ILLINOIS POLLUTION CONTROL BOARD
April
10,
1986
CITIZENS UTILITIES COMPANY
)
OF ILLINOIS,
)
)
Petitioner,
)
)
v.
)
PCB 85-95
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
and
VILLAGE OF BOLINGBROOK,
)
)
Intervenor.
)
MR. DANIEL
J.
KUCERA OF CHAPMAN AND CUTLER APPEARED FOR
PETITIONER;
AND
MR. WAYNE WIEMERSLAGE, STAFF ATTORNEY, APPEARED FOR RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter comes before the Board on the July
1, 1985
petition for variance,
as amended on August 13,
1985,
filed
by
Citizens Utilities Company of Illinois
(Citizens).
Citizens
is
requesting relief from the standards for 5-day biochemical oxygen
demand
(BOD5)
and total suspended solids
(TSS).
35 Iii. Adm.
Code 304.120(c).
In addition, Citizens
seeks an exemption from
the water quality standards for ammonia nitrogen and dissolved
oxygen for periods when creek flow is less than 2 cu.ft/sec.
35
Ill. Adm. Code 302.206, 302.212 and 304.105.
This relief is
requested to extend until such time as the Board grants Citizens
site-specific rule change
in R81-19 on remand.
If the Board
should deny the petition for rule change,
variance
is requested
for a period of three years after final adjudication of R81-19.
The Illinois Environmental Protection Agency
(Agency) submitted
its recommendation to deny the variance on August
8, 1985.
Hearing was held on October 16,
1985.
PRELIMINARY MATTERS
On October
22,
1985,
six days after hearing,
the Village of
Bolingbrook filed
a motion to intervene and response
in this
proceeding, asserting
that because any Board order may affect the
rates and services provided by Citizens to its residents,
that
the Village has
a substantial stake
in the proceedings.
69-34
—2-
The Agency objected
to the intervention on October 29, 1985
on the grounds that the Village had failed to comply with
35 Iii.
Adrn.
Code
103.142.
This section provides that an applicant for
intervention shall serve copies of its petition on the parties
and the Board
no later than 48 hours prior
to the date set for
hearing.
However,
the Hearing Officer may permit intervention at
any time prior to the hearing when good cause
for delay is
shown.
The Agency argues that neither of these procedural
requirements were fulfilled and further that Bolingbrook has
attempted to raise issues which were previously raised at an
earlier stage
of the proceeding
in contravention of
35
Ill. Adm.
Code 103.142(c).
Citizens also filed
a response to the motion to intervene
stating that
it had no objection to the
intervention.
Citizens
notes that the Village did appear at the October 16,
1985 hearing
where it stated its intention
to file its motion to intervene and
response with the Board
and that no objections
to this procedure
were voiced at the time.
The Board finds
that although
35 Ill.
Adm.
Code 103.142 was not strictly complied with, the Village’s
intention to move for intervention was made known to both parties
at the time of hearing and because no objections
to
this
procedure were made,
that the motion should be, and
is granted.
FACTS AND HISTORY
Citizens provides public utility water service to
approximately 23,000 customers and
sanitary sewer service
to
approximately 22,000 customers in the metropolitan Chicago
area.
Citizens
is an Illinois corporation and
a public utility
within the meaning of Section 10
of the Illinois Public Utilities
Act.
One of Citizens’
service areas consists of
a substantial
portion of the Village of Bolingbrook in Will County,
Illinois.
Citizens
provides
water
and
sanitary sewer service to
approximately
8,000 connections
in this area.
Sanitary sewer
service
is provided through
a sanitary sewer collection system
and two wastewater treatment plants.
This petition concerns
Citizens’
West Suburban wastewater treatment plant No.
1
(WSB
1).
WSB
1 consists of an activated sludge plant,
operated
in the
contact stabilization mode, with a design dry weather flow of
1.28 mgd.
The final effluent from the plant
is discharged to
Lily Cache Creek, an intermittent stream.
Citizens was originally granted a six month variance for
this plant
in PCB 78-123, which was later modified
in PCB 78—
265.
31 PCB 111, July 20,
1978;
31 PCB 711, October
19,
1978.
The most recent variance was granted
in PCB 78-313 and
expired
on
July 2,
1985.
41 PCB
11, March
5, 1981.
Citizens had previously
sought extension of
the variance granted
in PCB 78-313 on the
grounds that
a study of the Du Page River Basin was likely to
result
in the adoption of revised water quality standards
applicable to Lily Cache
Creek.
The Board denied this variance
extension request in PCB 83-124.
57 PCB 423, April
19, 1984.
69.35
—3-
Concomitantly with its
variance requests, Citizens has
pursued site-specific regulatory relief
in R81-19.
This
proceeding was originally dismissed by the Board
for lack of
information
to support
the
less restrictive
standards.
52 PCB
169, May
5,
1983.
Citizens appealed this dismissal as well
as
the denial of
the
variance
extension
in
PCB
83-124
to
the
Third
District Appellate Court.
Citizens Utilities Company of Illinois
v.
Illinois Pollution Control Board, No. 3-84-0412 and No. 3-83-
0498, consol.
(June 17,1985).
The court upheld
the denial of
variance
but
remanded
the site-specific proceeding for an
economic determination by the Board.
The parties have stipulated to incorporation of the records
from PCB cases
78-123,
78-265,
78-313 and 83-124 as well as the
record
in R81-19.
(R.
at
4).
Virtually no new evidence has been
provided
in this proceeding.
ENVIRONMENTAL IMPACT
The environmental impact of Citizens’ effluent and
a change
in the water quality standards has been hotly debated
in previous
proceedings before the Board.
Lily Cache
Creek has an historical
7 day
-
10 year low flow
of
zero and
is therefore classified as intermittent.
Citizens
maintains that urban and agricultural run—off coupled with the
intermittent nature of the creek are limiting factors
for the
diversity of stream organisms and the stream productivity.
A
study commissioned by Citizens alleges
that the creek is
extremely degraded and that its value as
a natural resource is
extremely limited.
(R8l-19, Exh.
C).
The Agency, however,
maintains that there exists
a diverse aquatic habitat along the
creek but that Citizens’ effluent
is
a limiting factor.
(PCB 78-
313,
R.
at 548—70)
A review of the contradictory and conflicting evidence
leading to these two positions was made by the Board in R8l-l9.
As no changed circumstances are alleged
in this proceeding,
the
Board must conclude now, as
it did then,
that the “data
is
insufficient
to support the conclusion that nonpoint source
loadings are equivalent to WSB
1 discharge loadings, as Citizens
contends,
and even if
it
is, that
is not sufficient
to
demonstrate
that
the WSB
1 discharge is not
a significant factor
in limiting the aquatic life
in the Creek.”
(R81-l9, 52 PCB at
174).
Petitioner has the burden of proving that any hardship is
arbitrary or unreasonable and demonstrating the degree of
environmental harm.
Citizens maintains simply that there will be
no degradation
to the creek if the variance
is granted because
the effluent will remain the same as under the current variance.
In this connection, the Board points out that the requested
exemption from
the
dissolved
oxygen
and
ammonia
nitrogen
69.36
—4—
standards has never been granted
by the Board previously.
Moreover,
there
is no evidence
in the record to support the
conclusion that there will
be
a minimal environmental impact
should
these parameters be allowed to degrade.
In fact,
the
Agency believes that relaxation of these parameters would
certainly allow degradation of the creek and limit its beneficial
uses.
Ag. Brief at
9.
Accordingly,
this relief must be denied.
As
to the remaining parameters,
the Board
notes
that under
the Environmental Protection Act and Board regulations compliance
was called
for almost 13 years ago.
(See PCB 78-313, concurring
opinion
by
J.
Dumelle at
41 PCB 19).
Further maintenance of the
status quo
is in direct contradiction with the statutorily
declared purpose of the State’s water pollution control laws
which is
to “restore, maintain and enhance
the purity of the
waters of this state
.
.
.
.“
Ill. Rev.
Stat.
1985,
ch.
lll—’/2,
par.
1011.
HARDSHIP
Variances are
to be granted upon
a showing of arbitrary or
unreasonable hardship and considering any environmental harm.
The purpose of
a variance
is
to allow
a period of time,
not
to
exceed five years,
for the variance petitioner to achieve
compliance.
Ill.
Rev.
Stat.
1985,
ch.
lll_u/2, pars.
1035(a) and
1036(b).
Citizens’variance request contains no compliance plan
but asserts only that it would be an arbitrary or unreasonable
hardship to require compliance
at this time while R81-l9
is still
pending before the Board.
Citizens contends that the Board may
agree that
it
is economically unreasonable to require compliance
and grant Citizens’ relief
in R81-19.
In this event, any
expenditures made to come into compliance
in the interim would be
allegedly unreasonable and irresponsible.
Should the Board deny
the rule change,
Citizens believes the Board may be overturned on
appeal and
is thus asking for variance relief for three
years
after
final adjudication of R81-l9,
meaning until all appeals
have been exhausted.
The Board
notes
that this request
is
patently contrary to law in that it could result
in variance for
longer than five years.
On the question of the economic hardship to Citizens,
the
records
in previous proceedings reveal that an expenditure of
approximately $3.6 million would
be necessary to come into
compliance.
Citizens has updated
this cost to $4.15 million
assuming a midpoint
of construction in
1989.
Citizens does not
argue
that the necessary measures are technically infeasible or
that they pose an economic burden to the company itself, but that
the expenditures would pose an arbitrary or unreasonable hardship
on its customers.
In fact,
Citizens admits that it currently has
the financial resources at its disposal to effectuate
the
necessary plant modifications but that
it
would
immediately
seek
a
rate
increase.
69-37
—5—
The amount of this increase
is alleged to be approximately
$411 per user per year.
However,
this increase assumes that the
expenditures will be apportioned only among users of WSB
1.
The
Board noted
in R81-19, however, that local
per capita costs for
construction of WSB
2 were spread over both the WSB
1 and WSB 2
areas, and
that apportionment among only WSB
1 users may be
unacceptable to the Commerce Commission.
(R81—19,
52 PCB at
175).
If costs are apportioned over both plant service areas,
the per capita increase would be only about
$167 per year per
customer.
The Board does not find this increase to be an unreasonable
or arbitrary hardship.
Many Illinois communities have been faced
with similar increases and have long since come into compliance
with the state’s environmental laws.
The Board has previously
stated that
“at
some point Citizens must come into compliance
as have other Illinois communities which chose to meet standards
rather than pursue every possible means of delay.”
PCB 83-124,
57 PCB at
428.
The Board
notes
that Citizens present variance request
is
remarkably similar to that denied by the Board
in PCB 83-124.
In
that case, Citizens based
its prayer
for relief on
a study which
possibly might
or might not propose new water quality standards
for certain streams.
The Board’s denial of that variance request
based
on a speculative change
in the regulations was upheld on
appeal.
This variance similarly seeks relief based on
a petition
for a site-specific rule change~whichmay or may not succeed
at
the Board and court
level.
On this point,
the court’s opinion on
appeal
is extremely apt:
“if the speculative prospect of future
changes
in the law were
to constitute
an arbitrary or
unreasonable hardship,
then the law itself would
be emasculated
with variances,
as there
is always prospect for future change.”
Slip op.
at
5.
This very principle has been consistently
enunciated by the Board.
Accordingly, the conclusion that
“the
Board cannot lawfully prejudge the outcome of
a pending
regulatory proposal
in considering
a petition of variance”
remains unshakeable.
City of Casey v.
EPA, PCB 81-16,
41 PCB
427, May 14,
1981.
In summary,
a petition for variance must demonstrate an
arbitrary or unreasonable hardship, and such that it outweighs
any environmental harm.
The burden of this demonstration lies
with the petitioner.
The Board finds, however,
as
it did
in PCB
83-124,
that compliance is both technically feasible and
economically reasonable.
The prospect of a loosening
in the
standards cannot lawfully serve as the basis for
a claim of
hardship.
Thus, Citizens has failed to demonstrate
a sufficient
hardship claim considering the environmental harm.
Simple
maintenance
at the status quo for over 12
years does not rise to
a demonstration of no environmental harm,
since had compliance
been achieved,
by now substantial benefits might have accrued to
the Creek.
The variance
is denied.
69-38
-6-
This Opinion constitutes
the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Citizens Utilities Company of Illinois’ petition for
variance from 35 Iii. Adm.
Code 302.206,
302.212, 304.105 and
304.120(c)
is hereby denied.
IT IS SO ORDERED.
R. Flemal abstained.
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
_________________,
1986, by
a vote
of
~-c)
.
~
~.
Dorothy M. Günn,
Clerk
Illinois Pollution Control Board
69-39