ILLINOIS POLLUTION CONTROL BOARD
April 21,
1994
GLENBARD WASTEWATER AUTHORITY,
)
Petitioner,
)
v.
)
PCB 93—260
)
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
GREGORY
L. DOSE OF ANCEL, GLINK, DIAMOND, COPE
AND
BUSH,
P.C.
APPEARED ON BEHALF OF THE PETITIONER;
MARGARET HOWARD APPEARED ON BEHALF OF THE RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by E. Dunham):
This matter comes before the Board on a variance petition
filed by Glenbard Wastewater Authority (GWA)
on December 22,
1993.
Glenbard filed an amendment to the petition on January 28,
1994.
The petitioner seeks a variance from 35 Ill.
Adm. Code
304.121 and 304.141 for its facility in Glen Ellyn,
Illinois from
April through October of 1994.
An objection to the petition was
received on January 31,
1994.
GWA filed
a response to the
objection on February 7,
1994.
The Illinois Environmental
Protection Agency (Agency)
filed its recommendation in favor of
granting the petition on March
3,
1994.
A hearing on the
petition was held on March 28, 1994 in Glen Ellyn,
Illinois
before hearing officer Marvin Medintz.
Members of the public
attended the hearing.
Neither party submitted briefs.
The Board’s responsibility in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et seq.
(1992).)
The Board is charged therein with the responsibility to “grant
individual variances beyond the limitations prescribed in this
Act, whenever it is found upon presentation of adequate proof,
that compliance with any rule or regulation, requirement or order
of the Board would impose an arbitrary or unreasonable hardship”.
(415 ILCS 5/35(a)
(1992).)
More generally,
the Board’s
responsibility in this matter is based on the system of checks
and balances integral to Illinois environmental governance:
the
Board is charged with the rulemaking and principal adjudicatory
functions, and the
Agency is responsible for carrying out the
principal administrative duties.
Based on the discussion below,
the Board finds that GWA has
presented adequate proof that immediate compliance with the
regulations involved would result in the imposition of an
2
arbitrary or unreasonable hardship.
Therefore, the variance is
granted subject to the conditions set forth in the order below.
BACKGROUND
GWA owns and operates the Glenbard Wastewater Treatment
Facility located in Glen Ellyn, Illinois.
GWA employs 33 people.
(Tr. at 11.)
The plant services the Village of Lombard combined
sewer overflow and the Village of Glen Ellyn sanitary sewer
system.
GWA operates two treatment plants, one at Beemis Road
and one at Hill Ave.
(Tr. at 11.)
The requested variance is for
the plant on Beemis Road.
(Tr. at 11.)
The rated capacity of the
Beemis Road plant is 16 MGD (million gallons per day).
(Tr. at
12.)
The plant currently handles about 12 MGD.
(Tr. at 12.)
The
effluent is discharged to the East Branch of the DuPage River.
(Tr. at 11.)
GWA currently disinfects with chlorine to meet the
fecal coliform levels of its NPDES permit.
(Tr. at 15.)
On November 8,
1993, the Agency issued an NPDES permit to
GWA.1
(Ag.
Rec. at 5.)
The permit requires disinfection from May
through October.
(Pet.
at 1.)
Condition 7 of the permit reduces
GWA’s chlorine residual limit from a 0.75 mg/i daily maximum
limit to a 0.05 mg/i daily maximum limit.
(Ag. Rec.
at
5.)
This
limit becomes effective 24 months from the effective date of the
permit.
(Ag. Rec. at 6.)
To meet this limit GWA has elected to
proceed with the design of an ultraviolet
(UV) disinfection
system.
Plans and specifications for the UV light system were
submitted to the Agency on December 22,
1993.
(Ag. Rec. at 6.)
The estimated cost of the addition of the UV system is $1.9
million.
(Tr. at 18.)
The installation of the UV system will
take approximately 10 to 12 months.
(Tr.
at 27.)
The UV disinfection system will be constructed in the
existing chlorine contact basin.
This basin is currently
arranged as two tanks, each of which can be isolated from the
other.
Work can only be performed in half the tank at any given
time because disinfection with chlorine will be occurring in the
other half of the tank.
Until the time that the UV lamps are
installed and made operational, detention times in the tank will
continue to decrease.
Upon completion of all concrete channel
work,
the detention time will be about 1/3 of the original design
values.
The decreased detention time could result in
difficulties meeting the fecal coliform limits of 35 Ill. Adm.
Code 304.121 during the disinfection season.
GWA also
anticipates that the daily maximum limits of fecal coliform may
GWA has appealed conditions of the permit with the Board
in PCB 93-249.
This permit appeal
is currently pending before
the Board.
However, none of the appealed conditions are relevant
to this variance proceeding.
3
be violated during high flow events that occur during rainfalls.
(Pet. at 4.)
GWA is requesting a variance from the fecal coliform limits
during the construction of the UV system for the months of April
through October 1994.
During the period of the variance GWA
would continue to disinfect with chlorine to meet the
disinfection limit.
If the variance is not granted, GWA would be
required to construct a bypass around the chlorine contact tank
and all construction would have to be done during the winter
months.
The bypass and winter construction option is more
costly.
Cost for the bypass is estimated at an additional
$175,000 or 7
of the previous total project.
(Pet.
at 5)
On January 31, 1994,
a letter from Anne Bouchard of Glen
Ellyn was filed with the Board.
In the letter Ms. Bouchard
expressed her concern of the effect of the requested variance on
sources of drinking water in the area,
especially her
own
well.
GWA filed a response
to the letter with the Board on February 7,
1994.
In the response, GWA stated that the requested variance
will not result in any increase in the risk of groundwater
contamination from GWA’s effluent.
In support of this statement
GWA observed that the stream water quality standards will not be
violated as a result of the granting of the variance and Ms.
Bouchard’s well is located upstream and at a higher elevation
than GWA’s outfall.
GWA also stated that even if the discharge
were to somehow migrate up gradient, the clay soil in the area
results in very slow movement of surface water through the soil
to aquifers and the fecal coliform would be dead before it
reached the aquifer.
Additional testimony at hearing provided
that none of the wells in the area were likely to be affected.
(Tr. at 36.)
At hearing, GWA presented testimony from Duane Leaf, the
facility manager and Thomas Vik,
a consulting engineer to GWA.
AGENCY RECOMMENDATION
The Agency recommends granting the variance with certain
conditions.
The Agency contends that GWA has demonstrated that
continued compliance with the existing requirements during
construction would impose an arbitrary and unreasonable hardship.
(Ag. Rec. at 1.)
The Agency states that the proposed compliance
plan represents a reasonably efficient strategy to comply with
more stringent residual chlorine effluent limitations imposed by
GWA’s permit.
(Ag. Rec. at 8.)
The Agency maintains that any
increased risk to the environment during the period of the
variance is mitigated by the compliance plan and would not
justify the increased expenditure of resources.
(Ag. Rec.
at 9.)
GWA has no objection to the conditions recommended by the Agency.
(Tr. at 19.)
4
DISCUSSION
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 interest in attaining compliance with regulations
designed to protect the public.
(Willowbrook Motel v.
IPCB
(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
or 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 East Branch of the DuPage River is a general use water
of the state that is subject to the Board’s water quality
regulations.
Effluent discharged to all general use waters shall
not exceed 40 fecal coliform per 100 ml.
(35 Ill. Adm. code
304.121.)
Section 304.141 prohibits the discharge of any
pollutant in violation of a state water quality standard.
(35
Ill. Adm. Code 304.141.)
The Board finds that compliance with the fecal coliform
standard during the construction of the UV system would result in
an arbitrary or unreasonable hardship to GWA due to the
additional cost and time required to construct a bypass around
the chlorination tank.
GWA will continue chlorination during the
period of the variance and therefore the impact on the
environment will be minimal.
Further, GWA will obtain compliance
with both the fecal coliform and residual chlorine standards
through the addition of the UV system.
ORDER
The Glenbard Wastewater Authority is hereby granted a
variance from 35 Ill.
Adm. Code 304.121, Bacteria and 35 Ill.
Adju. Code 304.141, NPDES Effluent Standards for its Glenbard
Wastewater Treatment Facility located in Glen Ellyn,
Illinois
subject to the following conditions:
5
(A)
The variance shall begin on May 1,
1994 or upon commencement
of construction of the chlorine contact basin, whichever
occurs earlier, and terminate on November 1,
1994.
(B)
Glenbard shall continue to meet a total chlorine residual
limit of 0.75 mg/l as a monthly average.
(C)
Glenbara shall meet an interim disinfection limit for fecal
coliform of 400
MPN
per 100 ml as a thirty
(30) day
geometric mean during the variance period.
(D)
Glenbard shall perform the modifications to the chlorine
contact tank as expeditiously as possible and shall continue
to operate the wastewater treatment facility so as to
produce the best effluent practicable during the variance
period.
(E)
Glenbard shall notify Adolfo Gonzalez at the Agency’s
Maywood Regional Office via telephone
(708)
338-7900 when
the work begins on the chlorine contact tank and when the
work is completed on the unit.
Written confirmation of each
notification shall be sent within 5 days to the following
address:
Illinois Environmental Protection Agency
DWPC Compliance Assurance Section
2200 Churchill Road,
P.O. Box 19276
Springfield, Illinois 62794—9276
Attn: Dan Ray
(F)
Within forty-five days of the date of this order, petitioner
shall execute and forward to:
Illinois Environmental Protection Agency
Division of Legal Counsel
2200 Churchill Road,
P.O. Box 19276
Springfield, Illinois 62794—9276
Attn: Richard C. Warrington
a Certificate of Acceptance and agreement to be bound to all
terms and conditions of the granted variance.
The 45—day
period shall be held in abeyance during any period that this
matter is 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 this variance is granted.
The form of the
Certificate is as follows.
6
I
(We),
hereby accept and agree to be bound by all terms and conditions
of the order of the Pollution Control Board in PCB 93-260, April
21,
1994.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41
(1992)), provides for appeal of final orders of the Board
within 35 days of the date of service of this order.
The Rules
of the Supreme Court of Illinois establish filing requirements.
(See also 35 Ill.
Adm. Code 101.246, Motion for Reconsideration.)
I, Dorothy N.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opin
n and. order was
adopted on the
~
day of______________________
1994, by a vote of
________
~
A
~Dorothy
M. Gw~, Clerk
Illinois Poll~1fionControl Board