ILLINOIS POLLUTION CONTROL BOARD
August 1, 1985
CITY OF STREATOR,
)
Petitioner,
v.
)
PCB 84—181
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD (by R. Fleinal):
This matter comes before the Board upon a petition filed
December 19, 1984, by the City of Streator (“Streator”) for
variance from 35 Iii. Adm. Code 302.209 and 304.121 to allow
discharge of final effluent containing fecal coliform bacteria in
excess of the standard. The Illinois Environmental Protection
Agency (“Agency”) filed a response to Petitioner’s request on
January 21, 1985, in which it recommends that the variance be
granted, subject to conditions.
Citizen response to Streator’s request has been large. The
board received 50 individual letters, all in opposition to
granting the variance. Citizen concerns focus mainly on the
impact of the Streator discharge on water quality in the
Vermilion (north) River below the Streator outfall*. Many
citizens point out the high level of recreational use,
particularly canoeing and fishing, made of this reach of the
Vermilion and express concern about perceived poor water quality
or about degradation of existing water quality.
Pursuant to citizen requests and Board regulations,
Streator’s petition was set for public hearing; hearing was duly
held on March 22, 1985, at the Streator City Hall. In addition
to representatives of Streator and the Agency, the hearing was
attended by several members of the public, who reiterated concern
*At least some of the public concern over the proposed variance
appears to have been occasioned by the incorrect belief that its
granting would permit the dumping of “raw sewage” in the river,
in as much as this phrase appears regularly in the letters. To
the extent that this misinterpretation may still exist, the Board
notes that the petition is not to allow dumping of untreated raw
sewage, but to allow discharge of effluent which has received
primary and secondary treatment in Streator’s plant to meet other
applicable effluent standards but which has not received a “dose”
of chlorine immediately prior to discharge into the river.
Streator has never chlorinated its final effluent.
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about water quality in the Vermilion (north) River.
The City of Streator owns and operates a wastewater
collection and
treatment
system, which includes a network of
sanitary sewers, large combined interceptors, and four pump
stations. The treatment plant, constructed in 1954, is a
conventional activated sludge plant consisting of grit removal,
primary clarifiers, activated sludge units, and secondary
clarifiers. The plant was constructed without facilities for
disinfection, and continues to discharge its treated, but not
disinfected, effluent directly to the Vermilion (north) River.
Streator originally developed
plans for a chlorination facility
in August 1974. These plans were initially held in abeyance due
to lack of construction funds and later due to concerns related
to Board action in R77—12(D),
Streator asserts that during all of 1983 and the first 10
months of 1984 its treatment plant processed an average of 2,10
mgd of wastewater, with a flow in the average day in the maximum
month of 2.978 rngd and the average day in the minimum month of
1.477 mgd. The maximum flow recorded during the period was 5.40
ingd, Streator further asserts that the final effluent
averaged
11 mg/i of 5—day BOD and 9
mg/i
of suspended solids (TSS). The
Agency is in general concurrence with the latter figures,
indicating BOD and TSS 30—day average concentrations for the
first nine months of 1984 at 12.0 mg/l and 8.5 mg/i
respectively. These concentrations are within limits specified
in the NPDES permit currently held by Streator.
In the more pertinent matter of fecal coliform counts on the
treated effluent, the record is substantially poorer. Petitioner
only offers that “Past analytical testing for fecal coliforms has
been rather infrequent, however, past counts have ranged from
150,000 to 2,000,000 per 100 ml” (Petition, p. 2). The Agency
offers no additional effluent fecal coliform data, but rather
takes note of “the lack of data on fecal coliform levels in the
discharge” (Agency Recommendation, 4), and concludes that “It
is obvious that the excessive levels of fecal coliform referred
to in the petition are attributable to the lack of chlorination”
(Agency Recommendation, 5).
Petitioner offers no evidence in the record regarding
environmental impact other than the contentions that downstream
from the treatment plant the river passes through undeveloped
land with houses removed an average of 1/4 mile from the river
bank, that the stream is not used for swimming, is used for
-
fishing only “to a minor extent”, and is used “by an occasional
canoeist during high water periods~~*when “the dilution afforded
*The apparent differences in perception of the degree of
recreational use made of
the
Vermilion
(north) River on
the
part
of Streator and the public as expressed in the citizen letters
stems at least in part from differences in the reach of river
(continued)
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by the Vermilion (north) River makes the plant discharge rath~L
insignificant” (Petition, p. 3). Streator also asserts that: no
complaints have been received by city officials relative to
water
pollution downstream from the plant outfall. The Agency
Recommendation notes that, based on citizen comments received by
the Agency, “the water quality of the river for general purposes
is apparently quite satisfactory to the interested public”
(Recommendation 7).
r2he Agency provides some data on the in—stream fecal
coliform record on the Vermilion (north) River near Lenore,
located about 8 miles downstream from Streator. Twelve counts
made on samples collected between February .1983 and August 1984
showed values ranging from 9 per 100 ml to 2700 per 100 ml, with
a median of 835 per 100 ml; nine of the samples exceed 200 per
100 ml. As the Agency points out, it is unknown what
Petitioner’s contribution is to these levels. The Agency also
points out that it is common knowledge that fecal coliform
bacteria are contributed to streams by sources such as septic
systems and livestock. Such sources are presumed by the Agency
to be responsible in undetermined part for the observed in—stream
coliform levels.
In the matter of compliance plans, Streator proposes a
seven—step program beginning with a facilities plan scheduled for
completion on June 30, 1985, and terminating at attainment of the
effluent limitations for fecal coliform bacteria on July 1,
1988. This program is being undertaken as a general construction
program to modify and improve the existing collection and
treatment system, and not towards the specific goal of developing
a disinfection system. Streator points out that a separate
program for chlorination could be undertaken during the interim
period while the general reconstruction is in progress. However,
Streator indicates that the cost of this temporary program would
be approximately $60,000, and that little of this expenditure
would be recoverable upon completion of the permanent plant
improvements in approximately three years. Streator accordingly
argues hardship from the perspetive that “it would be fiscally
irresponsible to spend $60,000 for disinfection facilities that
could not be incorporated into the final plans of the plant
improvement” (Petition, p. 5). It should also be noted that the
city is in the USEPA’s construction grant program, having
received Step I funding for the facility planning. However, Step
II funds are not available for construction of the planned
improvements, and Streator must devise a means of financing them
itself. The Agency contests none of these assertions.
The Board laments that the record in the instant case is
under consideration. Most (but not all) of the citizen comments
focus on the lower reaches of the Vermilion, particularly the
reach between Lowell and the river mouth, beginning 15 river
miles below Streator,
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thinner than might be desirable, particularly in light of the
obviously great public concern. The public deserves more
explanation of the possible merits of the proposal and greater
assurance of environmental protection than the instant record
affords. Moreover, on the instant record alone the Board would
find it difficult to arrive at a decision other than denial of
the petition. Data provided by both Petitioner and the Agency do
little towards carrying the burden of proof regarding
environmental impact. Additionally, the Board has long held that
economic costs are not themselves sufficient to warrant a finding
of arbitrary or unreasonable hardship, unless balanced by a
finding of no or minimal environmental impact.
Set against the record of the instant case is the fact that
effluent chlorination has been, and continues to be, a recurring
issue before the Board. It is also a matter which has been
extensively discussed and reviewed in the sanitary engineering
literature and is the subject of regulatory opinions of which the
Board may take official notice. At issue has been the matter of
whether fecal coliform bacteria are a reliable indicator of water
quality, and whether the practice of chlorination, which is the
standard procedure for reduction of fecal coliforms, produces a
net positive environmental impact.
On October 14, 1982, in acting upon R77—l2(D), the Board
adopted rules repealing the water quality standards for in—stream
fecal coliform bacteria (35 Ill, Adm. Code 302.209) and effluent
fecal coliform bacteria (35 Ill. Adm. Code 304.121). At that
time the majority held that:
If disinfection were first proposed for
adoption today, it is quite clear that the
record would not support its widespread use.
Now, however, available evidence of harmful
effects and limited, at best, health benefits
has greatly increased.
Even if alternatives may arguably avoid
some of the effects of chlorination, without
substituting new adverse effects, the evidence
of any benefits from widespread disinfection
is too weak to support a regulation requiring
a shift from chlorination practices.
...the evidence before the Board
indicates that the public health and safety
considerations for and against chlorination
balance out. The environmental damaged caused
by chlorination tips the scales, even without
consideration of economic impacts, which
significantly favor selective disinfection.
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This Board decision was subsequently appealed, and the
Illinois Supreme Court reversed the Board on October 3, 1984.
See The People of the State of Illinois v. The Pollution Control
Board, et al., 103 ill.2d 441, 469 N.E.2d 1102. The Supreme
Court found that, due to the number of expert witnesses who
testified to the need for a microbiological standard (whether
fecal coliform bacteria or another indicator organism), the Board
incorrectly repealed both the standard governing maximum levels
of fecal coliform bacteria in general use waters (35 Ill. Adm.
Code 302.209) and in effluents (35 Ill. Mm. Code 304.121). The
Court did note, however, in apparent agreement with the Board,
that chlorination can be expensive and that of itself “is not
without potential health risk, and it probably does not kill all
pathogenic material”.
The Board is accordingly reassessing its posture regarding
both the fecal coliform standard and the practice of
chlorination. As stated in its Order of May 2, 1985, the Board
is currently considering “the utility of either reopening R77—
12, Docket Dl for further consideration of the reinstated rules
or the reopening of a new docket”.
As these actions bear on the instant case, the Board
understands that the minimal fecal coliform data presented by
Streator and the Agency are reflective of the Board’s past
position to reduce regulation of fecal coliform bacteria. Under
this climate there was little impetus for conducting regular
fecal coliform monitoring. The Board also understands the
Agency’s uncertainty in attributing the observed fecal coliform
levels at Lenore with the Streator outfall, given the
multiplicity of sources from which fecal coliform bacteria may
derive and the substantial distance between the two sites.
In order to reach a decision in a variance case, the Board
must consider, among other things, the environmental impact that
the variance would impose on human, plant, and animal life in the
affected area. Even though the record in this case lacks much of
the data that would ordinarily be relied upon in making that
determination, the Board finds that granting Petitioner’s
variance would cause no significant adverse environmental impact
on the Vermilion (north) River. It must be noted that
Petitioner, in seeking variance relief, is simply looking to
continue its practice of discharging treated but nondisinfected
effluent. Streator’s treatment facility has never had the
equipment necessary for disinfection. Therefore, this variance
would only allow Petitioner to continue discharging effluent of
the same quality that it has been discharging for many years.
The volume and content of correspondence received by the
Board from citizens concerned over this matter clearly indicates
that the Vermilion (north) River is used for a wide array of
recreational purposes by many people throughout the State. The
Board appreciates and recognizes the concerns of these
individuals,. Their views without fail establish the value of the
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Vermilion (north) River as a recreational outlet, and the Board
agrees that the attributes of the river, which make it especially
worthy of protection, should not be allowed to be degraded. The
Board simply notes that Streator’s discharges, which would be
allowed to continue under this variance for the time necessary to
make permanent treatment facility improvements, would not cause
deterioration of the condition of the river as it has existed
since these discharges began.
The Board finds that Streator’s original intention to
chlorinate, its withdrawal from that position upon the Board’s
stance in R77—l2(D), and its current intention to proceed once
more toward implementing a permanent chlorination program within
a reasonable time is evidence of good faith on the part of
Petitioner. The Board further finds that requiring Petitioner to
install temporary chlorination facilities which would not be
compatible with the permanent facilities currently under
development would constitute an arbitrary or unreasonable
hardship. Additionally, as the city must find a means of funding
the permanent improvements, expenditure of funds to finance
temporary improvements would not be the best use of the City’s
financial resources, given the water quality of the receiving
stream, The requested variance will therefore be granted,
subject to conditions as specified in the following order.
This Opinion constitutes the Board’s findings of fact and
conclusion of law in this matter.
ORDER
The City of Streator is hereby granted, effective this date,
variance for its Sewage Treatment Plant from 35 Ill. Adm. Code
302.209 and 35 Ill. Mm. Code 304.121, subject to the following
conditions:
1. Variance will expire on July 1, 1988.
2. By August 30, 1985, Petitioner shall complete a
Municipal Compliance Plan, including, but not limited
to:
a. A facilities plan which identifies the cost—
effective alternative to bring the treatment plant
and sewer system into compliance, and
b. An analysis of the financial plan to carry out the
recommended cost—effective alternative.
3. By April 30, 1986, Petitioner shall complete final plans
and specifications,
4, If by July 1, 1987, Petitioner has not begun
construction of other treatment plan improvements,
Petitioner shall begin plans and specifications for the
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provision of disinfection equipment, which shall be
operational by July 1, 1988, and shall cause
Petitioner’s effluent to be in full compliance with 35
Ill. Adm. Code 304.121 by such date.
5. By July 1, 1987, Petitioner shall complete construction
of all facilities to bring the sewer system and
treatment plant into total compliance with 35 Ill. Adm.
Code 304.121.
6. Petitioner shall execute and forward to the Illinois
Environmental Protection Agency, Water Pollution
Enforcement Programs, 2200 Churchill Road, Springfield,
Illinois 62706, a Certificate of Acceptance. The form
of the certificate shall be as follows:
CERTIFICATION
I, (We),
_______________________________,
having read the
Order of the Illinois Pollutioin Control Board, in PCB 84—184,
dated August 1, 1985, understand and accept the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Petitioner
By: Authorized Agent
Ti tie
Date
J,D. Dumelle concurred.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cert~ that the above Opinion and Order was
adopted on the
/
day of
________________,
1985, by a vote
)‘A.
Dorothy M/Gunn, Clerk
Illinois Pollution Control Board
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