ILLINOIS POLLUTION CONTROL BOARD
January 21,
1988
MT. VERNON ASSOCIATION, INC.,
Petitioners,
v.
)
PCB 87—56
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by
J.
Anderson):
This matter comes before the Board
on
a petition by the Mt.
Vernon Association,
Inc.
(Association)
for variance from a
compliance schedule imposed by the Board
in a November 21,
1985
enforcement Order
(PCB 84—84)
against the Mt. Vernon Water and
Sewer Corporation
(Corporation).
The Association intends to
purchase the public water
supply system and wastewater treatment
plant
from the Corporation.
Amended petitions were filed
on June
29,
1987 and October
1,
1987 in
response
to Board “more information” orders of May 14,
1987 and July 16,
1987 respectively.
The Agency filed
its
Recommendation on October
22,
1987 in support of grant of
variance with conditions.
The Association waived its request for
hearing on January 11,
1988 to facilitate the process and with
the condition that the Association would be able to request a
hearing were
it to have
a problem with the Boardts action taken
this day.
The Board accordingly will decide this matter without
hearing.
The petition involves only the wastewater treatment plant
SWTP)
as the water supply is
in compliance.
The facilities are
located
in Jo Davies County.
The STP treats an average flow of
20,000 gallons per day from 108 households.
The plant consists
of only an inlet structure,
a single cell lagoon and an outlet
structure.
There are no lift stations, as the sewage
flows by
gravity
into the lagoon, where the retention time varies
according to the flows.
The unchlorinated effluent discharges
to
an unnamed tributary
of the Mississippi River.
The Association asserts that the lagoon
is non—aerated and
of inadequate size
(First Amend, pet.
p.
3).
The Agency asserts
that the facilities have had
a long history of extremely poor
operation.
(Agency Rec.,
p.
2)
The present NPDES permit, which
expires on December
1,
1989, contains effluent limits as
85—163
follows:
BOD
=
10 mg/l monthly av.; TSS
=
12 mg/i monthly av.;
feáal coliform not to exceed 400/100 ml daily max.;
pH 6—9 and
ammonia nitrogen 1.5/4.0 mg/i when downstream ammonia nitrogen
water quality limits are violated.
On May 5,
1986 the
Corporation was granted
a lagoon exemption allowing 30/37 mg/i
BOD/TSS effluent limits once the facilities
are upgraded.
The
Corporation Discharge Monitoring Reports between June,
86 and
May,
87 show the following effluent ranges and overall averages.
BOD
TSS
F.
Coli
Ammonia—Nitrogen
(mg/i)
mg/l
(#1100 ml)
(mg/l)
range
43—182
8—51
20,000—1,400,000
12—65
average
93.3
27
35.5
The Association also submitted
a monthly lagoon effluent analysis
by the City of Dubuque Waste Water Lab showing similar
exceedances
for 1985,
1986 and 1987 (through August)
(2nd Amend.
Pet. Ex.
A)
Regarding the STP,
the Board’s Order
in PCB 84—84 required
the Corporation to comply with the following conditions:
1.
The Corporation
shall pay
a
$1,500.00 penalty
in three equal
installments.
2.
By
August
30,
1985,
submit
a
permit
application
to the Agency to dispose of sludge
from the lagoon.
3.
The
Corporation
shall
construct
a
new
lagoon
cell and appurtenance
(Phase
I)
in accordance
with the following schedule:
A.
Commence design by August
1,
1985.
B.
File a permit application with the Agency
by December
1,
1985.
C.
File
a
rate case with
the
ICC
by August
15, 1985.
D.
File
a
lease
approval
application
with
the ICC by October
1,
1985.
E.
Commence
Phase
I
construction
by
May
1,
1986.
F.
Complete Phase
I
construction by June
1,
1986.
85—164
4.
Phase
II
(existing
lagoon
restructuring)
is
dependent
upon
actions
by
the
ICC
and
IEPA,
but
is
to
start
on
August
1,
1989
and
be
completed
by July 1,
1990.
The Agency asserts that,
although the Corporation has
complied with some
of these conditions,
including paying the
penalty,
the Corporation
is
in noncompliance with the enforcement
order
in some other respects.
The permit application was filed
over six months late and, most important,
construction has not
begun as required.
The Corporation also filed
three months late
for
its Illinois Commerce Commission
(ICC)
rate increase.
On the
other hand,
the Corporation has spent $50,000 for engineering
fees and on the rate increase and has obtain its construction
permit.
On October
1,
1986,
the ICC granted sewer and water
increases that would,
for
a family of 3.5 persons using 100
gal/cap., potentially increase their combined water and sewer
bills from $40.08/mo.
to
$74.11/mo.,
an increase of about
185.
(Agency Rec.,
4,5)
The Association,
a non—profit corporation consisting
of 90
of the property owners of the Mt. Vernon Subdivision, believes
that it can, by combining Phase
I and Phase
II
of the PCB 84—84
Order,
come into full compliance faster than would have
the
Corporation,
and
at less overall costs.
The Agency agrees
(Agency Rec.,
p.
5).
The Association also
is seeking an FmHA
loan.
As of October,
1987,
the Assocation had already pre—
applied
to the Farmers HomeAdministration
(FmHA)
and was
proceeding
to the application stage.
The Association has had
a
“clear
indication
“that the loan will be approved upon completion
of FmHA informational requirements and verification of purchase
(2nd Amend.
Pet.,
p.
2,3).
The Association estimated that
the
average
cost per customer would be reduced
from $62.79/monthly
($95.00/mo.
for seven years
to pay for Phase II construction)
to
$41.47/month.
(2nd Amend. Pet. Ex.
B)
The purchase offer
is
contingent upon an extension of the PCB 84—84 construction
timetable
(2nd Amend. Pet.
Ex.
C,
p~
4, Paragraph 11).
The proposed upgrading, presently Phase
I,
involves
construction of
a second lagoon cell,
a rack filter and
chlorination equipment.
The existing lagoon, presently Phase
II,
would be completed concurrently with Phase
I and involve dredging
and restructuring.
Regarding environmental
impact,
the petition does not
provide environmental detail,
but asserts that accelerating final
compliance will be environmentally beneficial
(1st Amend.
Pet.
p.
4).
The Agency asserts that,
while it has no recent water
quality data,
based on the poor quality effluent data combined
with the fact that the receiving stream is
a zero low flow
85—
165
stream,
it may be assumed
that the discharge
is hardly benefiting
the stream.
The Agency has noted that as far back as 1973 there
have been sludge deposits
in the stream and,
until upgrading,
the
situation will continue.
The Agency also noted that the Board,
in PCB 84—84,
made findings of violation against the Corporation
as to offensive discharges and unnatural sludge.
Regarding hardship,
the Agency notes
that the substantial
rate increase required to finance system improvements
is still
hardly the highest
in the State and that
the affordability
question was presumably part of
the ICC review.
The Agency notes
that the FmHA staff in Princeton indicates that the upgrading
would cost $400,000
to $500,000, assuming no improvements in the
water system are needed.
They expect the utility bills for water
and sewage
to be $45—$50/month, assuming
FmHA assistance.
The
Agency also noted
that the residents are currently paying the new
higher rate with extra
funds being escrowed
for construction.
Finally the Agency sees no federal law impediment.
(Agency Rec.
p.
6,7)
Board Discussion:
The Board believes that the hardship question must be viewed
more broadly than the economic considerations discussed by the
Agency.
The Association
is not,
as
is usual
in
a variance
petition,
requesting more time
to come into compliance;
it
is
proposing earlier completion dates.
Rather,
much
of the
Association’s hardship is that
it cannot, obviously,
now comply
with the now past dates contained in the Board’s steps
of
progress ordered of the Corporation in PCB 84—84.
Denial
of variance would essentially create an enforcement
exposure that the Association cannot ex post facto remedy,
and
would frustate its transfer of ownership.
Additionally, this
record indicates that the non—profit Association will be more
likely than the Corporation
to have the resources
to pay for
necessary construction and to operate the facilities properly at
potentially less cost
to the users.
Under thesecircumstances,
including the positive environmental considerations,
the Board
finds that the Association would suffer an arbitrary or
unreasonable hardship were the transfer
of ownership to be
frustrated by denial of variance.
The Board agrees with the conditions proposed by the Agency
and, with some timing adjustments, will order
them.
The Board
notes that the Agency’s October
22,
1987 recommended “steps of
progress” dates precede this grant
of variance.
The Board will
adjust forward the dates accordingly,
and will lengthen the
recommended final compliance date somewhat.
The Board also notes
that the Association has already complied with some of
the steps,
and may have completed others since October.
Others appear to
involve little
time,
such as the transfer of ownership and
85—166
permits.
Since
the record has provided less than clear guidance
for these adjustments, the Board will consider any desired
adjustments
on
a motion for reconsideration.
Finally,
the Board will grant variance from the same
provisions of
the Act and Board regulation as that granted to the
Corporation
in PCB 84—84.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Mt. Vernon Association,
Inc.
is granted
a variance from 35
Ill.
Adm. Code 309.102;
35
Ill. Adm. Code 304.120(c);
35
Ill.
Mm.
Code 304.l04(a)(3);
35
Ill. Adm. Code 304.106;
35
Ill.
Adm.
Code 304.105
as
it relates to 302.203;
and 35 Ill. Adm. Code
312.101; Sections 12(a)
and 12(f)
of
the Environmental Protection
Act, subject to the following conditions:
1.
Variance shall expire on July 1,
1990 or upon completion of
the upgraded facilities whichever occurs
first.
2.
Petitioner shall comply with the following schedule to
upgrade the sewage treatment facilities:
A.
By February
15,
1988,
Petitioner shall complete
the
purchase of
the utility.
B.
At the time of purchase, Petitioner shall have a
properly certified operator
under
its employment to
adequately operate and maintain the sewage treatment
facilities.
C.
By March
1,
1988,
Petitioner shall apply to the
Environmental Protection Agency to transfer construction
and NPDES permits from Mt. Vernon Water and Sewer Corp.
to itself.
D.
By March 15,
1988, Petitioner shall complete and submit
an preapplication for an FmHA loan to FmHA.
E.
By July
1,
1988, Petitioner shall secure loan funding.
F.
By August
1,
1988, Petitioner
shall commence
construction of upgrading the facilities.
G.
By August
1,
1989, Petitioner shall complete facility
construction and rehabilitation sufficient
to allow the
facilities to operate in compliance with what.
85—167
3.
Should Petitioner fail to receive FmHA loan assistance by
July 1,
1988,
then Petitioner shall comply with
the following
adjustment
in the schedule as stated
in Paragraph
2 above:
By November
1,
1989, Petitioner shall complete
construction and rehabilitation.
4.
Petitioner
shall
submit monthly progress reports to the
Agency at
the following addresses:
Illinois Environmental Protection Agency
Division of Water Pollution Control
Compliance Assurance Section
2200 Churchill Road
Post Office Box 19276
Springfield, Illinois
62794—9276
and
Illinois Environmental Protection Agency
Division of Water Pollution Control
—
Region #1
4302 North Main Street
Rockford,
Illinois
61103
Progress
reports shall be due the 15th of the following
month and,
after purchase
of the facilities,
may be submitted
with the facilities’
DMRs.
5)
Within
45 days
of the date of
this Order, Petitioner shall
execute and forward
to Thomas Davis, Enforcement Programs,
Illinois Environmental Protection Agency,
2200 Churchill
Road,
Springfield, Illinois 62794—9276,
a 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.
The form of said Certification shall be as
follows:
CERTIFICATION
I,
(We), _____________________________,
having read the
Order of the Illinois Pollution Control Board,
in PCB 87—56,
dated January 21,
1988, understand and accept the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Petitioner
85—168
By:
Authorized Agent
Title
Date
Failure
to execute and forward the Certificate within 45
days renders this variance void and
of
rio force and effect as
a
shield against enforcement
of rules from which variance was
granted.
Section~41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1985 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 th
above Opinion and Order was
adopted on the ~
day of
_______________,
1988, by a vote
of
7—0
.
Dorothy M.
Gunn,
Clerk
Illinois Pollution Control Board
85—169