ILLINOIS POLLUTION CONTROL BOARD
January
12,
1984
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
PCB 79—142
CETIZENS UTILITIES
COMPANY OF
ILLINOIS,
Respondent.
~iSSHS.
PHILLIP
L.
WILLMAN,
DEAN
HANSELL
AND
DOUGLAS
KARP,
ASSISTANT
ATTORNEYS
GENERAL,
APPEARED
ON
BEHALF
OF
THE
COMPLAINANT.
MR.
DANIEL
J.
KUCERA, CHAPMAN AND CUTLER, APPEARED ON BEHALF OF THE
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by D. Anderson):
On July 16,
1979,
the
Illinois
Environmental
Protection
Agency (“Agency”)
filed a four count complaint against Citizens
Utilities Company of Illinois
(“Citizens”),
The complaint
alleged
that
Citizens,
at
its
West
Suburban
Wastewater
Treatment
Plant
#1
in
Bolingbrook
(“WSB
No.
1”),
violated various
provisions of
the
Illinois
Environmental
Protection
Act,
Ill,
Rev.
Stat., Ch.
111½,
(“Act”),
regulations
adopted
by
the
Board,
and
NPDES
Permit
1L0032727
issued
to
WSB
No.
1.
On
February
7,
1980,
the
Board
affirmed
the
hearing
officer’s
order
denying
amendment
of
the
complaint
to
expand
the
time
frame
of alleged violations
and
add
a
count
covering
ammonia
nitrogen
violations.
On
April
3,
1980,
the Board affirmed
the hearing officer’s order granting
Citizensv
motion to sequester Agency expert witnesses during cross—examination.
Hearings were held in this matter on March
29;
April
14,
15,
16,
28, 30; May
1,
and May
2,
1980,
On September
2,
1982,
the
Board denied Citizens’
motion
to dismiss.
On September
15,
1982,
the Board reconsidered and reaffirmed
denial
of the
motion
to
dismiss.
Final
Briefs were submitted by
the
Agency
on
November
23,
1982,
and January
4,
1983, and by Citizens on December
20,
1982,
and January 12,
1983.
56~OI
—2-
REGULATIONS INVOLVED
OLD BOARD RULE
PRESENT 35 ILL. ADMIN. CODE
urrzr
r04.104
404(f)
304.120
404(h)
304.120
405
304.121
601(a)
306.102
901
309.102
910(k)
309.151
FACILITY
The
facility in question, Citizens’ WSB No.
1, is an activated
sludge plant of the contact stabilization type designed for a dry
weather flow of 1.28 MGD.
The plant consists of
(1) manually
cleaned bar screens,
(2) a comminutor,
(3) a wet well,
(4)
pump rooms,
(5) two primary rectangular clarifiers with chain
dragout mechanisms for sludge removal and skimming and pipe
skimmer for scum removal,
(6) contact aeration section with spiral
roll aeration,
(7) reaeration stage with spiral roll aeration,
(8) five rectangular secondary clarifiers with chain dragout
mechanisms for sludge removal and pipe skimmer for scum removal,
(9) a seven day polishing lagoon,
(10) a baffled chlorine contact
tank,
(11) a final effluent composite sampler
(12) two aerobic
digesters fed sludge,
(13) eight sludge drying beds, and
(14) a
blower building with seven centrifugal blowers
(Ex.
9, ¶ 3).
The final effluent from the facility is discharged to Lily Cache
Creek.
On November 11, 1975, Citizens’ WSB No.
1 was issued
NPDES Permit No. 1L0032727
(Ex.
1).
That permit established
certain interim effluent limitations until
December
31,
1976
(Ex.
1,
p.
2), and lower final effluent limitations (Ex.
1, p.
3)
unti
the permit’s expiration on June
1,
1979.
The terms and
conditions of this permit remained in effect beyond the expira-
tion date, pursuant to Ill. Rev. Stat., Ch. 127, Sec. 1016(b),
because Citizens applied for a new NPDES permit (Complaint, ¶.5).
For purposes of clarity the claims
in
this case will be discussed
in three parts:
deoxygenating wastes, bacteria, and the final
claim—operation and maintenance.
DEOXYGENATING WASTES
Deoxygenating wastes are five—day biochemical oxygen demand
(BOD~)and suspended solids (85).
The concentrations of these
wastes,
in mg/l,
are tested on 24—hour composite samples of the
effluent.
The NPDES permit for WSB No. 1 established maximum
56-02
limitations
for the arithmetic mean of the test results for any
samples collected over 30 consecutive days and for the arithmetic
mean of any samples collected over 7 consecutive days
(Ex.
1,
pp.
2—3).
Of relevance to this proceeding are two different levels
of limitation,
20/25 and 10/12.
The 20/25 limitation requires that
the 30—day mean of test results not exceed 20 mg/l of BOD
or
25 mg/i of SS and the 7—day mean not exceed 30 mg/i of BO~or
38 mg/l
of SS,
The 10/12 limitation requires the 30—day m~an
of test results not exceed 10 mg/l of BOD5 or 12 mg/l of
SS and
the 7-day mean
not exceed 15 mg/I of BOD5 or
18
mg/l of
SS.
Determining which
standard applies,
20/25 or 10/12,
is of central
importance to the case.
The
following table
lists the effluent
limits applicable
to WSB No.
1 at various
times.
Date
Source
Limitation
11/5/75
NPDES permit establishes interim
limits
20/25
1/1/77
Final NPDES permit
limits
effective
10/12
7/20/78
Variance PCB 78—123
becomes
effective
20/25
12/31/78
Variance POB 78—123
expires
10/12
3/5/81
Variance PCB 78—313 becomes effective
20/25
The Complaint and exhibits
in
this
case allege violations
of the deoxygenating wastes permit limitations of
10/12 for the
months of April,
1979
(Ex,
2B),
May,
1979
(Ex.
2A),
June,
1979
(Ex.
2C), and July
1979
(Exs.
2D and 23).
Those exhibits are
the Discharge Monitoring
Reports (DMR~s) for
the respective months,
as submitted by
Citizens to the Agency,
They
show the following
values:
30-day
7-day
April
1979
BOD5
18
45
(Ex.
2
B)
SS
14
56
May,
1979
BOB5
17
30
(Ex.
2
A)
SS
11
23
June,
1979
BOD5
8
19
(Ex.
2 C)
SS
6
13
July,
1979
HOD5
14
31
(Ex.
2 D &
2
3)
SS
8
12
The complaint in this case was filed July 18,
1979.
On
February
7,
1980, the
Board affirmed the Hearing
Officer~sorder
denying
an amendment of the complaint to enlarge the
time frame
of alleged
violations,
Thus the time frame for
potential violations
terminates on July 18,
1979,
This precludes
a
30—day violation for
July, and
precludes
a
7—day violation for July
absent evidence
that any 7—day violation occurred prior to July 18.
No such
evidence was introduced.
56~-03
Citizens~
raises
our are ‘ren
tion of the deoxygera ira ~
subsequent
20/25 variai e gr
S
retroactive,
(2) previous ane
Citizens preclude
a findi
j
t
(3)
the
Agency f’iile1
c pr~
Section
33(c) of tJ~A t
10/12 without spcr3 rj
3
3
1
Citizens
is
in err
r cc
of
a
variances
F
in
a
timely ~na
r
July
20,
197
xp
over
5 mont is
ncr
q
variance exp~c
t
ap ly
r
the
Act requires
c
tO
the
filing o~a
u
J
fashion,
more
tian
d ys ~c
e
have
required Board actror o
tI
under a
~retroactive app1icatio~
subsequently
granted t
‘i
active
as
a matter of laws
Can,
28
IlL
App
3rci iOO
does not hold subscceu~r~l
retroactive
r
a 0
~
-c
Board
dli
net ~
ca.
retroactivelj
r
rt~ a
construed
as
aporoving ai
The
five—montl
va ~iar~e ir
of
a study and Sevel
i’~i
the
variance in PeB
7
1
alleged
is self—imp-se
to
delays,
incluline Ue
Ui
(41
PCB 16,
Marci
5,
1)
Citizens secor~ar
~
ances
preclude a
iii iig
them
(Citizens Br
finding
of arbitrary o
u
ii
dS
ac
may grant
a variance~ Sect~.
unreasonable
hardship
a defen
a
Citizens
asserts that the
ia d~.
i
in PCB 78~123and 78—313
are
e
Section 31(c)~
Tflis
arguire
ai
the
findings
in the ~arianc~
a a
~rg t~e
etroactive
application
~ts variance
petition
P
3 was cranted
on
1
8
duration of
e
re that
e
e
S~ctior 38 of
wtlir
90 days
of
0
r
a tirely
U
8
Citizens
could
tel
20/25, they now
seek
~i~or
~
Second, the
variance
I
B
313
is not
retro—
ox re~ Scott v.
Continental
uS 362
(1st
Dist.,
1974)
i
t
variances
are
either
~t
i~
Third,
the
r
LCB 78—313
r
tr
~ubsequent
van—
S
TO
Icriod
between
c
requires
a
i
before the
Board
V
~
rbitrary
or
a
I
dUg
of violation.
~idnigsunder Section 35(a),
udicaa
on that
issue
for
the statutory
language
and
The DMR~ssI~o an
)atiois of the
10/12
NPDES limitatioi
or
t
e
fo
BOD~.
30—day
and
7—day;
ss,
30—day and 7—day), May
BO
,
G—da
and 7—day;
SS,
7—day),
and June
(BOD5,
7—day’
‘~
ca
r
t a finding
of viola—
t
I mitations:
(1)
the
r
PCB
78—313
was
oi~et v riances
granted
to
a
o
a
a matter of
law,
r
c
: cerning
factors
in
U.
uU
not comply with
-C
Ia
ira
r
iz~s
Pcojl
~9
Ii
0
encourage
dilat ry pr
cc uti
active
application
Tie Jo~r
PCB 78—313 was not
in effect
of fact, during the time pert
U
r
c
~eednot
be
j
~n
previous
variance.
8
~S
to allow
completion
a
a
cc ~
iu~
In
granting
t
0
urJ
The hardship
so
t
e
c
S
U.
it
is occasioned
by
~ tio~
th
s case”
~r
-latheBoardto
drvci ping a theory of
retro—
U
rat tie variance in
a
tter o
law or as a
matter
0
ra~ed~r ~he Complaint.
In PCB
78-123
and 78-313 the Board found arbitrary
and
unreasonable
hardship
only as related to the
specific
time
periods granted
in
the variance, and conditioned such extensions
on various actions.
The scope and
focus
of
the
“arbitrary
or
unreasonable
hardship” issues
cannot he
equated
in Section 31(c)
enforcement
and Section
35(a)
variance proceedings.
The parties
and
their
roles are
distinctly different,
The point in
the
proceedings at
which the hardship issue
is addressed is
different.
And,
indeed,
the nature of
the relief
is such that hardship
is
scrutinized
and weighed
differently.
In
a
variance
proceeding,
the petitioner
needs
to
show
arbitrary or
unreasonable
hardship only to the
degree
necessary
for
a temporary reprieve
from the otherwise
applicable
Act or
Board
regulations.
(See Sec.
35(a)
and 36(c).)
The
Agency acts
as respondent
party in a evaluative capacity.
It
is
to
investigate
the petition, consider the views of others,
and,
most
important,
recommend to the Board as
to the petition~s
disposition.
The Agency~srecommendation may range
from full
support
to
outright opposition.
The proceeding may or
may
not
involve a hearing.
Neither
the
Agency
nor,
obviously,
the
petitioner
need prove
past
violations,
since
the Board is
not
considering
issues
leading
to
a
punitive
determination
before
a
variance
can
be granted.
Though
it
is
essential
that the
hardship
issue be
addressed,
it is weighed
along with the
potential
for environmental harm.
Most important, it
is weighed
“up front”
by
the
Board,
prior
to
any
other
determinations.
Essentially,
a variance is not a waiver, it does not involve
findings of “guilt”,
and does not address “forgiveness”.
Under
31(c)
in an enforcement proceeding, only if the
Agency-—or
other
complainant-—has
~
does the
respondent
assume
the
burden
of
showing
the
Board
that
compliance,
under
the
particular
circumstances
of
the
case,
would
impose a hardship to
such
a
degree
that
failure
to
actually
forgive
the
past
violation
would
be
arbitrary
or
unreasonable,
(This
process
must
be
distinguished
from
the
aggravating
and
mitigating
factors affecting sanctions considered after a
finding
of violation.)
In
this
accusatory
setting,
proof
of
arbitrary
or
unreasonable
hardship
takes
on
a
different
hue.
The
Section
31(c)
language
empowers
and,
indeed,
mandates
the
Board
on
the
“hack
end”
to
forgive
the
lack
of
compliance
itself
should
the
respondent submit adequate proof,
(This
is not simply
an
academic discussion,
The cloud of a finding of violation can
haunt an
operation,
even though mitigating circumstances might he
such that sanctions,
such as penalties or other onerous
conditions,
are
not
imposed.
For
an
obvious
example,
see Sec.
21(f)
and 22(b) of
the
Act.)
56-05
—6—
Unlike in a variance proceeding, the hardship issue stands
alone.
Environmental and other like issues are weighed when
considering sanctions, a step that takes place after the finding
of non—compliance.
Obviously, the hardship circumstances of the
case must be compelling.
And
once the ‘deed is done’, excuses
are viewed with even less magnanimity than if ‘permission’ could
have,
but
was not,
sought in the first place.
And
should the
hardship circumstances be temporary in nature, the forgiveness
would not be permanent.
For example,
if the governing
body
of a
Sanitary District was uaware that its treatment plant was
operating
without
a
permit
because a former operator
had shown
them
a
copy
of
a
permit
with
dates altered, this Board might
forgive
the
non—compliance
under
such
circumstances,
but
expect
prompt
subsequent
compliance.
If
subsequent
non—compliance
problems
arise,
a
subsequent
variance
can
be
sought,
as
would
be
the
case
with
or
without
‘forgiveness’
for
past
non—compliance.
Citizens’ argument leads to the absurd conclusion that,
in
a
variance proceeding, the Board can only order a schedule for
compliance with the
Act
and regulations after finding hardship
that would prove Citizens is not in violation of the
Act
or
regulations.
Citizens did not prove in this action
that
ultimate
compliance with a 10/12 limitation would impose Section 31(c)
arbitrary or unreasonable hardship.
The only evidence introduced
was
the
Economic
Impact
of
Proposed
Regulation
R81—19
for
Site—Specific Water Pollution Rules Applicable to Citizens Utilities
Company Discharge to Lily Cache Creek
(the EcIS)
(Ex.
F).
If all
statements and conclusions in the EcIS are true, a question the
Board need not answer in this case, that document shows, at best,
that
economic considerations, taken alone, favor a 20/25 limitation
rather than 10/12.
This is hardly sufficient.
The Board is required to restore, maintain and enhance the
purity of Illinois waters, Section 11(b) of the
Act.
Economics is
but
one
factor to be considered in establishing standards to
achieve that purity.
A showing of poor economics alone, even if
true, is inadequate to show arbitrary
and
unreasonable hardship
as a defense for violation of limitations designed to restore,
maintain
and
enhance
water purity.
The
Board
also
notes
several
shortcomings
of
that
document
were
pointed
out
in
the
regulatory
opinion
(R81—19,
pg.
4,
May
5,
1983).
The
technical
feasibility
of
Citizens
compliance
with
a 10/12 limitation has never been
questioned.
Moreover, Citizens did not challenge, on any basis,
the validity of Board regulations establishing a 10/12 standard
when they were promulgated, nor did Citizens question the
application of that limitation,
in Citizens’ 1975 NPDES permit,
via
permit
appeal.
More important to the issue of arbitrary or unreasonable
hardship is the order and certification in the 1981 variance (PCB
78—313).
Paragraphs 4,5 and 6 of that order provide as follows:
4.
On or before January 2,
1983 Petitioner shall submit
to the Illinois Environmental Protection Agency a
permit application including plans and specifications
for upgrading WSB Plant No.
1 to meet Chapter
3
limitations.
5.
On or before July
1, 1983 Petitioner shall commence
such design,
engineering, procurement of major
equipment items,
contract letting and construction as
may be necessary for WSB Plant No.
1 to be in
compliance with then applicable effluent limitations
before July
2,
1985.
6.
On or before
July
2,
1985 Petitioner shall be in
compliance with applicable effluent limitations for
five
day
biochemical
oxygen
demand,
total
suspended
solids
and
ammonia
nitrogen~~
Compliance with this
condition
before
July
2,
1985
shall
he
excused
by
delays
arising
from
acts
of
God
or
causes
not
within
control
of
the
Petitioner,
By
signing
the
certification
in
that
order
Citizens
committed
to
ultimately
upgrade
the
WSB
No.
1
plant
to
meet the
then applicable effluent
limitations,
During the variance
Citizens intended to and did seek site-specific
regulatory relief
from the 10/12 limitation.
In
the
opinion to
that
variance
order the Board
stated,
“In
the
event the Board rejects the
regulatory proposal, Citizens
Utilities
will
he
expected to
comply with the generally applicable standards by the 1985 date”
(41 PCB 16).
Citizens signed
the
Certification knowing that the
regulatory relief
might be denied and that
it would then need to
achieve
a 10/12
limitation,
The
regulatory relief was denied
(R81—19, May
5,
1983),
Citizens cannot now argue, within the
context of an enforcement case,
that
ultimate compliance with a
10/12 limitation
is unreasonabLe.
Lastly, the Board Order in
the
instant case does not require
compliance with the 10/12 limit,
No
cease and desist order
is
entered as
to this rule,
Citizens~third
argument
against
a
finding of violation for
deoxyg~natingwaste
discharges
is
that
the
Agency failed to
present evidence
concerning
factors
in
Section 33(c) of the Act
which provides in
relevant
part:
c.
In making its
orders
and
determinations, the Board
shall take into consideration
all
the facts and
circumstances
bearing
upon
the reasonableness of the
emissions, discharges,
or
deposits involved including,
but not limited to:
56~07
fe
C
welfare
an
a y
,
or inter~
I
he ~ealth, general
uf
the
people;
2.
f
t
e
pollution
i
r
4,
t~ie
c
reasonabi
erris
io
These
La
r
violation
as
in
~c1
148
(1978
¶Lhex~
a
o
was,
“unreasor~
property,~
Se
t
guidance
on
‘,hat
a
the
reasonablene~
o~
r
result,
proviig me
e
i’
3
context of
Section
33(
the
complainant
rn
~st
This
is
appropriate
b~
i
specific
previou
y
pollution
sourc~~
The
situatior
i
charged
with
vio
a~
a
p
performance,
a
1
1
1
a
NPDES permit
ui
to claim
that
the
Aj
ur.
~
nuisance
count,
i~e
~.
I
the
pollution
i
located,
‘~y
I
location
in
ard
ecoromic
e
minating
the
o~its
resulting
from
ir
ruisance
1
26
383 NE 2d
where
there
f
life
or
~rovides
r
determining
a
t e
eiiissions.
As
a
ron
LC
wimnin
the
he
cause
of
action
~isance
violation,
h
r
does
not provide
of
r
~
~forraance
for
the
I
ia
ility.
)tizens
is
ecu
~.
~ed
standard
of
at
~aa
placed
in
its
f
use
for
Citizens
~ a
I
elements
of
a
Citizens~
four
I
-
ygenating
wastes
discharge
violation
pable of achieving a
10/12
limitation witl u
I
rca ovements estimated
to
cost
approxir
ate
y
~ ro
dispute
that
in
its
present
conditi
~.
IS
a
c-
a
/12
limitation
consistently (R 723)
t
ourt
may
be
questioned,
it
is
‘
a
to
reliably
achieve
a
10/12 Lu
r
r
e ci, the
Board
is
not
aware
of any lega
co
~-
udes
a
finding
of
violation
against
a
facility
ii
ccaise
its
present
pollution
cOntrol equipment is not
suf Li
~a
t
to
ect
existing
regulatory
standards
and
additional
~quip
ent
c
s
e
money
The
Board
finds
that
Citizens~ arguments and
evidence do not
present an adequate defense
to
the previous findings of violation
of the deoxygenating wastes effluent limitations.
The Board will
not order Citizens to cease and
desist
from discharging above the
10/12 limitation.
Paragraphs
4
and 5 of
Citizens~present
variance
(PCB 78—313)
requires
planning
and construction of plant
improvements by certain dates,
that
will achieve the applicable
effluent limitations
(10/12)
no later than
July 2,
1985.
Paragraph 6 of that order requires compliance with those effluent
limitations not later than
July
2~,
1985.
A cease and desist
order would be redundant,
The
Board will not impose a fine on
Citizens for the deoxygenatinq wastes discharge violations.
BAC~rERIA
In Count III
of
the complaint
the
Agency
charges that
Citizens,
in
March,
1979,
vio:ated
the
terms
of
its permit
relating to
the
seven
day
standard
for
fecal coliform bacteria.
Paragraph
4 of
Citizens
NPDES
permit:.
effluent
limitations
(Ex.
1,
pp.
23) provides
as
follows:
The geometric mean of the feca?
coliform
bacteria values for
effluent samples collected
in a
period of
30
consecutive
days shall not exceed
20()
per
100 milliliters.
The
geometric mean of these
values
for
effluent samples
collected in
a period of seven consecutive days shall not
exceed 400 per 100 milliliters~
The Agency provided
Citizens~
DMR
for
March,
1979
(Complaint, Appendix 2A),
which
shows
a
7-day geometric mean of
3600 per 100 ml.
However,
Citizens provided testimony (R.748)
and
evidence
(Ex.
E)
showing
the
DMR
value
was
improperly
computed.
Although one of the
twice~~weekly
samples showed 3600
per lOOml,
a proper calculation
of
the maximum 7—day geometric
mean for March,
1979,
is 224,5,
(Ex~,
E),
which is below the
permit limitation of 400 per 100 ml,
The
agency did not res-
pond to Citizens~testimony
arid exhibit
on proper calculation of
the 7—day geometric mean,
Therefore,
the Board
finds Citizens
did not violate the 7—day geometric
mean fecal
coliform NPDES
permit limitation in March, l979~
The Board expresses no opinion
on whether
the March
5,
1979,
fecal coliform
value
of 3600 per
100 ml violated the last
sentence of
Rules
401(c) or 404(h) as no
such violations were claimed
in the
complaint.
Absent an express
finding of violation,
the Board will not order Citizens to cease
and desist,
nor impose
a
penalty~.
OPERATION
AND
MAINTENANCE
In Count
IV
of the complaint,
the
Agency
alleges
that
Citizens has violated the
operation
and maintenance
(O&M)
provisions of the Board
Rules and its NPDES permit.
The relevant
Board Rule, 601(a),
provides:
56-09
601
Systems Reliability
(a)
Malfunctions~
All treatment
works
and
associated
facilities
shall be so constructed and operated as to
minimize violations of
applicable
standards during
such
contingencies
as
flooding,
adverse weather,
power
failure,
equipment
failure,
or maintenance,
through such
measures
as
multiple
units,
holding
tanks,
duplicate
power sources, or such other
measures
as
may
be
appropriates
In
relevant
part,
the NPDES permit
(Ex,1, p.5)
provides:
3,
~litOerationandQu~Control
All waste collection, cc.ntrol,
treatment
and
disposal
facilities
shall be operated
in
a manner
consistent
with the following:
(a)
At all times, all
facilities shall he
operated as efficiently as possible and in a
manner
which will
minimize
upsets and
discharges
of
excessive pollutants.
(d)
The permittee must
provide
optimum operation
and
maintenance
of
the existing waste
treatment facility to produce
as
high
quality
of effluent
as
reasonably
possible.
These permit
conditions
are specifically
required
by
Board
Rule
910(k)
and
basically
repeat
its languages
To
establish
violations
of these provisions
the
Agency
provided
testimony
and
exhibits
relating
to inspections of WSB
No.
1 by
Agency
personnel on February
28,
June
25,
and July 2—3,
1979.
The
Agency
also provided
testimony
by
Citizens~
lead
wastewater
treatment
plant
operator, as an
adverse
witness.
To
understand
the
claimed
errors
in
O&M
the
general
operations of the facility
must
be
reviewed~
Screened
influent
sewage
goes
first to the two
primary
tanks
where
solid materials
settle to
the bottom
and
floatable materials
rise
to
the
top
(R.488),
Long pieces of
wood
called
flights
are
moved
by
chains
along the
bottom and top
of
the
primaries;
they
push
the
settled
solids or
sludge along the
bottom to hoppers for further
handling,
then rotate
up
to skim
the
surface of
the
liquid in the
tank pushing the
scum
to
one
end
for
removal
(R.
491),
The
sewage,
now reduced
in strength
moves to the contact aeration
56-10
tank where
it
i~ bubbl~
metabolizes
the
sewaje
R~
clarifiers
or
secondary
to
sewage
(R.
490)~
TIe
c
r
bottom
sludge
and
suitor
(R,491).
Effluert
frorr
treated to
the
efficier
Flows
fror
the
cla~i
a
B)
or
directly
~I
oil
prior to
discharj-~
o
T~l
removed
from
the pa m
r
C
the
aerobic
dige~as
r
to provide for~le ~r
t
The
Agency
s
c
are
most
easily
revi
qe
p
step by step b
I
settling
tarr
personnel
both
~r
to
breaks
r
1
During a
ure
5
in
operatro
(P
primary tank
is
Ex.
4C).
Catizc
sd
e
both
primaries
ie~e
of
the week of
Marc~i
385,
318,
3
7)
~hu~
primary
tank
n
fer
re
February
18
°
I
service
ti
t
period
of
operation,
to
u
I
sometime
be~w
four months~
During
Lie
cck
t
operator
and
an
e
gi
e
r
estimate
the
needee
cpoi~
noticed
turbu Icr cc
there
was
a
hl~
When
they
did
dci
1979,
they
~o
r
~i.
1,
J
between
the
two
par
i
designed
in
o
ii
o
o~
ample spare ~a
s
broken
cha
n
ii
sufficient
r~
(R.
384), becaus
primaries
and
he
ro
x
been
repaired
in
F~1
rio
~‘
had
been designed
~itt
~
There was
no
tes
irtony
or
~
operation
for
four
rioo~-r
more quickly.
‘r
tle
biomass
j
is
hen
to
the
five
ft
s~udc’e from
the
treated
ave
flights
to move
ii
rn
the
tanks
d
y
‘~orc~ s
essentially
c
oh
tI~tpoint
(R.
490).
ci.
s
ir
lagoon
(Ex,
rr
disinfection
F
9
).
The sludge
n
r~y be
tranbferred
to
i
pu
s of
the
process
~c rtt~or ond maintenance
a
u
tprocessona
~hc
pr~mary
cc
to
by
Agency
~
leration
due
:
t
P
9,
Ex.
4A).
still not
~
e
ion
one
C
3
terk
(R.
66,
crat
testified
that
e
e
o
eb:uary
18,
1979,
f
Moroh
18,
1979
(R.
Ic
record
is that
a n
n
Lime
prior to
ii
red
ut.
of
(R,383)
a
~i
out of
o
rus
y
18
to
2
rd
July
2,
over
tz
ns
lead
~
p
c
o
xii::
the
primary
tanks
to
P
r~r
that
process
they
y
rk
and
believed
tuor
tank
(R,389),
a
i
r tanks
in
July of
y
ili~ationholes
u~e holes
were
390).
There were
-LId
~~umber
one
r
u
til
t
r~r~ryunits
~o ham
both
Ii
~aik
could
have
e
primary
tanks
~
wee
Lhem
(R.
394).
I
d
...a
imber two was
out of
e
ho
a
c
Id
hav’~ been
repaired
When
one
primary
tank
is
cut
of
operation
it
results
in
higher
loadings
on
the
secondary
portion
c-f
the treatment plant
and increased difficulty
in
wasting
or
removing
sludges from the
system
(R.
493),
Both primaries being out of
service
would
further
increase
loadings to
the
secondary
portion
of
the
plant,
reduce
sludge
wasting
capacity,
may
increase
DOD
and SS
being
discharged to Lily Cache
Creek,
and
deprive
the ~perator
of
information
on
the
amount
of
sludge
being
wasted
which
is
important
for
efficient
operation of the
plant
(R.
494).
The next unit process is
the
aeration
process.
During
the
July 2, l979~inspection by
Agency
personnel
the
contact aeration
tank and reaeration tank had
excessive
foam,
covering
most
of
the
surface of the tank
(R.
168,
fur,
4c)
E1xcess:Lve
foam in an
aeration
tank
would
he more
than
50
of
the
surface
covered with
foam
(R.
169,
236),
The
next.
unit
process
is
the
setti
mg
basins
or
clan—
fiers.
During
the
February
2
B
,
I 972
:Lnspection
Agency
personnel
found
one
of
t:he
five
clan
ieee
out
of
o~s-ration
due
to
broken
flights
(R.
21,
Err,
4A)
,
The
lead
operator
informed
the
inspector
that
a
rake
or
something
had
been
dropped
into
the
tank,
lodged
in
the
bottom,
broken
the
fl.aqhts~
and
plugged
a
port
at
the
bottom
of the
tank
(Fp22,
Err.
421).
During an
inspection on
June
25,
1979~~Agency
inspectors
saw excessive scum
on the clarifier’s
(R.
24)
and
took
pictures
of
this
scum
(Ex.
3).
The excessive scum was on more
than
one
of
the clarfiers
(R.
127).
During a
July
2
inspection
there
was
excessive
scum
on
the
clarifier’s
(R.
28),
flights on the cianifiers were short, broken
and missing
(R,
27),
and
some
o:B
the
flights
did
not
touch
the
surface of the
liquid
i~R.
237).
One of
the clarifier’s
may
not
have been operational
(A,
291).
Solid
material was being carried
over the clarifier
weirs
(A.
29,
Ex~ 4c)
on
the
July
2
inspection
and on the June
25
visit
(A.
24D
Err.
3).
The polishing
lagoon
was
out
of
service
during the July
2,
1979 visit due
to
an
algae
problem
(A,
:26,
Err.
4c).
It may also
have been
out
of
operation
the
week
of
March
4,
1979,
(R.
379).
The last
step
in
the
i:reatment. process
is
the
chlorine
con-
tact
tank.
During
the
June
25
visat,
Agency
inspectors
observed
and
photographed
scum
accumulations
on
the
tank
(A.
24,
Ex.
3).
During
the
July
2
inspection,
inspectors
observed
much
scum
on
the
surface
of
the
tank,
also
the
tank
was
quite
dark
possibly
from
sludge
deposits
on
the
bottom
and
algae
(A.
28,
Ex.
4c).
Citizens
provided
no
direce
tee tirnony
to
refute
the
above
observations.
However,
Citizens
raised
the
possibility
that
some
of
the
excess
scum
may
have
resulted
from
sewer
cleaning opera-
tions
(Ex.
3).
-‘~15—’
The Agency
argues that
the
pnio:c
facts
demonstrate
violations
of NPDES permit
conditions
3a and
3d.
(Ex.
1,
p.
5),
and
Rule
601(a),
Citizens argues
that:
(ii
as a matter
of law
equipment
failure or
operations per se cannot be a
violation of
any statute or
rule,
only
effluent
exceeding
a
standard may
constitute
a
violation,
and
(2)
even
if
equipment
failure
or
operations
could
constitute
a
violation,
it
could
do
so
only
when
such
condition
has
a
proven
adverse
imnact
on
effluent
quality.
The
Board
rejects
both of
Citizens~
arguments.
The
Board
Rules governing effluent standards
and
the
dis-
charge
limitations
placed
in
kNifE
enmits
are
maximum
values
never
to
be
exceeded,
They
are
not,
however,
the
only
rules
established
by
the
Board
or
ccnditions
imposed
by
the
Agency
to
restore, maintain,
and
enhance
the
:punity
of
Illinois
waters.
The 0
& M
rules and conditions
are desined to ensure
discharge
of
the
highest
quality
effluent,
a
:Bacii.ity
can
reasonably
and
reliably
attain
even
if
that
ou~2
:.t
mio,ht
not
constitute
a
violation
of
speci:ic
nurnenicat
stantarcis,
The
0
&
M
provisions
are
also
designed
to
restore,
masnearn
and
erunance
water
purity,
and
absent
some
specific
legal
arument
as
to
their
invalidity
the
Board
cannot
hold
them
noper.arive,
as
a
matter
of
law,
simply
because
legally
applicable
effluent
limitations
are
being
met.
The
Board
notes however
that
Citizens
was
not
meeting
its
effluent
limitations,
Next
Citizens
argues
that
a
showing
of
direct
adverse
impact
on
effluent
quality
from
poor
operations
or
maintenance
is
neces-
sary
for
an
0
&
M
violation,
Because
of
the
manner
in
which
treatment
plants
function
and
the
substantial
variations
in
flow
and
strength
of
the
sewage
they
muel:
treat,
this
argument
would
require
evaluation
of
the
plant:.
on
two
occasions
with all
factors
being
exactly
the
same
except
the
0
&
M
violation
alleged.
Only
then
could
the
impact
of
the
0
&
M
fruit are
on
effluent
quality
be
properly
determined
and
that:
determination
would
apply
only
to
the
unique
combination
of
‘flow,
sewage
strength,
temperature,
and
other
factors
chosen
for
the
•Lest,
This
would
place
an
unreason-
able
burden
to
establish compliance or non~~comp:Liance
with the
0
&
M
provisions.
The Board
relects
this
argument
arid
holds
that
the
0
&
M
conditions
in
Citizens
permit
are
:ieqally
binding
and
mean
exactly
what
they
say.
The
unit
processes
within
WSB
No.
1
were
placed
there
to
effectively
and
efficiently
treat
sewage.
Once
the
Agency
has
established
that
those
processes
are
not
being
operated
or
maintained
as
they
were
designed
to
be
and
as
efficiently
as
possible,
the
burden
shifts
to
Citizens
to
show
compliance
with
such
C)
&
M
woald
be
art
arbitrary
or
unreasonable
hardship.
The
Agency
need
not
demonstrate
adverse
impact
on
effluent
quality
or
the
environment,
nor
does
the
Agency
need
to
demonstrate
non~compiiance
with
general
C)
&
M
procedures
in
other
similar
facilities.
However,
such
facts
could
be
introduced to
show aggravation or
mitigation,
56-13
.dll’-
The
tac..s
V
..
t
I
t.
n
n
n—compli-
ance
witi
the
tnt
t
c
SB to
1.
F
r
example,
during
the
July
vi
t-
by
Ag
ic
octoz.’
one
of
the
two
primary tark°,
on~
f
t
t
e
1
~.i.c.
.~
ird
th~polishing
lagoon
were
out
er
e
-
iing
uni’s
each
had
excess
scur
fca
or
lu
-e
w
cc.
my
brcken
or
short flights
c.
tie
c
r
~
£
~
id
so
iA
were
bulking
overthe
yea,
of
1
.
ra~.tank. The
Board
finds
these
-
c
s
d
‘a
o
&
u
e
cç tu
ut
operation
and
maintenaic
f
he
a
-g
j
a ity
of
effluent
as
p
a.
le
.
e f
t
i”stute
operation
a
efficiently as pc~’
c
.
°r,
‘.
_olation of
condition 3(a
or
•
)~
3
t
..~
eration of WSB
No.
lonJuly
,
9)
lit3
0
ofthc.
prova.
ed
onar
e
inflaent.
orce
for
those
as
o,
0
Without sac)
L
scum
or
‘
tUr
Citize.ic a•to
rroi-ce
BOD5and
S-sue
tR
the
prececd
contact
id
ae-
i,
a
Ex.D)
Astrt
o
parametnr
at
a.
it.
-
practical
a
ue
art
what tIa
oncr
~.
cpera’4r’
~
reaera ior
o
outage
r
31
1
lastone-ird r~
r
arguments of no
a
°
,e
a.
a
influenced bj
)T
e
t.
t3
tank
efficie1
~c
I~0 Z
t°
process, aerati n rate
~
0
a
wy
a
s were out
•
the
time
9,
‘u
s
23,
a
these
Ct”
•
osibitytl”atsome
-
i,
Citizens
e
eing
cleaned
ce
that
.y
Later
han
normal
-t
e:torTance.
1
o
S
ithttheexess
r
ze
nitty
inc
y
~nd
axhxbsta
showing the
I
I
it
ar
a..tual
basis for
Sb
Vo)
let
for
the
•
l~ tn.~.s
R.
746,
~
c
r
cntration
of
any
•
it
sof
little
B
aie
cannot
determine
ta
1
rat
processes
-
taka~.
as&d
is
a
pnirary
tank
c
aranj
the
a
t
-
r
Citizens’
0i~
~.
~e
values
are
-
utrt
se
age,
primary
t
ec
~
tor
to
the
secondary
~r
b
ED.
With
so
many
‘he
‘a’
a
-
te
of opera
peric
1
o
R13)
B
i
peridot
r
tank
operato
I’
•
failaret
•~t
it
provadir
o
•
i
ur o~
3(d)
and
a
vi
~an
peririt
c~ndi
4
at
I
3
S
r
q,
he
v
•ioi
of
p
i
It
condition
t~y as
possible,
a.
ci
‘
y
1’
1
C.
t
I,
0
1.0
ai
e
56
6
variables
and
so
few
facts,
the
Board
cannot
make
a
judgment
that
higher
SS values
were caused by primary tank outage.
Similarly
the generally improving quality of the effluent from 1975
to
1979
says very
little about what impact 0
& M failures may have
had
because of the multitude of
factors
influencing
the
final
effluent
quality.
The
Board
notes
that
the
March,
1979 fecal
coliform effluent
value of
3600 per lOOml
(Ex,E)
is suggestive
that some 0
& M failure in the plant had a dramatic adverse
impact on effluent quality,
especially
since
this
value
occurred
after
both
primaries went
out
and
prior
to
Agency
inspections
showing
0 & M
violations
in
the
chlorine
contact
tank,
The
general
theory behind
Board
Rule
910(k)
and
the
corresponding
NPDES
permit
conditions
is
that
each
unit
process
serves
a
function
and,
all
other
factors
being
equal,
the
quality
of the
effluent
will
he
better
with
all
processes
operating
than
it will
be
with
some
or
many
unit
processes
out
of
operation.
As
a defense to a finding of violation Citizens asserts that
compliance
with
a
rule
which
requires
no
mechanical
malfunctions
ever
is
an
arbitrary
and
unreasonable
hardship,
and
that
the
Agency
failed
to
present
evidence
as
to
the
factors
in
Section
33(c)
of the Act.
The
Board
need
not
reach
a
holding
on
Citizens~
first argument for those facts are not presented in
this case.
The facts do not show an otherwise well maintained
plant
with one or
two
temporary
breakdowns,
On
the
contrary,
the
facts show major
equipment
or
operational
failures
of
every unit
process
at
the
plant.
The
most
severe
of
these
failures,
primary
tanks
out of operation due to mechanical failures,
lasted
four
months
and
seven
months.
The
longest
outage
was due simply
to
operator
ignorance of plant design and failure to investigate.
The
shorter outage was totally unexplained.
As a result the
Board
need not reach a decision on whether the ~optimum
operation~
and ~efficiently as possible~conditions in the NPDES
permit require absolute perfection; they clearly proscribe the
failures presented in this case.
As previously discussed,
Citizens’ argument that the Agency
failed
to present proof of the Section 33(c) factors
is not
on
point.
The Agency has not claimed that the 0
&
M failures
created
a
water
pollution
nuisance,
The
Agency
has
claimed
that
Citizens
violated
two
specifically
articulated
0
&
M
standards
of
performance
placed
in
Citizens’
NPDES
permit
in
1975..
The
Section
33(c)
factors
are
not
a
necessary
element
of
proof
for
the
Agency
to
establish
a
violaticn
of
those
permit
conditions.
The
Board
finds
that
Citizens
was
in
violation
of
its
NPDES
permit
conditions
3(a)
and
3(d)
regarding
0
&
M,
as
previously
noted,
The Board today orders Citizens
to cease and desist
from
such
violations, and orders Citizens to pay a fine of $1,000.00.
In
reaching
this determination the Board has considered each
of
the
Section
33(c)
factors,
Concerning
Section
33(c)(1)
the
Board
finds
the
evidence
inadequate
to establish whether actual injury
to the health, welfare,
or
property
of
the
people
did
occur.
However,
the 0
& H regulations
are
adopted
to
provide
a
level
of
protection above and beyond
prevention of injury~
Violation of
the
0
& M regulations interferes
with
that protection.
The 3600
fecal coliform value is suggestive
of an actual
threat
to health
and welfare.
Concerning
Section
33(ci~ (2~and
(3~,the Board
finds
that
proper
0
&
M
increases
the
social
and economic value
of the pollution source as
well
as
its
suitability to the
area.
Conversely,
improper 0
& H adversely
affects
those factors.
Concerning Section 33(c)(4) the
Board
finds that proper 0
& M was
a technical practicability and
economically
reasonable,
in that
all necessary parts and
labor
were
available
to
remedy
the
problems.
The only
missing
fact:ors
seem
to have been
incentive
to know,
to investigate,
and to
act~
Because of the
pervasive
nature
of
the
0
& H failures,
the
excessive
delay in remedying the
situation,
and
the
failure to
investigate and
rectify on February
18,
1979,
the
Board
imposes a
fine of $1,00O~0Oto
encourage
future
0
&
M
compliance
by
Citizens
and
other
NPDES
permittes.
PROCEDURAL MATTERS
The Board finds
that
the
rulings of the Hearing
Officer
were
correct
in all material aspects.
The
Agency
could
have alleged 0
& H violations prior to February 28,
1979,
but did not do so,
The Agency could have petitioned
the
Hearing
Officer,
in a
timely
manner,
for leave
to
file an amended complaint to extend the time
frame based on information
revealed
through
discovery.
Having
failed to do so the Agency
cannot
now
complain that information
outside the time frame
of
the
complaint
was
not
admitted~.
This Opinion constitutes the Board~s
findings
of fact and
conclusions of law.
ORDER
1.
The
Board
finds
that Citizens Utilities
Company
of
Illinois was in
violation
of
Chapter
3, Water
Pollution, Board
Rules
and. Reculations,
Rule 901
and
the effluent
limitations
of
NPDES
permit
1L0032727
during April,
May,
and
June
1979
2.
The
Board
finds
that
Cit;izens
Utilities
Company
of
Illinois was
in
violation
of
Chapter
3,
Water
Pollution,
Board
Rules
and
Reculations,
Rule
901 and
conditions
3(a)
and
3(d)
of
NUDES
permit
1L0032727
during
February,
March,
April
May,
June
and
July,
1979.
3.
Citizens Utilities
Company
of
Illinois
shall
cease and
desist
from
violations
of
conditions
3(a)
and 3(d)
of
NPDES permit 1L0032727,
56-16
4~
Citizens
Utilities
Canpury
of
Iilinois
shall
pay a
penalty,
for
the
vic:latica.
ratec
in
paragraph
2,
in
the
amount of
$1,000.00
wthrri
±:or:ty~fivedays
of the
date
of
this
Order,
Citizens
Utilities
Company
of
Illinois
shall
pay,
by
certifla-1
r’~ak. or
mney
order
payable
to
the
State
of
il
Inc
a
the
oeua~.ty
oi
$1,000.00
which
is to he sent
to’
Illinois
Environmental
Pr~teutlori
Agency
Fiscal
Services Div~sion
2200
Churchill
Foci
Springfield,
Illinois
IT IS SO ORDEREr..
Board Chairman 0
5.
Ow e~
Board
Member
3.
~o~ca
~ki
can
r~r~
I,
Christen
~
Mof~ett
5.
~rJ
~ae
I
~.
~nc•is
Pollution
Control
Board
hereby
rrtl
Ly
rn~t
~
aboue
dpi nion
and
Order
was adopted
on
the
~~~oav
o’~
1984
by
a
vote
ifl~~
D0
LUti6fl Control Board
56-17
