ILLINOIS POLLUTION CONTROL BOARD
September
15,
1976
DANVILLE SANITARY DISTRICT,
Petitioner,
v.
)
PCB 76—180
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
OPINION
AND ORDER OF THE BOARD
(by Mr.
Zeitlin):
This matter
is before the Board on a Petition for Variance
filed June 22, 1976 by Petitioner Danville Sanitary District
(Danville),
seeking extension of a previously granted Variance from the limita-
tions of Rules 404(b),
404(c),
404(f),
602(d) (1) and part of
1002,
of Chapter
3: Water Pollution,
of this Board’s Rules and Regulations.
POE Regs.,
Ch.
3,
Rule 404(b),
404(c),
404(f),
602(d) (1),
1002
(1976).
A Recommendation was filed by the Environmental Protection Agency
(Agency)
on August
3,
1976.
No hearing was held in this matter.
BACKGROUND
Danville operates an activated sludge sewage treatment plant
which treats the wastewaters of the City of Danville and certain
industries located within that city.
Danville’s operations have
been discussed by the Board in previous Opinions and do not require
detailed explanation here.
A
brief discussion of Danville’s prior
appearances before the Board will suffice.
Danville has been before this Board continuously for the past
five and one-half years,
having first appeared as
a Respondent
in
an
cnforccment
ma
tLcr
Ii led
by
Lhe
Aqency
on
1’ebruary
2(
,
197
.
in
that case
the
f~oa
rd
0011(1
Danv ii
t heii
exi
st.
i
ncj
fac
i
I
I
inadequate,
acknowledged
a
possible
need
for
new
facilities
and,
as part of the relief granted,
imposed a “sewer ban” on the area
served by Danville.
EPA v. Danville Sanitary District, PCB 71-28,
1 PCB 619
(May 26,
1971);
see also,
id.,
1 PCB 627
(Mr. Aldrich,
dissenting).
The Board retained jurisdiction
in that case for an
extended period of time,
issuing two supplemental Opinions and Orders
and an additional Opinion and Order on request for additional connec-
tions.
Id., PCB 71—28,
2 PCB 107
(July 12,
1971)
id.,
PCB 71—28,
2 POE 275
(Aug.
13,
1971);
id., PCB 71—28,
3 PCB 271
(Dec.
21,
1971).
23—511
—2—
In a Variance matter filed the following year
by
Danviile,
the
Board found Danville’s progress sufficient to release
it from the
sewer ban order of POE 71-28.
Danville Sanitary District v.
EPA,
POE 72—161,
4 POE 673
(June
14, 1972)
During the following period, Danville filed two additional
Variance Petitions,
asking relief from the requirement of Pule 404(f)
of Chapter
3 that advanced sewage treatment facilities be completed
(as that rule then required)
by December
31,
1973.
Danville Sanitary
District
v.
EPA, POE 72—347,
5 POE 313
(Aug.
29,
1972); Danville
Sanitary District v.
EPA,
POB 72—400,
5 POE 721
(Oct.
17,
1972)
Both of those Variance cases were dismissed by the Board on findings
that the Petitions were inadequate.
On February 23, 1973 Danville filed another Variance Petition,
this time seeking relief from Rules
404(c)
,
404 (f)
and 602(d) (3)
of
Chapter
3.
Relief at that time was sought until August
1,
1976,
contemplating that additional treatment facilities
would
be completed
by that time.
(The Agency’s Recommendation discussed the need for
relief from Rules
602(d) (1),
921(d)
and 1002.)
On the facts presented
to it in that case, and partially as a result of the Board’s enact-
ment of Rule 409 of Chapter
3 on July 19,
1973,
the Board found
Danville’s Petition to be moot in part and premature in part, and
dismissed the case.
Danville Sanitary District
v.
EPA, POE 73—77,
8 POB 671
(July 31,
1973)
,
rehearing denied,
9 POE 531
(Oct.
18,
1973)
Of.,
In the Matter of Water Pollution Regulation Amendments,
R73-3, -4~
SPCE
591
(July 19,
1971),
amended,
In the Matter of Proposed Amendments
to Rule 409 of the Water Pollution Regulations, R74-17,
18 POE 156
(July 17,
1975).
Danville’s next Variance Petition was filed on January
7,
1974.
The Board in that case found that Danville had,
“begun a program to
design and construct an advanced waste treatment system which will
meet the effluent requirements of Rule 404(f),
as well
as other
applicable standards... land thej
total
of the District compliance
program is $19,505,368.
.
.
.The District will have approximately
$15 million
in
federal—state grants
to
cover capita
costs
if the
~)
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I et
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ri
I
;e
t: h
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I
)
)rox
i
ma L
e
~°
5
nil
I
I
I
dl
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ia r~
.
‘
(
I~ec)rd
citation omitted.
)
Danville Sanitary District:
v. 1~PA
,
I~CB74—1 2,
12
PCfl
21,
22
(April
4,
1974)
The Board also accepted testimony in POE 74-12
to the effect
that Danville’s effluent would not have an adverse effect on water
quality
in the Vermillion River, and that Danville’s discharges
would not aesthetically impair that river.
The Board found that
Danville had taken adequate steps to eliminate past problems in the
existing sewage treatment plant,
in an attempt to maximize the quality
of Danville’s discharges pending completion of its advanced waste
treatment system.
Id.
23 —512
—3—
Although some requested relief was refused
(notably,
an “order
to
abate”
concerned
with
bonding
limitations),
the
Board
in POE 74-12
did
grant
Variances
with
respect
to
the
following
rules:
Rule
404 (b),
limiting
effluent
from
any
source
whose
untreated
waste
load
is
10,000
population
equivalents
(PE)
or
more
(which
includes
Danville)
to
a
maximum
of
20
mg/i
of
BOD5
and
25
mg/l
of
suspended
solids.
Rule
404 (c),
limiting
effluents
whose
dilution
ratio
is
less
than
5
to
1
(again
including
Danville’s
effluent),
to
10
mg/i
of
BOD5
and
12
mg/l
of
suspended
solids,
after
Dec.
31,
1973.
The
date
of
Dec.
31,
1973
was
extended
to
Dec.
31,
1974
by
Rule
409,
enacted
in
R73—3,
-4,
supra.
that
date
was
further
extended
for
certain
grant
eligible
dischargers
until
July
1,
1977,
in
an
amendment
to
Rule
409
enacted
on
July
17,
1975,
in
R74—17,
supra.
Rule
404 (f),
which
limits
to
4
mg/i
of
BOD5
and
5
mg/l
of
suspended
solids
any
effluent
whose
dilution
ratio
is
less
than
1
to
1.
(The
appli-
cation of Rule 404(f)
to Danville was found
premature
in PCB 73-77, supra.,
but proper in
POE 74-12.
8 PCB at
671;
12 PCB at 22.)
Rule
602 (d) (1), which requires compliance with
the performance criteria for treatment plant
bypasses by the dates for compliance with Rules
404
—
408
(as modified in Rule 409).
Rule 1002,
as it requires the filing of a project
completion schedule indicating compliance with
applicable treatment deadlines.
The
Variance grant in PCB 74—12 was subject
to several conditions,
chief among which was a requirement that Danville initiate construction
of its new facilities by March,
1975,
and complete construction of
those facilities
by
April,
1977.
Before
submitting
the
instant
Variance
Petition,
on
April
1,
1975
Danville
submitted
another
Petition.
Danville
Sanitary
District
v.
EPA,
POE 75-139.
On April
10,
1975
the
Board
entered
an
Interim
Order requesting additional information regarding the extension of
Danville’s construction schedule through August,
1978.
16 PCB 411.
On June
6,
1975,
the Board dismissed PCB 75—139,
for failure
to
supply the required explanation of the extended compliance schedule.
17 POE 287.
23
—513
—4—
THE VARIANCE PETITION
The Petition in the instant case asks that the Variance granted
in
PCB 74-12, which expired on April
1,
1975, be extended through
January,
1979.
Danville states that,
“documentation referenced in
the Board Order of June
6,
1975 could not have been supplied to the
Board prior to that date.
.
.
.
the revised construction schedule set
forth in that Petition was a projection of anticipated and actual
delays in government approval..
.“
(Emphasis in original)
(Pet.
8).
‘Since the Board’s Order of June
6,
1975,
...
documentation contem-
plated
by
the Order of April
10,
1975,
has recently become available.’
(Id.,
9.)
Although the Agency does not address the issue, neither does
it contest Danville’s claim that much of the delay in the initiation
and completion of construction of its advanced waste treatment
facilities has been the result of governmental delays in grant
approval,
and design modification made necessary by governmental
grant approval
and
regulatory processes.
(Pet.,
9-il).
Step II
grant approval, which was estimated in POB 75-139 as likely to be
completed on March
1,
1975, actually occurred
on May
14,
1975.
The
Step III grant award, which had been projected for August
15,
1975,
occurred on June
30,
1975;
an amendment to that grant award
(Pet.
Ex.
H), was not approved until December
24,
1975.
As
a result of
these delays,
and apparently because of a million dollar error by
the original low bidder on Danville’s project,
the award of the
contract and initiation of construction, projected
for August
18,
1975, did not occur until January
5,
1976.
As
a result,
construction
will
not
be
complete
until
January
5,
1979.
Danville
bases
its
request
for relief in this case on:
1.
A claim that the above delays were beyond its
control, and unavoidable;
2.
ifs
ci a ira that
it
has
J)rocec’dc’d
i n
qood
ía
i fh
~0
ifllpI~Illellt.
Ltiu
colC;Lruct.
Ion
ut
In’
r’e(IUI
red
I ac
I
I
I
(~C~lC
(~Xf)C(l
Li 005.1
\~/
dC
I’os.~
1
1)1
C;
3.
Its further claim that it has complied with the
conditions
of the previous Variance, POE 74—12;
4.
Its allegation that the same factors which led
to the grant of the Variance in that case are
present here.
A
review of the material submitted in this case, and of the
previous litigation detailed above,
indicates
that
Danville
has
acted in good faith over a long period in a continuous effort to
abate
the problem which
it admitted to as early as the original
enforcement case, PCB 71—28.
See,
e.g.,
2 PCB
107;
2
POE at 275;
4 POE at 674;
8 POE at
672.
23
—
514
—5—
when granting the Variance
in PCB 74-12,
the Board stated that,
“Because of the District’s past actions involving water pollution
problems and the reasonableness of its project completion schedule,
the
Board grants the District a Variance.”
12 PCB at 22.
For those
same reasons, and because we find that the delays
in initiation and
completion of the necessary construction have been beyond Danville’s
control, we shall again grant a Variance.
Except for the change in completion date, the conditions on
this Variance grant shall be essentially the same
as those imposed
in POE 74-12.
We note that the Agency has requested,
in recommending
a grant of this Variance,
that the Board require Danville
to take,
“what steps necessary to have its NPDES permit appropriately modified...
(Rec.,
7).
We
do not find that recommended condition appropriate.
Finally, we note that because of the Board’s action
in P74-17,
supra, amending Rule 409, portions of the requested relief will not
be needed until July
1,
1977.
Until that date, Danville’s BOD5 and
suspended solid discharges are regulated only by Rule 404(b),
as
a
result of its grant-eligible
status.
After July
1,
1977, pursuant
to the Board’s determination
in PCB 74—12, Danville will also be
limited by Rules
404(c)
and 404(f).
This Opinion constitutes the findings of facts and conclusions
of law of the Board in this matter.
ORDER
IT
IS THE ORDER OF THE POLLUTION CONTROL BOARD that:
1.
Petitioner Danville Sanitary District
is hereby granted
a Variance from:
(a)
Rules
404 (b),
602 (d) (1)
and that applicable
~r
1 002 concern i
nq
compl:i ance dead
i nc’s
of
Chapter
3:
Water Poll ut:ion
,
from April
1
,
1 975
utiti
I ~Iaiiuary31,
1979,
(b)
Rules
404(c) and 404(f)
of Chapter
3: Water
Pollution,
from
July
1,
1977 until January
31,
1979,
subject to the conditions of PCB 74—12,
except insofar as the dates
therein are hereby modified.
2.
Petitioner shall, within thirty
(30)
days of the date of
this
Order,
execute
and
forward to the Environmental Protection
Agency, Control Program Coordinator,
2200 Churchill
Road,
Springfield,
Illinois 62706,
a Certificate of Acceptance in the following form:
23—515
—6—
I,
(We), ___________________________
having read
the Order of the Illinois Pollution Control Board
in
case
No.
POE 76—180, understand and accept said Order,
realizing that such acceptance renders all terms and
conditions thereto binding and enforceable.
SIGNED
TITLE
DATE
I,
Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify th~above Opinion and Order we1re
adopted on the
~
day of\~~j
1976,
by a vote of ~-O.
Christan L. Moffet
,-
lerk
Illinois PollutionC4O’ntrol Board
23—516