ILLINOIS POLLUTION CONTROL BOARD

February

4,

1988

HOWARD P.

SPURGEON d/b/a HIGHVIEW

ESTATES SUBDIVISION,

Petitioner,

v.

)

PCB 87—111

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

FREDERICK D. BERRY,

P.E., OF AUSTIN ENGINEERING CO.,

INC., AND

HOWARD

S.

SPURGEON APPEARED ON BEHALF OF THE PETITIONER.

KATHLEEN BASSI APPEARED ON BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD (by J. Marlin):

This matter comes before the Board on

a Petition which was

originally filed by the Petitioner on July 31,

1987.

In response

to two Orders

by the Board,

the Petitioner subsequently filed

an

Amended Petition on September

16,

1987 and a second Amended

Petition on October

13, 1987.

The Petitioner

is seeking variance

from 35

Ill. Adm. Code 304.120(c), Deoxygenating Wastes,

for

a

period of two years after the completion of a new sewage

treatment plant which will replace the existing sewage treatment

plant that

is currently owned and operated by the Petitioner.

During the requested variance period, the Petitioner has proposed

to be subject to standards of

20 mg/i for BOD5 and

25 mg/l

for

suspended solids.

On December

3,

the Board granted the Illinois

Environmental Protection Agency’s

(Agency) motion

to file the

Agency’s Recommendation Instanter.

Since the Petitioner waived

his right

to

a hearing and no person filed an objection to the

variance request, no hearing was held

in this matter.

The Petitioner owns and operates

a sewage treatment plant

which serves the Highview Estates Subdivision located

in Tazwell

County.

The plant treats the sewage from 180 single family

residences.

The average daily flow to the sewage plant

is

approximately 63,000 gallons per day.

(Am.

Pet.

p.

1—2).

The

Agency asserts that the design average flow

(DAF)

for the

existing plant

is 0.045 mgd.

The existing plant consists of

a

Smith and Loveless package extended aeration plant

followed by a

1.2 acre lagoon.

According to the Agency, chlorination

facilities are present but have not worked

for several years.

The effluent from the existing facility

is discharged to Fon du

Lac Creek, which

is

a tributary to Farm Creek which

in

turn is

a

tributary to the Illinois River.

(Ag.

Rec. p.

1).

Petitioner

claims that the existing plant

is hydraulically and organically

86—75

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2

undersized and cannot meet the requirements of

Section

304.120(c).

Consequently,

the Petitioner

is pursuing the option

of building

a new treatment

facility.

(Am. Pet.

p.

3).

Section

304.120(c)

imposes

a 10/12 BOD5/SS standard upon the Petitioner’s

existing facility.

Also,

after

the Petitioner builds his new

plant, he will still

be subject

to the 10/12 standard.

According

to the Petitioner,

land in the area is not available for him to

construct

a third stage treatment lagoon which would qualify him

for

a lagoon exemption under Section 304.120.

(Am.

Pet.,

p.

6).

Such an exemption would impose standards of 30/37 for BODç and

suspended solids, respectively.

The Agency agrees with

tFie

Petitioner

that

a new treatment plant should

be constructed

in

order

to meet the 10/12 standard.

(Ag. Rec.,

p.

3).

However, the

Agency disagrees,

to

a certain extent, with the Petitioner with

regard to what the new facility should include.

The Petitioner wishes

to construct

a larger 24—hour extended

aeration activated sludge treatment plant without sand filters.

(Am.

Pet. p.

3).

After construction of the new plant,

the lagoon

would be used merely as

a place

to store excess flow to

the

treatment plant.

The Agency states that its experience has

indicated that extended aeration plants will not consistently

meet the 10/12 standard when no sand filters are utilized.

(Am.

Rec.,,

p.

3).

The Petitioner disagrees and states that he should

be given

the opportunity

to demonstrate that the new treatment

plant would provide effluent of the quality which would meet the

10/12 standard even without sand filters.

The Petitioner plans

to utilize

the existing treatment plant until the new treatment

plant was constructed.

Then,

for

a period of approximately one

year, the effluent from the new treatment plant would be

monitored and tested

so

as

to determine whether the new treatment

plant was

in compliance with the 10/12 standard.

The Petitioner

estimates that sand filters would increase the cost of the new

plant by $75,000

to $100,000.

(Ag. Rec.,

p.

3—5).

Although the

Agency does believe that sand filters are necessary,

it claims

that

in this specific case “it

is prudent to provide a period of

operation

of

the new treatment plant

without filters

to assess

plant performance

in terms of compliance with final limits.

Therefore,

to require filters immediately imposes an unreasonable

and arbitrary hardship.”

(Ag. Rec.

p.

4).

The permit under which

the Petitioner

is operating requires

that the effluent of the treatment plant meet the 10/12

standard.

According to the Agency,

the Petitioner’s facility

currently does not meet these requirements.

The current permit

was issued on March

19,

1986 and expires on April

1,

1991.

The

Agency believes that the Petitioner’s proposed compliance

schedule

is reasonable and that the Petitioner should begin

construction on the new plant this spring.

(Ag. Rec.,

p.

3).

With regard to environmental quality, the Agency states that

the new treatment plant, even when discharging directly to the

receiving stream, will greatly improve

the Petitioner’s effluent.

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3

The Agency states that

it may be possible for the Petitioner to

produce an effluent which would be

in compliance with the 10/12

standard.

The Petitioner agrees with the Agency that

a

noticeable improvement

in

the quality of the effluent

is

anticipated upon completion of the new treatment plant.

(Ag.

Rec.,

p.

3).

Also the Petitioner emphasizes that the existing

treatment plant will remain

in full operation until the

completion of the new treatment plant.

(Am.

Pet.

p.

5).

In the second Amended Petition, the Petitioner

sets forth

effluent data taken from September 1986 to 1987.

The Petitioner

presents

three sets of data:

one tested by the Petitioner

himself;

another

by Daily

& Associates,

which

is

a testing

laboratory;

and the third

is data taken by the Agency.

The

Agency states that its data should

be the only set relied upon by

the Board since,

unlike the other

two sets of data,

the Agency’s

data

is generated

from the testing of effluent out of the lagoon

as

it empties into the Fon du Lac Creek.

The data gathered by

Spurgeon and Daily

& Associates apparently was taken out of the

effluent from the existing

treatment plant but prior

to its

entering the lagoon.

The Agency claims that the lagoon actually

degrades the water that

it receives before

it

is

in turn

discharged

to Fon du Lac Creek.

The Agency also states that

prior

to August 1986, the Petitioner did not use approved

laboratory analytical procedures in testing the effluent.

(Ag.

Rec.

p.

2).

The Agency’s data as set forth

in the Second Amended

Petition clearly indicates that the existing treatment plant has

been operating in great excess of the 10/12 standard.

The

Petitioner estimates that the overall cost of

a new treatment

plant would be approximately $300,000.

Consequently,

the

additional cost of sand filters would increase the total

construction cost by as much as 33 percent.

Since the Agency

believes that

it may be possible

for the Petitioner

to achieve

compliance with the 10/12 standard without using the sand

filters,

the Board believes that

it would

be reasonable to allow

the Petitioner

to operate its new treatment plant

on a trial

basis without the sand filters.

Given all these circumstances,

the Board

finds that the denial of

a variance,

in this instance,

would cause an arbitrary or unreasonable hardship upon the

Petitioner.

After reviewing the conditions recommended by the Agency,

the Board

will grant the variance subject to conditions which are

substantively the same as found

in the Agency’s recommendation.

Essentially,

the schedule of compliance set forth

in the Order

reflects the time frames for compliance which the Petitioner

proposed

in the Amended Petition.

Since the Petitioner’s current permit contains effluent

limits of 10/12

for BOD5 and SS, the Board will provide

relief

from Section 304.141(a),

as recommended

by the Agency.

Section

304.141(a)

states that no person shall discharge an effluent

which has concentrations

in excess of

the standards and limits

86—77

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4

set forth

in the person’s NPDES permit.

The Petitioner will

be

subject

to effluent limits as set forth

in the conditions of this

variance.

This Opinion constitutes the Board’s findings of fact and

conclusions

of law in this matter.

ORDER

The Board hereby grants Howard

P.

Spurgeon d/b/a Highview

Estates Subdivision

(the Petitioner) variance from 35

Ill. Mm.

Code 304.120(c) and 304.141(a)

subject

to the following

conditions:

1)

This variance shall expire on August

1,

1990 or when the

Petitioner achieves compliance with Section 304.120(c),

whichever occurs first.

2)

The Petitioner shall comply with the following schedule:

a)

ITEM

COMPLETION DATE

Submit permit application

to

the Agency for the construction

of

a 24—hour extended aeration

activated sludge treatment

plant without sand filters

(Phase

I)

as described in the

Amended Petition for Variance.

February 21,

1988

b)

Initiate construction of

Phase

I.

May

1,

1988.

c)

Complete construction

of

Phase

I.

November

1,

1988.

d)

Sample and test effluent

of Phase

I

for

five day

biochemical oxygen demand

November

1,

1988

to

and suspended solids.

November

1,

1989

e)

Submit permit application

for construction of sand

filters (Phase

II)

if needed.

January

1, 1990

f)

Initiate construction of

Phase

II facilities,

if

needed.

April

1,

1990

86—78

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5

g)

Complete construction of

Phase

II

facilities,

if

needed, and meet final

effluent limits of 10 mg/i

BOD5 and

12 mg/l TSS.

August

1,

1990.

3)

All treatment facilities shall

be built

in accordance with

plans and specifications as approved by the Agency.

Any

deviations from the approved plans and specifications must be

approved

in writing by the Agency.

4)

During the term of the variance, Petitionerts discharge from

the Highview Estates Subdivision shall meet the following

effluent limits:

PARAMETER

MONTHLY AVERAGE

DAILY MAXIMUM

BOD;

(mg/I)

20

40

SS ~mg/l)

25

50

Petitioner shall meet all other effluent limits contained in

its NPDES permit.

5)

Petitioner

shall sample, analyze, and report

all parameters

contained

in

its NPDES permit based upon weekly sampling.

Samples shall be representative of the effluent being

discharged to the receiving stream, irrespective of which

treatment units

are being used.

6)

Sample types

used shall

be those stated in the Petitioner’s

NPDES permit.

7)

Petitioner

shall at all times produce the best effluent

possible and shall complete construction

of the various units

as quickly as possible.

8)

Petitioner

shall submit a certificate

of acceptance to the

Agency within 45 days of the date

of this variance to:

Illinois Environmental Protection Agency

Division of Water Pollution Control/Compliance Assurance

Section

2200 Churchill Road, P.O. Box 19276

Springfield,

IL 62794—9276

Attention:

James

Frost

86—79

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6

The form of this certificate of acceptance shall

be as follows:

CERTIFICATION

_____________________________________ (Petitioner), hereby

accepts and agrees

to

be bound by all terms and conditions

of the

Order

of the Pollution Control Board

in PCB 87—111, dated

February 4,

1988.

Petitioner

Authorized Agent

Title

Date

Section 41

of the Environmental Protection Act,

Ill. Rev.

Stat.

1985 ch.

111 1/2

par.

1041, provides for appeal of final

Orders of the Board within

35 days.

The Rules

of the Supreme

Court of Illinois establish filing requirements.

IT

IS SO ORDERED.

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby ce4~Jdythat the abov

Opinion and Order was

adopted on

the

_______

day of

_________________,

1988,

by

a vote

Dorothy M. Gunn,

Clerk

Illinois Pollution Control Board

86—80