2

October 31, 2001, the Agency filed a recommendation that the Board deny the amended petition.

On November 13, 2001, Streator filed a response to the Agency’s recommendation.

 

Hearing was held on November 14 and 15, 2001, in Ottawa, before Board Hearing

Officer Steven Langhoff. Both parties called witnesses. Streator’s witnesses were: Ray

Schmitt, the mayor of Streator; Larry Good, a Professional Engineer at Chamlin & Associates;

and Paul Nicholson, the city manager of Streator. The Agency’s witnesses were: Charles

Corley, inspector for the Agency; Roger Callaway, from the Agency’s compliance assurance

section; and Gary Bingenheimer and Alan Keller, from the Agency’s permit section. Members

of the public attended. A public comment was admitted at hearing from Wilson Haller,

operations manager for the Illinois division of the Carriage House Companies, Inc., parent

company of Red Wing. On November 20, 2001, the Board received a public comment from a

member of the public.

 

On December 6, 2001, Streator filed its post-hearing brief. On December 13, 2001, the

Agency filed its post-hearing brief.

1

 

 

FACILITY DESCRIPTION

 

  

Streator operates a wastewater treatment plant (plant) located in the western portion of

the city along the eastern edge of the Vermilion River in LaSalle County. Am. Pet. at 1. The

plant provides sewer services to Streator and to certain areas outside of the city limits. Am. Pet.

at 1. The plant discharges into the Vermilion River in LaSalle County through outfall 001. Am.

Pet. at 1. Streator contracts with U.S. Filter to operate the plant. Am. Pet. at 2. U.S. Filter

employs five people at the plant. Am. Pet. at 2.

 

The plant consists of an influent lift station, headworks, oxidation ditch, final clarifiers,

chlorine contact tanks, sludge storage tanks, and an effluent lift station. Am. Pet. at 2. The plant

receives wastewater from residences, commercial businesses, and industrial sources. Am. Pet. at

2.

 

Streator contends that in the last year, the influent organic loading measured in terms of

five day biochemical oxygen demand (BOD5) averaged 6,300 pounds/day. Am. Pet. at 2. The

Agency counters that in the last year, the Agency calculations show that the influent BOD5

loading averaged 6,399 pounds/day. Rec. at 7.

2

 

 

1

Citations to the Amended Petition will be referenced as “Am. Pet. at __.” Citations to the

Agency’s Recommendation will be referenced as “Rec. at __.” Citations to Streator’s response

will be referenced as “Resp. at __.” Citations to the hearing transcripts will be cited as “Tr. at

__.” Citations to Streator’s post-hearing brief will be referenced as “Streator Br. at __.”

Citations to the Agency’s post-hearing brief will be referenced as “Agency Br. at __.”

 

2

In its response, Streator explains the numerical difference may be due to rounding and the use

of monthly averages rather than daily values. Resp. at 6.

 

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3

STIPULATED FACTS

 

At hearing, the parties stipulated to various facts, including the following:

3

 

 

Discharge from the plant is authorized under the National Pollutant Discharge

Elimination System (NPDES) permit number IL0022004. Streator disposes of its wastewater

sludge through land application authorized under Land Application Permit number 2001-SC-

2254.

 

On September 18, 2000, Streator received a Notice of Restricted Status, dated September

15, 2000, which stated that “a recent review of information available to this Agency indicates

that the City of Streator’s Sewage Treatment Plant is being operated with a tributary waste load

of approximately 161 percent of the organic design capacity.” The plant is currently approved

for a design organic loading of 5,000 pounds of BOD5/day. The NPDES permit does not specify

the 5,000 pounds of BOD5/day design capacity. The NPDES permit does not limit organic

loading influent to the plant. The Agency placed Streator on restricted status because the BOD5

organic loading during July 1999 - June 2000 exceeded the 5,000 pounds/day design capacity of

the plant.

4

   

 

The permitted discharge limits are a daily maximum of 20 mg/L and a monthly average

of 10 mg/L for carbonaceous BOD5. The permitted discharge limits for ammonia-nitrogen are a

daily maximum of 2.5 mg/L from April through October and 5.5 mg/L from November through

March, and a monthly average of 1.0 mg/L April through October and 3.1 mg/L from November

through March. The permitted discharge limits for total suspended solids are a daily maximum

of 24 mg/L and a monthly average of 12 mg/L.

 

The Agency issued permits to The Red Wing Company, Inc. (Red Wing), a significant

industrial user as defined by 35 Ill. Adm. Code 310.110, to discharge to the plant.

5

Permit

number 1996-EO-2555 issued on December 17, 1996, by the Agency to Red Wing, authorized

the discharge of 2,576 population equivalents of BOD5 at a design average flow of 15,000

GPD/day which is equal to 438 pounds of BOD5/day.

 

An extensive network of mines exists beneath Streator. Discharges from septic tanks

may leach into the abandoned mines.

 

Streator is under a consent decree, dated November 8, 1989 and amended June 10, 1992.

The decree requires Streator to eliminate the discharge of raw sewage into the abandoned mines

by providing sewer connections to Streator’s wastewater treatment plant.

3

The stipulation was filed at hearing.

 

4

Streator’s Daily Monitoring Reports (DMR) for the period July 1999 to June 2000 indicate the

organic loading was 8,035 lbs BOD5/day. Am. Pet. at 3.

 

5

Red Wing manufactures products such as table syrup, peanut butter, honey, and syrups for

flavoring drinks. Streator Br. at 10.

 

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4

 

On June 28, 2001, Streator submitted a compliance plan to the Agency to address the

sludge management issues that caused three ammonia exceedences at the treatment plant. On

June 29, 2001, the Agency accepted the compliance plan. The plan includes installing a belt

filter press and constructing a building where the press will be located. The plan also includes

measures to equalize the organic loading from Red Wing.

 

Streator hired Raymond Professional Group and U.S. Filter Engineering and Construction

(Raymond) to evaluate the options for expansion of the treatment plant. Raymond prepared a

report recommending installing a vertical loop reactor, re-rating the organic capacity of the

existing oxidation ditch, and adding additional sludge storage and disposal facilities. Streator

submitted this design report to the Agency for review. The Agency approved the design basis in

a letter received by Streator on March 27, 2001.

   

REGULATORY FRAMEWORK

 

Nature of Variances

 

In determining whether any variance is to be granted, the Act requires the Board to

determine whether a petitioner has presented adequate proof that immediate compliance with the

Board regulations at issue would impose an arbitrary or unreasonable hardship. 415 ILCS 5/35

(a) (2000). Furthermore, burden is on the petitioner to show that its claimed hardship outweighs

the public interest in attaining compliance with regulations designed to protect the public.

Willowbrook Motel v. PCB, 135 Ill. App. 3d 343, 481 N.E.2d 1032 (1st Dist. 1985). Only with

such a showing can the claimed hardship rise to the level of unreasonable hardship.

 

A further feature of a variance is that it is, by its nature, a temporary reprieve from

compliance with the Board's regulations, and compliance is sought regardless of the hardship

which the task of eventual compliance presents an individual polluter. Monsanto Co. v. PCB, 67

Ill. 2d 276, 287, 367 N.E.2d 684, 688 (1977). Accordingly, except in certain special

circumstances, a variance petition is required, as a condition to a grant of variance, to include a

plan which is reasonably calculated to achieve compliance within the terms of the variance.

 

Regulations at Issue

 

Streator requests relief in varying ways. Streator requests that the Board “grant a

variance from the restricted status designation until [the Agency] removes the restricted status or

re-rates the organic capacity of the plant.” Am. Pet. at 8. Streator also requests a variance from

35 Ill. Adm. Code 306.402 restricted status to allow a Kroger strip mall

6

(strip mall) and a Super

8 motel (motel) to connect to Streator’s wastewater treatment plant. Streator Br. at 1.

7

Section

306.402 provides:

 

6

The strip mall is comprised of six or seven stores. Streator Br. at 20.

 

7

To the extent that on page 22 of its brief, Streator “would like” to add “some unincorporated

residences in LaSalle County near the MacIntosh area” to the sewer system, the Board rejects the

request for lack of specificity.

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5

 

Restricted status shall be defined as the Agency determination, pursuant to

Section 39 of the Act and Section 309.241, that a sewer has reached hydraulic

capacity or that a sewage treatment plant has reached design capacity, such that

additional sewer connection permits may no longer be issued without causing a

violation of the Act or regulations. 35 Ill. Adm. Code 306.402.

 

Streator further states that it wants a variance from restricted status to allow up to 8,100 pounds

of BOD5/day based on a running annual average, until the Agency re-rates Streator’s treatment

plant. Am. Pet. at 3; Streator Br. at 1.

8

Streator wants the variance so it can encourage growth

and economic development by providing sewer services to the strip mall and the motel. Am. Pet.

at 9; Streator Br. at 19-20. Streator requests the variance for a period of 5 years or until it begins

operation of its sludge belt filter press and the Agency re-rates its plant, whichever comes first.

Am. Pet. at 1, 16.

 

On December 12, 2001, the Agency sent a letter to Ray Schmitt, the mayor of Streator,

informing him that the Agency would approve a design organic load of 6,880 pounds of

BOD5/day after Streator has installed the belt filter press. Streator Br. at Exh. B. Since the filter

press has not been built (see below), the letter does not moot any issues in today’s decision.

 

Scope of the Variance

 

For the reasons explained below, the Board finds the record sufficient to support

variance from restricted status with respect to sewer connections for the strip mall and motel.

We do not find support in the record sufficient to allow us to consider granting variance for other

possible connections, or for grant of variance from restricted status.

 

COMPLIANCE PLAN

 

Streator contends it will provide a permanent solution to the sludge management issues

that caused the three ammonia exceedences at the plant. Am. Pet. at 11. The solution includes

installing a belt filter press and constructing a building to locate the filter press. Am. Pet. at 11-

12. Streator estimates that it will cost $900,000 to build both the filter press and the building.

Am. Pet. at 12. Streator expects to complete the installation and construction before Spring

2002. Am. Pet. at 12.

 

During the term of the variance, Streator claims it will reduce the amount of sludge

stored in inventory by increasing the frequency of land application to three times a year at a cost

of $100,000 - $200,000, rather than the current two times a year. Am. Pet. at 12. Streator will

remove sludge when it reaches 90% of its storage capacity. Am. Pet. at 12. Streator argues if it

  

8

Streator suggests the Board could revise Streator’s restricted status pursuant to 35 Ill. Adm.

Code 392.401. Resp. at 4-5; Tr. at 35. To the extent that the Board grants a variance in this

case, it is pursuant to 35 Ill. Adm. Code 306.402

.

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6

is impossible to land apply the sludge when it is removed, Streator will bring in a portable sludge

filter press to dewater the sludge, which will permit the sludge to be disposed of in a landfill.

Am. Pet. at 12. Streator claims it would take one week to obtain a press. Am. Pet. at 13.

 

Streator points out that Red Wing, Streator’s only significant industrial discharger, has

agreed to construct and install equalization tanks at its facility, to equalize the flow of wastewater

from Red Wing to the plant. Am. Pet. at 13. The tanks should be installed by October 1, 2001,

at no cost to Streator. Am. Pet. at 13.

9

Streator also argues that Red Wing is losing a contract to

produce certain syrups at the end of June 2002. Streator Br. at 11. Streator estimates that the

organic loading to the plant could decrease below 5,000 pounds/day if Red Wing loses the

contract. Streator Br. at 11.

 

Streator plans to be removed from restricted status by obtaining a re-rating of the plant’s

organic loading capacity. Am. Pet. at 14. On September 28, 2001, Streator submitted a request

to the Agency to re-rate the plant, along with a report from Chamlin and Associates indicating

the plant could be re-rated at an average of 8,100 pounds of BOD5/day. Streator. Br. at 12.

Streator’s expert, Good, testified that the plant exhibits the capacity to handle and remove BOD5

at sustained organic loadings of 8,000 to 10,000 pounds/day. Streator Br. at 17. Agency witness

Keller stated it could take from two months to a year to re-rate the plant. Streator Br. at 16.

10

 

 

Streator hired Raymond to suggest how to increase organic treatment capacity at the

plant. Am. Pet. at 14. Raymond’s report recommended installing a vertical loop reactor (VLR),

re-rating the organic capacity of the existing oxidation ditch, and adding additional sludge

storage and disposal facilities. Am. Pet. at 14. Raymond estimates the cost of implementing the

report’s recommendations would be $3.5 million. Streator intends to get funding and construct

the additions to the plant to increase its sludge handling capacity. Am. Pet. at 14.

 

The Agency notes that Streator did not provide what it would cost Streator to comply

with the Act and Board’s regulations. Rec. at 10. The Agency argues that Streator could comply

for free if Streator would prohibit further sewer connections until the restricted status is lifted.

Rec. at 10-11. The Agency observes that Streator could also achieve compliance by getting

restricted status lifted. Rec. at 11. To be removed from restricted status, Streator would need to

fulfill the Agency’s approved compliance plan which involves installing the belt filter press, a

VLR and provide sufficient space for sludge storage. Rec. at 11.

 

The Agency argues that Streator fails to include overall capital costs and annualized

capital and operating costs as Section 104.204(d) requires. Rec. at 11. The Agency also argues

that it is unclear whether it will cost $100,000 - $200,000 for land application three times a year,

9

At hearing, Corley testified that he last visited Red Wing on October 9, 2001. Br. at 272. On

that date, Red Wing had installed temporary tanks on an experimental basis. Streator Br. at 8,

Tr. at 274; Tr. at 274-5.

 

10

Streator filed a re-rate application with the Agency on October 3, 2001, claiming that the plant

should be re-rated to an organic locate of 8,100 pounds/day of BOD5. Rec. at 16.

 

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7

or just for the additional third year. Rec. at 11. The Agency notes that Streator did not provide

documentation for the costs related to the portable sludge press. Rec. at 12.

 

The Agency argues that the amended petition does not include a complete discussion of

cost of the various compliance alternatives. Rec. at 12. The Agency also observes that Streator

has not made a commitment or applied for a permit to build the VLR. Rec. at 12-13. The

Agency surmises that if the variance is granted, Streator will not build the VLR when the

variance expires, unless it has not gotten off restricted status. Rec. at 13.

 

The Agency also argues that Streator has not committed to a definite method to get off

restricted status. Agency Br. at 22. Additionally, the Agency contends that Streator’s failure to

determine whether to build the VLR, and if so, when it will be built is not “expeditiously

pursuing the plan approved by” the Agency. Agency Br. at 22-23.

 

  

HARDSHIP

 

Streator argues that compliance with restricted status poses an arbitrary or unreasonable

hardship on the city. Am. Pet. at 8. It claims that restricted status unfairly restricts Streator’s

ability to support economic development of its businesses. Am. Pet. at 8.

Specifically, Streator argues that Streator has lost many jobs in the last 40 years, and restricted

status prevents positive business and economic growth. Streator Br. at 20.

 

Streator is now under a Consent Decree, dated November 8, 1989 (amended June 10,

1992) from the Agency to construct a new treatment works and eliminate the discharge of raw

sewage into the abandoned mines by providing sewer connections to the plant. Am. Pet at 9-10,

Rec. Exh. B. T. The new treatment works were to be “adequately sized to serve the projected

20-year wasteload from an expanded services area [including] the entire City, certain contiguous

unincorporated developments, and industries not currently discharging to the City system.”

Streator completed construction of the new treatment works in March 1992. Rec. Exh. B at 7,

12. To date, Streator has spent $33 million to upgrade the plant as well as eliminate such

discharges and the use of septic tanks within the City limits. The State has contributed

approximately 70% of the funds for this. Resp. at 11, Tr. at 26, 51. Less than 9 years later, the

20-year design organic waste load had already been exceeded.

 

Streator argues that the hardship is not self-imposed by its inactivity or decision making.

Streator Br. at 30. Streator notes that it has only been on restricted status since September 2000.

Streator Br. at 30. Since being placed on restricted status, it submitted a report to the Agency to

upgrade the plant. Streator Br. at 30. Streator also approved $4 million in bonds to upgrade the

plant and sewer lines. Streator Br. at 30. Streator also issued bonds to pay for the belt filter

press. Streator Br. at 30. Streator contends that it has not delayed in implementing a compliance

plan. Streator Br. at 30.

 

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8

Streator argues that it is not appropriate for the Agency to hold Streator responsible for

the current level of organic loading at the plant because 75% of the current influent organic

loadings are from Red Wing, which has a discharge permit from the Agency. Am. Pet. at 7.

11

 

 

Streator denies any argument that it already violated its restricted status because the

Super 8 motel connected to the sewer line without an Agency permit. Streator Br. at 20-21.

Streator argues that the contractor put in the sewer connection, and upon learning of the

connection, the mayor ordered its disconnection. Streator Br. at 21. Streator notes that since this

occurred while the motel was still under construction, there were no discharges from the motel

into the sewer. Streator Br. at 21.

 

Streator cites City of West Chicago v. IEPA, PCB 97-51 (Nov. 21, 1996) and Village of

Lake Zurich v. IEPA, PCB 97-77 (Feb. 20, 1997) to support its argument that the hardship

Streator faces was previously found to be an arbitrary or unreasonable hardship when there was

no significant injury to the environment. Streator Br. at 27. In City of West Chicago, Streator

argues the Board granted a variance because petitioner’s hardship was arbitrary and unreasonable

in comparison to the environmental impact. Streator Br. at 28. In Village of Lake Zurich,

Streator argues the Board agreed with petitioner that its hardship outweighed the environmental

impact. Streator Br. at 28.

 

The Agency argues that placing Streator on restricted status was not arbitrary. Agency

Br. at 13. The Agency notified Streator of its determination, after seeking Streator’s input and

holding three meetings and one conference call. Agency Br. at 13.

 

The Agency also argues that Streator’s hardship is not unreasonable. Agency Br. at 13.

The Agency notes that both the strip mall and the motel have alternative plans to address their

immediate, short-term wastewater needs: a septic system and a storage tank system, respectively.

Agency Br. at 14. The Agency argues that neither project will be halted without a variance, and

Streator will realize new jobs and increased tax revenue with or without the variance. Agency

Br. at 14. The Agency further argues that failure to realize an economic benefit, such as city

taxes and jobs, is not an arbitrary or unreasonable hardship. Rec. at 27, citing Philipsborn

Equities, Inc. v. PCB, 94 Ill. App. 3d 1055, 419 N.E.2d 470 (1st Dist. 1981). The Agency argues

that Streator signed off on the motel’s building permit and sewer connection application, when

Streator knew the motel would not be able to receive an Agency permit. Rec. at 27-28.

 

The Agency argues that Streator’s hardship is self-imposed. Rec. at 25; Agency Br. at

16. The Agency argues that if Streator had identified the strip mall and the motel at the time of

the restricted status discussion, the Agency, in all likelihood, would have granted those projects

an exemption from the restricted status determination. Agency Br. at 16. The Agency also

argues that if Streator objects to Red Wing’s discharge, Streator may, among other things, bring

an enforcement action if Red Wing is discharging in excess of its permit levels. Rec. at 24-25.

The Agency notes that Streator signed off on Red Wing’s permit. Rec. at 25.

11

In its brief, Streator alleges Red Wing discharges 30%-40% of the total organic loading to

Streator’s plant. Streator Br. at 11.

 

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9

 

The Agency disputes that the caselaw cited by Streator shows that its alleged hardship

has been previously found to be arbitrary or unreasonable when there is little environmental

harm. The Agency argues that the Board held in Village of Lake Zurich that:

 

The loss of tax income and job opportunities coupled with regulatory uncertainty

would be an arbitrary and unreasonable hardship which outweighs the minimal

environmental impact of a variance extension. Village of Lake Zurich v. IEPA,

PCB 97-77 (Feb. 20, 1997). Agency Br. at 19.

 

The Agency argues that it is misleading to separate the importance of regulatory uncertainty

from the Board’s holding and conclude that a variance is appropriate if a petitioner can show a

deviance from a standard will not have a direct adverse environmental consequence. Agency Br.

at 20.

 

ENVIRONMENTAL CONSIDERATIONS

 

Streator argues that if sewer service is not available, new developments will likely

discharge to septic systems. Am. Pet. at 9. Streator contends that using septic tanks is not

favored over connection to a municipal sewer system where the system can effectively treat the

wastewater. Am. Pet. at 9. Streator argues that septic tanks pose a greater adverse impact to the

environment than sending increased organic loadings to a facility that can treat the increased

loadings. Am. Pet. at 9. Streator argues that granting the variance will result in environmental

benefits from improved performance of the plan and preventing the construction of additional

septic systems. Am. Pet. at 11.

 

Streator claims that if it is removed from restricted status there will be no adverse

environmental impact because Streator can maintain compliance with the NPDES permit

limitations with organic loads greater than the currently rated design capacity of 5,000

pounds/day. Am. Pet. at 10.

 

  

Streator contends that the organic loadings of the motel and strip mall will only add an

additional eight pounds of organic loading per day. Am. Pet. at 10; Streator Br. at 18. Streator

argues that when the Agency planned to put Streator on restricted status, Streator met with the

Agency to discuss projects that were planned to get those projects exempted in the restricted

status letter. Streator Br. at 17. The exempted projects will create a load of approximately 123

pounds/day of BOD5. Streator Br. at 18.

 

The Agency argues that generally, sewage treatment plants are preferable to septic tanks,

but Streator cannot show that it can effectively treat the organic loading it is currently receiving.

Rec. at 14. As a result, additional sewer connections will cause more violations of the Act and

Board regulations. Rec. at 14.

 

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10

The Agency disagrees that environmental harm will necessarily result from septic

systems that conform with the Department of Public Health regulations. Rec. at 13.

12

 

The Agency points out that it exempted certain projects from restricted status when it evaluated

the danger of environmental harm related to connecting septic systems to Streator’s plant. Rec.

at 13.

 

The Agency argues that Streator cannot demonstrate that it is capable of effectively

treating the organic loading it currently receives, and more connections will cause further

violations of the Act and Board regulations. Rec. at 14.

 

The Agency agrees that it did not quantify the environmental harm that might result

from an additional 8 pounds/day of loading at the plant. Agency Br. at 17. The Agency argues

that continued overloading of the plant will continue the current environmental impact, and

increased overloading will in some way increase the impact. Agency Br. at 18.

 

The Agency disagrees with Streator’s claim that Streator can maintain compliance with

the NPDES permit limitations if granted a variance. Rec. at 15. The Agency contends that

Streator cannot treat its current effluent without ammonia violations, and has not yet

demonstrated that the plant should be re-rated. Rec. at 15.

 

The Agency has “undertaken” an enforcement action against Streator and the motel for

connecting to Streator’s plant without an Agency permit and in violation of restricted status.

Rec. at 16.

13

 

 

CONSISTENCY WITH FEDERAL LAWS

 

Streator states that it is complying with federal law because it has met the BOD5 limits

in its NPDES permit. Am. Pet. at 16. Streator argues that granting the variance is consistent

with the Federal Water Pollution Control Act, 33 U.S.C. Section 1251

et seq.

. Am. Pet. at 16.

Streator does not address this issue in its post-hearing brief.

 

The Agency argues that Streator has failed to show that a variance would be consistent

with the Clean Water Act. Rec. at 28. The Agency does not believe that if Streator complies

with the BOD5 limit in its NPDES permit that a variance would necessarily be consistent with

federal law. Rec. at 29.

 

ANALYSIS

 

Compliance Plan

 

12

In its response, Streator argues this position conflicts with the consent decree, which mandates

eliminating the use of septic tanks within the city limits because old mines are underneath the

city and sewage continues to discharge directly to those mines. Resp. at 11.

 

13

The Board has not received an enforcement action regarding Streator.

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11

The Board finds that Streator’s compliance plan is sufficient to grant a variance from

restricted status for the limited purpose of allowing the strip mall and the motel to connect to the

plant. Streator has initiated measures to address the ammonia violations and the issue of

inadequate organic treatment capacity. The measures include adding nitrifying bacteria to the

operation, changing the manner in which it handles decant from the sludge storage tanks,

removing sludge from storage more frequently, working with Red Wing to equalize its organic

loading to the plant, constructing a sludge belt filter press, and having the plant re-rated. Based

on the effectiveness of these measures, Streator will also evaluate the need to install a VLR.

 

Additionally, as a parallel effort to the instant variance, Streator has asked the Agency to

re-rate the organic design capacity of the Plant and subsequently lift the Restricted Status. On

December 12, 2001, after Streator filed its post-hearing brief and before the Agency filed its

post-hearing brief, the Agency notified Streator that it “would approve a design organic load of

6,880 pounds of BOD5 per day” after Streator installs the filter press. The press is supposed to

be constructed and installed before Spring 2002.

 

To finance capital improvements, Streator has approved $4 million in bonds to increase

plant capacity and/or extend sewer service to areas presently unsewered. Part of that money is

being used for installation of the belt filter press and building. How the remainder of that money

will be spent depends on plant performance after the permanent filter press is installed, nitrifying

measures are investigated, and potential changes in discharge volume from Red Wing are

confirmed. If there are still ammonia violations, the bond money will be used for installation of

the VLR.

 

The Agency contends that Streator has neither committed to building the VLR nor

obtained a permit to build it. The Board does not find Streator’s lack of commitment to build the

VLR a reason to prohibit a limited variance. The VLR may not be necessary if the belt filter

press successfully handles the plant’s sludge issues. Also, if Red Wing decreases their loading,

as is expected, the VLR may not be necessary for the plant to operate within its organic loading

capacity.

 

Hardship

 

Based on the economic arguments presented by Streator, the Board finds that inability to

connect the strip mall and motel to the sewer system would constitute a hardship upon Streator.

The Board agrees with the Agency that the hardship is not arbitrary. The Agency made an effort

to communicate with Streator prior to putting Streator on restricted status.

 

The Board does find, however, that it would be unreasonable not to allow the strip mall

and motel to connect to the plant. The Agency stated in its brief that if Streator had identified the

strip mall and the motel at the time of the restricted status discussion, the Agency, in all

likelihood, would have granted those projects an exemption from the restricted status

determination. Therefore, although placing Streator on restricted status was not arbitrary,

denying sewer hookups to the strip mall and the motel would be unreasonable. It would have

been preferable if Streator had asked the Agency for an exemption to get the strip mall and motel

sewer hookups. However, the Agency’s admission that it probably would have provided the

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12

exemption makes denying the hookups at this point unreasonable. As is discussed below, the

environmental impact of the two hookups would be minimal.

 

As regards the Agency’s contention that the hardship is self-imposed, the Board finds that

Streator’s hardship is not self-imposed. Streator’s loss of tax revenue and jobs, the window of

development opportunity, the variable production at Red Wing, and the shorter-than-expected

plant design life are beyond Streator’s direct control. Normally, consequences of variance denial

such as the loss of job opportunities, city income and taxes, and the loss of sales and enhanced

property taxes, are considered merely the expected consequences of restricted status, and do not,

by themselves, constitute arbitrary or unreasonable hardship. Willowbrook Motel v. PCB, PCB

81-149, 53 PCB 007, (July 14, 1983);

affirmed in

Willowbrook Motel v. PCB, 135 Ill.App.3d

343, 481 N.E.2d 1032 (1st Dist. 1985) (emphasis added.) However, if the claimed hardship

outweighs a nominal injury to the public or the environment, the Board can find that an arbitrary

or unreasonable hardship would result. Marathon Oil Company v. IEPA and PCB, 242 Ill. App.

3d 200, 610 N.E.2d 789 (5th Dist. 1993).

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13

 

Environmental Considerations

 

The Board finds that the environmental impact of the two additional sewer hookups

would be minimal. The Agency exempted certain connections from the prohibition on new

sewer connections. The Agency’s exceptions to the restricted status allow additional organic

loading to the plant despite its determination that additional loading will cause a violation of the

Act. By Streator’s estimate, these excepted connections would add at least 123 pounds of

BOD5/day to the organic loading at the plant. The instant variance request for an additional

exception for the motel and strip mall would add approximately 8 pounds of BOD5/day.

 

Streator’s professional engineer testified that the environmental impact from the

additional organic loading of 8 pounds of BOD5/day from the motel and strip mall compared to

the current loading of 6,300 pounds of BOD5/day would be an amount that could not be

measured in terms of the additional load on the receiving stream or land application. The

additional volume of discharge, about 5,000 gallons out of approximately 3 million gallons/day,

would also be negligible. The Agency presented no opposing information to this. The Board

finds that increased loading to the environment would be an increase whose effects would be too

small to measure.

 

 

CONSISTENCY WITH FEDERAL LAWS

 

Since the Board would not be granting a variance of Streator’s permitted effluent limits,

granting a variance would be consistent with the Federal Clean Water Act and Streator’s NPDES

permit.

 

CONCLUSION

Based on the above findings the Board finds that Streator’s hardship outweighs the

environmental impact of the variance and finds the hardship unreasonable. The Board grants a

variance as explained below.

 

Today’s action is solely a grant of variance from restricted status for the purposes of

allowing sewer connections for the Kroger strip mall and the Super 8 Motel, and does not

insulate Streator from an enforcement action by the Agency for exceeding its permitted design

loading or effluent limits. Streator is not granted a variance for any other reason.

 

This opinion constitutes the Board’s findings of fact and conclusions of law.

 

ORDER

The Board hereby grants petitioner, City of Streator, variance from the restricted status

provision of 35 Ill. Adm. Code 306.402, solely to allow the Super 8 Motel and the Kroger strip

mall to connect to Streator’s sewage treatment plant. The variance lasts until January 10, 2006,

to accommodate the Agency’s guidelines for Streator to provide 12 months of operating data.

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14

The data will show effluent compliance once improvements to the plant are made and allow the

Agency to rerate the plant.

 

IT IS SO ORDERED.

 

If petitioner chooses to accept this variance, within 45 days after the date of this opinion

and order, petitioner shall execute and forward to:

 

Deborah J. Williams

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue

P.O. Box 19276

Mail Code #21

Springfield, Illinois 62794-9276

 

a certificate of acceptance and agreement to be bound by all the terms and conditions of the

granted variance. The 45-day period shall be held in abeyance during any period that this matter

is appealed. Failure to execute and forward the certificate within 45 days renders this variance

void. The form of the certificate is as follows:

 

CERTIFICATE OF ACCEPTANCE

 

The City of Streator accepts and agrees to be bound by all terms and

conditions of the Pollution Control Board’s January 10, 2002 order in PCB

02-4.

____________________________________________________________

Petitioner

____________________________________________________________

Authorized Agent

____________________________________________________________

Title

____________________________________________________________

 

  

Date

 

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2000);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on January 10, 2002, by a vote of 6-0.

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15

 

 

Dorothy M. Gunn, Clerk

 

  

Illinois

Pollution

Control

Board