ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    March
    31, 1971
    CITY
    OF
    SPRINGFIELD
    )
    )
    )
    v.
    )
    PCB#70—55
    )
    )
    ENVIRONMENTAL
    PROTECTION
    AGENCY)
    Opinion
    of the Board
    (by Mx’,
    Currie):
    The City of Springfield owns a small and elderly sewage treatment
    plant, known as the Horse Creek plant, which is equipped with Imhoff
    tanks and a trickling filter
    (R.26) and which discharges into a small
    intrastate strewn.
    Rules and Regqlations SWB—l11, adopted by the
    Sanitary Water Board in 1967 and 1968, require additional treatment
    facilities in such circumstances by July 1972.
    Plans for such im-
    provements are due in January (tertiary treatment) and July (disinfection)
    of 1971, and construction is to start six months later.
    The City filed a variance petition, asking to be excused from
    these requirements on the ground that it was in the process of trans—
    ferririg
    the
    operation
    of
    the
    plant
    to
    the
    Springfield
    Sanitary
    District,
    a
    separate
    governmental
    body,
    and
    that
    the
    District’s
    plan
    was to abandon the plant and
    divert
    its
    influent
    through
    a
    new
    sewer
    to the central treatment facility.
    Attached to the petition was a
    letter sent by the Environmental Protection Agency to the City in
    September, 1970, which pointed.out the requirements for submission
    of plans and construction of new facilities and in addition listed
    numerous violations of housekeeping rules already in force regarding
    the existing secondary facilities.
    The petition sought a variance from
    these requirements as well.
    The Sanitary District, which we made a party because according
    to the City it was to be the entity responsible for the Horse Creek
    plant in the future, filed an answer agreeing that on February 1, 1971,
    it had assumed responsibility for the plant and affirming its plan
    bo make improvements to the sewer system, which the hearing later
    showed meant diversion of the influent and abandonment of the Horse
    Creek plant by July 1, 1972 (R.62, 76,
    152).
    The Environmental Pro-
    tection Agency filed a recommendation favoring grant of the variance
    on condition that the Agency’s September demands regarding plant
    operation be complied with by May 1, 1971; that the City pay a
    $3,000 penalty for failure to correct these violations before; that
    interim chlorination facilities be installed; that the sewer improve-
    ment permit be applied for by August
    1 and the construction contract
    be awarded by November 1, 1971; that a $75,000 bond be posted; and
    that sludge be taken to the main plant when Horse Creek is abandoned
    At the hearing the City asked to withdraw its variance petition
    1-397

    on the ground it was no longer responsible
    for complying with the
    SWB—14 deadlines
    (R.4).
    The Sanitary District refrained from request-
    ing
    a variance
    (R,85-86,
    95).
    But Board Procedural
    Rule
    333 require~
    Board consent for
    the settlement or other disposition of
    any pending
    case.
    While normally
    a party requesting a variance
    is free to withdraw
    his petition, see EPA v.
    Granite City Steel Co., #70-34
    (March
    17,
    1971),
    in this case we think the interests
    of clarifying a rather murky
    situation and the avoidance of potential future litigation require
    us to consider the case
    on the merits, especially
    since
    a
    full hearing
    has already been held.
    It is clear the variance should be granted,
    as
    to the SWB-l4
    deadlines.
    Both the City, which retains ownership of the plant
    (R,l44)
    and
    is to recover possession after
    the plant is abandoned in
    order
    to dispose of
    it
    (R.145),
    and the District, which is obligated
    to maintain and operate the plant
    (R.58)
    and to construct the new
    facilities
    (R.93), are responsible
    for seeing
    to it that the regulations
    are complied with in the future.
    Both are under a duty to meet the
    plans
    and construction deadlines of SWB—14 in the absence of
    a variance.
    But the purpose of the timetables
    is to assure timely construction of
    tertiary facilities;
    the purpose of those facilities is to avoid
    pollutional discharges
    to the stream,
    and that end can
    as readily be
    attained by diverting the inflow
    to an adequate plant elsewhere as
    by constructing tertiary facilities.
    Indeed,
    abandonment of inefficient
    small plants in favor of consolidated facilities is good policy,
    endorsed by this Board, by the Agency,
    and by
    the federal government
    in its regulations governing construction grants.
    The submission of
    plans
    for
    a tertiary plant that is never to be built would be
    a
    frivolous waste of
    the taxpayers~ money and the engineer~ time,
    and
    of course we shall exempt the City and the Sanitary District from
    the filing requirements.
    However,
    in order
    for the abandonment of the plant to be as good
    for the environment as the construction of tertiary facilities,
    a
    number of conditions must be met.
    First of all, there must be assurance
    that the abandonment will
    in fact be accomplished before
    the date set
    in the regulations
    for tertiary treatment.
    We agree with the Agency
    that
    this requires
    the filing of detailed plans and the request
    for
    a permit by August
    1 and the award of contracts by November
    1.
    The
    Sanitary District agrees that the first date is reasonable
    (R,97)
    and
    questions
    the second only on
    the ground that there might be delays
    in the acquisition of rights of way
    (R.
    152).
    Second, diversion of sewage from Horse Creek
    is an effective
    means of abating pollution only if the plant to which it is diverted
    is in compliance with
    the regulations.
    It would do no good simply to
    transfer an
    inadequately
    treated discharge
    from
    one stream to another,
    Consequently it
    is
    a condition of the variance that the plant to
    which these wastes
    are diverted shall comply with the standards
    of
    SWB-~l4in every respect.
    1
    398

    Third,
    the decision to abandon the plant must not result in
    a
    failure
    to maintain and operate it properly during the interim.
    There
    may be
    less incentive
    to spend money for maintenance of a plant that
    is to be given up in a year than of one that is meant to continue in
    service.
    Thus
    in order to protect against this possibility of neglect,
    which became a
    fact while
    the plant was under the City’s supervision,
    we shall condition the variance upon correcting the various violations
    noted in the Agency’s September letter, and by May
    1,
    1971.
    The
    Sanitary District has already corrected several of the violations
    it
    inherited
    (R,66’-70)
    and promises
    to correct the others by May
    1,
    1971,
    (R
    77,
    79,
    80,
    88,
    91,
    149,
    151).
    The Agency asks
    us in addition to require
    a bond to assure these
    conditions
    are met.
    We do not think this
    is the type of case
    in
    which
    the statute requires
    a bond,
    since no one here is asking for
    more time in which to comply with
    a regulation.
    The parties here have
    proposed an alternative method of achieving the required goal of
    reducing contaminant discharges,
    and by the same date as if they had
    chosen the method prescribed in the regulations.
    While we agree
    with the statutory philosophy that a bond provides additional incentives
    to compliance with
    a schedule of future compliance,
    as in the present
    case,
    and while we agree we have authority to require bonds as
    conditions
    to the grant of variances
    in cases
    in which
    they are not
    required by statute,
    we see no reason to distinguish between these
    parties and others subject to the deferred deadlines of SWB-14,
    who
    are not required to post bond.
    We shall rely on
    the interim
    deadlines
    for plans
    and contracts
    to keep watch on progress in this
    case
    We do not believe the Agency has made
    a case for requiring the
    construction of interim chlorination facilities
    as
    a further variance
    condition.
    It is true that paragraph
    14
    of Rule
    1.08 of SWB-l4
    authorizes
    the Board to require interim disinfection before the deadlines
    specified when this
    is shown to be “necessary”.
    But the only proof
    on that issue here consisted of
    a comparison of bacteria levels in
    the effluent with the standards that are
    to be met by mid-1972
    (R.l02,
    112,
    126)
    Such
    a comparison could be made
    in practically
    any case,
    and if we accepted
    a showing of bacteria counts greatly in excess of
    those to be achieved in 1972
    as enough to require interim facilities,
    we would in effect accelerate the date of disinfection for everybody.
    We do not believe that is what was meant by “necessary”.
    There is
    evidence
    to suggest that bacteria are somewhat worse here than at some
    other plants
    (R.
    126), but the correction of operating problems which
    we have required by the same date requested for chlorination should,
    so far as the evidence indicates
    (R.
    125,
    131), remove this discrepancy.
    There was
    no evidence
    that the receiving stream is used
    for recreation
    or water supply,
    or
    that special hazards exist,
    We shall not require
    interim disinfection at this
    time.
    1
    399

    The record also does
    not justify our imposing the last condition
    requested by
    the Agency, namely, that on abandonment of
    the plant
    the sludge be removed from the Imhoff and final tanks
    and transported
    to the main treatment plant.
    We agree and shall require that the
    sludge be disposed of in such
    a way as
    to avoid any danger of pollution,
    but on the present record
    CR.
    81-82)
    we cannot say that hauling it to
    the main plant is the only solution,
    This brings
    us
    to the Agency’s request that the City be penalized
    in the amount of $3,000 as
    a further condition of the variance.
    The
    arguing that
    the Agency is attempting
    to transform a variance proceeding
    into an enforcement one without proper notice,
    as the recommendation
    was received but
    two days before the hearing
    (H.
    7,
    10,
    171).
    We
    have previously upheld our authority to require the payment of money
    penalties as
    a condition of the grant of
    a variance
    in order to promote
    the policies
    of the statute,
    in cases where not to do
    so would
    encourage delay.
    See Marquette Cement
    Co.
    v.
    Environmental Protection
    Agency,
    #70-23
    (Jan,
    6,
    1971)
    .
    In that case we did
    so on our own
    motion.
    When the Agency requests such penalties,
    there is an additional
    basis
    for our power to impose
    them,
    for we
    can construe
    the recommendation
    as
    a complaint.
    See Norfolk
    &
    Western Ry.
    v.
    Environmental Protection
    Agency,
    #70-41
    (March
    3,
    1971),
    Our Procedural Rule
    309 allows us
    to consolidate variance
    and enforcement cases
    for hearing,
    see Environ-
    mental Protection Agency
    v.
    Granite City Steel Co.,
    #70—34
    (March
    17,
    1971),
    and it is obviously most appropriate, where feasible,
    to have
    a single
    hearing on both variance and enforcement matters involving the same
    facts.
    We
    said in Norfolk and Western,
    supra,
    that the petitioner is
    entitled to reasonable notice of the Agency’s recommendations
    in
    advance of the hearing in order that it may prepare its case.
    This
    does not mean, however,
    that the Agency must give twenty—one days’
    notice,
    by newspaper advertisement and otherwise, every time
    it files
    a recommendation asking money penalties or other variance conditions,
    Such
    a requirement would almost invariably delay the hearing until
    a date beyond the statutory 90-day limit for Board decision in variance
    cases
    and thus would effectively destroy the statutory requirement
    that the Agency actively participate in variance cases.
    Nor would
    it serve the purposes
    for which the statutory notice requirements
    in enforcement cases were established,
    In the converse situation,
    in which
    a variance petition is filed in response
    to
    a complaint,
    we have held that the statutory requirements of additional public notice
    and of Agency investigation do not apply,
    so long as the factual
    bases
    of the two claims are sufficiently related,
    since the statutory
    purposes have been amply served by the Agency’s original notice and
    investigation.
    Environmental Protection Agency v. Amigoni,
    #70-15
    (Feb.
    17,
    1971).
    The issue, therefore,
    is not compliance with the
    procedural requirements for
    an original complaint, but whether the~
    City was prejudiced by the short time between filing of
    the recommendation
    and
    the hearing.
    1
    400

    We think no prejudice occurred
    and that the issue of penalties
    is properly before
    us.
    The facts on which the Agency seeks
    the assess-
    ment of
    a penalty are
    those alleged in the City’s attachment to its
    own petition, namely,
    the housekeeping
    requirements listed in the
    Agency’s September letter.
    Indeed the petition itself asks
    for
    a
    variance from these requirements,
    and therefore the question of
    compliance with them was raised by the City itself.
    The only novel
    element raised by the recommendation was the purely remedial issue of
    a penalty
    for the violations that were plain from the face of the City’s
    own material.
    On these grounds the hearing officer denied
    a motion
    for continuance
    (R.
    11—13)
    and we
    concur.
    The Board’s Marquette decision,
    establishing that penalties may be made
    a condition of
    a variance,
    was issued over a month before
    the hearing,
    so the City should have
    known that the possibility of penalties might be raised by the Board
    on its own motion,
    The City in fact put on
    a case in defense of its
    actions, arguing both that it had thought the housekeeping corrections
    were not required until 1972
    (R.
    51-54)
    and that it had postponed action
    because the Sanitary District was soon
    to take over
    (R.
    39,
    41).
    Moreover,
    the hearing officer expressly and pointedly allowed an
    unusual thirty-day period at the close of the hearing for the sub-
    mission of affidavits
    or any other material bearing on
    any issues
    raised in the case
    (H. l85-86)~and nothing on this issue was received.
    We think that this action by
    the hearing officer was quite sufficient
    to remedy any surprise
    the City may have experienced upon receipt
    of the recommendation,
    and that the City was not prejudiced in its
    ability to present its
    case by the short time between filing and hearing.
    To require
    a further hearing on the penalty issue,
    after we have al-
    ready complied a thoroughly adequate record, would be
    a waste of
    time and money.
    On the
    facts the penalty issue
    is clear.
    The City ran the Horse
    Creek plant in a wholly disgraceful way,
    with utter unconcern for the
    requirements of the regulations and for the rudiments of respectable
    operation.
    In violation of SWB—2,
    the plant was not under the super-
    vision of
    a certified operator
    (R.
    39).
    In violation of SWB-6,
    no operation reports were submitte~to
    the Agency,
    In violation of
    SWB-l4, Rule 1.08,
    paragraph llc,
    plant operation was
    to say the
    least, not
    “of such quality to obtain the best possible degree of
    treatment”.
    Among other things,
    the primary tanks were overloaded
    with sludge
    (R,
    67); splash plates on the trickling filter were
    missing
    (H.
    67); the seal on
    the center column of the trickling filter
    was leaking
    CR,
    78);
    flow measuring equipment was inoperable
    (R.45);
    effluent tests were not run
    (R.~ 46); seventeen discharge openings
    on the rotary distributor arms were clogged
    CR, 111-17),
    Only the
    last of these violations had been corrected more than four months
    after the Agency gave notice of the violations
    CR.
    41,
    111).
    1.
    In order to make
    this extension possible,
    the parties waived their
    right to
    a decision within
    90 days after the filing of the petition
    (R.
    187)
    .
    2. That the requirements
    of SWB—l4 are now in effect,
    except where
    a future compliance date is provided,
    was established in Springfield
    Sanitary District
    v. EPA #70—32
    (Jan.
    27,
    1971),
    1
    401

    The City’s defenses are unconvincing.
    No one reading the Agency’s
    letter would have been justified in believing that these violations
    would be allowed to persist until mid-1972.
    The letter unmistakably
    imposes two distinct requirements:
    “facilities capable of meeting the
    new effluent quality criteria.
    .
    .
    shall be installed and placed in
    service no later than July
    1,
    1972”; and
    “in order to provide
    the
    best treatment possible with the existing sewage treatment facilities
    and to improve their operation and control,
    the following recommendations
    are submitted for your study and action,”
    Moreover,
    a penalty
    would be in order even if the Agency had never given prior notification
    of the violations.
    The statute does not give polluters
    a
    free first
    bite.
    To
    do so would significantly weaken the capability for enforce-
    ment,
    as the Agency cannot be everywhere at once.
    The regulations are
    clear,
    and people must obey them even before the Agency writes them
    a letter telling them to.
    The City’s offenses are gross and inexcusable.
    If the City were
    a private individual or corporation, we think
    a penalty in the amount
    of perhaps $20,000 would be appropriate,
    Taking money from the public
    treasury1 however, must be
    a last resort,
    since it punishes the relatively
    innocent public and diverts funds from the task of cleaning up
    the
    waters, when municipal revenues
    are
    too limited to start with,
    On
    the other hand, we think it would be folly to lay down
    a policy of
    never imposing money penalties on public bodies,
    for such penalties
    are needed to deter violations.
    Moreover,
    a money penalty or two
    might have the effect of inducing the public to oversee more closely
    those who bear the responsibility
    for sewage treatment,
    and
    to replace
    them when
    they are remiss in their obligations.
    All these things
    considered, we think it appropriate
    to impose the rather nominal penalty
    of $1,000
    to be paid by
    the City of Springfield.
    Finally,
    we think it should be pointed out that a more effective
    and more direct means of deterring such violations
    in the future, which
    would have
    the advantage
    of punishing those responsible rather than
    diverting needed public
    funds, would be
    for the Agency to seek money
    penalties against the individuals within municipal government whose
    gross inattention to duty is responsible for the violations, or to
    put such individuals in jail.
    Such penalties are clearly within the
    contemplation of the statute,
    This opinion constitutes
    the Board’s findings of
    fact and con-
    clusions of law.
    ORDER
    1.
    The City of Springfield and the Springfield Sanitary District
    are hereby granted
    a variance from the tertiary treatment and dis-
    infection requirements
    of SWB-l4
    as applied to the Horse Creek
    sewage treatment plant, but only on condition that the other provisions
    of this order are complied with,
    2.
    Plans for the construction of facilities to divert the influent
    from the Horse Creek plant to an alternative treatment site meeting
    I
    402

    the requirements of SWB-l4 or other applicable regulations shall be
    filed,
    and
    a permit for such facilities applied for, no later than
    August
    1,
    1971;
    contracts for construction of such facilities shall
    be
    let no later than November
    1,
    1971;
    and all flows shall be diverted
    from the Horse Creek plant to a treatment facility meeting all appli-
    cable requirements
    no later than July
    1,
    1972.
    3.
    The Horse Creek plant shall be brought into
    full compliance
    with
    all applicable regulations, except as noted in paragraph
    1 of
    this order,
    no later than May 1,
    1971.
    In particular, but not ex-
    clusively,
    the violations noted in the Agen~y’s letter of September
    2,
    1970 shall be corrected.
    4.
    Immediately upon abandonment of
    the Horse Creek plant, any
    sludge remaining
    in Imhoff tanks or final settling tanks shall be
    disposed of in
    a manner that will avoid any danger of pollution.
    5,
    The City of Springfield, no later than May
    1,
    1971,
    shall
    pay
    to the State of Illinois
    the sum of $1,000 as
    a penalty for
    gross violations
    of the existing regulations regarding the operation
    and maintenance of sewage treatment plants.
    6.
    The failure
    to comply with any provisions of
    this order, or
    the denial of
    a permit for the construction of the diversion facilities
    described in paragraph
    2 of this order,
    shall terminate the variance
    granted in paragraph
    1.
    I,
    Regina E,
    Ryan
    do hereby certify th~tthe above opinion was
    approved
    _____
    day of
    ~,
    l9~l
    /
    I
    REG~NAE. RYAN
    CLERK OF THE BOARD
    1
    405

    FOLLL;~:ogCOSTNOL BOARD
    ORDHR
    PCB70~-55
    Cit’i
    eY
    ririr~fir~lc~!
    I CONCUR
    ~J~t
    ~
    Da~P.
    Currie
    Chairm
    -
    Samuel
    H. Al~nacn
    Bo
    d Member
    ~
    ~a~oh
    0.
    Dumelle
    ~39a,rd ~ier,4)er
    ~
    H
    cI*l’ci
    ,
    Kassel
    Board
    1’Iember
    ~
    ~h
    ~
    ~-
    ~
    ~
    4r~\~’
    ~
    Samuel Law~on,
    ~.
    Board Membe~r
    -~
    DATED
    I DISSE1~T
    David
    P.
    Currie
    Chairman
    Samuel
    H,
    Aldrich
    Board
    Member
    Jacob
    U.
    Dumelle
    Board
    Member
    Richard
    J.
    Kissel
    Board Member
    Samuel Lawion,
    Jr.
    Board Member
    1
    402

    STATE
    OF
    ILLINOIS
    POLLUTION
    CONTIIOL
    BoARD
    189
    WEST
    MADISON
    STREET
    SuITE
    900
    DAVID
    F.
    CURRIECHAIRMAN
    CHICAGO,
    ILLINOIS
    60602
    TELEPHoNE
    -SAMUEL
    R.ALDRICH
    312-793-3620
    JACoB
    D.
    Dot.iELLE
    RICHARD
    J.
    Kiss~L
    SAMUEL
    T.
    LAwTON,JR.
    Amril
    14,
    1971
    Mr.
    I,
    J,
    t’euer
    Attorney
    ~t Law
    802 Fideely Building
    S’,rinefield,
    Illinois 62701
    Mr~ Robert F,
    Scott
    Attorney at Law
    521 North Fifth Street
    Snrincmfield,
    Illinois 62702
    PCB7O—55
    EPA v, City
    of
    rinrrfield
    Mr.
    Thomas
    Scheuneman
    Chief
    Bureau of Legal Services
    Environmental Protection
    Aaencn’
    2200 Churchill Road
    Smringfield,
    Illinois 62706
    Mr, James Kechner
    Chief
    Southern
    Recion
    Environmental
    Control Division
    Attorney General Building
    500 South
    2nd, Street
    Snrinqfield,
    Illinois
    62706
    Dear Sirs:
    Enclosed please find certified conies
    of
    the
    City of Soringfield
    Sun’~lemental
    Comments
    by
    Mr.
    Samuel
    E, Aldrich which
    is nart of the
    Oninion adonted by the Board on
    March
    31,
    1971,
    Kindly acknowledae receint,
    ~ko~Bo:rd
    HER: ‘ib
    End,
    CC:
    Mr, John
    H,
    i3ickley,
    Jr.
    1
    404

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