ILLINOIS POLLUTION CONTROL BOARD
January 20,
1994
ATLANTA MEADOWS,
LTD.
AND,
)
R.O.C.G.P.
CORP.
GENERAL PARTNER,
)
)
Petitioner,
)
v.
)
PCB 93—72
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
LEE
R.
CUNNINGHAM,
KARIN-ANN
SCHENGRUND
OF
GARDNER,
CARTON,
AND
DOUGLAS,
APPEARED
ON
BEHALF
OF
PETITIONER;
CHARLES
W.
GUNNARSON, APPEARED ON BEHALF
OF
RESPONDENT.
OPINION
AND
ORDER
OF
THE
BOARD
(by
C.A.
Manning):
This matter
is before the Board on an amended petition for
variance filed by Atlanta Meadows Ltd. and R.O.C.G.P.
Properties,
Inc.
(Atlanta)
on
July
19,
1993.
Atlanta
originally
filed
a
petition for variance on April
15,
1993,
but the Board found
it
deficient
and
directed
Atlanta
to
file
an
amended
petition
correcting the deficiency.
(Board order PCB 93-72, May 5,
1993).
Atlanta filed the amended petition pursuant to Section 35(a) of the
Environmental Protection Act
(Act)
and 35 Ill.
Adm. Code Part 104
and 35 Ill.
Adin.
Code
S
309.184.
Atlanta
is
requesting
variance
from 35 Ill.
Adm. Code
5
304.120(c),
Deoxygenating
Waste,
and
35
Ill.
Adm.
Code
S
304.141(a),
National
Pollutant
Discharge
Elimination System
(NPDES) permit Effluent Standards in order to
continue to operate
its waste water treatment plant
(WWTP)
for
Mobet Meadows Mobile Home Park
in Rock Island County,
Illinois,
while coming into compliance.
The Illinois Environmental Protection Agency
(Agency)
filed
its recommendation that the variance petition be denied on October
19,
1993.
Atlanta
filed
its
response
to
the
Agency
recommendation
on
October
27,
1993.
There
was
no
hearing
held
in
this
matter.
For
the
reasons
discussed
below
the
Board
finds,
pursuant
to
Section
35(a)
of
the
Act,
Atlanta has presented adequate proof that
immediate
compliance
with
the
Board
regulations
for
which
relief
is
being requested would impose an arbitrary or unreasonable hardship.
Accordingly,
the variance relief requested is granted subject to
the conditions specified in the Board’s order.
2
BACKGROUND
Atlanta is requesting variance until August 31,
1996 from 35
Ill. Adm. Code 304.120(c), which limits the effluent discharge from
its
WWTP
to no more than
10 mg/l
of biochemical
oxygen demand
(BOD~) and
12
mg/l
of
total
suspended
solids
(TSS),
and
from
Section 304.141(a) to the extent that it requires Atlanta to comply
with
the
terms
of
its
NPDES
permit
for
these
constituents.1
Atlanta’s
WWTP
facility
is
situated
in
Rock
Island
County
at
2507—214th Street North,
Port Byron,
Illinois.
(A.
Pet at
5•)2
The area surrounding the unnamed tributary and the mobile home park
is utilized for agricultural purposes.
(Id.)
Atlanta provides its
mobile home units with private waste water facilities.
(Id.)
The
existing
WWTP
consists of two activated sludge plants that have a
combined capacity of
53,000 gallons per day
(gpd).
(Id. at
6.)
The treated waste water is discharged to the unnamed tributary that
is approximately one to two feet deep,
during normal conditions,
and is not used for any human activity, such as boating, fishing or
swimming.
(Id.)
In addition, the tributary does not contain fish.
(Id.)
The unnamed tributary flows into Zuma Creek.
(Id.
at 7.)
Zuma Creek flows into the Rock River 17 miles from its confluence
with the Mississippi.
Atlanta states that the WWTP operates in compliance during
normal flow conditions and only has difficulty in complying with
its NPDES permit due to significant flows during and immediately
after rainfall events.
(A.
Pet.
at
9.)
Atlanta further states
“the
high flows associated with the rainfall events scour out the
clarifiers and discharge solids to the receiving stream.”
(A. Pet.
at 9.)
Atlanta adds that “a)s
a result, the receiving stream has
experienced sludge deposits and unnatural algae growth due to the
inadvertent discharge of inadequately treated effluent.”
(A. Pet.
at 9.)
Atlanta states that it is out of compliance roughly 40
of
the time.
(Res.
at
4.)
The Agency
agrees that the compliance
problem is the result of rainfall events but states that Atlanta is
out of compliance roughly 70
of the time.
(Rec. at 4-5.)
Atlanta has attempted to address this situation by adding an
equalization tank in an attempt to control the excessive flows.
(A. Pet.
at 7.)
The tank has
a 4,500 gallon capacity, and a valve
on the effluent line used to control
flow.
(A. Pet.
at 7.)
The
tank has not controlled the excessive discharges.
Atlanta states
1
While
Section
304.120(c)
establishes
a
BOD5
effluent
limit of
10 mg/i,
the Agency has set the same limit
in Atlanta’s
NPDES permit for carbonaceous biochemical oxygen demand
(CBOD5).
2
The amended petition will be referenced by “A. Pet”, the
Agency recommendation will be referenced by “Rec.”
and Atlanta’s
response will be referenced by “Res.”
3
that based on effluent sampling performed by a
licensed contract
operator,
the average annual concentrations for CBOD5 were 12.33
mg/i for 1990, 10.12 mg/i for 1991 and 11.3 mg/i for 1992.
(A. Pet.
at 7.) For suspended solids, the average annual concentrations were
12.5 mg/i for 1990, 15.0 mg/i for 1991 and 14.2 mg/i for 1992.
(A.
Pet.
at 7.)
The Agency states that the non-compliance problem at Atlanta
prompted the Agency to hold a pre—enforcement meeting on October 7,
1992.
(Rec. at 5.)
As a result of that meeting, the Agency states
that Atlanta agreed to upgrade the facility and
in fact hired a
consultant and obtained an Agency construction permit to build
a
new lagoon system.
(Rec.
at 5.)
The construction on the project
was delayed due to bid problems, and in late 1992 Atlanta learned
of the City of East Moline
(City)
was considering extending the
sewer and water services to the Atlanta’s facility.
(Rec.
at 5.)
Agency concern over the progress on the work of the new lagoon
system prompted the Agency to refer an enforcement action to the
Attorney General’s office on August 17,
1993.
A meeting was held
by the parties on October 5, 1993, to discuss this variance and the
enforcement cases.
(Rec.
at 6.)
REGULATORY FRAMEWORK
The instant variance request involves the Board regulations
concerning
NPDES
permits
and
general
effluent
limitations
for
deoxygenating waste.
The regulations are found
at 35
Ill.
Adm.
Code SS 304.120(c) and 304.141(a),
which in pertinent part state:
Section 304.120 Deoxygenating Wastes
(c)
No effluent whose dilution ratio
is less than five
to one shall exceed 10 mg/i of
BOD(5)
or
12 mg/i
of
suspended
solids,
except
that
sources
employing
third-stage treatment lagoons shall be exempt from this
subsection
(c)
provided all of the following conditions
are met:
Section 304.141
NPDES Effluent Standards
a)
No person to whom an NPDES Permit has been issued may
discharge any contaminant in his effluent
in excess of
the standards and limitations for that contaminant which
are set forth in his permit.
In determining whether any variance is to be granted, the Act
requires the Board to determine whether a petitioner has presented
adequate proof that immediate compliance with the Board regulations
at issue would impose an arbitrary or unreasonable hardship.
(415
ILCS
5/35(a)
(1992).)
Furthermore,
the
burden
is
upon
the
petitioner to show that its claimed hardship outweighs the public
4
interest
in
attaining
compliance
with regulations
designed
to
protect the public.
(Willowbrook Motel v. Pollution Control Board
(1985),
135 Ill. App.3d 343,
481 N.E.2d 1032.)
Only with such a
showing can the claimed hardship rise to the level
of arbitrary
unreasonable hardship.
A further feature of a variance is that it is, by its nature,
a temporary reprieve from compliance with the Board’s regulations.
Compliance
is to be sought regardless of the hardship which the
task
of
eventual
compliance
presents
an
individual
polluter.
(Monsanto
Co.
V.
IPCB
(1977),
67
Ill.2d
276,
367
N.E.2d
684.)
Accordingly,
except in certain special circumstances,
a variance
petitioner
is required,
as
a condition to grant of variance,
to
commit
to
a
plan
which
is
reasonably
calculated
to
achieve
compliance within the term of the variance.
The maximum term for
a variance is five
(5) years pursuant to Section 36(b) of the Act.
(415 ILCS 5/36(b)
(1992).)
COMPLIANCE
PLAN
The
Agency
states
concern
over
when
Atlanta
will
be
in
compliance with the requirements of
35
Ill.
Adm. Code 304.120(c)
and 35 Ill. Adm. Code 304.141(a) as that section relates to 35 Iii.
Adm. Code 304.120(c).
(Rec. at 6—8.)
More specifically the Agency
states
that Atlanta
has
not
provided
the
Board with
specific
information stating when construction would
be completed on the
extension of the City’s sewer line.
(Rec. at 7.)
In its response
to the Agency recommendation Atlanta states that the City indicated
construction on the sewer line extension would take roughly two
(2)
years after its commitment to extend the sewer lines.
(Res. at 4.)
Since the City decision deadline is August 31,
1994, construction
would be completed by August 31,
1996.
(Res.
at 4.)
Atlanta also
indicates that if the City does not decide whether it is going to
extend the sewer lines by August
31,
1994, Atlanta will complete
construction of the lagoon system by August 31, 1995.
(Res. at 4.)
Therefore,
Atlanta’s compliance plan is to connect to the City’s
sewer line by August 31,
1996, or finish construction of the
WWTP
lagoon system by August
31,
1995.
HARDSHIP
As stated previously, the Act requires the Board to determine
whether
a petitioner has presented adequate proof that immediate
compliance with the Board
regulations
at
issue would
impose
an
arbitrary
or
unreasonable
hardship.
(415
ILCS
5/35 (a)
(1992).)
Atlanta
states
that
denial
of
the
variance
would
impose
an
arbitrary or unreasonable hardship.
(A.
Pet,
at 21,
Rec.
at
8.)
The Agency notes the hardship to Atlanta will be the cost that it
may or may not incur if
it is to connect with the City sewer line
or finish the construction of the Lagoon system.
(Rec.
at 8.)
Atlanta states that if the relief is not granted the cost of the
construction of the lagoon system is estimated at
$300,000.
(A.
5
Pet. at 21, Rec. at 8.)
If relief is granted and the City extends
the sewer line, Atlanta would have an initial cost of $20,000 and
$18,000
a
year
for
sewer
fees.
(A.
Pet.
at
21,
Rec.
at
8.)
Additionally, Atlanta implies that if the relief is not granted the
opportunity to remove the discharge from the unnamed tributary by
connecting to the sewer line would be lost due to their finishing
the lagoon system.
(Res. at 5-6.)
ENVIRONMENTAL IMPACT
Both
parties
agree
that
the
environmental
impact
to
the
unnamed
tributary
is
limited
to
the
deposits
of
sludge
and
unnatural algae growth as a result of the discharge.
(A.
Pet.
at
13, Rec.
at 8.)
Atlanta states that the environmental impact of
the
discharges
will
be
of
little
or
no
impact to
the unnamed
tributary
during
the variance
period.
(A.
Pet at
13.)
The
unnamed tributary above and below the Atlanta’s discharge does not
contain
fish.
(A.
Pet.
at
14.)
The
Agency
states
that
the
continued operation of the
Atlanta facility will cause
adverse
impact to the unnamed tributary because of the excessive sludge
deposits which will likely have to be physically removed.
(Rec. at
11.)
Atlanta has stated that it will
“optimize the effectiveness
of the existing WWTP” during the requested variance term.
(A. Pet
at 20.)
Atlanta does not propose any interim limits to be complied
with at the
WWTP
during the variance period.
However, Atlanta does
state that it is willing to meet general standards except during
significant rainfall events and a period of time thereafter until
the biomass
is reestablished, provided that the monthly average
discharges of BOD5 and TSS remain below 45 mg/i.
(Res.
at 3.)
In addition, Atlanta also proposes to remediate the unnamed
tributary by removing and depositing the excessive algae growth and
sludge deposite that have accumulated over the years.
(A. Pet. at
20.)
Atlanta also proposes to do a final cleanup of the unnamed
tributary once it either connects to the City’s proposed line or
constructs its lagoon system.
(A.
Pet. at
14.)
CONSISTENCY WITH FEDERAL LAW
Both the Agency and Atlanta agree that the requested variance
relief may be granted consistent with applicable federal law or
regulation.
(A.
Pet. at 22, Rec. at 8.)
CONCLUSION
Atlanta has demonstrated that immediate compliance with
35
Ill. Adm. Code S 304.120(c), Deoxygenating Wastes, and 35 Ill. Adm.
Code
§
304.141(a)
NPDES
Effluent
Standards,
would
impose
an
arbitrary or unreasonable hardship.
The unnamed tributary is not
utilized
except
for
the
WWTP
discharge
and
for
runoff.
The
6
possible environmental impact to the unnamed tributary is minimal.
As stated
by the parties
the
impact
is
limited
to the
sludge
deposits
and
the
algae
growth.
Atlanta
states
that
it
will
remediate the impact of the discharge to the unnamed tributary by
removing
all sludge deposits
and
algae growth
connected to
the
discharge,
and will optimize operations during the term of
the
variance so to minimize any possible adverse impact.
The immediate
compliance with the regulations would pass up the opportunity to
remove the
WWTP
discharge altogether from the unnamed tributary and
connect to the City sewer line.
It is in the public interest to
allow
for
the
possibility
of
the
more
environmentally
sound
alternative
of
removing
Atlanta’s
discharge
from
the
unnamed
tributary by connecting Atlanta’s discharge to the City’s
sewer
line as opposed to compliance through a lagoon system which would
continue the discharge.3
For the reasons stated above the Board will grant the variance
request for a maximum three—year period to allow petitioner to come
into
compliance,
but
with the
inclusion
of
certain
conditions
contained in the Board’s order below to address Board and Agency
concerns.
This opinion and order constitutes the Board’s finding of fact
and conclusions of law in this matter.
ORDER
Atlanta Meadows,
LTD.
and
R.O.C.
Corporation
(Atlanta
Meadows) are granted a variance from 35 Ill. Adm. Code §
304.120(c),
Deoxygenating Waste, and 35 Ill. Adm. Code §
304.141(a),
National
Pollutant
Discharge
Elimination
System
(NPDES)
Effluent
Standards,
subject
to
the
following
conditions:
A)
Variance
shall
terminate
according
to
the
following:
1)
Should
the
City
of East Moline decide to
extend
its
sewer
lines
to
Atlanta
~
Based
upon
the
record
before
the
Board,
it is not clear as
to whether compliance would be achieved through the lagoon system.
Since
the Agency’s issuance
of the construction permit
for the
lagoon system is not an issue before us, however, the Board makes
no findings regarding the appropriateness of that permit.
7
Meadows’
facility,
the
variance
shall
terminate on the earlier of:
a)
the date compliance is demonstrated,
or
b)
the
date
of
completion
and
connection
of
the facility
to the
City of East Moline sewer lines, or
c)
August 31,
1996.
2)
Should the City of
East Moline
fail
to
decide or decides not to extend its sewer
lines
to
Atlanta
Meadows’
facility
by
August
31,
1994,
the
variance
shall
terminate on the earlier of:
a)
the date compliance is demonstrated,
or
b)
the
date
of
completion
of
construction of a lagoon system and
compliance
is demonstrated, or
C)
August 31,
1995.
B)
During
the
term
of
the
variance
Atlanta
Meadows,
LTD.
and
R.O.C.
Corporation
shall
take
all
reasonable
measures
with
their
existing facility to minimize the level of DOD5
and
suspended
solids
discharged
from
its
outfall into the unnamed tributary.
C)
Atlanta Meadows
LTD.
and R.O.C.
Corporation
shall
continue
construction
of
the
lagoon
system to achieve compliance with the Board
regulations on September 1,
1994,
if the City
of East Moline decides not to extend the sewer
lines or does not make a decision.
D)
Atlanta Meadows
LTD.
and
R.O.C.
Corporation
shall
remediate
the
unnamed
tributary
by
removing unnatural
algae
growth
and
sludge
deposits
attributable
to
its
discharge
once
compliance.
Within
45 days of the date of this order,
Petitioner shall
execute
and
forward
to
Charles
Gunnarson,
Division
of
Legal
Counsel, Illinois Environmental Protection Agency,
2200 Churchill
Road,
Post Office Box 19276,
Springfield,
Illinois 62794—9276,
a
8
Certification of Acceptance and Agreement to be bound to all terms
and conditions of this variance.
The 45-day period shall be held
in abeyance during any period that this matter is being appealed.
Failure to
execute
and
forward the
Certificate within
45
days
renders this variance void and of no force and effect as a shield
against enforcement of rules from which variance was granted.
The
form of said Certification shall be as follows:
CERTIFICATION
I
(We),
,
hereby
accept and agree
to be bound by all terms and conditions of the
order
of the Pollution Control Board
in PCB
93-72,
January
20,
1994.
Petitioner _______________________________
Authorized Agent
Title ___________________________________
Date
_______________________________________
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41)
provides for the appeal of final Board orders within 35 days of the
date
of
service
of
this
order.
(See
also
35
Ill.
Adm.
Code
101.246, Motion for Reconsideration.)
I, Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board, hereby certify tha
the above opinion and order was adopted
on the
~
day of
_____________________,
1994,
by
a vote of
~_7
~-.
~
Dorothy N.
G~inn,Clerk
Illinois i~6~lution
Control Board