution

that

the

City,

and

cannot

abdicate

its

responsibility

simply

employing

independent contractor:

 “Other petitioners should, however, be

on notice that lack of delivery, when no efforts are made to

effectuate timely delivery, will not be looked upon favorably

by this Board.

 It would be a foolish precedent for this Board

to

establish

that

variance

pctiticngr

after

having

dono

nothing to effect delivery may simply transfer the onus for non-

 completion of a job to his vendor.”

 Marblehead Lime Co. v.

 EPA,

1

70—52 (March 17, 1971).

 The City says it repeatedly contacted

Wilson and Anderson in an attempt to spur them on (R.

 70), but

that is not enough.

 ‘The City may not idly flail its municipal

fists while its hired help sit~on its hands.

 On an April

111

one cannot but wonder what the Internal Revenue Service would

say to a taxpayer who claims his accountant was too busy to

prepare the returns on time.

 It was the City’s duty to build

into its contract with its consultant whatever escape and

penalty clauses were necessary to ensure that the contractor performed,

to keep a close watch on the progress of work before the report

was due, and to turn to another workman’promptly when the first

fell down on the job.

 The City said in closing argument that

it supposed we could “find fault with the City for not firing

Wilson.and.Anderson sooner.”

(R.

 231).

 That’s right.

 We can and

we do.

Moreover, the City was remiss long before its contractor hit

the canvas.

 The City wasted a year during which it made no

progress toward designing advanced treatment facilities’, although

it now acknowledges that it is quite feasible to do design work

while figuring out whore the money for construction is to come

from (R.

 106—07).

 It entered into a contract for preliminary

study

that

was

produce

only

general

r!port

January

1970,

1—444

the date when final plans and specifications were due.

 Thç

deadline for filing plans would not have been met even if

the contractor had done his job.

 We find the City’s inat-

tention to its responsibilities is responsible for the proz—

ent violations of the regulations, and thus any hardship it

suffers as a result of those regulations it has brought upon

itself.

The

City

Mattoon

thus

flat

 and inexbusable viol-

ation of its obligations ~underSWB—111.

 It doS not qualify for

permission to go on violating the law with impunity, as it

has not shown satisfactory progress as the statute requires for

extension of a deferned timetable (section

36

 (6)).

 Yet, be-

cause the date for submission of plans has already passed,

we must set a new deadline; failure to meet the deadline will

result in additional penalties.

 In essence the setting of a

new date amounts to a partial variance, though an undeserved

one.

 For while we cannot condone the City’s infractions,

neither can we shut down the treatment plant, as we could

!ith most industrial processes.

 To’do so would result in

more rather than less pollution, and thus the cost

or

a clos-

ing would enormouslj exceed the benefits.

 Thus we have no

choice but to permit continued operation of the inadequate

plant,

but we must attach a number of conditions(ccct~on36

(a)

)

order

that

the

policies

‘of

the

statute

 are not sub-

verted.

 These conditions are designed, as in prior cases

(e.g., Mprquette Cement I4fg. Co. v. EPA, #70—23 (Jan.

6,

1971); City of Springfield v. EPA,

170—55

 (Mar.

 31, 1971)

),

to assure compliance as

rapidly

possible

and

deter

future violations of the law.

 To the terms and conditions of

the

order

now

turn.

The Agency challenged the City’s estimates of the time

required for brInging the plant into compliance.

 While the

City said ten months would be needed for planning, the Agency

said this could be done in fite;

 and while the City asked a

year for construction

 (after a delay to obtain permits),

the the ~gency said the plant can be built in nine months

(R.223).

 It was of course disput’ed by the City’(R.

 116).

Both the City’s and the Agency’s estimates were stated simply

 as conclusions, with no supporting evidence.

 The EPA attemp-

ted to show that the schedule could be advanced by overtIme

work; the City acknowledged that its timetable had been

based on’a normal five—day week, that if special priority

were given extra men could be put on the job, and that the

project “could be speeded up to a certain extent by apply—

ing’overtime work.”

 (R.1211_26).

 The City also testified

that some overtime work was aready

 planned, within the ten

months allotted for design (R.136) and that “there is also

2.

 Another federal witness testified that delays could jeo-

pardize the City’s eligibility for federal grart aid

(R.221

22).

 It appears that delays have ‘already impaired the City’s

ranking on the federal priorIty list (R.2l0,230).

1—446

the

point

where

you

get

many

people

working

project

that you just can’t absorb them and give them the proper sup—

qrvision”

(K.

 126).

We cannot on this record say the CIty has demonstrated

the need for the time

requests.

the

burden

the

petitioner to prove the time needed for any delay in compli-

ance (Sections 31 (c),

37),

we shall order the CIty to submit

complete plans by September 1, 1971, as requested by the

Agency,...and to meet- the July 1, 1972 deadline for completion

of the facilities required by SWB—l~I. The City will be free

as those dates approach to seek additictal time t~pondetailed

proof that it has applied every available resource to getting

the job done and that the time is too short.

 We shall insist

at that time on receiving detailed work records demonstra-

ting the number of men employed on the design and construc-

tion tasks and the number of hours wor~:ed. The CIty has

said its time estimates are based on a fIve—day week;

It

wjll be incumbent on the City to show it has devoted that

much time and more to getting back on schedule.

:~

ensure

that it does we shall re;uire, as the statute provides when

a delayed, compliance date is set (sectI~ns33(b),

 36(a),),’

the posting of a bond or other security In the amount of

$10,000, to be forfeited upon a finding by this Board that the

City has ‘faIled wlthc’ut satisfactory exc’ise to comply with

the terms of this order.

There is much talk in the record about the çroblems of

financing the necessary improvements.

 The City has pussy—

footed about in a continuing effort to determine how much of

the financing can be done by revenue bonds, how zttch will.

be paid for by federal and state grants, and what remains to

be financed out of general oblIgation bends.

 Kickapoo Creek

cannot wait. for these delIberations to be resolved.

 Under

section

116

of the Act we have authority to order the sale of

bonds, including gencral obligation bonds, to finance improve-

ments requIred by Board order, without regard.to any

refer-

endum

 any ‘statutory limits on bo:~dedindebtedness.

See

League of Women Voters v.

 North Shore Sanitary DIstrict,

supra.

 We think that remedy is approprIate here.

 We add

that any suggestIon by the City that the uncertaIn availa-

bility of federal funds excuses delay in constructIon is

unfounded.

 The point’was well stated by Mrs. Donald Wykis,

who testified in opposItion to the grant of a variance on

behalf of’the League of Women Voters of :~:attoon:

Municipalities were and are respon!ible for meeting the

deadlines wtth ~r :~Ithcutthe aId :f state

 federal

assistance.

 The intent ot the Fe~oraland State Water

Quality Standards and the position of the League i5

simple:

 The polluter is responsible for cleaning up

his own mess.

 (11.206).

1-446

Accordingly, the CIty will be ordered to issue, no later than

July 15, 1971, revenue’or general obligation bonds in such

amount as may be necessary to pay for the improvements required

 by SWB—l11.

 Federal and state funds may be used later to rein—

burse the City for its expenditures, if they are made’avail—

able; but the City must proceed with its own funds at once.

The City argues that is should be relieved from the harsh

effects of a ban on new sewer connections that”the Environ-

mental Protection Agency has imposed as a result of its offen-

ses.

 Specifically, it is pointed out that Kraft Foods is con-

structing a large frozen food plant at Mattoon and that the

City has’proralsed to acdept wastes from that plant for addi-

tional treatment in its sewage facilities

 (11.38, 78—82).

We recognize that any delay in the opening of the factory

wguld be unfortunate, but it is the City that has not kept its

promise to Kraft; for tj~eCity knew years ago that it had to

upgrade its facilities, .and it had no reason to believe it

could accept additional wastes without doing so.

 Additional

wastes fed to inadequate facilities, as we recently stressed

in League of Wozen,Voters v. North Shore Sanitary District,

970=7

 (March

 31, 1971), mean additional pollution.

 The law

says pollutIon shall be reduced, not increased.

 The sorry

state of Kickapoo Creek Indicates that no additional waste

load to that stream can be tolerated until advanced treatment

is provided and the interceptors expanded.

 It is not enough

that Kraft is panning

 to retain its wastes during storm

periods so that they do not add to the overflow problem

 (11.153).

The existing ~econdaryfacilIties do not adequately protect

the creek Øuring dry weather eIther, and until, the City is

back on schedule IS may not add more waste to an already inade-

quate system.

 Kraft may find alternative means of handling its

wastes until the City is able to treat them properly, or it’

may accept the fact that the City’s delay has caused the company

to postpone its opening.

 What legal remedies Kraft may have

against the City it 15 not for us to say.

 It is not. without

significance that the sewer ban places an important’incen—

tive upon the City to get the job done as quickly as is possIble.

,In order to assure diligence it is desirable to make dili-

gence in the interest of the City as well as of the suffering

public.

We agree with the Agency that the issue of a permit for

Kraft

 is not before us,,since the issuance of permits is the

Agency’s responsibility.

 We hold that the hardship to Kraft

because of the continuIng sewer ban does not justify increas-

ing the pollution of Klckapoo Creek, and, as in prior cases

(League of Women Voters v. North Shcre Sanitary District,

supra; EPA v. Village of Glendale Heights,’ #70—8 (February 17,

1971)), we order that no new sewer connections shall be madt

until the project gets back on schedule.

1—447

Finally, the City quite blatantly suggested

t’~at it

did

not think the deadlines were meant to be met:

There

has

been

change

policy

this

State

opinion.

And

perhaps

it’s

right.

I’m

not

crIticizing

the

change

policy,

but

think

now

the

State

say-

ing

you

have

this

when

not

too

long

ago

they

were

much

willing

along

with

 you,

extension

time

and

of.thi

deadlines

that

have

been

established.

(11.237.

See

also

11.

92—95).

The

laws

are

meant

obeyed.

Those

who

flout

them

must

made

example

deter

others

from like conduct.

 The City will be ordered to pa:: a penal-

ty of $1000.

This

opinion

constitutes

the

Board’s

findings

fact

and conclusions of law.

ORDER

1.

 The City of Mattoon is hereby’ c:’dered tt

submit

the Environ.ental Protection Agency, on c~before September

1, l97l,’final plans and specifications for the fa3llities

required to bring its suwa~ecollection ~nd treat::ent facill—

tiea into compliance wIth Rules and Regulations s::~—i11.

2.

 ‘The City of Mattoon is hereby ordered to complete

the construction of the facilitIes specifled in paragraph 1

of this order no later than July 1, 1972.

3.

 The City of Nattoon shall post with the Environ-

mental Protection Agency, on or before

 iCay

 111, l9’l, a bond

or other security in a form to be determIned by the Agency,

in the amount of $10,000, such sum to be forfeite,i to the

State ,of Illinois in the event that the CIty does not comply

with the provisions of this order, as fotznd by the Pollution

Control Board in,a supplementary proceeding.

1$.

 The City of Mattoon shall, on or before Juli 15,

1971, issue without referendum such revenue bonds

 and/or

general obligation bonds as may be necess&ry to fInance the

design and construction of facilities specified In paragraph 1

of this order.

5.

 The City of Mattoon shall complete the ~onstructIon

of the primary sedimentation tanks for rethacti-on of bypasses

by Septertber 1,1971

6.

 The City of Mattoon shall not permit the c’onnoctlon

of any new sewers or other sources of waste to its facili-

ties, or any increase in the strength or concent:’~:Ionof

wastes discharced to its facilitIes, untt3 it dert,,’n.flrates to

the Agency that it is in full compliance with the require—

1—448

ments

 of SWB—l~-I with

respect

to overloads,

 bypasses,

and

the

provision

 of advanced waste treatment.

7.

 The City of ilattoon shall pay

 to the State

 of Illinois,

on or before Say i~4,97l,

the

sum

 of ~iOOO

as

a

 penaJt:i for

violation

 the water Dollution regulation:; saecify1n~date:

for

the

submission

plans

and

the

 ~ettinp

 of contracts

for

construction

sewage

treatment

facilities.

I

Regina

E.

Ryan,

certify

that

 the Board

 has aunroved the

above

 opinion

 this

14

 ____of

 Anril

1971

~

/

~-,

449