October

30,

1975

IN

THE

MATTER OF

•

)

R71—19

SEWER CONNECTION

BANS

OPINION OF THE BOARD

(by Mr.

Dumeile):

Thcs Opinion supports our September

29,

1975

Order

acopning Rule

604,

New

Connections,

Chapter

III,

Illinois Pollution Control Board Rules and

Regulations

This

proceecing

originated

with the authorization,

on

July

26,

1971,

of

public

inquiry hearings in order

to

expiore

the overall

effects of the existence or absence of

sewer connection bans on

affected

communities.

The Board

had imposed such

bans

on

several

communities

throughout

the

Sunup

of

1971.

See,

e.g.,

League of Women Voters

v. North

Store_SaruLtmi

District,

PCB

70—7,

1

PCB

369

(March

31,

f971)

In

each

~ch

case

the

ban

was

imposed

on

the

basis

a record showing

that

the addition

of

new

wastes

would

cause additsonal

pollution,

but

the

parties

did

not

present

ev~dence as

to

the

benefits

and

detriments

of

the

sewer

ban

a

reised:Lal

measure.

A

total

of

seven

hearings

were

held

:~ioirL

September

17,

1971

to

November

9,

1971.

As

a

result

of

those

inquiry

hearings

the

Board

issued

a

proposed

regulation

on

December

21,

1971.

That

proposed

regulation,

published

in

toard

Newsletter

#39,

December

27,

1971,

called

for:

:~

a

permit

requirement

for

all

new

sewer

connections,

iacludsng

those

serving

sources

with

a

population

equivalent

(thErn)

less

than

fifteen;*

2)

a

reservation

of

capacity

sestem

whereby

a

potential

builder

could

obtain

a

binding

commitment

of

available

capacity

in

advance

of

making

a

suostuntias

commitment

of

resources;

~)

allocation

of

additsonal

load

‘~credir” to

severe

hardship

cases

where

interim

improvements

have

been

made;

4)

a

set

of

factors

to

to

considered

in

variance

cases;

5)

public

records,

published

•by rho

Environmental

Protection Agency,

of

communities

affected

by

sewer

bans.

*Thc

then

current

Rule

903(b)

,

Chapter

3,

PCB

Rules

and

Regulations,

exemprec.

tram

permit

requirements

sources

aesagned

and

intended

to

ser~re sinqie

Dia

Idings

an~ to

eventually

treat

or

discharge

the

sewage

of

fifteen

or less persons.

This exemption is

now

Scund

in

Rule

951(h)

(2)

and

is

expressed

as

1500

gallons

per

day-

the

functional

equivalent

of

15

P,E.

19—175

---

—2—

An

alternate

regulation,

designated

as

R72-19,

was

subsequently

proposed

by

the

Illinois

Home

Builders

Association.

Essentially1

it

called

for

compulsory,

automatic

treatment

olant

expansion

when

a

plant

reached

a

certain

capacity.

This

proposal

was

consolidated

with

R7l-19

and

hearings

were

held on January

25

and

February

26,

1973.

The

Board

issued

an Opinion

and

Order

dismissing

R72—l9

on

May

17,

1973

(8

PCB

53)

As

a result

of

these

hearings,

and

public

comment

received

thereafter,

the

Board

proposed

for

final

public

comment

a revised

version

of

the regulation on August

5,

1975

(Environmental

Register

#107,

p.

8—9).

A

public

comment. period

extended to September

8,

1975,

and the final

version

oi

the

regulation was adopted September 29,

1975.

Testimony

received

an

the

inquiry

hearings

in

this

unocoedirig revealed

two

dominant

themes:

1)

the

overriding

necess~tvto

halt

additional

sewer connections

in

communities

faced wind overloaded

sewer or treatment facilities;

2)

the severe

economic

hardship that such an action imposes on

burldens~ developers,

and other individuals who have invested

funds

ton

construction projects,

in

anticipation

of

being

aii•LO

to

connect.

to

sewage systems.

With

respect to this

lauren

~ssuC?

a

large number

of

witnesses,

from small property

owners

to

large

housing developers,

testified

as to the

amount

of

money

they

had

spent prior

to

discovering that

a~drt

tonal

sewer

connections would not

be

allowed.

In

each

instance

the

witness had been given no notice that a sewer

nan

was

~.

ixely

or

that sewers

and

treatraent plants

were

approacnang,

or

taa

surpassed,

capacity.

One

suet

developer

reviewed

the

process

of

land

development,

uo.Lntrnq

out

the

long

lead

time

needed

for

acquisition,

planning,

financing and construction.

His particular project

mmci

•eecun

four

years

previous

to

the

hearing,

with

an

investment

of

over

one—half m~l1iondollars

in

land

alone,

(R.

526,

535).

Additional

expenses

included

substantial

contributions

to

ute,

village

water supply facilities,

financaal

obligations

repenting

extension

of

sewer mains,

and

continuing

interest

payments

on

borrowed

capital

CR.

532,

535).

Similar

testimony was received

from

other

witnesses—

from

a

single

lot

property owner

who

had

bought

his

land,

installed

sewers and paid taxes

to his sanitary district

before

the

Environmental

Protection Act even existed

(R.

946),

to

larger

developers

who had projects

in

various

stages

of

ccmpiet~on

prior

to

the

imposition

of

a

sewer ban in their

communities

CR.

191,

289,

764,

810,

819

ff.,

841—845,

869,

~33

if,)

19—176

---

—3—

Significantly,

many of these witnesses complained that

there

was

no

notice given that their land might be

subjected

no

a

ban,

or

that they had been unable

to get a list of

communities

that

might be under critical review for sewage

faciluties

CR.

289, 421—2,

442,

1115)

.

In addition,

several

of

these

witnesses indicated that they could in fact support

a

~sewet

ban

in

some situations, provided there had been

sufficient

prior

notification

(R.

575,

1096)

.

Testimony

by

an

Environmental

Protection Agency attorney corroborated

these

complaints,

in

that he confirmed that the Agency did

not

have

any

centralized list

of

organic

and

hydraulic

capacity

of

~i:L1 the

plants

in

the

state.

He

said

that

in

the

past

notification of

critical

review

status,

initiated

at 30

onqanic

capacity, was given only to the operator of a

treatment

plant,

but

that henceforth the Agency

would

issue

tress

neleases

to

all concerned communities and “do anything

that

we

tan

to

inform the citizens of what the problems of

the

plant

are

and

what type of necessary action citizens can

take

to

encourage the

authorities

to move ahead as quickly

as

possible”

(H.

1645—6)

In

response

to

this

testimony Mr. Kissel,

sitting as

a

Snare.

nether

at

the

hearing,

suggested

the

possibility

of

a

:•ecmt•enon

requiring

the

Agency

to

publish

a

list

of

the

osecity

of

all

treatment

plants

in

the

state,

putting

all

people

on

notice

as

to

where

permits

were

going

to

be

denied

(H.

1657)

The

Agency,

while

agreeing

that

notice

SI’IOUth

be

given

as

widely

as

possible,

felt

that

it

would

be

impractical

to

publish

such

a

list,

since

situations

change

so

rapidly.

it

indicated

that

the

information

is

readily

avaitabie

with

respect

to

any

particular

Diant,

and

that

it

would

preter

to

keep

it

on

an

Individual

basis

(H.

1658,

1650)

.

Mn.

Kissel

disagreed,

feeling

th~atsuch

an objection

depended

on

the

frequency

of

publication.

The

Agency

witness

dud

conclude,

however,

that

“there

should

be

as

much

tread

notice

on

these

situations

as

is

possible;

and

our

terrier

proceaure

of

just

notifying

the

offictals

has

resnl,toiu

in

some

cases

of

notice

not

being

widely

spread

among

tne

citizens”

(H.

1661)

As

a

result

of

the

testimony

summarazea

above,

tne

Soard

included

in

its

original

proposed

regulation

a

repuirommnt

that

the

Agency

publish

and

make

available

to

th~ pulluc

an

up~to—date

list

of

communities

subject

to

reatnictea

statue

ana

critical

review,

It

was

telt

then,

an

nOW,

utat

such

publication

would

best

effect the wide

not,sce

desi:ced

and

thus

assuage

many

of

the

hardships

complained

of

~

With such notice developers can plan their

19—

177

---

—4—

projects

accordingly,

without

risking

substantial

funds

on

the

possinility

that

they

would

be

left

with

useless

investments,

complet:e but for final

authority

to

connect

the

sewers.

Testimony in the

follow-up consolidated hearings

pointed

out an

additional

benefit which might come from

such

public

notice,

in

that it would serve notice to the citizenry

that,

their

officials

had

not done their job in assuring

adequate

sewage facilities

(January 25,

1973 transcript,

p.

113),

and

that

it might be helpful in raising funds to

expand,

since the

Agency

would

have

more

credibility

than

tte operating entity

of

a

local agency

(February 26,

1973

transcript,

p.

16).

As

a result of

public comment

received on the

original

proposal,

the other major

aspects

of the regulation——

the

permit

requirement

and reservation of capacity system——

were

discarded

as

being

unnecessary or too burdensome to

administer.

The one comment

received with respect to the

publication

requirement

(from the City of St.

Charles) was

favorable.

The

revised

version of the regulation,

published

Attest

5,

1975,

contained an

added provision whereby sanitary

districts

were

required to report to the

Agency all connections

made

and

the

estimated increase

in P.E.

Most of the unfavorable

cclmments

received

on the new proposal were concerned with

me

added

paperwork involved in this provision.

In the

adopted

version

of the regulatlon this

provision was abandoned,

since

that

type

of reporting is already done for

sources

over

fifteen

P,E.

,

and for other sources

would be reflected

on the monthly operating

reports already required by the

Agency.

An

Agency comment suggested an

alternative regulation

Wflict

sum~iywould

1~iavemade

it

unlawful

for

sanitary districts

to

allow

any

new connection

if

it would cause

a

violation

of

the

Environmental Protection

Act.

Such

a

regulation

would

not,

accomplish the public notice

purpose

intended here, nor

wouad

it

be

absolutely

necessary

to

achieve

its

own goals,

since

the

generaa prohibition of water

pollution found in

Section

12(a)

of

the

Act

is

broad enough to impose liability

ins tori situations,

The Agency further commented that

the

notice

requirement

is unnecessary,

since

such notice was

already

a

standard

practice,

If such is now the case we

feel

it

would be beneficial

to

formalize

such

notice

into

standard, periodic,

published

lists which will

insure

the

broadest scope

of

public

knowledge

and

information.

19—

178

---

—5—

An explanation of

the individual provisions of the

regulation follows.

Rule 604:

(a)

Publication of Lists.

This

paragraph constitutes

the heart~~the

public notice requirement.

It

is the only

remaining

requirement from

the

original proposal that

followed the

inquiry hearings.

Publication of

a list of

sanitary districts

and other wastewater treatment or

transportation

authorities subject

to

restricted

status

or

critical review will

best insure

that all

interested

individuals be

informed of development limitations in the

affected communities.

The responsibility of proceeding with

investment

or construction would

then

be borne wholly by

the

untividual,

in

full

knowledge that sewer connection

permits might not

be available

upon

completion.

While

souhisticated

developers

may

now

check

with

the

Agency,

anyway~ to determine the treatment and sewer capacity

of

a

certain community,

the published list will

provide

such

information to many

other individuals who

might

be

desirous

ci developing their property.

It is felt that publication

intervals

of three months will

be

adequate

to

cover

any

crianqi,nc

situations

that

occur.

Any

longer

period

would

not

houseful

for

planning

purposes.

The

lists

are

required

to

include estimates

of

capacity and periodic additions

of ?.E.

in order to

show how rapidly

a community is approaching

(b)

Restricted Status

(c)

Critical Review.

These

naregraphs

are

added

in

order

to

define

the

terms

“restricted

status~

and

~critical

review”

as

used in

S604 (a)

.

Since

one

of

Ste

functions

of

this

regulation

is

to

codify

a

present

Aq’ancy

permit-issuing

procedure,

the

terms

are

purposely

defined on the basis

of

Agency

determinations.

They

are

thus not intended to

infringe

on

the

Agency

‘s

permit—issuing

responsibilities

under

Section

39(a)

of

the

Environmental

trotoctuon Act.

Furthermore,

ut

is not

anticipateQ

that

an

!tqency

dcterminat~on

to

place

a

sanItary

district

(or

a

portion thereof)

on

“restricted status,”

will

necessarily

preclude the issuance of all connection permits.

A

special

showiep

by

a

permit applicant that the requested

connection

erimmu

riot

result

in

a

violation

ot

the Act

or regulations

remains possicue.

such

a snowing was made

in

at

least

one

case

bef:ore the Board by a petitioner who appealed

an

Agency

permit denial in an area designated “restricted

status.”

That ectitioner olanned to install

a five day sewage

holding

tank to prevent violations.

First National Bank and Trust

Company

of

Evanston,

Trustee

of Trust No. R—1692,

and S

.

S.

Kresge

Co.

v.

EPA~, PCB 74—308,

14 PCB 423

(1974)

---

—6—

(ci)

Notification

of

Individuals

Req~iesting

Connections.

This paragraph

is intended

to

prevent connections by indi-

viduals

who tail

to discover or ignore the requirement to

obtain a

permit

from the Agency.

A number of cases have

come before

the Board in which

a petitioner for variance

from the permit

requirement has already connected his faci—

lily

to

the

restricted system.

See,

i.e., First United

Eatior1alc~’rr.j9ran±on

v.

EPA,

PCB 75—196,

18 PCB 187,

in

~

Springfield

restaurant had been

in

operation, with-

out

a

sewer

connection permit, over a year before even

seckung

a variance.

Significantly,

in

that case the Agency

pointed

cut. that the petitioner should have known of

the

restricted status of the sewer system since it had been

.~iqhiv

puu:Licized

in

the Springfield area.

18 PCB at 189.

The

requirement

in paragraph

Cd)

that individuals who seek

nonnections be notified

by the sanitary district or other

r~’astewatOrtre.atmen?

or

transportation authority of the

restricted status will

guard against ignorance of the permit

requirement and

help

prevent such unauthorized connections.

An

indiv.ctumm so forewarned

who proceeded to connect anyway

would

then

stand

on

weak ground to object to

a

Board

order

to disconnect in

any subsequent enforcement action.

Although Agency permuts will

not

be needed for some

soui’oes

(eflOse

c.esignea

and

:Lntended to serve slngle bu~1d—

mips

and treating

or

discharging

less

than

1500

gallons

per

itt

el

domestic sewage)

,

the regulation requires notice to

a~

:Lno~iviciuaisseeking

connection.

This

IS

~ntenaed

to

avomi

disputes in the

borderline

area

where

it

is

not

known

if

a

source will

qualify

for

the

exception.

(e)

~

The

Board tecognizes the severe financial

eurden

imposed on

a

community

by an

Agency determination to

p:Lace

it

on

restricted

status.

Sucri

a

determination,

we

feel,

shoula

be

subject

to

at least remediai due

process

requrrementrm

While

aggrieved

persons

may

appeal

individual

ocrmut—cienials

or

seek

variances

before

the

Board,

there

has

or~viousiybeen no procedure by which

a community at large

could appeal such a determination.

Very real differences of

COirijOri,

could

eXISt

wherein the sanitary district or other

wastewater treatment

or

transportation

authority

felt

that

its

detign

or

hydraulic

capacity

hac not

been

reached

and

that ecxiIticrLal

connections

were

possible

without

violations

of

its:

Act or regulations.

A public comment received

from

the Springfield

Sanitary District strongly supports this

apno~al.

process,

claiming

that

it has

been

unable to get a

eatisuactory response from the

Agency

as

to

why

it

has been

ol,aced on restricted

status.

In any such proceeding brought

under this

sub-paragraph

the

Petitioner

will bear the burden

of

s’root.

A number of variances are usually filed with

the

team

iron

unciuvucuals

living

un

“restricted

status~’

corn—

nunutans.

(Recent

cases

from Springfield may be found at

19—180

---

—7—

13 PCB

193,

14 PCB 423,

14

PCB 723 and 13 PCB

18.)

The

appeal process allowed here,

if

it

results

in

Board

de-

termination

that additional

connections may be permitted,

will have

the

added

benefit

of

eliminating

many

of

these

petitions

as unnecessary,

thus

conserving

Board

resources

for other matters.

Furthermore,

it is not anticipated that

such appeals would

be taken

lightly,

since

the

process

would

probably

satisfy

the

hearing

and

notice

requirements

of

Section

33(c)

of

the Environmental Protection Act.

Thus,

if

the situation warranted it, a

possible consequence of such

an appeal would he imposition of

a Board—imposed sewer ban

which’would affect

all

sources,

including

those

which do not

need Agency permits.

Finally,

this

appeal process is not

intended to preclude the

present

right

of

individuals

to

appeal an Agency

denial

of

a

connection

permit

or

to

seek

a

variance

from

the

permit

requirements

pursuant

to

Parts

IV

and V of the

Procedural

Rules.

(I)

Effective

Date.

The

effective

date of

the

regu-

latuon

:Ls

set

as

January

1,

1976,

in order

to allow the

Agency time

to implement the publication requirements.

This Opinion

constitutes

the

Board~sfindings of fact

and

conclusions

of’

law,

Mr.

Young

abstained.

I,

Christan L.

Moffett,

Clerk

of

the

Illinois

Pollution

Cantccii

Boart:i,

hereby

certify

the

at

ye

Opinion

was

adopted

on

the

~

day

of

,

1975 by a vote

ci:

~

Illinois

Pollution

19

—

181