ILLINOIS POLLUTION CONTROL BOARD
October 9, 1986
VILLAGE OF PAWNEE,
Petitioner,
v
)
PCB 86—73
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
MR. JOHN MYERS, PFEIFER & KELTY, P.C. APPEARED ON BEHALF OF
PETITIONER; AND,
MR. E. WILLIAM HUTTON APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):
This matter comes before the Board upon a June 19, 1986
Amended Petition for Variance filed on behalf of the Village of
Pawnee (Village). The Village seeks variance from 35 Ill. Adin.
Code 304.120(c) as it relates to the five—day biochemical oxygen
demand (BOD5) and total suspended solids (TSS) effluent
standards. The Illinois Environmental Protection Agency (Agency)
filed its recommendation on August 19, 1986 recommending that
variance be granted, subject to conditions. Hearing was waived
and none has been held.
Procedural History
The Village (pop. 2577) located in Sarigamon County, owns and
operates a sewage collection and treatment facility consisting of
a three cell aerated lagoon system with a design flow of 0.3
million gallons per day (MCD). The effluent is discharged to an
unnamed tributary of Horse Creek and thence to the South Fork of
the Sangamon River. (Amend Pet. p. 1).
The Village has been involved in a prior enforcement action
before the Board in PCB 81—183. This matter was settled by
stipulation and the Board’s approval thereof on December 16, 1982
which est~blished a detailed compliance schedule that included,
inter alia, that the Village install tertiary filters and modify
its lagoon system to allow bypass of each lagoon cell for
maintenance by a date certain. (Amend Pet. 1). The Agency
contends that the Village failed to comply with the Board~sOrder
and or July 15, 1985 a pre—enforcement conference was held at
which an agreement was reached on a revised compliance
schedule. (Ag. Rec. p. 3).
73-55
—2—
The Village was also granted provisional variance (PCB 85—
90) the reason for which was to allow the Village to draw down
its lagoons to make repairs to its aeration system. The
provisional variance order also required that the Village
consider and plan for the installation of bypassing piping around
individual lagoon cells. (Ag. Rec. p. 3).
The Village stated that, “in order to comply with the
Board’s order” in PCB 81—183, the Village plans to install a
tertiary rock filter and modify the lagoons to allow bypass of
each cell for maintenance. The Village contends that it must
interrupt the normal operation of its aerated lagoon facilities
and drain the lagoons to obtain access to areas within the lagoon
cells. This action, the Village asserts, will cause the
discharge of inadequately treated sewage during certain phases of
the work. (Amend Pet. pp. 1—2). The Agency granted a lagoon
exemption to the Village with the governing effluent standards
being 30 mg/i and 37 mg/l for BOD5 and TSS, respectively. The
Village contends that the discharge of inadequately treated
sewage during construction work will cause violations of these
standards. Thus, the Village seeks variance from the BOD5 and
TSS effluent standards cited above and, instead, proposes a 50
mg/l BODç and 60 mg/l TSS effluent standard during the
construcEion period. The issue before the Board is whether
denying the Village variance would constitute an arbitrary or
unreasonable hardship. For the following reasons, the Board
finds that denying the Village variance would constitute an
arbitrary or unreasonable hardship and, therefore, grants the
Village variance, subject to conditions.
Environmental Impact
The Village does not provide any detailed analysis on the
environmental impact of granting variance. The Village contends,
however, that during construction on the lagoons, effluent which
does not meet the lagoon exemption standards will be discharged
approximately 19 days and that after construction, future
effluents would be reduced to Board—prescribed levels and the
lagoon will be in compliance with the Board’s prior order in PCB
81—183
——
a long term benefit which should significantly outweigh
any short term negative effects. (Amend Pet. p. 3). Lastly, the
Village asserts that during a prior draw down of the lagoons in
June, 1985, there was no observed adverse effect on aquatic life
downstream from the lagoons (Amend Pet. p. 4).
The Agency believes that there will be little, if any,
adverse environmental impact in granting the Village its
requested variance. The Agency asserts that it is unaware of any
complaints or fish kills resulting from the June, 1985 draw down
and that the levels of contaminants which would be discharged
under the requested variance should be comparable. Moreover, the
unnamed tributary to which the Village’s treatment plant
73-56
—3—
discharges is not known to be a stream used for fishing or
swimming. On the other hand, Horse Creek is known to be used for
fishing and is classified as a zero low—flow stream. The Agency
asserts that the impact on Horse Creek should be minimal because
of the high stream levels typical during the spring season, the
season during which the Village will undertake the proposed
construction. (Ag. Rec. 5).
In light of these facts, the Board finds that the
environmental impact of granting the Village variance will be
minimal. The variance is requested for a five—month period or
until the work is completed on the lagoons, and effluent in
excess of the lagoon exemption standards will be discharged for
approximately 19 non—consecutive days. These facts in
conjunction with the fact that a prior draw down of the lagoons
did not result in any observable adverse effect on downstream
aquatic life lead the Board to the conclusion that the
environmental impact of granting this variance will be minimal.
Hardship
At the outset the Board notes that neither the Agency nor
Pawnee explains why Pawnee failed to comply with the Board’s
December 16, 1982 enforcement Order. Had this Order been
complied with, a request for variance at this late date would be
unnecessary. The Board can only assume that Pawnee presented
sufficiently compelling reasons to the Agency to cause the Agency
to recommend grant of variance that includes a new construction
schedule.
The Board is at a loss to understand why the Village and
Agency have not commented fully on the circumstances regarding
failure to comply with the prior order. The Board, given the
situation it now faces, is persuaded that it is more
environmentally beneficial at this point to give the petitioner
the benefit of the doubt regarding the issue of self imposed
hardship. In so saying, the Board emphasizes that it trusts that
such deficiencies will not occur again.
The Village contends that there are no alternatives besides
the discharge of inadequately treated sewage during the
construction period and that the purpose of the construction is
precisely to avoid in the future discharges of inadequately
treated sewage while performing maintenance by allowing the
Village to work on one lagoon at a time by bypassing it. (Amend.
Pet. p. 3).
The Agency asserts that the hardship experienced by the
Village if the Board denied variance would be both technical and
economical. The technical hardship is that in order for the
Village to comply with the Board’s Order and consistently operate
its plant in compliance, the lagoons must be lowered to make the
73-57
—4—
necessary improvements. The Agency contends that immediate
compliance would require the construction of another lagoon on a
permanent or temporary basis at a cost of between $100,000 and
$200,000 including appropriate appurtenances. The Agency
believes that the additional cost to the Village of this
construction is unwarranted and would create an arbitrary or
unreasonable hardship sufficient to allow the granting of
variance. (Ag. Rec. p. 4).
The Board finds that denying the Village variance would
constitute an arbitrary and unreasonable hardship. The only
alternative to achieve immediate compliance with applicable
standards would be to construct an additional lagoon. The Board
believes that it would be unreasonable to require the Village to
construct such a lagoon especially in light of the fact that the
Village itself is funding the construction of the planned
improvements.
Such an action would nearly double the cost of the
proposed construction without any measurable benefit to the
surrounding environment. On balance, the Board believes that the
hardship to the Village were the Board to deny variance outweighs
any adverse environmental impact of granting the variance.
Therefore, the Board will grant the Village variance, subject to
conditions.
Concerning the BOD5 and TSS effluent limitations during the
variance period, the Board notes that the Agency collected
samples of the Village’s effluent on June 19 and June 26, 1985,
when the Village was draining its lagoons. The Village’s
effluent measured 34 ntg/l BOD and 45 mg/l TSS on June 19 and 27
mg/l BOD and 31 mg/i TSS on June 26. The Agency asserts t~hatthe
effluent discharged during the variance period should approximate
the effluent discharged during the June, 1985 lagoon draw down.
Therefore, the Agency recommends effluent limitations of
40 mg/l
BOD5 and 50 mg/i TSS during the variance period.
The Village, on the other hand, estimates that effluent will
be discharged during the variance period measuring 50 mg/i BOD~
and 60 mg/l TSS and, therefore, requests these limits during the
variance period. However, the Board notes that the Village has
not provided the Board an explanation as to why the estimated
effluent concentrations will be greater than those experienced
during the June, 1985 draw down of the lagoons. Absent such an
explanation, the Board believes that the Agency’s samples of the
lagoons’ effluent during the June, 1985 draw down are indicative
of the effluent concentrations which can be expected during the
variance period. Therefore, the
Board will include as a variance
condition that the Village’s effluent shall not exceed 40 mg/l
BOD5 or 50 mg/i TSS on a monthly average.
This Opinion constitutes the Board’s findings of fact and
conclusion of law in this matter.
73-58
—5—
ORDER
The Village of Pawnee, Sangamori County, Illinois, is hereby
granted variance from 35 Ill. Adm. Code 304.120(c) as it relates
to five—day biochemical oxygen demand (BODç) and Total Suspended
Solids (TSS), subject to the following conaitions:
1. The variance shall begin on March 1, 1987 and terminate
upon completion of the proposed construction or on July
31, 1987, whichever occurs first.
2. The Village shall comply with the construction schedule
presented in Attachment A, of the Agency’s August 19,
1986 Recommendation, which is attached to this Order
unless for reasons of unavoidable delay due to adverse
weather conditions.
3.
The Village shall notify the Agency’s Springfield
Regional Office when draw down of the lagoons begins and
when the construction work is completed.
4. There shall be no discharge of sludge or bottom deposits
while the lagoons are being lowered.
5. During the variance period the Village’s effluent shall
not exceed 40 ing/l BOD5 or 50 mg/i TSS on a monthly
average.
6. During the variance period when discharges from the
lagoons are occuring, the Village shall monitor its
effluent on a weekly basis and analyze it for BODç, TSS,
pH, flow, fecal coliform and ammonia nitrogen. This
data shall be submitted to the Agency on a monthly basis
attached to the Village’s discharge monitoring reports.
7. The Village shall operate and maintain its treatment
plant during the period of construction so as to produce
the best effluent possible.
8.
Within 45 days of the date of this Order, the Village
shall execute and forward to the Illinois Environmental
Protection Agency, Division of Water Pollution Control,
Compliance Assurance Section, 2200 Churchill Road,
Springfield, Illinois 62706, a Certificate of Acceptance
and Agreement to be bound by all the terms and
conditions of this variance. This 45 day period shall
be held in abeyance for any period this matter is being
appealed. The form of the certificate shall be as
follows:
CERTIF ICATION
73-59
—6—
I, (We), _______________________________, having read the
Order of the Illinois Pollution Control Board, in PCB 86-73,
dated October 9, 1986, understand and accept the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Petitioner
By: Authorized Agent
Title
Date
IT IS SO ORDERED.
I, Dorothy M. Cunn, Clerk of the Illinois Pollution Control
Board, hereby certif~that the abo e Opinion and Order was
adopted on the
9’—
day of
~
,
1986, by a vote
of ~,-O
L7~z~.
~
Dorothy M. nfl, Clerk
/
Illinois Pollution Control Board
73-60
REVISED PER 7/11/86
MEETING
DATE
OF ACTIVITIES
ESTIMATED PLANT
ESTI?41\TE) EFFLUENT
START
COMPLETE
DISCHARGE
STRENGTHS
CONSTRUCTION SEQUENCE
ROD5
TSS
1. Pump or syphon all lagoon cells to a 6 ft
water depth (normal depth is lift.)
March 1 March 15
1
MCD
30
37
2. Install 12-inch bypass line from the proposed
transfer structure between cells 1 & 2 to the
chlorine structure
April 1 April 15
0
0
0
3. Modify the chlorine structure
April 1 April 15
0
0
0
4. Plug 10-inch transfer pipe between cells 2 & 3
April 1
0
0
0
5. Pump out contents from cell 3 (transfer to cell 2) April 1 April 15
0
0
0
r
6. Remove sludge in cell 3 from area of rock filter,
modify air piping, install transfer (outlet) structure
install rock filter, place riprap, and install pad
for erosion control at end of 10” transfer pipe
April 15 May 15
0
0
7. Remove plug from 10” transfer pipe and lower
W.L. to 6’ depth in all cells
May 15
May 25
1.5
MCD
30
37
8. Plug 10” transfer line between cells 1 & 2 and
lower W.L. in cells 2 & 3 to below transfer pipe
May 25
June 1
1.4
MCD
50
60
9. Install transfer structure for cell 2, connect
outlet piping and valves, and install erosion con-
trol pad at end of 10” transfer pipe from cell 1
June 1
June 18
0
0
0
10. Remove transfer plug & lower all cells to 6’ depth June 18 ~June22
1.5
MCD
30
37
11. Plug 10” transfer pipe from cell 1 at both ends & con-
struct transfer structure & connect 12” outlet pipe June 22 July 10
.4
MCD
50
60