ILLINOIS
POLLUTION
CONTROL
BOARD
March
31, 1971
CITY
OF
SPRINGFIELD
)
)
)
v.
)
PCB#70—55
)
)
ENVIRONMENTAL
PROTECTION
AGENCY)
Opinion
of the Board
(by Mx’,
Currie):
The City of Springfield owns a small and elderly sewage treatment
plant, known as the Horse Creek plant, which is equipped with Imhoff
tanks and a trickling filter
(R.26) and which discharges into a small
intrastate strewn.
Rules and Regqlations SWB—l11, adopted by the
Sanitary Water Board in 1967 and 1968, require additional treatment
facilities in such circumstances by July 1972.
Plans for such im-
provements are due in January (tertiary treatment) and July (disinfection)
of 1971, and construction is to start six months later.
The City filed a variance petition, asking to be excused from
these requirements on the ground that it was in the process of trans—
ferririg
the
operation
of
the
plant
to
the
Springfield
Sanitary
District,
a
separate
governmental
body,
and
that
the
District’s
plan
was to abandon the plant and
divert
its
influent
through
a
new
sewer
to the central treatment facility.
Attached to the petition was a
letter sent by the Environmental Protection Agency to the City in
September, 1970, which pointed.out the requirements for submission
of plans and construction of new facilities and in addition listed
numerous violations of housekeeping rules already in force regarding
the existing secondary facilities.
The petition sought a variance from
these requirements as well.
The Sanitary District, which we made a party because according
to the City it was to be the entity responsible for the Horse Creek
plant in the future, filed an answer agreeing that on February 1, 1971,
it had assumed responsibility for the plant and affirming its plan
bo make improvements to the sewer system, which the hearing later
showed meant diversion of the influent and abandonment of the Horse
Creek plant by July 1, 1972 (R.62, 76,
152).
The Environmental Pro-
tection Agency filed a recommendation favoring grant of the variance
on condition that the Agency’s September demands regarding plant
operation be complied with by May 1, 1971; that the City pay a
$3,000 penalty for failure to correct these violations before; that
interim chlorination facilities be installed; that the sewer improve-
ment permit be applied for by August
1 and the construction contract
be awarded by November 1, 1971; that a $75,000 bond be posted; and
that sludge be taken to the main plant when Horse Creek is abandoned
At the hearing the City asked to withdraw its variance petition
1-397
on the ground it was no longer responsible
for complying with the
SWB—14 deadlines
(R.4).
The Sanitary District refrained from request-
ing
a variance
(R,85-86,
95).
But Board Procedural
Rule
333 require~
Board consent for
the settlement or other disposition of
any pending
case.
While normally
a party requesting a variance
is free to withdraw
his petition, see EPA v.
Granite City Steel Co., #70-34
(March
17,
1971),
in this case we think the interests
of clarifying a rather murky
situation and the avoidance of potential future litigation require
us to consider the case
on the merits, especially
since
a
full hearing
has already been held.
It is clear the variance should be granted,
as
to the SWB-l4
deadlines.
Both the City, which retains ownership of the plant
(R,l44)
and
is to recover possession after
the plant is abandoned in
order
to dispose of
it
(R.145),
and the District, which is obligated
to maintain and operate the plant
(R.58)
and to construct the new
facilities
(R.93), are responsible
for seeing
to it that the regulations
are complied with in the future.
Both are under a duty to meet the
plans
and construction deadlines of SWB—14 in the absence of
a variance.
But the purpose of the timetables
is to assure timely construction of
tertiary facilities;
the purpose of those facilities is to avoid
pollutional discharges
to the stream,
and that end can
as readily be
attained by diverting the inflow
to an adequate plant elsewhere as
by constructing tertiary facilities.
Indeed,
abandonment of inefficient
small plants in favor of consolidated facilities is good policy,
endorsed by this Board, by the Agency,
and by
the federal government
in its regulations governing construction grants.
The submission of
plans
for
a tertiary plant that is never to be built would be
a
frivolous waste of
the taxpayers~ money and the engineer~ time,
and
of course we shall exempt the City and the Sanitary District from
the filing requirements.
However,
in order
for the abandonment of the plant to be as good
for the environment as the construction of tertiary facilities,
a
number of conditions must be met.
First of all, there must be assurance
that the abandonment will
in fact be accomplished before
the date set
in the regulations
for tertiary treatment.
We agree with the Agency
that
this requires
the filing of detailed plans and the request
for
a permit by August
1 and the award of contracts by November
1.
The
Sanitary District agrees that the first date is reasonable
(R,97)
and
questions
the second only on
the ground that there might be delays
in the acquisition of rights of way
(R.
152).
Second, diversion of sewage from Horse Creek
is an effective
means of abating pollution only if the plant to which it is diverted
is in compliance with
the regulations.
It would do no good simply to
transfer an
inadequately
treated discharge
from
one stream to another,
Consequently it
is
a condition of the variance that the plant to
which these wastes
are diverted shall comply with the standards
of
SWB-~l4in every respect.
1
—
398
Third,
the decision to abandon the plant must not result in
a
failure
to maintain and operate it properly during the interim.
There
may be
less incentive
to spend money for maintenance of a plant that
is to be given up in a year than of one that is meant to continue in
service.
Thus
in order to protect against this possibility of neglect,
which became a
fact while
the plant was under the City’s supervision,
we shall condition the variance upon correcting the various violations
noted in the Agency’s September letter, and by May
1,
1971.
The
Sanitary District has already corrected several of the violations
it
inherited
(R,66’-70)
and promises
to correct the others by May
1,
1971,
(R
77,
79,
80,
88,
91,
149,
151).
The Agency asks
us in addition to require
a bond to assure these
conditions
are met.
We do not think this
is the type of case
in
which
the statute requires
a bond,
since no one here is asking for
more time in which to comply with
a regulation.
The parties here have
proposed an alternative method of achieving the required goal of
reducing contaminant discharges,
and by the same date as if they had
chosen the method prescribed in the regulations.
While we agree
with the statutory philosophy that a bond provides additional incentives
to compliance with
a schedule of future compliance,
as in the present
case,
and while we agree we have authority to require bonds as
conditions
to the grant of variances
in cases
in which
they are not
required by statute,
we see no reason to distinguish between these
parties and others subject to the deferred deadlines of SWB-14,
who
are not required to post bond.
We shall rely on
the interim
deadlines
for plans
and contracts
to keep watch on progress in this
case
We do not believe the Agency has made
a case for requiring the
construction of interim chlorination facilities
as
a further variance
condition.
It is true that paragraph
14
of Rule
1.08 of SWB-l4
authorizes
the Board to require interim disinfection before the deadlines
specified when this
is shown to be “necessary”.
But the only proof
on that issue here consisted of
a comparison of bacteria levels in
the effluent with the standards that are
to be met by mid-1972
(R.l02,
112,
126)
Such
a comparison could be made
in practically
any case,
and if we accepted
a showing of bacteria counts greatly in excess of
those to be achieved in 1972
as enough to require interim facilities,
we would in effect accelerate the date of disinfection for everybody.
We do not believe that is what was meant by “necessary”.
There is
evidence
to suggest that bacteria are somewhat worse here than at some
other plants
(R.
126), but the correction of operating problems which
we have required by the same date requested for chlorination should,
so far as the evidence indicates
(R.
125,
131), remove this discrepancy.
There was
no evidence
that the receiving stream is used
for recreation
or water supply,
or
that special hazards exist,
We shall not require
interim disinfection at this
time.
1
—
399
The record also does
not justify our imposing the last condition
requested by
the Agency, namely, that on abandonment of
the plant
the sludge be removed from the Imhoff and final tanks
and transported
to the main treatment plant.
We agree and shall require that the
sludge be disposed of in such
a way as
to avoid any danger of pollution,
but on the present record
CR.
81-82)
we cannot say that hauling it to
the main plant is the only solution,
This brings
us
to the Agency’s request that the City be penalized
in the amount of $3,000 as
a further condition of the variance.
The
arguing that
the Agency is attempting
to transform a variance proceeding
into an enforcement one without proper notice,
as the recommendation
was received but
two days before the hearing
(H.
7,
10,
171).
We
have previously upheld our authority to require the payment of money
penalties as
a condition of the grant of
a variance
in order to promote
the policies
of the statute,
in cases where not to do
so would
encourage delay.
See Marquette Cement
Co.
v.
Environmental Protection
Agency,
#70-23
(Jan,
6,
1971)
.
In that case we did
so on our own
motion.
When the Agency requests such penalties,
there is an additional
basis
for our power to impose
them,
for we
can construe
the recommendation
as
a complaint.
See Norfolk
&
Western Ry.
v.
Environmental Protection
Agency,
#70-41
(March
3,
1971),
Our Procedural Rule
309 allows us
to consolidate variance
and enforcement cases
for hearing,
see Environ-
mental Protection Agency
v.
Granite City Steel Co.,
#70—34
(March
17,
1971),
and it is obviously most appropriate, where feasible,
to have
a single
hearing on both variance and enforcement matters involving the same
facts.
We
said in Norfolk and Western,
supra,
that the petitioner is
entitled to reasonable notice of the Agency’s recommendations
in
advance of the hearing in order that it may prepare its case.
This
does not mean, however,
that the Agency must give twenty—one days’
notice,
by newspaper advertisement and otherwise, every time
it files
a recommendation asking money penalties or other variance conditions,
Such
a requirement would almost invariably delay the hearing until
a date beyond the statutory 90-day limit for Board decision in variance
cases
and thus would effectively destroy the statutory requirement
that the Agency actively participate in variance cases.
Nor would
it serve the purposes
for which the statutory notice requirements
in enforcement cases were established,
In the converse situation,
in which
a variance petition is filed in response
to
a complaint,
we have held that the statutory requirements of additional public notice
and of Agency investigation do not apply,
so long as the factual
bases
of the two claims are sufficiently related,
since the statutory
purposes have been amply served by the Agency’s original notice and
investigation.
Environmental Protection Agency v. Amigoni,
#70-15
(Feb.
17,
1971).
The issue, therefore,
is not compliance with the
procedural requirements for
an original complaint, but whether the~
City was prejudiced by the short time between filing of
the recommendation
and
the hearing.
1
—
400
We think no prejudice occurred
and that the issue of penalties
is properly before
us.
The facts on which the Agency seeks
the assess-
ment of
a penalty are
those alleged in the City’s attachment to its
own petition, namely,
the housekeeping
requirements listed in the
Agency’s September letter.
Indeed the petition itself asks
for
a
variance from these requirements,
and therefore the question of
compliance with them was raised by the City itself.
The only novel
element raised by the recommendation was the purely remedial issue of
a penalty
for the violations that were plain from the face of the City’s
own material.
On these grounds the hearing officer denied
a motion
for continuance
(R.
11—13)
and we
concur.
The Board’s Marquette decision,
establishing that penalties may be made
a condition of
a variance,
was issued over a month before
the hearing,
so the City should have
known that the possibility of penalties might be raised by the Board
on its own motion,
The City in fact put on
a case in defense of its
actions, arguing both that it had thought the housekeeping corrections
were not required until 1972
(R.
51-54)
and that it had postponed action
because the Sanitary District was soon
to take over
(R.
39,
41).
Moreover,
the hearing officer expressly and pointedly allowed an
unusual thirty-day period at the close of the hearing for the sub-
mission of affidavits
or any other material bearing on
any issues
raised in the case
(H. l85-86)~and nothing on this issue was received.
We think that this action by
the hearing officer was quite sufficient
to remedy any surprise
the City may have experienced upon receipt
of the recommendation,
and that the City was not prejudiced in its
ability to present its
case by the short time between filing and hearing.
To require
a further hearing on the penalty issue,
after we have al-
ready complied a thoroughly adequate record, would be
a waste of
time and money.
On the
facts the penalty issue
is clear.
The City ran the Horse
Creek plant in a wholly disgraceful way,
with utter unconcern for the
requirements of the regulations and for the rudiments of respectable
operation.
In violation of SWB—2,
the plant was not under the super-
vision of
a certified operator
(R.
39).
In violation of SWB-6,
no operation reports were submitte~to
the Agency,
In violation of
SWB-l4, Rule 1.08,
paragraph llc,
plant operation was
to say the
least, not
“of such quality to obtain the best possible degree of
treatment”.
Among other things,
the primary tanks were overloaded
with sludge
(R,
67); splash plates on the trickling filter were
missing
(H.
67); the seal on
the center column of the trickling filter
was leaking
CR,
78);
flow measuring equipment was inoperable
(R.45);
effluent tests were not run
(R.~ 46); seventeen discharge openings
on the rotary distributor arms were clogged
CR, 111-17),
Only the
last of these violations had been corrected more than four months
after the Agency gave notice of the violations
CR.
41,
111).
1.
In order to make
this extension possible,
the parties waived their
right to
a decision within
90 days after the filing of the petition
(R.
187)
.
2. That the requirements
of SWB—l4 are now in effect,
except where
a future compliance date is provided,
was established in Springfield
Sanitary District
v. EPA #70—32
(Jan.
27,
1971),
1
—
401
The City’s defenses are unconvincing.
No one reading the Agency’s
letter would have been justified in believing that these violations
would be allowed to persist until mid-1972.
The letter unmistakably
imposes two distinct requirements:
“facilities capable of meeting the
new effluent quality criteria.
.
.
shall be installed and placed in
service no later than July
1,
1972”; and
“in order to provide
the
best treatment possible with the existing sewage treatment facilities
and to improve their operation and control,
the following recommendations
are submitted for your study and action,”
Moreover,
a penalty
would be in order even if the Agency had never given prior notification
of the violations.
The statute does not give polluters
a
free first
bite.
To
do so would significantly weaken the capability for enforce-
ment,
as the Agency cannot be everywhere at once.
The regulations are
clear,
and people must obey them even before the Agency writes them
a letter telling them to.
The City’s offenses are gross and inexcusable.
If the City were
a private individual or corporation, we think
a penalty in the amount
of perhaps $20,000 would be appropriate,
Taking money from the public
treasury1 however, must be
a last resort,
since it punishes the relatively
innocent public and diverts funds from the task of cleaning up
the
waters, when municipal revenues
are
too limited to start with,
On
the other hand, we think it would be folly to lay down
a policy of
never imposing money penalties on public bodies,
for such penalties
are needed to deter violations.
Moreover,
a money penalty or two
might have the effect of inducing the public to oversee more closely
those who bear the responsibility
for sewage treatment,
and
to replace
them when
they are remiss in their obligations.
All these things
considered, we think it appropriate
to impose the rather nominal penalty
of $1,000
to be paid by
the City of Springfield.
Finally,
we think it should be pointed out that a more effective
and more direct means of deterring such violations
in the future, which
would have
the advantage
of punishing those responsible rather than
diverting needed public
funds, would be
for the Agency to seek money
penalties against the individuals within municipal government whose
gross inattention to duty is responsible for the violations, or to
put such individuals in jail.
Such penalties are clearly within the
contemplation of the statute,
This opinion constitutes
the Board’s findings of
fact and con-
clusions of law.
ORDER
1.
The City of Springfield and the Springfield Sanitary District
are hereby granted
a variance from the tertiary treatment and dis-
infection requirements
of SWB-l4
as applied to the Horse Creek
sewage treatment plant, but only on condition that the other provisions
of this order are complied with,
2.
Plans for the construction of facilities to divert the influent
from the Horse Creek plant to an alternative treatment site meeting
I
—
402
the requirements of SWB-l4 or other applicable regulations shall be
filed,
and
a permit for such facilities applied for, no later than
August
1,
1971;
contracts for construction of such facilities shall
be
let no later than November
1,
1971;
and all flows shall be diverted
from the Horse Creek plant to a treatment facility meeting all appli-
cable requirements
no later than July
1,
1972.
3.
The Horse Creek plant shall be brought into
full compliance
with
all applicable regulations, except as noted in paragraph
1 of
this order,
no later than May 1,
1971.
In particular, but not ex-
clusively,
the violations noted in the Agen~y’s letter of September
2,
1970 shall be corrected.
4.
Immediately upon abandonment of
the Horse Creek plant, any
sludge remaining
in Imhoff tanks or final settling tanks shall be
disposed of in
a manner that will avoid any danger of pollution.
5,
The City of Springfield, no later than May
1,
1971,
shall
pay
to the State of Illinois
the sum of $1,000 as
a penalty for
gross violations
of the existing regulations regarding the operation
and maintenance of sewage treatment plants.
6.
The failure
to comply with any provisions of
this order, or
the denial of
a permit for the construction of the diversion facilities
described in paragraph
2 of this order,
shall terminate the variance
granted in paragraph
1.
I,
Regina E,
Ryan
do hereby certify th~tthe above opinion was
approved
_____
day of
~,
l9~l
/
I
‘
REG~NAE. RYAN
CLERK OF THE BOARD
1
—
405
FOLLL;~:ogCOSTNOL BOARD
ORDHR
PCB70~-55
Cit’i
eY
ririr~fir~lc~!
I CONCUR
~J~t
~
Da~P.
Currie
Chairm
-
Samuel
H. Al~nacn
Bo
d Member
~
~a~oh
0.
Dumelle
~39a,rd ~ier,4)er
~
H
cI*l’ci
,
Kassel
Board
1’Iember
~
~h
~
~-
~
~
4r~\~’
~
Samuel Law~on,
~.
—
—
Board Membe~r
-~
DATED
I DISSE1~T
David
P.
Currie
Chairman
Samuel
H,
Aldrich
Board
Member
Jacob
U.
Dumelle
Board
Member
Richard
J.
Kissel
Board Member
Samuel Lawion,
Jr.
Board Member
1
—
402
STATE
OF
ILLINOIS
POLLUTION
CONTIIOL
BoARD
189
WEST
MADISON
STREET
SuITE
900
DAVID
F.
CURRIECHAIRMAN
CHICAGO,
ILLINOIS
60602
TELEPHoNE
-SAMUEL
R.ALDRICH
312-793-3620
JACoB
D.
Dot.iELLE
RICHARD
J.
Kiss~L
SAMUEL
T.
LAwTON,JR.
Amril
14,
1971
Mr.
I,
J,
t’euer
Attorney
~t Law
802 Fideely Building
S’,rinefield,
Illinois 62701
Mr~ Robert F,
Scott
Attorney at Law
521 North Fifth Street
Snrincmfield,
Illinois 62702
PCB7O—55
EPA v, City
of
rinrrfield
Mr.
Thomas
Scheuneman
Chief
Bureau of Legal Services
Environmental Protection
Aaencn’
2200 Churchill Road
Smringfield,
Illinois 62706
Mr, James Kechner
Chief
Southern
Recion
Environmental
Control Division
Attorney General Building
500 South
2nd, Street
Snrinqfield,
Illinois
62706
Dear Sirs:
Enclosed please find certified conies
of
the
City of Soringfield
Sun’~lemental
Comments
by
Mr.
Samuel
E, Aldrich which
is nart of the
Oninion adonted by the Board on
March
31,
1971,
Kindly acknowledae receint,
~ko~Bo:rd
HER: ‘ib
End,
CC:
Mr, John
H,
i3ickley,
Jr.
1
—
404