BEFORE

THE

POLLUTION

CONTROL

BOARD

OF THE STATE OF ILLINOIS

March

17,

1971

MALIBU VILLAGE LAND TRUST

#70-45

V.

ENVIRONMENTAL PROTECTION AGENCY

OPINION OF THE BOARD

(BY

MR.

LAWTON):

The Malibu Village Land Trust

(“Malibu”)

owns

a

trailer

park in Carbondale,

Illinois,

Since September

1,

1969,

this park has

contained 120 mobile homes, the sewage from which

is treated by

a

single-cell

lagoon.

A permit to operate this waste stablization

pond was issued to the previous owners in June,

1965 pursuant to

the

Rules

and Regulations Governing

the

Submission

of

Plan

Documents

and the Design

of

Sewage Works

(SWB-l,

continued

in

effect

by

Sec.

49 Cc)

of the Environmental Protection Act),

The design capacity

is

a population equivalent of 330

or

110

trailers computed on

a

square foot basis,

Malibu petitioned

for

a variance

on kecember

14,

1970,

seeking permission

to postpone compliance with the design

capacity requirement

“until

the summer of 1971”,

A varianco henring

was held on Fehruary

16,

1971,

Malibu~s chief

contentions

are as follows

(a)

That

when

it

purchased

the

trailer

park

in

August,

1969,

the

Sellers

represented

the

load

capacity

of

the

treatment

lagoon

to

be

125

trailers,

when,

in

fact,

the

nook

had

not

been

constructed

to

the

125

trailer

capacity

reflected

in

the

design

Zglans~

(b)

That

for

this

Board

to

deny

the

variance

would

impose unreasonable

hardship

on

the

tenants

of

the

park

and

~great

extra

expensed

to

Malibu~

(c)

That

delay

in

compliance

will

bring

no

harm

to

tIie

public

because

no

overflow

from

the

oxidation

pond

occurs.

1

325

---

Pursuant to the recommendation

of the Environmental

Protec-~

tion Agency, but with

some degree of reservation, we grant

the var-~

iance until July

31,

1971,

The difficulties of immediate compliance together

with

a

bit of undeserved good fortune constitute

the

core of the case

in

Malibu’s

favor,

The evidence is uncontradicted that the discharge from tee

treatment lagoon

(occasional flows of up to

20 gallons per minute,

EPA Recommendation,

p.1.)

is not pollutional.

This could mean

that the population equivalent

for 120 trailers

(360)

does not

live

in the park,

that the sanitary facilities were used less

than

average

during the

times the EPA ran water quality tests

on the effluent,

or that the sewage treatment facility is more effective

than antici~

pated.

In any event,

it

is by chance that no pollution has occurred.

We are impressed,

too,

with the showing of hardshi,

To Jung

the variance could disrupt considerably the Malibu villagers

(P26,

27),

7

to

10 families

of which would have

to relocate.

flse~ given

the already water—soaked earth

in which the construction of

improve~

ments

must

take

place

(P35),

the

spring

rains

might

threaten

the

effective

compaction

of

any

earth

excavated

in

late

winter

(R34)

.

In

light

of

the

apparent

absence

of

pollution,

these

burdens

are

too

great

either

to

deny

the

variance

or

to

reguine

immediate

construction

of

improvements.

These factors alone, not

the likelihood of “great extra ex~-

pense”

to Malibu

if construction of improvements were

‘to begin

this

winter

(P24,25)

(a self—induced hardshio)

•

cause

this Board

to

grant

the variance,

Could innocent residents

escane

disruption or were

the lagoon effluent pollutional,

our

iecision might well differ,

The Board’s reservation

in granting

this variance arises from

the casual indifference with

which

Malibu

approached

its

legal obli-

gation.

While

the

Seller

may

have

misreoresented

the

actual

sewage

capacity

of

the

lagoon,

it

was

Malibu’s

obligation

to

ascertain

the

facts

before

it

completed

the

purchase

and

assumed operation of the

facility.

Nor

does

it

appear

that

once

the

overloading

eas

known

to

Malibu

that

it

acted

with

the

dispatch

called

for

~v

the

circumstsnc~s.

By

July

31,

1970,

Malibu

knew

the

lagoon~

~

overloaded.

Tee

JPA

informed

Malibu

then

‘EPA

Exhibit

IJo.

1)

that

either

the

number of

house trailers served by

the

lagoon

should

be

decreased

or

the

capecitv

of

the

oxidation

pond

must

be

increased

to

accomodate

120

mobile hones.

At

this

point,

further

delay

could

serve

only

to

coaw~oued

the

error.

Malibu chose

the bureaucratic route.

kather then executing

one

of

the

only

two

options

it

could

legally

purses

(deleting

the

I

—

326

---

excess trailers or applying

for

a variance)

,

Malibu wrote to

the

EPA.

Given the Agency’s inexcusable delay

in responding

(2

to

3 months,

P21)

and another 1—1/2

to 2~l/2months

for Malibu to react,

4—1/2

months slipped by

from the time Malibu first learned of its overloaded

lagoon

to the

time of

filing

a

variance

request.

In

the

meantime,

unseasonal weather conditions,

adverse to an immediate undertaking

of the needed corrections,

had

set in.

Other

complications

exist,

inJuced

by

Malibu’s

dalliance,

halibu,

knowing

of

its

violation

after

mid—summer,

1970,

and

apply-

ing

finally

for

a

variance

in

mid-December,

1970,

failed

to

retain

a consulting engineer

until February

4,

1971,

less

than

two weeks

before the variance hearing.

(P43~’45)

In his testimony,

Malibu’s consultant could not

state

with

certainty which

type of sewage treatment system will be installed

(P32~33,4l,43) or when installation can be

completed

(P42,43).

Ar,

Achahon for

the EPA:

Q.

whssuming no

~eather problems once construction

is started,

how long will

it take until the

project

is completed?”

Mr.

kebe

•

ocn~ulting

engineer:

A.

~I

will

only

answer

this

in

a

qualified

manner,

because

I have

not had

time

to

complete

my en-

gineering studies

nor my engineering plans,

The nuanti ties of work involved are only

a vague

•r.stimate

in

my

own

mind.

I would

anticipate

that

the

mi~Jle

of

July

or

something

of

this

nature

would

be

the

soonest

that

you

could

reasonably

expect to complete

it.”

It

is

these errors of intifference,

the direct products

of

kalibu ‘a retter w~o~Jd:hen fling of

ins environmental obligations, which

rout. t

the koort

to

inpose

a

$150

nenaitu’

as

a

condition

to

granting

the varwhnce.

The

POP.

in nresentinq

its

case,

stressed

heavily the

met

thut the design criterro of nollutional control devices are

es tebiished

For

nub

hr

protection

C~’50

51)

and

must

be

taken

seriously.

A urtizen ‘s creup

the Committee for Ecological Action, Carbondale

trencim

rnvestigated

the lagoon situation and recommended that Malibu

be

“censured for negligence”

(P46-47)

n~l

rh

1

ar~

to r~ose

io, wwhhout

hozorts

to thu enviroument~ carcles~1y nurchase, operate

---

or enlarge facilities possessing pollution potential when extended

beyond their design capacity.

Those who purchase such facilities

rely on the representations of the seller at their peril.

When

operating a facility with the potential of pollution, one must defermine

for himself what is necessary for compliance.

This responsibility

cannot be shifted.

This opinion constitutes the findings of fact and conclusions

of law by the Board.

ORDER

The Board having considered the transcript an.~sxhibits in

this proceeding, hereby grants the petition of Malibu Villaga Land

Trust to operate with the present load of 120 trailers in violation

of SWB-l

(continued in effect by Sec. 49(c) EPA) until July 31,

1971,

subject to the following terms and conditions:

(1)

By April 15, 1971,

talibu Village Land Trust

shall submit to the ~PA plans and specifications

for

the

above

reç~uired iLprovemen~.

(2)

On

July

31,

1971,

;4aiibu

Village

Lani

..ru3t

shall

have completed constructic’..; of and h:tve in opara-

tion

a

three-’stage

lagoon

or

a

mechai~iica1 aeration

system for treating the sewage of 120 mobile homes.

(3)

No mobile homes shall be added to the pdrk until

the design criteria of SWB-l.

(4)

Malibu Village Land Trust shall post with

the

EPA by April 15,

1971, a personal bon.3 or other

security in the amount of $5,000, which

sum

shall be forfeited to the State of Illinois in

the event the sewage treatment facility in rnns-

tion remains loaded beyond design capacity after

July 31, 1971 and Malibu Village Land Trust has

received no extension of this varianca.

(5)

Malibu Village Land Trust shall pay to the State

of Illinois, on or before April

22, 1971,

the

sum

of $100 as a penalty for violation of the statute

and

of the regulation with regard to the design

•capacity of sewage works.

1

—328

---

(6)

The failure of Malibu Village Land Trust

to ad-

here to any of the conditions

of this order

shall

be grounds

for revocation of the variance,

(7)

Petition for extension of this variance

or modifica-

tion of

this order shall

be filed no later than

May

31,

1971.

I~

£~i1~~L:

Ryan,

certify

that

the

Board

adopted

the

above

opinion

and

ordor

__________

,

1971.

I

—

329