ILLINOIS POLLUTION CONTROL BOARD
January
9,
1986
VILLAGE
OF
WA000NDA,
Petitioner,
v.
)
P08 83—237
ILLINOIS
ENVIRON~4ENTAL
PROTECTION
ASENCY,
Respondent.
MR.
HERCULES PAUL ZAGORAS APPEARED ON BEHALF
OF THE VILLAGE OF
1,~AUCONDA.
MS.
T4ARY
DR~KFJ
AND
MR.
STEPHEN
C.
EWART
APPEARED
ON
BEHALF
OF
THE
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY.
OPINIO~~1AND ORDER OF THE BOARD
(by R.
C.
Flemal):
This matter comes before
the Board upon
a petition for
variance filed by the Village of Wauconda (“~7auconda”)on
December
28,
1983.
Wauconda seeks variance relief from the
effluent limitation pertaining
to ohos~horus, found
at
35
Ill.
Adm~Code 304.123(c)
(formerly Rule 407(c)
of Chapter
3:
Water
Pollution)
until December
31, 1996.
Relief
is
granted, subject
to conditions.
The Illinois Environmental Protection Agency
(“Agency”)
submitted
a Recommendation
to the Board
on February
3,
1994,
which recommended
that the Board deny variance relief
based
principally on the belief that the compliance plan as then
presented was not implementable.
Hearing was held on March 30,
1984,
and
on January
23,
1985 Wauconda filed
an Answer
to
the
Agency’s Recommendation.
Another hearing was held
on June
11,
1985,
and Wauconda filed Amended Petitions
on July
23, 1985 and
on November
7,
1985.
The Agency filed an Amended Recommendation
on December
9,
1985,
recommending that the requested relief as
specified
in the Amended Petitions
be granted with conditions.
The long time that this case has been on the Board’s docket
is related to
a long saries of waivers
of
the statutory time for
decision,
filing of amended petitions,
and cancelled hearings.
This case also has antecedents
in several previous Board
cases,
including P03 77—125,
PCB 77—191, PCB 78—124,
P03 81—17,
and PCB
82—28,
the records
of which have been incorporated
into the
present proceeding.
Rather
than review
this extensive
record
in
its
entirety,
the following overview
is presented.
67-383
—2—
CASE OVERVIEW
Wauconda owns and operates
a municipal sewage treatment
plant
located
in
Lake County,
Illinois.
Discharge from the plant
was,
and continues to
be, directed into Bangs Lake Creek which
flows approximately two miles
to Slocum Lake, which
is tributary
to the Fox River.
This configuration,
in combination with the
level
of
treatment available at the plant,
occasioned concern
regarding the quality of water
in Bangs Lake Creek
and Slocum
Lake.
Wauconda has undertaken various actions,
including plant
improvements,
some of which are
in progress,
to meet these
concerns.
Several variance requests were also pursued;
these
constitute
the principal subject matter
of
the several
incorporated
records.
Of continuing concern has been
the inability of Wauconda,
despite apparent achievement of all other
standards,
to meet the
conditions
of
35
Ill.
Adm.
Code 304.123(c), which specifies that:
No effluent
from any source which discharges to
a lake or
reservoir with
a surface area of
B.l
tia
(20 acres)
or more
or
to
any tributary
to such
a lake
or
reservoir and whose
untreated waste
load
is
5000
or
more population equivalents
shall
contain more than
1.0 mg/i
of phosphorus as
P.
That this regulation
is
applicable
to Waucond&s discharge
is
uncontested,
since
it
is uncontested that Slocum Lake has
a
surface area greater than
20 acres and that ~auconda has
an
untreated waste
load in excess
of
5000 population equivalents.
Wauconda has
accordingly oursued several possible remedies,
the focus of which at this date
is
to by—pass
its effluent around
Slocum
Lake.
Although
the possiblity of by—passing Slocum Lake
was originally presented to this Board
as early
as
in the matter
of PBC 77—191, various difficulties,
including unavailability of
funding, problems with easements,
and alterations
in by—pass
design and conception,
have prevented actual construction
of
a
by—pass.
It
is only within the recent several months that
a
workable design and construction program have been realized.
At present Wauconda
is proceeding
on
a schedule which will
have
a by—pass system,
the Anderson Road By—pass,
in operation by
December
31,
1986
(July
23,
1985 Amended Petition, p.2).
Petitioner
accordingly requests variance
from the 1.0 mg/i
phosphorus limitation such
as to allow a maximum monthly average
of
3.0 mg/i until the scheduled December
31,
1986 completion date
(July
23,
1985 Amended Petition p.2).
ENVIRONMENTAL IMPACT
Environmental impact focuses
on two issues:
whether granting
of the variance would have impact on the Bangs Lake Creek
—
Slocurn Lake system and whether construction of the Anderson Road
By—pass would produce impact on the adjacent lands and
waterways.
As
to the
first matter,
the Board notes that Wauconda
has been contributing phosphorus
to the Bangs Lake Creek
—
Slocum
67-384
—3—
Lake system
in excess
of 1.0 mg/l for
a substantial period
of
time.
The Board further notes that
it
is unreasonable
to expect
that Wauconda could achieve the required reduction
in phosphorus
concentration
in the next twelve months by any means other than
the proposed by—pass.
Additionally the Board notes that Wauconda
presently does achieve some phosphorus reduction within its
existing treatment program.
Accordingly, while the Board is not comfortable with the
prospect that Bangs Lake Creek
—
Slocum Lake need look forward
to
at least
some additional months
of elevated phosphorus
inputs,
the Board
finds that
the proposal
to by—pass
is more
environmentally
sound
in the long run than would be the
alternative
of investing additional time
to develop and implement
an~alternative program.
The Board further finds
that any
granting
of the requested relief
is appropriately conditioned
upon Petitioner continuing
to achieve the level
of phosphorus
reduction attainable within
its existing
facili.ties.
The matter
of environmental impact caused by the particular
nature
and type of by—pass
to
be used has been developed
extensively
in the record.
Most of
this deals with various by-
pass alternatives no
longer proposed by Wauconda and hence
is not
pertinent to the matter presently before the Board.
Wauconda
contends, and
the Agency concurs (Amended Recommendation p.4),
that there
will
be
minimal
adverse environmental
impact from the
current plan,
the Anderson Road By—pass.
HARD S H I P
Both Wauconda and the Agency
(Amended
Recommendation
p.4)
contend
that, because Petitioner has maintained
its schedule for
upgrading and expansion of
its sewage treatment plant,
denial of
relief
in the final stages
of the construction, which involves
the by—pass, would constitute
an arbitrary or unreasonable
hardship.
The Board concurs with this assertion, and finds that
denial of variance relief
in this instance would constitute
an
arbitrary
or unreasonable hardship not justified by the
environmental impact.
Accordingly,
the Board will
•grant the
requested relief,
subject to conditions.
This Opinion constitutes the Board’s findings
of fact and
conclusions
of law
in this matter.
ORDER
The Village
of Wauconda
is hereby granted
a variance from 35
Ill. Adm.
Code 304.123(c)
for
its sewage treatment plant subject
to conditions as follows:
1)
The variance shall
be effective December
29,
1983 and
shall
terminate December
31,
1986
or upon completion
of
the
Anderson
Road
By—pass,
whichever
occurs
first.
67-385
—4--
2)
During
the
term
of
the
variance,
Peititioner
shall
meet
an interim phosphorus effluent limitation
of
a monthly
average
of
3.0 mg/l
as
P.
3)
Petitioner
shall
operate
its
interim
phosphorus
removal
facilities
so as
to achieve maximum phosphorus
removal
efficiencies.
4)
Petitioner
shall
sample
and analyze its discharge for
phosphorus
twice weekly using composite samples.
5)
Petitioner
shall
complete construction of the effluent
by—pass system
as quickly as possible.
6)
Within
forty—five
(45)
days
after
the
date
of
the
Board
Order
the Petitioner
shall execute and sent to:
Illinois Environmental Protection Agency
Division of Water Pollution Control
Compliance
Assurance
Section
——
Variance Unit
2200
Churchill
Road
Springfield,
Illinois
62706
Attention:
James Frost
a
certification
of
acceptance
of
this
variance
by
which
it
agrees
to
be
bound
by
its
terms
and
conditions.
This
forty—five
(45)
day
period
shall
be
held
in
abeyance
for
any
period
which
this
matter
is
appealed.
The
form
of
the
certification
shall
be
as
follows.
CERTIFICATION
The
Village of ~qauconda, having
read the Order
of
the
Illinois Pollution Control Board,
in PCB 83—237 dated January
9,
1986,
understands and accepts
the said Order,
realizing that such
acceptance renders all
terms and conditions
thereto binding and
enforceable.
Village
of
Wauconda
By:
Authorized
Agent
Title
Date
67-386
—5—
IT
IS SO ORDERED.
John
Marlin
and
J.
Theodore
Meyer
concurred,
and
Joan
Anderson dissented.
I, Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Dpi ion and Order was
adopted
on
the
_________________
day
of
~
,
1986,
by
a vote
of
.
/
~2~1
~•
/~
Dorothy
M.
G(mnn, Clerk
Illinois Pollution Control
67-387