ILLINOIS POLLUTION CONTROL BOARD

October

20,

1988

VILLAGE OF LAKE VILLA,

Petitioner,

v..

)

PCB 88—37

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent..

MR..

JOHN

M..

MULLEN APPEARED ON BEHALF OF PETITIONER;

MR.. JOSE

L..

GONZALEZ,

JR..., APPEARED ON BEHALF OF RESPONDENT..

OPINION AND ORDER OF THE BOARD

(by

R..

C..

Fleinal):

This matter

comes before the Board upon filings

by the

Village of Lake Villa (“Lake Villa”)

of

a Petition for Variance

on February 19,

1988 and of Amended Petitions

for Variance on

March 15,

1988 and June

30,

l988

Lake Villa

seeks variance from 35

Ill..

Adm..

Code

312..lol to

allow

it

to operate

its wastewater treatment plant

(“WWTP”) with

a Class

3 operator for the time such operator

is engaged

in

upgrading his certification

to the required Class

2;

the

requested term of the variance

is

to February

1,

1990..

For the reasons cited below, the Board denies Lake Villa’s

request..

PROCEDURAL HISTORY

The Illinois Environmental Protection Agency (“Agency”)

filed

its Recommendation

in this matter

on May 4,

1988..

The

Agency recommends denial, contending that Lake Villa has failed

to demonstrate arbitrary or unreasonable hardship,

that

financial

considerations are minimal,

and that there are significant

environmental factors

(R..

at

7)..

Hearing was held August 26,

1988

at the Lake Villa Village

Hall..

Lake Villa submitted 14 exhibits

(“Pet..

Exh..”)

and the

Agency submitted

20 exhibits

(“Agency

Exh..”)~..

Members of the

public attended

the hearing..

Subsequent

to hearing the Hearing Officer established

a

schedule providing

for simultaneous filing of briefs on or

before

93—209

---

—2—

September

15, 1988,

a schedule which was premised

on the belief

that the hearing transcript would be available

to the parties

prior

to that date..

The parties duly filed

their briefs,

not

withstanding

the fact that the transcript was not delivered

to

the Board

until September

19,

1988..

Accordingly,

the

Board on

September 22,

1988 on its own motion granted the parties

leave

to

supplement

or amend

their briefs

by September

30,

1988..

Lake

Villa

filed an amended brief

(“Pet.. Brief”)

on that

date..

BAC

KGROUND

Lake

Villa

is

a Illinois Municipal Corporation located

in

Lake County,

Illinois,

along the shores of Deep Lake and Cedar

Lake..

Its population

is 2,396 according

to

a 1987 special census

(R.

at

40)..

Among

other facilities,

Lake Villa owns and operates

a

WWTP

which uses an activated sludge system and has a design average

flow of

0..3 million gallons per

day..

Discharge

is

to Eagle

Creek..

Eagle Creek flows into

a marsh which at times

is

connected

to Long Lake which drains into Squaw Creek

and thence

Fox Lake

(Agency

Exh..

15 at

2)..

Pursuant

to

35

Ill..

Adm..

Code Part

309,

the

WWTP

is

required

to and does hold

an NPDES permit,

#IL0021342..

All NPDES--perrnitted treatment works

are required to

be under

the direct supervision of

a certified operator, pursuant

to

35

Ill..

Adm..

Code 312..l0l:

No person shall cause

or allow the use

or operation of

any treatment works

for which

a permit

is required by

Part

309 unless the operation of

such treatment works

is under the direct and active

field supervision of

a

person who has been certified by the Agency as being

competent to operate

the particular type

or size of

treatment works being

used or

operated..

Lake Villa’s WWTP

is

classified

as

a Group

2 facility

pursuant

to

35

Ill..

Adm..

Code 38040l(a)(2)..

Group

2 facilities

require

an operator certified

at Class

2

or higher..

Lake Villa’s

current1WWTp operator,

Mr..

Kevin Hinderliter,

is certified

at

Class

3

..

As of time

of hearing,

Mr..

Hinderliter lacked

25

months

of the 72 months

of experience needed

to qualify

for

the

Class

2 examination

(R..

at

199)..

However,

Mr.. Hinderliter has

1

In addition to operation

of the

WWTP,

Mr.. Hinderliter also

is

operator of Lake Villa’s public water supply system,

for which he

possesses proper certification

(R..

at

62,

119)..

93—2 10

---

—3--

completed accredited courses

at the College of Lake County and

is

enrolled

in others which, when completed, would allow him to sit

for the Class

2 examination as early as December

1989

CR..

at

199)..

Lake Villa believes that the higher—level certification

can thus reasonably be expected

to be achieved by January,

1990..

Prior

to September 1988 Lake Villa achieved compliance wi~h

the certification requirement by contracting

for

the part—time

services and supervision of a certified Class

1 operator,

Mr..

Robert Krause..

However, on August 26, 1988

Mr.. Krause served

notice of termination of the contract effective September

24,

1988

(Pet..

Exh..

11)..

Lake Villa now wishes to be able to

continue solely with the services of

Mr.. Hinderliter..

The

requested term of variance

is for the time period prior

to the

anticipated attainment of Class

2 certification by

Mr..

Hinderl iter..

Lake Villa’s

WWTP

has experienced and continues

to

experience various problems..

On December

16,

1986 the Agency

placed the Lake Villa

WWTP

on its critical review list because

the facility was approaching design capacity..

On the same day

the Agency placed

a section of

the Lake Villa sanitary sewer

system on restricted status because

it had experienced sewer

backups and bypasses

to Deep Lake..

On July

1,

1987 the

WWTP

itself was placed on restricted status after

the Agency

determined that the waste load exceeded the plant’s design

capacity

(Agency

Exh..

15).

The WWTP remains on restricted status

(R..

at 216)

due to hydraulic overloading

CR.. at 150,

167,

267)

which produces, among other matters, occasional washout of media,

sewer backups,

and overflow of

raw sewage

(R..

at

267—9)..

The

Agency estimates that wet weather flows

to the Lake Villa WWTP

exceed design average flow by

a factor of five or more

(R.. at

269)..

The Agency also notes

that during

a compliance survey

conducted on January

6,

1987, which was prior

to

the employment

of

Mr.. Hinderliter,

it “found numerous operational problems at

the Lake Villa plant involving self—monitoring,

record keeping,

sludge disposal, plant obsolescence, storage lagoons,

excessive

flow and infiltration of water

into the collection system

(Agency

Exhibit No..

18)”

(Agency Brief

at par..

9)..

The Agency again

2 The Agency points out that

it

is not unusual for

a facility to

comply with the Section

312.101 requirements by employing

a part—

time contractual certified operator who supervises a full—time

operator who is not certified

(R..

at

200)..

Section 3l2..lol does

not

in fact require that the properly certified operator be

a

full—time

employee..

The Agency cites 49

facilities ~qhich

currently comply with 312.101 by use of

a contract operator

(R..

at

200; Agency Exh. 6).

93—211

---

—4—

conducted

a compliance survey on August

2,

1988

(Agency

Exh..

19),

which was during

Mr.. Hinderliter’s

tenure..

While the Agency

agrees

that the second survey showed that operation and

maintenance

of the Lake Villa WWTP had improved and that better

and more consistent process control

testing was being performed

(P~gencyBrief

at

par..

7), problems still exist.

These include:

1)

difficulty with nitrification;

2)

stockpiling of dried sludge

on site, which could

cause a run—off problem;

3)

plant

obsolescence; and 4)

hydraulic overloading

(Agency

Exh..

19)..

While

it

is admitted that many of the problems associated

with the Lake Villa

WWTP

are problems

of the system and are not

related

to the experience of the operator

(R

at 151, 275),

the

Agency contends that an appropriately experienced operator

is

more likely to be able

to respond

to system problems in

a manner

which mitigates their effect

(R

at

167, 169,

268—9)..

PRIOR ACTIONS

Both parties argue precedence of prior proceedings involving

variance

from wastewater treatment plant operator

certification..

While

the Board finds that much of

this argument

is irrelevant

in that each case before the Board involves

individual circumstances and

is judged on the merits of those

circumstances,

there

is nevertheless some value

in reviewing the

instant request

in the context of the implication that the Agency

has shown inconsistency in its dealings with Lake Villa.

Lake Villa contends that the circumstances it now faces are

similar to those it faced when it was granted variance, with

Agency support,

in a prior action before the Board (Village of

Lake Villa v.

IEPA, PCB 83—67,

53 PCB

17)..

In that case the

operator who preceeded Mr. Hinderliter also did not hold Class

2

certification, and the Board granted a variance for

171/2

months,

within which

the Class

2 certification was sought and obtained.

The Agency,

for its part, contends that it has supported

operator certification variances only where one or both of two

conditions occurs: hardship exists because of

a recent change

in

Board rules and/or classification status of a wastewater

treatment works

(i.e.., Village

of Ashton

V.

IEPA, PCB 80—135,

39

PCB 591; Village of Frankline Grove

v..

IEPA,

PCB 80—106,

39 PCB

167; Village of German Valley

v..

IEPA, PCB 82—75,

47 PCB 537)

or

a short

time is needed

for

the current operator

to obtain the

required certification

(i..e., Village of Herrin v.

TEPA, PCB 80—

145, 39 PCB 557; Village of Crossville v.

IEPA, PCB 81—156,

45

PCB 156; Village of Marion v.

IEPA,

PCB 81—169,

45 PCB

153;

Village of German Valley

v..

IEPA,

PCB 84—27,

58 PCB 469).

The

Agency further

contends that it has opposed variance requests

where these conditions have not been met

(i..e.., Village of

Stillman Valley

v

IEPA,

PCB 86—30,

70 PCB

24)..

The

Agency

93—212

---

—5—

further notes

that Lake Villa’s prior variance, unlike its

instant request, followed on the heels of a change

it-i

rules

(R.

at 205,

215).

The Agency further distinguishes Lake Villa’s

prior variance from its instant request on the basis of differing

financial hardship,

a greater length of on—scene experience of

the prior operator,

and that the Lake Villa WWTP was not on

restricted status at the time of the prior variance

(R.. at 205—

6).

CONCLUSION

The decision before the Board

is whether Lake Villa would

incur an arbitrary or unreasonable hardship in the absence of the

requested relief.

On the matter

of hardship, Lake Villa contends that it has

been unable to comply with the certification requirements of

Section 3l2..lOl due to circumstances beyond

its control

(Pet.

Brief at

11).

Lake Villa notes that when the vacancy

for

its

WWTP

operator arose,

it sought applications from properly

certified operators,

but that no such applications were

received..

Placed

in this position, Lake Villa contends that it

was

logical

to turn to Mr. Hinderliter, who was the most

qualified of

the available candidates

(R..

at

75),

who already

possessed the certification necessary

to operate Lake Villa’s

public water

supply,

and who had the evidenced desire

to obtain

the certification required for operation of the

WWTP

In spite

of the Agency’s implication that Lake Villa did not

conduct this search with sufficient diligence

(R. at 218—23),

the

the Board can find no reason

to conclude that Lake Villa pursued

other than a reasonable course of action

to this point,

given

both the application situation and Lake Villa’s need for

an

operator who could serve both the public water supply system and

the

WWTP,.

However,

this

is not

to conclude that the unavailability of

a full—time and fully certified operator

at the time of

Mr..

Hinderliter hiring constitutes an arbitrary or unreasonable

hardship

as the matter now stands.

Lake Villa has available the

option to comply with Section 312.101 by contracting

for the

services of

a properly certified operator on

a part—time basis,

as indeed

it had done

in its employment of Mr.

Krause..

The issue

of hardship

is therefore whether the continued employment of

a

operator

in this type of

limited capacity

is arbitrary or

unreasonable

-

Lake Villa does not contend that it would be

a hardship for

it

to locate

a replacement

for Mr. Krause.

The Agency,

in fact,

has submitted

a listing of

60 wastewater treatment plant

operators

resident in Lake County who have the certification

93—213

---

—6--

necessary

to operate the Lake Villa

WWTP

(R.

at

225; Agency Exh.

9

and 10), plus

a list of 337 more resident

in adjacent counties

who are also

so certified

(Agency Exh..

9 and 10).

It

is not

unreasonable to expect that among

these operators there is at

least one who would and could

fill Lake Villa’s needs

on terms

similar

to those under which Mr. Krause functioned.

This not withstanding, Lake Villa most recently contends

that it would cost approximately $22,000 per year to hire a

properly certified operator for its WWTP

(R..

at 153, 166; Pet.

Brief at

7—8)..

However,

this figure is apparently premised on

the hiring of

a full—time Class

2 operator, and

is clearly

in

discord with the costs

that Lake Villa has actually incurred

under

its contract with Mr.

Krause..

In that case,

Mr..

Krause was

paid

at a rate of $20/hour

(R. at 84).

For

the beginning of his

contract through July 31,

1988, he evidently worked a total of

76.5 hours

and accordingly received renumeration in the total

amount of $1,530

(R..

at

85).

Prorated over the period of

a full

year,

this amounts

to approximately $2,800 per year,

or $19,200

less than Lake Villa contends would be

its future

costs..

On the matter of environmental and public health,

the Board

notes

that,

in addition

to assuring smooth day—to—day operation,

a principal purpose of requiring an experienced wastewater

treatment plant operator

is

to provide the maximum likelihood

that the operator will

be able

to fully respond

in the face of an

emergency..

This ability is particularly essential where a

wastewater treatment plant

is beset by physical limitations which

enhance the probability that emergency actions will have to be

undertaken,

and where a wastewater treatment plant

is associated

with a particularly sensitive environment where the consequences

of an emergency action may be most acute.

Both of these elements

occur

in the instant matter.

Here the Lake Villa

WWTP

is

inarguably beset by extraordinary potential for system

overloading and

its attendant problems of both an environmental

and public health nature..

Moreover, there

is an apparent unusual

potential

for pollution of the adjacent sensitive lake

environments..

The Board therefore finds that environmental and

public health protection are necessarily served by the

availability to Lake Villa of

a properly certified wastewater

treatment plant operator.

In summary, while

the Board appreciates Lake Villa’s need

to

constrain unnecessary expenditures

in the face of demands on

limited resources,

the record simply does not support the

contention

that the cost to Lake Villa for

a call—as—needed,

properly—certified operator

is

incommensurate with

the potential

environmental and public health protection which such operator

would provide.

93—214

---

—7--

ORDER

The Village

of Lake Villa’s request

for variance from

35

Ill..

Adm.. Code 312.101

is hereby denied.

Section

41

of

the

Environmental

Protection

Act,

Ill.

Rev..

Stat..

1987

ch..

1111/2 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 above Opinion and Order was

adopted

on

the

~

day of

~

,

1988, by

a

vote

of

1-ô

Illino

ution

Control

Board

93—215