ILLINOIS POLLUTION CONTROL BOARD
September 26, 1972
METROPOLITAN SANITARY DISTRICT
)
OF GREATER CHICAGO
)
)
)
V.
)
#72—110
ENVIRONMENTAL PROTECTION AGENCY
)
Opinion on Petition to Modify
(by Mr. Currie):
On May 23,
1972, we approved the District’s program
for improvement and ultimate abandonment of the East Chicago
Heights Sewage Treatment Plant
(4 PCB 561).
Our order re-
quired the posting of a bond
in the amount of the cost of
the program, guaranteeing abandonment by May of 1974.
The
District seeks modification, observing that the cost of
the interceptor system that will divert the plant’s wastes
elsewhere for treatment is $9,800,000 and asking that we re-
duce the required bond to $500,000 in accord with prior
decisions,
The District also asks that we extend the compliance
date to September 20, 1974,
arguing that earlier abandonment
of the plant is not possible.
We requested factual information to support the latter
request, which we received August
7.
Our order allowed the
Environmental Protection Agency 20 days after the District
filed that information in which to respond
(5 PCB
July 18, 1972).
The 20 days have long since passed with no
word from the Agency.
The case must nevertheless be decided.
The District’s plea that the bond amount be reduced is
supported by precedent.
A $500,000 bond was required for
multiple new precipitators and other improvements costing
far more than that amount in Illinois Power Co. v.
EPA,
4
71—193 et al.,
2 PCB 547
(Sept.
30, l97fl.
Since the bond
is subject to forfeiture in whole or in part for failure
to comply with the order, we think half a million dollars
a sufficient deterrent to delay in the present case.
The May 1974 date for completion of the interceptor
was based upon the District’s own estimate in its initial
petition,
#72-24, which was filed in January 1972.
This date,
the District tells us, was based upon the assumption that
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467
no rights of way had to be acquired from private persons to
permit construction because the sewer would run through a
~dedicated public ways”
On ~February 8, however, the District
discovered that thirty additional grants would be necessary
because the premises had been dedicated “for highway purposes
only~” Efforts to obtain the necessary rights of way have
proceeded,
according to the DiStrict’s detailed factual
submissions, with what we can only view as all reasonable
dispatch~
In several instances condemnation proceedings
were required when no agreement could be reached on a volun~
tary grant, and the District ha•~employed its quick~take
powers~
In all the District declares that the additional
acquisii.ion problems have caused
a six~monthdelay in the
completion of the interceptor,
thus justifying an extension
to Septe~nber20, l974~ See Data in Support of Amended
Petition
We have no basis on which to doubt that the facts are
as the District’s evidence indicates,
and we so find.
We
conclude that the project has been delayed six mor.ths by
factors beyond the District’s control, and that continued
operation of the plant with interim improvements~as
prescribed by pur May
•23 order until September 20,
1974,
~appears justifiable on the facts as they now stand~
We
do not believe the additional six months is long enough
to justify our requiring additional expenditures to meet
the advanced treatment standards ~atEast Chicago Heights
during construction of the interceptor, especially since the
passage of time since our •eariier order has delayed the date
by which such treatment could be provided~ Under the law
the variance itself~mustbe reaffirmed annually,
to
permit us to assess progress toward compliance; today
we amend only the date on which the bond is to be subject
to forfeitureS
We do point out that it would have been better for a11
concerned had the District pointed out to us in February,
when the right-of~wayproblems were discovered, that more time
was needed before abandonment than~was contemplated by the
petition then on file.
The length of time that violations
of the effluent standards would continue was an important
factor in our decision whether or not to requiredinterim
advanced treatment
(cf. Metropolitan Sanitary District
(Streamwood)
v,
EPA,
##
72-111,
72~-135, 4 PCB 737
(June
29, 1972)).
While we do not say that knowledge of a
six—
months’ delay would have changed our decision in the East
Chicago Heights case,
it
was
the
District’s
obligation
to
present us with all facts relevant to our decision,
and in
particular to correct the misimpression created by the
continuing allegation that the project could be completed
by May of 1974,
We assume the failure to do so was mad-
vertent~
5
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468
On August
9 the District amended its amended petition
to allege for the first time thattheAnterim
facilities
we ordered on line by November 23, 1972 will not be com~
pleted until January
22, 1973.
No request is made for relief
from this
order, and there is thus nothing pending before us
on the question.
Needless to say, our orders are to be
obeyed unless varied upon proper petition and proof.
Once more we stress the undesirability of qur having
to
decide cases on the basis of submissions by only one party.
The statutory obligation of the Agency to participate in
variance cases expresses a strong policy in favor of the
protections afforded by more or less adversary proceedings
and recognition of the value of an independent investigation0
Whatever internal roadblocks make it continually impossible
for the Agency or its attorneys
in the Attorney General’s
office to file timely recormendations must be promptly
eliminated.
Part B of the order of May 23, 1972 in the present
case is hereby modified as follows:
1.
The completion date to be stated in the bond to
assure completion
of the abandonment project is
extended to September 20,
1974;
2.
The amount of the bond to assure completion
of the
abandonment project shall be $500,000.
I, Christan Moffett, Clerk of the Pollution Control.~Board,
certify that the Board adopted, the above Opinion1on
Petition to Mod’fy this
~
day of
1972,
byavoteof
1~
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