ILLINOIS POLLUTION CONTROL BOARD

August 22,

1972

ENVIRONMENTAL PROTECTION AGENCY

v.

)

4171—157

CITY OF SILVIS

Mr. John C.

Parkhurst,

for the Environmental Protection Agency;

Mr.

N.

L.

McGehee,

for City of Silvis

Opinion of the Board

(by Mr. Currie):

After a long and tortuous history, this case has resulted

in a settlement proposal that is

a credit to all parties and a

significant triumph for the important principle of regional

sewage treatment.

We approve the settlement for reasons given

below.

The complaint of the Environmental Protection Agency,

filed

June 22,

1971,

charged Silvis with polluting the Rock River by

discharging inadequately treated sewage and with failure to

meet the deadlines of Rules and Regulations SWB-11, which re-

quired submission of plans for secondary treatment by June

1,

1967 and prompt construction thereafter.

Only primary treat-

ment is at present provided.

At

a hearing September 13,

1971,

the Agency and the City

proposed the entry of

a consent order under which Silvis would

construct its own secondary treatment facilities in accordance

with

a specified time schedule.

We found in the record no

sufficient explanation for the abandonment of an earlier plan

to construct an interceptor to transport Silvis’s wastes

to

East Moline for treatment in a single large regional plant.

Noting that

“the Board has consistently taken the position that

it favors the use of larger plants where possible” because

“this regional,

large plant approach makes the cost of waste

treatment

less and in many cases

improves the efficiency of the

treatment process,” we ordered the parties to submit “a full

and complete explanation as

to the obstacles which prevent the

City of Silvis from connecting the treatment plant of the City

of East Moline.”

EPA v. City of Silvis,

#71—157

(Oct.

18, l97i)~

On November

11, 1971 we entered

a supplementary order re-

citing that the City’s response, which reaffirmed opposition to a

regional solution, raised important issues requiring input from

parties not then represented,

including the City of East Moline,

which would be required to treat the sewage under

a regional

solution, and the Bi--State Planning Commission, which had long

favored the regional approach.

We added the necessary parties and

authorized

a further hearing.

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After considerable negotiation and further proceedings,

a

final hearing was held July 24,

1972,

and all interested parties

concurred in the submission of the proposed settlement now before

us.

All parties now agree that the optimum solution is the

construction of an interceptor to allow for regional treatment

at East Moline, which will eliminate the need for any discharge

into the Rock River at Silvis,

East Moline itself must expand its

facilities in order to accommodate the increased load, and it

must provide secondary treatment under our revised regulations

by December,

1973,

for its effluent discharge to the Mississippi

River.

East Moline undertakes in the present settlement to

make the necessary improvements;

Silvis’s discharge is to be

terminated by the end of 1973 or such later date as East Moline

may be allowed for completing the expansion of its primary

(not secondary)

facilities.

The record is clear that a certain

delay has been occasioned

in East Moline’s plans by the need

to resolve the disposition of Silvis’s problem.

The proposed program fully conforms to our expressed policy

of encouraging regional treatment facilities, as more fully

explained in our opinion in In the Matter of DuPage County

Sewage Regionalization, #R7O~-l7 (Jan,

6,

1972).

We are con-

vinced that,

~iven past delays, it offers the best

practicable solution today to Silvis’s problem.

A complete solution to the problem will require not only

East Moline’s acceptance of the Silvis waste but also the

secondary treatment required by our regulations even for the

Mississippi.

East Moline~sprogram for providing such treat-

ment is under way, and East Moline has asked us to grant a

variance extending the December 1973 deadline in that regard.

We agree with the Agency that this question cannot adequately

be decided on the record now before us; East Moline should

file a petition meeting the requirements

of our procedural

rules and be prepared to demonstrate its hardship and the

justifications for its delay in

a public hearing in which the

Agency can take an active part.

The remaining question is whether Silvis should be

penalized for the substantial delay in meeting its obligation

to

terminate the discharge of inadequately treated wastes to the

Rock River.

It is conceded that there has been a violation of the

deadlines regarding secondary treatment;

the Agency in its

stipulation and proposed order “acknowledges mitigating circum-

stances in the delay” and notes that the City “has cooperated

fully in all hearings and pre-hearing conferences in an attempt

to arrive at the best possible solution,” and therefore the

settlement proposal provides for no money penalty.

We are not

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informed as to what the Agency regards as “mitigating circumstances,”

and we should be under our rules so that we can better evaluate

the proposal.

And working diligently now, while indicating

a presently favorable attitude, cannot completely excuse

an earlier default.

See Packaging Corp.

of l½merica v.

EPA,

#71-352

(August 15, 1972).

On the other hand,

we have

consistently afforded considerable latitude to the adver-

sary parties in achieving a consent order that resolves the

controversy and provides for adequate future control of

pollution without further expense of litigation, provided

that the settlement is not such

as to encourage disregard

for the

law by grossly underpenalizing past defaults.

See,

e.g., EPA v. Granite City Steel Co.,

#70-34

(April 25,

1972)

We know from the record that at least some portion of

the past delay in Silvis’s case has resulted from the con-

troversy over whether to go it alone or to go in with East

Moline.

So far as we can tell this controversy has been in

entirely good faith.

Whether it was justifiable to take

so many years to resolve it,

or whether that is the whole

explanation, we cannot say from the record.

Moreover,

our

policy has been that money penalties against municipalities

should be kept generally low in order to preserve sCarce

funds for corporate purposes and to avoid penalizing innocent

citizens for the omissions of their government.

See City of

Springfield v.

EPA, #70-55 (March 31,

1971)

.

Whatever we

might do if this case had been presented to us

on the

basis of a full hearing for our initial evaluation, we do

not think the absence of a penalty under all these circum-

stances is so unreasonable as to require us

to reject a

consent order arrived at by all parties.

Accordingly we approve the proposed order as it has been

presented to the Board.

ORDER

1.

That the City of Silvis is now and has been for some

time in violation of the Environmental Protection Act in that

it caused water pollution within the State of Illinois, by

discharging untreated or improperly treated sewage into the

Rock River,

and that it failed to meet construction deadlines,

all in violation of Section 12(a)

of the Illinois Environ-

mental Protection Act, and SWB—ll, Rule 1.08(10) (b)

,

(11) (b),

12,

14 and 15, but seeks to immediately bring itself into

compliance by the construction of an interceptor sewer main

from its present collection system to the East Moline sewage

collection system at a point in said system previously con-

structed for that purpose by the City of East Moline,

in the

manner described below.

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2.

That the Permit #1972—AA—26

—

Log #1653—71 previously

issued to the Respondent City of Silvis on January 10,

1972,

allowing the City to up-date its existing treatment facilities

in the

Village of Carbon Cliff, will be rescinded upon

compliance by the Respondent City of Silvis with all provisions

of this Order.

3.

The City of Silvis is ordered to submit, to the

Environmental Protection Agency on or before the 15th day of

March,

1973,

final plans and specifications for the construction

of the interceptor main from its own collection system to the

connection provided in the East Moline sewage disposal system,

and the City is ordered to make whatever provisions or changes

may be necessary to comply with all applicable regualtions

within a reasonable time from the request therefor.

4.

That the City of Silvis is ordered to complete con-

struction of the proposed interceptor main by December 31,

1973,

that date on which the City of East Moline is required

by regulation

to have upgraded its present disposal facilities,

providing secondary treatment.

Provided, however, that if the

City of East Moline shall apply for and receive a variance

extending the time for which

to provide secondary treatment,

and if such varinace includes a date later than December

31,

1973,

for the completion of the construction and addition

of primary treatment facilities, which shall be required as

part of the secondary treatment facility construction, the

City of Silvis shall complete the construction of the inter-

ceptor main no later than that extended date.

5.

The City of East Moline shall make all necessary

attempts to comply with the State requirements regarding the

upgrading of its present sewage treatment facilities, in-

cluding the increase in capacity of its facilities with

primary treatment, and the addition of secondary treatment.

Should the City of East Moline require any time beyond the

present date of December 31,

1973,

for completion of its

secondary treatment facilities,

it shall apply for an

appropriate variance from the Pollution Control Board

to do

so.

However,

in all events,

the City of East Moline shall

make every effort to complete the increased capacity of its

facilities with primary treatment and chlorination at

a date

no later than December 31,

1973.

If such primary treatment

facilities are completed no later than December 31,

1973,

then the City of Silvis shall be required to complete the

construction of its interceptor main no later than that

date.

In short, the City of Silvis shall be required to

complete the construction of its interceptor main by a date no

later than that date upon which

the City of East Moline shall

complete the construction of

its new, increased capacity

sewage treatment facilities with primary treatment;

and

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that the City

of East Moline shall make every possible effort

to see to it that such facilities are constructed no later than

December 31, 1973;

and in any event should a date later than

that be required,

an appropriate variance shall be sought

for such extended date by all appropriate parties.

6.

The cost

of

the proposed construction by the City

of Silvis and by the City of East Moline shall be paid out

of funds on hand available for such purposes, or out of the

general

funds of such municipality not otherwise appropriated.

if funds on hand or unappropriated are insufficient for the

purposes of complying with this Order, the necessary funds

shall be raised by the issuance of either general obligation

or revenue bonds.

If the estimated cost of the steps necessary

to be taken by the City of Silvis and by the City of East

Moline to comply with this Order is such that the bond issue

necessary to finance’ the project would not raise the total

outstanding bonded indebtedness of the City of Silvis and

the City of East Moline, respectively,

in excess of the limit

imposed upon such indebtedness by the Constitution of the

State

of Illinois,

the necessary bonds may be issued as

a

direct obligation

of such municipality and retired pursuant to

general law governing the issue of such bonds.

No election

or referendum shall be necessary for the issuance of bonds

under this paragraph.

The funds made available by the issuance

of direct obligation or revenue bonds,

as herein provided,

shall constitute

a Sanitary Fund and shall be used for no other

purpose than for carrying out such order or orders of the

Board.

7.

To insure compliance with this Order,

the City of

Silvis and the City of East Moline, respectively,

shall

submit to the Agency their Performance Bonds in the amount of

Ten Thousand ($10,000.00)

Dollars each without corporate

surety, signed by

the

appropriate municipal officials under

a Resolution authorizing its execution and providing for a

forfeiture of said bond,

or that portion thereof,

as directed

by the Pollutioi-i Control Board on any subsequent hearing

ordered for such purpose.

8.

That the Cities of Silvis and East Moline have

previously made application with the Environmental Protection

Agency for State and Federal grants to construct the proposed

sewage treatment and handling facilities.

The Cities of Silvis

and East Moline shall immediately upon the adoption of this

Order, resubmit or amend,

as necessary,

their applications

for both State and Federal grants to insure that

the

ordered projects may receive prompt consideration.

That the

Agency shall consider or reconsider such grant applications,

or amendments thereto, on file or to be filed and shall assign

said projects the highest appropriate priority under existing

criteria.

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9.

The City of East Moline agrees and binds itEelf to

provide service for the treatment of domestic wastes ~nd

sewage to the City of Silvis in

a way which

is consistent with

the requirements of the State regulations, and consi~centfurther

with all terms of this Order, by

a date no later than the

completion of

the interceptor main from the City of Silvis to the

City of East Moline’s sewage treatment plant, and the completion

of the new primary treatment facilities by the City of East

Moline whichever shall come later.

10.

The Cities of

Silvis and East Moline shall not permit

the construction of any ne~isewers or other source of waste

to their facilities, or any increase in the strength or con-

centration of waste discharged to their facilities unless per-

mitted so

to do, either by variance or otherwise.

11.

That the Environmental Protection Agency acknowledges

mitigating circumstances

in the delay by the City of Silvis in

bringing itself into compliance with the Environmental Protection

Act and all other applicable State regulations and acts.

That

said City has cooperated fully in all hearings and pre-hearing

conferences

in an attempt to arrive at the best possible solution,

and It Is Therefore Ordered by the Board that no fine or other

sanction be levied against the Cityof Silvis.

I, Christan Moffett, Clerk of the Pollution Contro~öoard, certify

that the Board adopted the above Opinion this

c~c?

day of

\ugust,

1972, by a vote of

?—c~)

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