ILLINOIS POLLUTION CONTROL BOARD
April 19, 1984
CITIZENS UTILITIES COMPANY
)
OF ILLINOIS,
Petitioner,
PCB 83—124
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
)
Respondent.
MR. DANIEL KUCERA OF CHAPMAN AND CUTLER APPEARED ON BEHALF OF
PETITIONER;
MR. PHILIP WILLMAN
(ASSISTANT ATTORNEY GENERAL) AND MR. WAYNE
WIEMERSLAGE APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Marlin):
This matter comes before the Board upon an August 31,
1983
petition for variance filed by Citizens Utilities Company of
Illinois (Citizens) requesting either a
5 year extension of
the variance granted in PCB 78-313 or requesting that the variance,
if granted, expire
3 years after adoption of revised water
quality standards applicable to Lily Cache Creek
(Creek).
Citizens requests relief from S—day biochemical oxygen demand
(DOD5) and total suspended solids
(TSS),
35
Ill. Mm.
Code
304.120(c)
as well as the ammonia nitrogen water quality standard,
Section 302.212.
In addition, Citizens requests an exemption
for dissolved oxygen, Sections 302.206 and 304.105, and for
ammonia nitrogen, Sections 304.105 and 302.212 when Creek flow
is less than
2 cu. ft/sec.
Furthermore, Citizens asks that
the Board order the Illinois Environmental Protection Agency
(Agency) to include the Creek in the United States Geological
Survey study of the DuPage River basin.
Two objections to
the variance were filed, one by the Will County Health Department
and the other by a concerned citizen.
The Agency submitted
its recommendation to deny the variance on October 13, 1983.
A hearing was held in Bolingbrook, Illinois on January 23,
1984.
HISTORY
On November
5,
1975,
the Agency granted Citizens an NPDES
permit for their wastewater treatment plant No.
1.
This
petition for variance
is rooted in PCB 78—123 where
a
6 month
variance was granted to Citizens as later modified by PCB 78—265,
57-423
—2—
31 PCB 111, July 20,
1978;
31 PCB 711, October 19,
1978.
The
present variance, which will expire on July 2,
1985, was granted
to Citizens in PCB 78—313.
31 PCB 111, March
5,
1981.
Citizens sought site—specific relief in R81-19 but the
proceeding was dismissed for lack of information to support
less restrictive standards.
52 PCB 169, May 5,
1983.
The
Board granted a motion for rehearing by Citizens and affirmed
the Board’s dismissal.
53 PCB 61, July 14,
1983.
The regulatory
proceeding
is. being appealed.
Citizens Utilities Company of
Illinois v.
Illinois Pollution Control Board, Gen.
No.
3—83—0498,
filed July 27, 1983, Illinois Appellate Court, Third District.
The appeal is in abeyance until this variance proceeding is
decided
(Pet.
Brief at 4).
FACTS
Citizens is a subsidiary of Citizens Utilities Company.
In Illinois, Citizens has 43,000 customers
(R3 at 40))-
Citizens provides sanitary sewer service to approximately 21,000
customers and public utility water service to approximately
22,000 customers in the Chicago metropolitan area.
A substantial
number of customers are located in Bolingbrook,
Illinois, Will
County.
There are 8,000 connections in this area called the
West Suburban service area
(Pet. at
2).
This petition concerns
one of two wastewater treatment plants owned by Citizens, Plant
No.
1
(WSB 1).
This plant is an activated sludge plant, operated
in the contact stabilization mode, with a design dry weather
flow of 1.28 million gallons per day
(Pet.
at 2).
It is approxi-
mately 20 years old.
The WSB No.
1 includes bar screens, comminutor
two primary rectangular clarifiers with mechanisms for sludge
removal and skimming,
contact aeration with spiral roll aeration,
reaeration,
five rectangular secondary clarifiers,
seven day
polishing lagoon,
chlorine contact tank,
two aerobic sludge
digesters, eight sludge drying beds and a blower building
(PCB 78—313,
Pet. at 2).
The final effluent is discharged
to an intermittent stream called Lily Cache Creek.
Without a variance from the applicable water quality and
effluent standards, Citizens will have to upgrade its
20 year
old plant.
The Board regulations were adopted in 1972 and
the compliance date for most of the regulations was December
31,
1973.
PCB 78-313 at 41 PCB 19, Concurring Opinion, March
5,
1981.
ENVIRONMENTAL IMPACT
The environmental impact of changing the standards for
the Creek was extensively discussed in the Board opinion on
R81—l9.
There has been no new evidence presented that was
1Because of the incorporation of prior proceedings the
Board will follow the Agency record citation method.
Ri denotes
the record in PCB 78-313; R2 is the record in R81—19,
and R3
is the record herein, PCB 83—124.
57-424
—3—
not before the Board in prior proceedings on this issue and
there are no changed circumstances.
The Board, therefore,
will not repeat the entire environmental discussions in this
opinion.
The Creek has an historical 7-day--b-year low flow which
causes it to be classified as intermittent.
(Exh.
C to petition
in R81—19, Envirosphere Study at 1).
Due to Citizen’s discharge,
the Creek has a continuous flow downstream of the Citizen’s
outfall
(R2 at 491).
WSB
1 is
15 miles upstream from the
mouth of the Creek.
Id.
Three miles downstream from WSB
1
are
2 tributaries which join the Creek. Id.at
2.
Mink Creek
joins the Creek
2 miles above the DuPage River confluence,
which is 12.5 miles from WSB 1.
Id. at 2,
3.
Additional Creek
input comes from drainage tiles, culverts, and man—made ditches.
Id. at
2.
Citizens in prior proceedings has relied on the Envirosphere
Study cited above to argue that land use and intermittent flow
are limiting factors for the diversity of stream organisms
and the stream productivity.
R81-l9,
52 PCB 169 at 172.
The
same study alleged that the Creek was extremely degraded and
its value as a natural resource was extremely limited
(R8l—l9,
Exh. C).
Citizens also stated that there will be no degradation
to the stream if the variance is granted because the quality
of the effluent will be the same as under the current variance.
(PCB 83—124,
Pet, at 13—14).
Agency experts testified that there was diverse aquatic
habitat but that the effluent was a limiting factor
(Rl at
548—78).
The Creek could be used as a spawning and feeding
ground by fish if there was improved water quality
(Rb at 578).
Another witness testified that
3 park district sites border
the Creek
(Rl at 511).
The purpose of the water pollution control laws in Illinois
is to
“restore, maintain and enhance the purity of the waters
of this State...”
Ill.
Rev.
Stat. 1983,
ch,
111½, par.
1011.
Citizens argues that the existing water quality in the Creek
is adequate given the circumstances presented in its petition.
Citizens’ argument
that
it should be allowed to maintain the
status ~
of the stream ignores the purposes of the Act and
of Board regulations.
Citizens states that the USGS is studying the DuPage River
Basin and that the Agency will propose revised water quality
standards for some streams in the Basin based on this
study
(R3 at 29).
Citizens wants to put off plant modification until
the stream study is completed and new standards,
if any, are
proposed (R 3 at 24).
Citizens believes that new standards
may be filed late in 1984 or early spring 1985
(R3 at 31—32).
57-425
—4—
Citizens’ prayer for relief is based on speculation that
the Creek will be reclassified in the future resulting in less
stringent standards.
Citizens quotes the following dictum
from the majority Order:
That there is an ongoing study does not serve to
establish that there is sufficient evidence to support
the proposal.
Rather it serves to establish that at
some future time there may he,
As such, it may be
relevant in the context of a variance proceeding, but
it is not relevant here
in
the regulatory proceeding.
(PCB 83—124, Pet.
Brief at 10, citing R8l—19,
53 PCB
61 at
62, July 14, 1983 Order).
Citizens is relying on pure dictum
to support its position.
If the Board accepted Citizenst
argument with respect to postponement of compliance with
regulations adopted in 1972 pending regulatory revisions, the
State’s environmental control enforcement machinery would be
halted.
Every water proceeding before the Board could be halted
by arguing that water quality standards could be revised in
the future based on river basin studies.
Although revisions
to standards do occasionally occur, the Board cannot grant
variances based on
a petitioner’s hope that a particular set
of standards will be changed
in the future.
It is particularly
speculative to assume a future lessening of the standards for
this particular Creek~ An Agency expert pointed out that the
standards should not be
downgraded
(Ri at 392). Citizenst
argument must necessarily faiL
Citizens seeks an exemption from dissolved oxygen and
ammonia nitrogen limitations at a Creek flow of
less than
2
cu.
ft./sec.
The Envirosphere study did address both parameters,
but failed to measure ammonia nitrogen levels,
(R81—19,
Exh.
C to petition,
p.
1O-16L~ Nowhere in the record is there
sufficient evidence upon which to base the requested relief.
Without a sufficient showing by Citizens, this request is denied.
HARDSHIP
It is undisputed that the technology exists for Citizens
to meet the applicable water quality and effluent standards.
The issue that has been argued in the past and at present is
whether compliance is economically feasible.
It
is undisputed
that Citizens has the money to comply.
CR2 at 18—19).
The
equipment cost has been estimated by Citizens as $3.6 million
with an annual operation and maintenance cost of $1.34 million.
(Chardavoyne Study, PCB 78-313, updated R81-19, Exh.
4;
R3
at 88—9,
97).
According to Citizens this would cost the WSB
I
area customers $411 additional per year (R2 at 146; R
3 at
97).
While Citizens argues that the cost should only be spread
over WSB
1 customers,
the Board noted in R81-l9 that the costs
for construction at WSB
2 were passed on to both WSB
1 and
WSB 2 customers.
52 PCB 169 at 175.
A witness for Citizens
testified that if the costs were passed on to the entire Bolingbrook
service area, the per capita increase would be $167
(R2 at
57-426
—5—
170—1).
Testimony in RB1--~l9indicated that this cost would
be as low as $106 additional per year.
52 PCB 169, 176.
The
cost could also be “apportioned among the total number of
customers receiving wastewater treatment from
Citizens”
(R2
at 172).
Again, these issues were addressed by the Board in
R81—19.
In addition, the Agency argues that the $3.6 million
includes costs which are actually for the 20 year old plant’s
maintenance rather than additional pollution control equipment
to meet the legal standards
(R2 920-3).
In PCB 78-313,
the Board included many factors in its
decision to grant
a variance.
One factor was that Citizens
would file for site—specific relief
(41 PCB 11 at 14) and that
it would
prosecute its regulatory proceeding on a timely and
expeditious basis.
Citizens Utilities will do such
design, engineering, procurement, contracting and
construction as may be necessary to bring the plant into
compliance with whatever effluent limitations are
effective and applicable on July
2,
1985.
Citizens
Utilities will commence work no later than July 1,
1983.
Id. at 15
The Agency states that Citizens has violated the Board
Order in PCB 78-313
(Agency Brief at
7 citing 41 PCB 11 at
17).
The Board agrees that to date, Citizens has failed to
submit a permit application by January
2,
1983 for upgrading
WSB 1.
Citizens has not commenced design, engineering,
procurement, contract letting and construction by July 1,
1983.
They have not executed and forwarded
a performance bond
acceptable to th~n~(R
at 80).
Citizens tendered a
draft performance bond, hut it was not acceptable to the Agency.
The Board agrees that Citizens has indeed violated the Board
order in PCB 78-313.
Again, in PCB 78—313:
“The parties are in agreement that
the variance should be conditioned upon diligent pursuit of
the regulatory change.”
Id.
Furthermore the Board stated
“Although
the grant of this variance contemplates
a site specific regulation, the Board does not in any
way intend to infer that it has agreed to adopt any
regulation which Citizens Utilities may propose.
This
will be treated as any other site specific regulation.
In the event the Board rejects the regulatory proposal,
Citizens Utilities will be expected to comply with the
generally applicable standards by the 1985 date.
The Board notes that compliance with the regulations
involved in this proceeding was required many years
ago.
If Citizens Utilities had commenced upgrading
before these deadlines had passed, the Board would be
more receptive to claims of hardship.
The hardship
57-427
now alleged is self-:Lmpused to the extent that it is
occasioned by delays,
including the dilatory prosecution
of this case.
However,
since the Citizens Utilities has
agreed to a compliance plan with definite dates, the
Board will grant the variance.
The Board finds that
it would impose an arbitrary and unreasonable hardship
to deny Citizens Utilities a variance under these
circumstances.”
Id.
at 16
At the time the variance was granted, it appeared a solution
was imminent.
Citizens subsequently filed a site—specific
regulatory
proceeding.
The
regulatory
proceeding
was
dismissed
for lack of information to support less restrictive standards.
52 PCB 169.
Citizens knew that they were to be in compliance
by July 2,
1985.
The language in PCB 78-313 was that if the
site-specific action failed,
they would have to meet more stringent
standards.
The site-specific action did fail and now Citizens
wants an extension of an extension of
a variance by relying
on the dictum in R8l-19.
A variance is only temporary relief, not permanent.
Olin Corp.
V.
Pollution Control Board,
54
Ill. App.
3d 480,
486
(1977);
Celotex Cor~p~
v. Pollution Control Board,
65
Ill.
App.
3d 776,
778,
382 N.E.
2d 864,
(1978).
The permanent relief
Citizens could not obtain in the site-specific proceeding they
are attempting to obtain through a series of extended variances.
In the concurring opinion to PCB 78-313 Chairman Dumelle stated,
“Compliance in this case will come by July
2,
1985, almost
12 years late.”
41 PCB 11,
19,
Now Citizens wants an additional
5 years.
At some point Citizens must come into compliance
as have other Illinois communities which chose to meet standards
rather than pursue every possible means of delay.
Lacking a sufficient amount of evidence to support their
variance petition, Citizens requests that the Board order
the Agency to have the USGS include the Creek in its DuPage
River basin study.
This request is not supported by any legal
authority
(Pet. Brief at 11).
The Board notes that the duties
of the Agency and Board are adequately set out in Ill. Rev.
Stat.
1983,
ch,
111½,
pars.
1004,
1005.
These sections define
their respective duties and
are
not supportive of Citizens’
request.
The
Board
further
questions its jurisdiction over
the
USGS
and
the
authority
of
either
the
Board
or
the
Agency
to order the USGS to perform any
study.
This
request,
therefore,
is denied.
In summary, there has been no new testimony and no changed
circumstances.
The
deadline
is
near and Citizens is basing
its prayer for relief on a study which may or may not propose
new water quality standards for certain streams.
Their reasoning
is purely specu1ative~ Citizens has violated a prior Board
Order.
It was Citizens~
burden
to show an arbitrary or unreasonable
hardship in complying with the applicable standards.
The evidence
shows that compliance is both technically and economically
feasible.
The Board finds that Citizens has not shown arbitrary
57-428
—7—
or unreasonable hardship.
The variance is denied.
This Opinion constitutes the Board’s findings of fact
and conclusions of
law.
ORDER
Citizens Utilities Company of Illinois’ petition for
variance from 35 Ill. Adm.
Code 302.206,
302.212, 304.105 and
304.120(c)
is denied.
IT IS SO ORDERED,
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify th
above Opinion and Order were
adopted on the
Jj’
day of
—
,
1984
byavoteof~~______
Christan
L. Moffe~?/L,Clerk
Illinois Pollution Control Board
57-429