ILLINOIS POLLUTION CONTROL BOARD

November

15,

1989

CITY OF EAST MOLINE,

Petitioner,

v.

)

PCB 87—127

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Respondent.

MESSRS.

ROY M.

HARSCH AND JAMES

J.

DeNAPOLI, ATTORNEYS-AT-LAW,

APPEARED ON BEHALF OF PETITIONER; AND

MESSRS.

STEPHEN C.

EWART AND JAMES MORRIS, ATTORNEYS-AT-LAW,

APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by B.

Forcade):

This matter comes before the Board on an August

14, 1987

petition filed by the City of East Moline

(“East Moline”)

seeking

variance from 35

Ill. Mm.

Code 304.124 relating

to the effluent

standards

for

iron, manganese and total

suspended solids

(“TSS”),

35

Ill.

Adm. Code 304.106

relating

to offensive discharges,

and

35

Iii. Adm.

Code 309.102 requiring NPDES permits.

Petitioner

also seeks relief

from the water quality standards

of

35

Ill.

Adm. Code 302.203 relating to unnatural sludge for East Moline’s

discharge to an unnamed tributary of

the Mississippi River.

East Moline requests this variance

in order

to continue

operation of

its public water supply and distribution system and

to allow the discharge from East Moline’s water treatment plant

to exceed the regulatory maximums for iron, manganese and TSS

until East Moline may be able

to obtain a site—specific

limitation for such discharge

(R87—35)

or until

24 or 33 months

after

the date site—specific relief

is denied.

Procedural History

East Molines

original petition for

a variance was

filed on

August

14,

1987.

At

that time,

East Moline

requested a

5—year

variance from

iron, manganese, and total suspended solids,

the

conditions of

its NPDES permit and unnatural sludge regula-

tions.

This five-year period would be the maximum allowable

under

the Illinois Environmental Protection Act

(“Acttt)

for

a

sIngle variance.

East MolIne

amended

the

petItion

on October

5,

1987

to include alternative compliance methods.

The Illinois

Environmental Protection Agency

(“Agency”)

filed

its

1fl5—175

---

—2—

recommendation to deny

the variance on November

16,

1987.

A

hearing was authorized by the Board on January

7,

1988.

The

hearing was held April

20,

1989.

At hearing, attended by various

members of the public, the Agency agreed to recommend the

granting of a variance provided that East Moline comes into

compliance by December

of 1990.

(R.

24)

East Moline’s brief was

filed June

16,

1989 and the Agency’s final comments were filed

June 19,

1989.

On November

20,

1986,

the Agency issued an NPDES permit, No.

1L0037745, to East Moline establishing concentration limits for

TSS of 15 mg/l

for

a 30-day average and 30 mg/i for

the daily

maximum.

On December

19,

1986,

East Moline appealed the con-

dition in the permit establishing concentration limits

for TSS to

the Board.

In PCB 86—218,

the Board affirmed the Agency’s

decision and on appeal, the Third District Appellate Court

of

Illinois affirmed the Board’s decision.

City of East Moiine

v.

IPCB,

Ill. App.

3d

,

544 N.E.2d

82

(Third District,

1989).

Background

East Moline owns and operates a public water supply

treatment plant located in Rock Island County, East Moline,

Illinois.

The plant provides clarified, filtered, softened, and

disinfected water to approximately 22,000 residents and 100

businesses in the city.

East Moline’s source of raw water

is the Mississippi River,

from which water is drawn through a 30—inch diameter intake line

to the pumping station.

Presently,

the plant treats an annual

average of 3.5 million gallons per day

(“MGD”), with capacity to

treat

10 MCD.

Water treatment begins at the pumping station.

Powdered

activated carbon

is added to the raw water, which

is

then pumped

to

two separate rapid—mix units.

Lime and alum are added to

these

units.

The flow from each unit subsequently passes through

paddle-wheel flocculation basins followed by rectangular

settling

basins.

Chlorine

is added at approximately the mid—point of the

clarification units.

The treated water from the settling units

is combined and flows through rapid sand filtration units

to

storage

in

a

“clearwell” before entering the distribution

system.

Post—chlorination occurs after filtration to maintain a

chlorine

residual

in the distribution system.

Backwash water

from the filters and solids from the settling tanks and drain

lines are discharged into the adjacent unnamed tributary, which

flows into a

storm sewer and then to the Mississippi River.

East Moline discharges wastewater from

(1) backwashing the

filters each day and

(2)

flushing the sedimentation basins every

other day.

(R.

29)

Discharges are intermittent and last twenty

minutes

to one hour.

The filters backwash discharged an average

11)5—176

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—3—

of 268,600 gallons per day and the settling basin discharged an

average of 26,900 gallons per day

in

1988.

East Moline’s average discharge during 1988 was 1,544 pounds

per day suspended solids,

(R.

30),

a reduction of

79

compared to

an average of 7,200 pounds per day d:scharged

in earlier years.

(Ex.

4 at

p.

96).

Of

this amount,

the settling basin discharge

accounts

for 87

of the total solids with 13

attributable to the

filter backwash water.

(Ex.

4 at

p.

97).

The solids discharged

are composed of the following:

River Sediment

1,153

lbs/day (74.6)

Aluminum Hydroxide

304 lbs/day (19.7)

Powdered Activated Carbon

87

lbs,’day

(

5.6)

Total

1,544 lbs/day

—

1988 average

(Ex.

4 at

p.

96)

In addition, discharge from the plant has contained visible

solids and exhibited turbidity.

In 1988,

iron, manganese,

and TSS concentrations were as

noted below.

Six Month Concentrations

—

mg/l

Settling

Filter

Basin

Backwash

Regulatory

Discharge

Discharge

Limits*

Iron

8.1

1.46

2.0

Manganese

8.27

0.42

1.0

TSS

—

average

5,687

84

15.0

TSS

—

maximum

12,400

208

30.0

(R.

29—30 and Ex.

4 at pp.

136—137)

The total

length of

the unnamed tributary and storm sewer

is

16,000 feet.

(R.

30).

The upper

reaches are dry much of

the

year and travel through residential

areas,

a golf course and

along a city park.

(R.

31—32).

Both upstream and downstream of

the plant

the tributary is channelized

or

flows through

a storm

*

35

Ill. Mm. Code 304.124(a)

establishes the maximum

concentration limits

for

iron,

manganese and TSS discharged into

Illinois waters,

subject to the averaging rules contained

in

Section

304.104(a).

East Moline’s

NPDES

perr~it

was

in

fact

based

on average and maximum TSS levels of 15.0 mg/i and 30.0 mg/i,

respectively.

11)5—177

---

—4—

sewer

for a distance of 6,000 feet upstream and another 6,000

feet downstream.

(R.

31)

The channelized section passes through

an industrialized section of town where

it

is used for urban

drainage.

(Ex.

4 at pp.

41,

97 and 122).

1,000 feet downstream

from the plant’s discharge,

the ditch flows into an enclosed

storm sewer which flows to the Mississippi River.

(Ex.

4 at pp.

41,

97 and 122—124).

The Mississippi River

is generally in compliance with the

water quality standards for manganese and other metals except

iron.

Suspended solids loadings

in the Mississippi River are

relatively high, averaging 57 mg/i

in 1983 upstream of East

Moline.

Fish are plentiful

in the Mississippi River

in the East

Moiine area, with the variety changing with bottom conditions.

Preliminary Issues

In this variance petition,

the primary issue

is whether

“immediate” compliance would impose an arbitrary or unreasonable

hardship.

One consideration in this determination

is

the

environmental impact on human,

plant, and animal life

in the

affected area.

The burden of proof is on the petitioner.

See

Section 37(a)

of

the Act.

Under Section 35(a)

of the Act, the

Board is not required to find that an arbitrary or unreasonable

hardship. exists exclusively because the regulatory standard is

under review and the costs

of compliance are substantial and

certain.

East Moline must prove that

the hardship warrants

temporary relief until full compliance is achieved, and this

proceeding

is independent

of its site—specific petition.

Furthermore,

the hardship must not be self—imposed by the

petitioner’s inactivity or decision making.

EPA v. Lindgren

Foundry Co.,

1 PCB 11

(1970) and Ekco Glaco Corporation

v.

IEPA

an’:~

PCB,

Ill.App.3d

,

542 N.E.2d

147

(First

District,

1989).

An important issue

is whether East Moline has carried

the

burden of proof in establishing an arbitrary or unreasonable

hardship.

East Moline cites costs

in excess of $300,000 per

year;

an increase in household user charges of $26 per year;

and

a cost of $485 per pound of solids discharged per day

in its

characterization of the hardship, alluding as well, without

further explanation,

to the economic slump experienced by the

city and the competing demands

for

funds

for

other projects.

Since

East Moline has not presented an argument that the

cost

to comply today would be more onerous than the cost

to

comply

in 24—33 months,

its economic argument

is not relevant

to

the issue

of

“immediate compliance.”

East Moline argues that the

cost should permanently excuse compliance.

East Moline’s

arguments may be

relevant

to permanent relief

in

a site—specific

proceeding but they are not

relevant

to temporary relief

in a

variance proceeding.

1)5-173

---

—5—

At

issue also

is the environmental impact

of East Moline’s

activities.

East Moline focuses primarily on the impact on the

Mississippi River,

which is not the point of discharge.

East

Moline claims that

“the discharge

...

either through

the unnamed

tributary or directly

to the Mississippi will cause

no adverse

environmental impact on the Mississippi.”

(Pet.

Br.

at

2).

It

also asserts

“no significant impact on the water quality of the

ditch or the Mississippi.”

(Pet.

Br.

at

26).

The Agency

believes there

is significant adverse impact from the point of

discharge,

which

it estimates

at 4,000

feet from the

Mississippi.

The Board’s focus must

be the unnamed tributary

where

the environmental impact begins.

East Moline raises several other arguments,

such as

(1)

whether Section 304.103 might

exempt

it from complying with the

effluent standard for iron and manganese since these originate

in

the Mississippi;

(2)

whether

a mixing zone concept might

be

applied

to grant relief from unnatural sludge or bottom deposit

regulations

in Section 302.203 and from settleable solids

regulations of Section 304.106;

(3)

whether bypassing the unnamed

tributary and discharging directly into the Mississipppi would

justify granting

a variance; and

(4)

whether relief previously

granted to East St. Louis and Alton justifies the grant

of

a

variance

to East Moline.

In response

to these arguments,

respectively:

(1) the Board

finds the “effluent concentrations

in excess of

the standards” do

not

“result entirely from influent contamination” as Section

304.103 requires,

but,

rather,

the treatment process creates the

unacceptable, high concentrations of

iron, manganese and TSS;

(2)

and

(3)

the Board is not persuaded by these arguments;

and

(4)

the Board believes

a grant of variance to other petitioners, who

carry the burden of proof

in their

own

cases,

does not establish

a

right

to a variance for

East Moline.

East Moline has not

demonstrated identical factual circumstances.

All petitioners

are not identically situated and East Moline must prove

its own

case.

City of Geneva

v.

IEPA,

PCB 86—225,

slip op. at

p.

5, July

16,

1987.

Compliance Alternatives

In order

to qualify for

a variance, petitioner must submit

a

detailed compliance plan pursuant

to

35

Ill. Mm.

Code

104.121(f).

In 1974,

East Moline began investigating various

compliance options.

The construction

of

sediment lagoons was

originally chosen as the least cost alternative.

The 1974 study

was updated

in 1979.

A further update was performed in August

of

1979, which concluded that compliance could be achieved at

a cost

of $750,000.

In April

of

1988,

Greeley and Hansen submitted

a preliminary

report to East Moline which was updated with some further

.11)5—179

---

—6—

explanation.

(Ex. 8).

Greeley and Hansen concluded that

recycling at the water plant would be the preferred treatment

option for the filter backwash at a total annual cost of

$106,000.

(R.

51).

However, Greeley and Hansen has not yet

recommended a preferred treatment option for the settling basin

discharge.

(R.

54—57).

The total cost and total time

requirements for each of the three options for

settling basin

discharges are as follows:

Petitioner’s

Estimates of

Treatment Option

Cost

Time Required

Disposal at

Wastewater Plant

$331,000

24 months

Lagooning at Water

Plant

$308,000

24 months

Thickening and Belt

Filter Dewatering

$349,000

33 months

As of this time, East Moline has not committed to a particular

treatment option and continues to deliberate.

It anticipates

than an option will have been selected by the time the Board

rules on R87—35.

A major area of dispute is the time required

to achieve

compliance.

Altering

its initial recommendation to deny the

variance, at hearing,

the Agency agreed

that a variance should be

granted provided East Moline comes into compliance by December,

1990.

In its

final comments,

the Agency cbnceded that some

r:vision,

“hut

certainly

not

a

twelve--month revision” was

possible.

The petitioner requests

24 or

33 months after

the

possible denial

of site—specific relief

(R87—35) and the

compliance plan

for

the settling basin has yet

to be chosen from

among three acceptable options.

Discussion

The

issue before the Board is whether or not East Moline has

demonstrated that immediate compliance

imposes

an arbitrary or

unreasonable hardship,

which

is not self—imposed, and which

outweighs

the adverse environmental impact.

The environmental

impact and “immediacy”

of compliance must

be measured from the

date at which compliance was required until

the daze East Moline

expects

to be

in compliance.

The iron, manganese and total

suspended solids regulations

at issue here remain unchanged from

their original adoption as Rule

408

in R70—8, effective February

3,

1972,

3 PCB 401

(January 6,

1972).

Pursuant

to Rule

408(c)(ii)(B), East Moline was required

to be

in compliance with

the effluent limitations

not later than December

31,

1973,

almost

16 years

ago.

11)5 1~

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—7—

The time required

to construct facilities to treat

the

discharge and achieve compliance does not in itself create

arbitrary or unreasonable hardship associated with immediate

compliance.

To say that violations exist which cannot

be cured

irnniediately does not prove

the hardship of

immediate compliance

for which

a variance should be granted.

This principle was

articulated early in the Board’s history in Decatur Sanitary

District

v.

IEPA,

1 PCB 359,

360

(1971):

The

District

alleges

that

the

proposed

time

schedule

is

“reasonable.”

If

the

regulation

had been adopted

in

1971,

we would agree;

two

years

is

an

acceptable

timetable

for

design

and

construction

of

tertiary

facilities

of

this

size.

But

the regulation was adopted

in

1967,

and

no

reasons

are

given

for

the

District’s

inaction

for

nearly

four

years.

One

cannot

qualify

for

a

variance

simply

by

ignoring

the

timetable

and

starting

late.

While compliance within the remaining time may

be

impossible,

and

hardship

suffered

as

a

result

is,

so

far

as

is

alleged,

due

to

the

District’s own

inaction.

To

allow a variance

on

the basis

of

the present allegations would

establish

the

preposterous

proposition

that

the

very existence of

a violation

is a

ground

for excusing

it.

(Emphasis added.)

“The variance provisions

of the Act are intended

to afford

some flexibility

in regulating the speed of

compliance.

(Emphasis added.)

The provisions are not

intended, however,

to

allow for open—ended variances because this would be inconsistent

with the Act’s objectives.”

City of Mendota

v. Pollution Control

Board,

161 Ill.App.3d 203,

211,

514 N.E.2d 218

(Third District,

1987),

citing Monsanto Company

v. Pollution Control Board,

67

Ill.2d 276,

367 N.E.2d 684,

688

(1977).

East Moline has put forth hardship arguments which do not

address immediate compliance,

but which speak

to the hardship of

ever complying.

The economic reasonableness arguments put forth

by petitioners are not appropriate to the temporary relief

contemplated

in

a variance petition.

Cost figures on ultimate

compliance alone do not allow the Board

to make a determination

of the degree of hardship imposed by immediate compliance.

East

Moline

has presented

rio

other arguments on hardship.

Department

of the Air Force

(Chanute Air Force Base)

v.

IEPA,

58 PCB 239,

(May 29,

1984).

East Moline has not carried the burden of

proving

that hardship imposed would

be arbitrary or unreasonable.

Furthermore,

the hardship must not be

self-imposed.

:n PCB

87-41, Ekco Glaco

v.

IEPA,

the Board

found that “Ekco Glaco’s

problems arise from the delay caused by decisions

it has made

in

105—181

---

—8—

attempting

to secure compliance and its failure to commit

to a

particular compliance option.

The Board cannot find that

those

problems constitute an arbitrary or unreasonable hardship.”

Ekco

Glaco,

PCB 87—41 at

4, affirmed

in Ekco Glaco Corp.

v. IEPA and

IPCB,

Ill. App.

3d

—,

542 N.E.2d 147

(First-District,

1989).

Similarly,

as the above compliance plan discussion notes,

East Moline has considered treating its discharge since 1974,

but, as yet, has not committed to a firm compliance plan.

Instead, East Moline has engaged in a protracted study of

compliance alternatives.

The lagooning treatment option,

for

example, has been under consideration from 1974 through 1989.

The Board finds that the alleged hardship

is self—imposed.

Environmental

Impact

East Moline makes several arguments for the proposition that

the environmental

impact

is minimal:

(1)

East Moline submits that

the discharge of solids from the plant will not have an adverse

impact on the water quality upon the tributary or

the Mississippi

River,

in part,

because the tributary already receives

runoff

from an urban area;

(2) East Moline asserts that its discharge

would have an insignificant

impact on the water quality of the

Mississippi River, and that

the discharge may be beneficial for

the growth of certain organisms.

East Moline claims that its

discharge will cause only a minimal impact within 200 feet

downstream and

50 feet across

from the discharge point

to the

Mississippi;

(3)

East Moline asserts that its discharge of an

average of 1,544 pounds of treatment plant solids per day to the

Mississippi

is insignificant when compared to the present

sediment loading

in the Mississippi.

The average suspended

solids concentration in the Mississippi

is

57 mg/l, based on 1983

sampling.

In contrast,

in its recommendation,

the Agency strongly

disagrees with East Moline’s characterization

of the

environmental

impact.

It properly redirects attention

to the

unnamed tributary into which East Moline discharges.

As noted

below,

the Agency found that the quality of the water changed

from clear

to brown and turbid;

sludge was up to 14—20 inches

deep;

no fish were found below the discharge point

in the

tributary,

but were found upstream; and benthic organisms were

reduced substantially.

The Agency’s data

is not

in dispute,

being generally consistent with the findings of Mr. James Huff,

East Moline’s expert, who performed various environmental impact

analyses.

Mr.

James

Karumueller, Region

III Manager,

Illinois

Environmental Protection Agency,

Division of Water Pollution

Control,

Field Operations,

testified at hearing

on his

inspections conducted on June

6,

1986;

September

8,

1986;

and

September

22,

1987.

The Board examined photographs made at the

time of these various inspections,

which were

the only

11)5 19~

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—9—

inspections made by the Agency during that period.

The facts

strongly suggest that the reports are typical

of past and ongoing

conditions.

In June of

1986,

the inspection revealed that 1,000 feet

upstream of the discharge point,

the receiving stream was steady,

low in volume and clear

in color.

Downstream,

sludge banks were

14

to

20

inches deep below

the filter

backwash outfall and above

the sedimentation basin outfall

(which

is

300 feet downstream of

the first outfall).

1,100

feet downstream,

sludge banks were

at

least

12

inches deep.

The

filter backwash outfall was “very

brown,

turbid and heavily laden with solids:

“it increased

the

water elevation several

inches

and “the receiving stream flow

became muddy,

brown,

turbid and filled with solid particles.”

(R.

80.)

On September

8,

1986,

Mr. Kammueller visited the site with

Agency aquatic biologists, Bill Ettinger and Mark Joseph, who

sampled the stream at 300 yards upstream and at two downstream

stations.

Mr.

Kammueller

noted that upstream the stream was

“low

in volume, clear

in color and the

stream contained algae growth,”

while “beginning

at the public water supply filter backwash

outfall,

the receiving stream bed and lower bank areas were

covered with thick gravy—like light—brown sludge deposits.”

(R.

80,

81.)

The biologists’

findings presented as Exhibit

15, were as

follows:

Benthic

Location

~ganisms

Sludge

300 yards Upstream

183 organisms

No sludge

from 10 taxa

100 yards Downstream

13 organisms

White sludge—like

from

8 taxa

material on most

of

instream substrates

and both banks

450 yards Downstream

4 organisms

Same white sludge—

from

2 taxa

like deposits.

Bill Ettinger concluded in his January

19, 1989 memorandum

(Exhibit 15):

In all,

approximately 450 yards

of the unnamed

tributary

to

the

Mississippi

River

were

severely

impacted

by

the sludge—like deposits

discharged from

the East

M~1ine

water filtra-

tion plant.

The deleterious

effects

of sedi-

ment

on

aquatic

macroinvertebrates

have

been

i1)S--11)3

---

—10—

well

documented

in

the

scientific

literature

with numerous sources such

as

Hart and Fuller

(1974),

Mackenthun

(1969),

McKee

and

Wolf

(1963),

Resh

and

Rosenburg

(1984)

and

USEPA

(1976)

indicating

that sediment causes

a sub-

stantial reduction in insect species diversity

and productivity.

On September

22,

1987,

Mr. Kammueller observed the same

upstream conditions and noted that “quite a bit

of algae was

present as were small minnows.”

(R.

81 and Ex.

13.)

At the

outfall,

the muddy-brown sludge deposits were 1-3 inches thick.

At the point

1,100 feet downstream,

sludge deposits were 16

inches thick.

Downstream the flow was slightly brown and

turbid.

“No minnows were observed at any point below the public

water supply discharges.”

(R.

82 and Ex.

13.)

During the

discharge of the filter backwash,

the stream became turbid brown

with visible brown solids.

In its recommendation,

the Agency cited the following

passage from the McKee and Wolfe text, Water Quality Criteria,

which the Board referred

to

in developing

the original water

quality and effluent limits:

Disregarding

any

possible

toxic

effects

attributable

to

substances

leached

out

by

water,

suspended

solids

may

kill

fish

and

shellfish

by

causing

abrasive

injuries;

by

clogging the gills and respiratory passages of

various

aquatic

funa;

and

by

blanketing

the

stream

bottom,

killing

eggs,

young,

and

food

organisms,

and

destroying

spawning

beds.

Indirectly,

suspended

scuds

are

inir~ica1 to

aquatic life because they screen out

light and

because,

by

carrying

down,

they

promote

and

maintain

in

the

development

of

noxious

conditions and oxygen depletion,

killing fish,

shellfish

and

fish

food

organisms,

and

reducing

the

recreational

value

of

the

water.

(References omitted.)

(Water Quality

Criteria,

2nd edition,

pg.

280.)

The Board

is persuaded that

the suspended solids discharged

by East Moline do,

in

fact,

present

a serious environmental risk

to the receiving stream.

Further,

as indicated by two other

studies cited by the Agency,

intermittent streams

are

a valuable

resource of the State,

important

to the biotic community of

downstream permanent waters.

The unnamed tributary

is

of

ecological significance as a source of water,

food and shelter

for invertebrate and vertebrate animals.

The Board has

previously held that such waters,

even when characterized as a

drainage ditch, are entitled

to the protection of the general use

1fl~.1.”E~

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—11—

water quality standards.

In

re:

Site—Specific Rulemaking

for

the City of East Peoria,

R84—30, May 28,

1987 Order.

The Board

is persuaded that there

is significant

environmental harm in the altered character

of the tributary,

in

the loss of

fish and benthic organisms, and the violations of

unnatural sludge

(Section 302.203)

and offensive discharges

(Section 304.106)

regulations

as detailed above.

The Board

cannot

conclude that the hardship alleged by East Moline

outweighs this adverse environmental

impact.

In evaluating any potential environmental impact,

the Board

must

consider the time from which petitioner was required to be

in

compliance until

the time when compliance

will

actually be

achieved.

East Moline anticipates complying with the

1972

regulations

not sooner than late 1991

or mid—1992,

if at all.

Conclusion

The Agency,

in its final comments,

did not retract the

arguments, stated

in its recommendation,

that arbitrary or

unreasonable hardship and minimal environmental impact had not

been proved by East Moline.

It reiterated

that East Moline

inappropriately argued that economic unreasonableness

justified

granting

a variance and that

it has yet

to choose a course of

action

to achieve compliance.

The Agency then conceded that

“obviously,

the City of East Moline could not come into

immediate compliance should variance relief be denied.”

(Agency

Final Comments at

3.)

It then recommended granting relief

~‘providedthat the City of East Moline comes into compliance with

applicable regulations by December of 1990”

(Id.)

and entreated

the Board

“to set a schedule that will provide incentive to the

City of East Moline to finally get

to work.”

(Id.

at

4.)

The

Board disagrees.

The Board must conclude that East Moline failed

to prove

that immediate compliance would impose an arbitrary and

unreasonable hardship, which is not self—imposed, and which

outweighs the adverse environmental impact of the variance

requested.

The Board

finds that the immediacy of compliance

is

not truly an issue since

the regulations dated back

to 1972 and

compliance

is not

contemplated until

1991 or 1992.

Arbitrary or

~inreasonablehardship was

not proved by East Moline’s assertions

that the costs of compliance are high.

Economical

reasonableness

speaks

to the standards for permanent,

not temporary relief.

The

economic hardship was not shown

to outweigh the significant

adverse environmental harm

to benthic, aquatic, and other life

dependent

on the waters

in question.

The Board will not shield

East Moline’s continuing non—compliance.

East Moline remains

subject

to an enforcement

action.

The request for variance

is denied.

11)5

185

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—12—

This Opinion constitutes the Board’s findings of facts and

conclusions of law in this matter.

ORDER

The August

14, 1987 petition for variance filed by the City

of East Moline

is hereby denied.

Section

41 of

the Environmental Protection Act,

Ill. Rev.

Stat.

1987,

ch. 111—1/2, par. 1041, provides for appeal of final

Orders of the Board within

35 days.

The Rules of the Supreme

Court of Illinois establish filing requirements.

IT

IS SO ORDERED.

I,

Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board,

hereby certify that

the abçve Opinion and Order was

adopted on the /6~? day of

____________________,

1989, by a

vote of

7—c

Dorothy

M. ~inn, Clerk

Illinois P~lutionControl Board

105~13’~