ILLINOIS POLLUTION CONTROL
BOARD
September
16,
1971
THE METROPOLITAN SANITARY DISTRICT
OF GREATER CHICAGO
)
v.
)
PCB 71—166
ENVIRONMENTAL PROTECTION AGENCY
Mr. Allen
S.
Lavin,
Chief Attorney, The Metropolitan Sanitary District
of Greater Chicago,
by:
Mr. Paul D. Lindauer, Jr., Assistant Attorney, appeared for the
petitioner;
Mr. Roger Gahobcik, appeared for the respondent;
Schrieber, Mack
& Pieper,
by:
Mr. Raymond W.
Pieper, appeared
for the Village of Orland Park
Opinion of the Board
(by
Mr.
Dumelle)
On June
26,
1971 The Metropolitan Sanitary District of Greater
Chicago
(MSD)
petitioned the Board for a variance from the operation of
certain sections of Rules
~nd Regulations SWB-14, Water Quality Stan-
dards,
Intrastate Waters
(hereafter SWB—14),
Specifically the MSD has
sought to be relieved of complying with certain requirements
in
SWB-l4 relating to tertiary treatment and BOD and suspended solids
levels at the Orland Park Sewage Treatment Plant
(Plant)
inasmuch as
the MSD has plans
and construction is underway which will eliminate
the operations
of the plant in approximately two years.
The MSD
sought to have
a variance granted starting on July
1,
1972 and
extending for one year.
July
1,
1972
is the date by which the MSD is
required by SWB-l4 to provide tertiary treatment.
In short,
the
District asked for
a
one-year extension of the SWB-14 timetable
for
construction of tertiary treatment facilities,
The District also
requested that it be allowed,
in the interim period,
to be permitted
to
install additional capacity to the existing facilities
to increase
the present capacity by 0,6 MGD,
The Village of Orland Park appeared at the hearing in this matter
held on August
6
and was allowed
to
intervene with all
the rights
of an
original
party
(R.l7).
The
Village introduced testimohy
rela-
ting
to the
economic
impact which denial of the requested variance
might have
on
the Village
and several
subdivision house
builders
in the
area.
2
—
483
The regulation from which the District sought a variance in
this case was enacted by the Sanitary Water Board, one of this Board’s
predecessors,
in 1967 with the implementation plan section of the
regulation being enacted in March 1968,
The tertiary treatment require
ment has thus been on the books for more than three years.
SWB—l4
is a comprehensive water pollution abatement regulation
applicable to all intrastate
waters
in Illinois
not covered by
oth~r
specific stream standards.
The District is not only obliged to meet
the effluent criteria specified
in
SWB-14
by
July
of
1972 but it is re-
quired
to meet
the timetable requirements in paragraph 12 relating to the
completion
of
plans and specifications 18 months before the completion
date for tertiary facilities and award
of
the construction contracts
12 months before the completion date.
In other wqrds
the
District is
under a requirement to provide tertiary
treatment by July
1972
and it
is
under
a further requirement to submit
plans by February 1971
and
award construction contracts by August ~97l.
Under the regulation the
MSD has a legal duty at this time to let contracts
and commence
construction to meet
the BOD and suspended solids effluent standards
by
July
1972.
The
instant variance was requested
~at
the
proper
time; any filing at a later date
would be untimely
and
a viola-
tion of the water pollution regulation for which an enforcement action
could commence.
The MSD trea1~sthe ~anitary
wastes in the Chicago metropolitan
area and in addition to three major treatment plants, it operates
certain other smaller plants, one of which is the Orland Park Plant.
The Plant has a present design capacity of 0.8 MGD and was scheduled
to be discontinued before the tertiary treatment effluent requirements
became effective.
The Plant is
a trickling
filter type plant con-
sisting of a pumping station, primary settling
tank
(Imhoff),
trickling filter and final tank
(R.37),
The effluent is discharged
into McGinnis Slough which was described as
a slough of roughly
313 acres with an average depth of about two feet which is almost
totally covered with submerged weeds called saga
(R.l92).
Because
of a contract dispute which
led to a lawsuit and curtailment of sewer
construction activities the date for abandonment of
the Plant has
been deferred beyond July of 1972.
The unusual situation which brought
about the present state of events was not disputed.
In fa~ctthe
parties were able to stipulate to the following facts
(R.28—32).
In
1967,
the District planned to abandon its Orland Park Sewage Treatment
Plant by construction of an interceptor sewer which would divert the
sewage to the District~sCalumet Treatment Plant.
On April
4,
1968
a contract in the
amount of
$3.5 million for the interceptor sewer
was awarded to Peter Kiewit Sons,
Inc.
The contract called for the
completion of the interceptor
in 690 days;
After construction on the
interceptor had begun the contractor notified the District that it
considered
the contract rescinded and filed suit in the federal
court.
The
contractor also abandoned the job, and
on
December
23,
1968,
the Board of
Trustees
of the Sanitary District declared the
contract forfeited.
After advertisement and other proper procedures
2
—
484
tne contract was finally
re-let on July 8,
1971
to American Structures,
Inc.
The
new contractor was to begin work in August 1971.
No reasons
appear
in the record for
the long delay from December
23,
1968 to
July
8,
1971,
and we can make no judgment as
to whether the District
did all it could to shorten this period.
In addition to the sewer construction the MSD has proposed
additional treatment facilities which will improve the quality of
treatment and enlarge the capacity of the Plant.
Improved opera-
tion
of both
the
trickling filter system
and aerated lagoon is
proposed.
A chemical addition
facility is
planned
which will
provide
for chemical coagulation
to enhance settling
and removal
of solids.
The
Plant
interim facilities are
designed as a
temporary
measure,
The temporary
facilities
as well as the existing
plant
will be phased
out upon
completion
of the sewer system.
The
interim
facilities will increase the faci1ity~scapacity and improve the
plant~s effluent quality.
Unfortunately alternative treatment with portable,
temporary
treatment facilities
was
not dealt with
in
any
depth
in the record.
Installation of package treatment plants designed
to
be easily
dismantled and which would consequently have
a high salvage value
and could
be
easily relocated to other sites may
have
been the
best way to go in this case.
There is virtually no testimony
on this subject, however,
and
we
are
thus unable to make any~
evaluations or decisions on the subject.
Mr. Melvin Doogan,
the Village President of Orland Park
testified
as
to several commitments which the Village made in
anticipation of growth including
the construction of
a fieldhouse,
increasing police
service,
and providing for additional snow
removal service
(R.93-94,
102).
The Village must
now
be somewhat
chastened after extending itself and committing
funds to realize
that expected income has been significantly delayed.
It is
to be
hoped that other municipalities are put on notice by this case that
as
a fundamental requirement they must have adequate tteatment
facilities
to
accommodate sensible growth.
In briefest summary the case presented to the Board was a
request by the District to be allowed to increase
the present capa-
city of the plant and to be allowed to operate the plant until
an
interceptor
sewer, presently under construction, was comple~tedand
abandonment of
the existing plant could be effected.
The hardship
which
the District put forth was the necessity of making the expen-
diture for tertiary treatment, approximately $500,000, on
a plant
which would have
a useful life of about one year.
The Village
introduced testimony about the hardship resulting from
a
program
of construction of public improvements embarked upon
by
it in anti-
cipation of greatly increased growth of
the community.
Thus,
in this matter
as
in all
variance
proceedings the Board
has
the job of balancing the elimination of the admitted pollution
by
denying the requested variance against
the countervailing
benefits
which
would
accrue if the variance is granted.
All the factors which
2
—
485
impinge on this question must necessarily be presented for the Board
to make the most appropriate, well informed decision.
In each
variance case which comes before us we must weigh the asserted
arbitrary or unreasonable hardship on the petitioner~against the
harm to the citizenry as a whole, that is, the harm to the environment.
In this case we must consider whether the harm done to McGinnis Slough
is
so great as to outweigh the hardship which petitioner would suffer
should the variance be denied.
We find that the harm to the Slough
in this case is not of such magnitude as to prevent our granting
a license
to pollute in this
case.
Mr. Michael Bronoski,
a fish
biologist for the Cook County Forest Preserve District, testified
that in effect the damage to the slough from the sewage treatment
plant has
already
been
done and that
in the
next two years,
in
terms of the aquatic life, there would not be any significant impact
on the slough from
the Plant~s
effluent
(R,2l3—2l5, 218—219).
We grant the requested variance for
one year, until September 1,
1972 subject to several conditions enumerated below.
The Environ-
mental Protection Act states that any variance granted under the
Act is limited
to one year and then may be extended only if satis-
factory progress has been shown.
If the petitioner will need a further
exemption from prosecution beyond that time it should
take the pre-
caution of filing
a further petition
some 90 days before the date
of termination of
the instant grant.
The statute explicitly authorizes
the
Board
to “impose such condition~as the policies
of
this Act may
require” when granting a variance
(s 36(a)).
Several
conditions are
required here to further the purposes of the statute.
First, we shall
require the District to submit quarterly progress reports.
Periodic
progress reports are necessary as a means
of checking compliance with
program schedules.
The
reports should detail progress
to date and
fully document and explain significant deviations from the program
as originally planned.
The first report shall cover
the period
from the present through September
30,
1971.
The Dis&ict
should
submit such reports
to the Environmental Protection Agency and the
Board
a reasonable time after the expiration of the calendar quarter
but in no case shall this period extend beyond three weeks.
We do
not wish
to be in the position,
a year from now,
of discovering
for
the first time that there have been further delays.
Secondly we shall require the District to submit
a complete
detailed critical path construction schedule
to the Environmental
Protection Agency for their approval.
This shall be done within
60
days from date.
The Agency shall act upon the submission within
30
days thereafter,
Finally,
the Act further requires
this Board to impose a bond or
other
security in a
case like this,
the purpose
of which is
to assure
the
State of Illinois and all of its citizens that the proposed
pollu-
tion
abatement program will proceed and
will
do
so
in accordance with
a schedule of which all parties are cognizant.
As a further condition
of this grant of a variance we shell require the NSD to post a bond or
other security in the amount of $500,000, which amount shall be paid to
the State of Illinois upon~default. The obligation of the bond shall
be the performance of those tasks appearing on the Agency approved
critical path construction schedule
due to be performed by September
1,
1972.
2
—
This Opinion constitutes the Board~sfindings of fact and
conclusions of law.
ORDER
The Board having considered the transcript and exhibits in
this proceeding hereby grants a variance to the Metropolitan Sanitary
District of Greater Chicago
(District)
subject to the following
conditions:
1.
Variance from the Regulation
SWB—14 relating to effluent
quality as regards BOD and suspended solids is granted until
September 1,
1972.
2,
The District shall proceed with its program for enlargement
and improvement of the existing treatment facilities to provide
a higher quality of treatment during the interim period before
the Plant is abandoned,
3.
The District shall submit to the Environmental Protection Agency
and the Board quarterly reports on the progress of its program.
The first report shall cover the period from the present through
September
30, 1971, with each subsequent report covering the
calendar quarter.
The reports shall be submitted in a reasonable
time, not to exceed 3 weeks after the last date reported on.
4.
The District shall post with the Environmental Protection Agency,
on or before October 15, 1971, and in such form as the Agency
may find satisfactory, a bond or other security
in the amount
of $500,000, which
sum shall
be forfeited to the State of Illinois
in the event that the District on September 1,
1972 has not per-
formed those tasks which appear on the District~scritical path
construction schedule approved by the Environmental Protection
Agency as due to be performed by that date.
5.
Failure to adhere to any of the conditions of this variance shall
be grounds for revocation of the variance.
I, Regina E. Ryan, Clerk of the Illinois Pollution Control ~oard,
hereby certify that the Board adopted the above Opinion and Order
on the J~day of September,
1971,
Regi a E. ~yan,
lerk
Illinois Pollution
Control Board