ILLINOIS POLLUTION CONTROL BOARD

September

 20, 1984

CITY OF MT.

OLIVE

AND

MACOUPIN

)

COUNTY ROUSING AUTHORITY,

)

Petitioner,

v.

)

PCB

83-9

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

MR.

RICHARD

BERTINETTI,

CITY

ATTORNEY,

APPEARED

FOP,

THE

CITY

MT.

OLIVE;

MR.

JAMES

ALMETER,

ATTORNEY-AT-LAW,

APPEARED

FOR

THE

MACOUPIN

COUNTY

HOUSING

AUTHORITY;

AND

MR.

BRUCE

CARLSON,

ATTORNEY-AT-LAW,

APPEARED

FOR

THE

RESPONDENT.

OPINION

AND

ORDER

THE

BOARD

(by

Forcadeh

This

matter

comes

the

Board

remand

:Eroffl

tho

~our~

District

Court

Appeals

Macoupin

County

Housin~uthor1ty

IPCB,

IEPA,

and

City

 of Mount Olive.,

Ceneral

I~io. ~

~

~iay

 1984.

The

Board

will

briefly

review

the

~uiscc~

matter

which

 explained

 fully in

Opinions

and

Or~ers

of:

July

26,

1983,

and

September

23,

1983.

The

City

Mt.

Olive

(~City”)

filed

petition

f~i~

va~ance

January

24,

1983

and

amended

petitions

March

14r

and

M~y ~

1983.

 The Petitioner requested the Board to allow

continued

operation

unpermitted

sanitary

sewer

extension

serving

~ri

apartment

complex

East

Coif ax

Street

~fl

Mt.

Olive.

The

complex

consists

three

buildings

with

 two apartments

each

The Petitioner waived hearing.

 Responding to a

Board

Order,

the

City’s first Amended Petition joined the apartment

owner,

the

Macoupin

 County Housing Authority

 (MMCHA~’),as a

party

rasp

:.Oe~t.

hearing

was

held.

July

26,

1983,

Opinion

arid

Order

the

Board

denied

the

variance

for

failure

prove

arbitrary

and

unreasonable

hardship.

August

29,

1983,

MCHA

moved

vaoate

the

original

Opinion

and

Order

citing,

inter

ails

that

hearinc:

had

been

held.

September

23,

1983,

the

Board

denied

the

motion

vacate.

MCHA

appealed

the

Board’s

decision

the

Fourth

District

Court

Appeals.

The

Court

found

all

issues

moot

except

whether

MCHA

was

entitled

hearing.

The

Court

found

MCHA

was

ent:LtIed

hearing

and

remanded

this

Board

for

such

hearing..

60-73

After remand,~

the

Board

held

hearing

 on ‘~‘o:~

~

the

Macoupin

County

Courthouse.

The

City~ MCh1

 anc~tL~

Illinois Environments.

Protection

Agency

 (‘~Agency~,

 &npeared

and

presented

evidence~

MCRA

appeared

o~r~”~

~v~•rnrr.

The

sanitary

sewer

extension

that

 services

1r~e

 ~in~Lt.

housing

project

is

tributary

the

City~s

Sonth

5~~i?.

 ~ra~’tr~ent

Plant (“South P1ant~), The South Plant

serv1~oc~

~

 ;~eiv

40

 of the City of Mt~Olive’s population

of ~

 ~iil~

North Sewage Treatment Plant (“North Plant~)

~

~

60

 of the population

 (Agency

Rec,

 2—3)..

Ths

 lot.

‘~

 ~tists

of an Imhoff tank, trickling filter,

and

 final r~I

:~.

i

Sludge

dewatered

 on sand drying beds

with uiL~ct~

planned for agricultural

 land (Agency Ree~

31

The sewer system in

the

district

served

the

I

over

50

years old and is physically

decay~nq

 ~L t~.

experiences excessive

infiltration

and

 inflow ~

n

result in large volumes of storm water

over1oach~

Plant.

During

wet

weather,

area

residents

 exp~.

 ~J’

backups,

the

sewer

system

overflows

 numbei

 ~l raw

and

primary

treated

wastewater

routinely

 h~o~

South

Plant

(Joint

Exhibit

Stipulation

 as t~

Attachment C,

p.

 8)..

 The added flow from

the

 ?.iCin~

 ~ ‘ile

small, does result in increased bypassing

and d~r~

CR.

 120)..

 Approximately

15

citizen

 complain~r

concerning

basement

backups

and

flooding

afte~

 tIll.

(R.

125).

 There are three sewer system ove~~.

points 300 feet, 3,000 feet and 3,500 feet

aot~

housing project.

 At the first overflow

point:

is relieved during surcharging by pumping

w~’etr.

from the manhole into a nearby farm fieith

~

overflow points,

 surcharging results in blowirnj

In

 ~n~’~

Lds

off of the sewers

 (Agency Rec.

5).

The South Plant receives flows that

hydrauInrr.

 or’~

ganically overload its treatment capacity..

 Phyo:dL~

 Il~t~outh

Plant has deteriorated to the point where

it

is

i.e

 ~or~r~

:

of providing sufficient treatment.

 Because

of t~’ie~nn~I:

the South Plant and the majority of the sewers

~e

were placed on restricted status by the

Agency

1970’s

(R.

 104).

 The North Plant had been

piae~ o~

status by the old Sanitary Water Board in

1967.

Iit~.i~’

involved in an enforcement action involving

 t’ec

 ‘~‘e r

both

plants and the resulting pollution of the

reeetrm;:j

IEPA v City of Mt. Olive, PCB 74—431, August i~,~l~5

 ~:n~

sett~~~ed

by stipulation.

The City has received a Step 1,

2,

3

con

,r1r~L~i

to

rehabilitate and modify the sanitary sewer

syster

~t.

provements to the cxisting North Plant.

 The :~u~!-2

be

abandoned once these improvements are made..

 B~ds:~

 ~-nitly

being evaluated by the City and construction -L~ r~

 ~rexir~at

year

(Joint

Exhibit

Stipulation

to

Cerr~i.t:~

r~

2)..

60-74

3

During an inspection on August 12,

 199’

an unpermitted sewer extension,

 in two sect

Colfax Street

 (Rec,

 ¶5),

 The first section ~

about

 200 feet,

 was probably laid by MCHPi~s

The remaining 150 feet were laid by the

City

the street being torn up by the apartment

co~

The apartment complex

 is connnected to this

the sewer extends along the entire

 block..

permit authorizing connection of the apartm

sewer

CR.

 38)..

 On October 28,

 1982,

the

Age

enforcement notice letter listing,

 among

oth

the sewer extension

 (First Am,

 Pet.,

Ex.

“A~

complex has been occupied since about Septer

is discharged through the sewer extension

ot

instant variance petition is to allow contii;.Il

sewer extension for disposal of the apartmert

The City and MCHA advance four reaso.~

denial would impose an arbitrary and unren~

low income tenants,

 the connection has

minie

impact,

 the connection is a mere technical ~r

is no feasible alternative to sewer hook-up

The six apartments are occupied by

 fa.t

four members.

 Family incomes range from

$2

derived from public aid,

 aid to dependent

security.

 These families pay rents of fror

to MCHA..

 In addition, MCHA receives federt~

recently ranged from $63,000 to $136,000

t

under its control,

 Low-income housing

in

limited to non—existent

 Additionally,

Mt

emergency housing to accommodate the apart

should the complex he closed

 (R..

 24-34)

Records for water usage,

 a reasonable

e

discharges,

 show that the complex had

usage

from August,

 1982,

 through

May,

 1984.

 Dunn

period,

 the South Plant received flows

estirt

gallons..

 Thus,

 the proiect contributed

ab uL

Plant flow

(R.

 58-61,

Pet.

Exs. No.

1,

2

are

assert this ratio establishes minimal

or no

impact.

 They also assert that the complex

o.

constructed legally had each building been o~

sewer by a separate connection,

Petitioners claim that,

 for continued o

complex,

 there is no feasible alternative

to

hook—up..

 Their calculations evaluating a

hol

on retaining sewage

flows

during the five m

n~

experienced in Mt.

 Olive..

 A tank approximate

would contain the 90,000 gallons of sewage.

~ct

that limitations on available space, governeern-

costs likely prohibit

 such a holding tank

(11

~sL

itt

sow~ir,

P

3Q)

 adiaibaq~ of

r ret ton

I

S0’~tt,

hut

rc~ta

 cttv

o

Che-

In-

Ly

an

t

vt~attons~

~tot

s~.

raqn

c

e

“~‘-Ir~

~n

)~.

Il-in

I

c-i

c~

(

~1(~ ill’

U)()

r~he-

in?)’

a’~-ert

60-75

4

The

Agency

argues

 that

variance

snould

‘~edenaed.

They

provided

testimony

 that

the

City,

MCHA,

ani

the

complex

builder

knew or should have

 Irnown

 that Mt. Olive’s Soi’t

 Plant was on

restricted status long before the complex was

 uisc.

 An Agency

witness testified that

the~

complex flows would 1rc ease the

frequency or duratior of overloading at the South Plant,

bypasses,

and

over flow”

 (11. 101—105).

 The a nenerson for the

affected

area testified that during rainfall

 complaints about

basement

backups

sewage

are

frequert

and

 a ~erous. She

has

observed

 basements

flooded

~ziphigh with

sen-n

124—128).

In determining whether variance should be granted, the

Board

must look to the content

and

intent of the Environmental

protection

Act

(‘Act’) and relevant regulati~r~sre~,ardingsewer

construction.

 Section 12(c) of the Act provides that no person

shall:

Increase the quantity or strength

 c f any discharge of

contaminants into the waters, or constr ct or

install

any sewer or sewage treatment facility or any new

outlet for contaminants into the waters of this State,

without a

permit

granted

 by the Agcrc

The Board’s regulations implementing

tn’

 ion lave

attempted

 to balance environmental protect...r be etl.tr of having

quality sewer construction with limited sta..

c

 arc.es.

A

strict

interpretation

this

section

woul

~

 ne Agency to

review and

issue

permits

 for the constructica

 iii y every

sewer to a single family residence in Ills

 ad’iiniqtza—

tin cost of such a program would far outtc

ts.

Consequently, Board regulations, at 33 I

309.202(b)(2), exempt small single build’nq~

Ii

•

c

only

domestic sewage from the

permit

requirements

b)

 Construction permits shall not

et

 equtred

for the

following:

2)

Any

treatment works, sewer or wastewater

source designed

and

intended to serve a

single building and evertuafly treat or

discharge less than an ii~cijeof 1500

gallons

per

day (5700 1/a

‘

 of domestic

sewage; or (See also:

 33 fl

 &d~.

Code

309 204(c))

These

permit

requirements apply to every seraae sy°terin the

 State of Illinois, whether the facility

ib

i

t

•tric-ed status

or not.

 Once a sewage treatment facility is

 estricted status

for violations of the

Act

or relevant regulnit

i°

the

Age

wy is

prohibited by Section 309.241 from issuing a’r oernit to

construct or operate a new sewer introducing

oc’l

utants.

60-76

5

Thus,

 the exclusion for single buildinn~..

~itri

 domestic

sewage flow below 1500 gal/day

 does

 not ar1s(~ ~r)r1

Board

determination that such flows

have

 no envir~

tal

 i’~pactat an

overloaded plant,

but

 f torn determinations

r

 ~ ding

efficiency

for a statewide permitting system.

 Amerir~

 tonal

 Bank

v~IEPA,

 PCB 83—106,

May

3,

 1984.

 The Boar

 i-?termination on

environmental

impact

is that

once a plant

L

 ~estricted

status,

 no new permits say issue,

The Board finds that the Apartment

 coin

~onsists

 of three

buildings and has a design flow of greater

~

 1500 gallons pe~

day,

 Consequently, permits are required

f

no

 sewer

 lines.

Since restricted status was imposed

 in the

 ~‘

1970’s a variance

trom this Board is

 a condition precedent

1

 permit issuance.

Title IX of the Act allows the Board to gro~ vtriances from the

regulations where compliance would impose

an

 ~oitrary and un-

reasonable hardship.

 Such hardship

is

to

he

 ~ghed

 against the

eniironmental consequences likely to result

~n

grant of variance~

This case brings

 a unique combination

 ~‘tsto

the

 Board.

Petitioner MCHA did not construct the compil

 the sewers.

MCHA had a turnkey contract with the develo,~r

 under the super-

vision of the Chicago office of the

U.S.

De~ rsent of Housing

and Urban Development

(~HUD”),

 MCHA paid

 t’

 ~rice for the

property and completed buildings,

 receivin,

 ch-’ keys

 in exchange;

 RUT) had more control over building and con~rnc~specifications.

It thus appears that

MCHA

would not have had

 authority to

request permits or variances for sewering

1.

 rtpiex.

The complex builder is similarly

sitneL

 He had actual

knowledge of restricted

 status,

 had the

auth

ity to seek permits

or variances,

 and failed to do

so.

 After

co

 e1tation with his

architects and engineer,

he

concluded no p

 ,qere required.

This was based on an erroneous interpretati

 a letter from

the Agency regarding a larger prolect consi;~c.ng

 of many individ-

ual connections to

 a sewer line on restric

 titus.

The Board finds

that

the increased se~.

 ilows from the

complex will have a

definite,

hut minimal,

 ~‘ rse

environmental

impact by increasing the frequency or durati

 of basement

hack—ups, bypasses,

 and overloading.

The

13

 must grant or

deny variance by balancing this environment.

-is

against

that

hardship that is not self—imposed.

 Here,

th

 ir3ship

that

was

not self-imposed is also minimal.

Because of the

unique

facts of this

c~

 n~’ludingthe

scarcity of low—income housing and total

aL

F

emergency

Petitioner Mt.

 Oli,,e

 on the other

hex

offered to provide

sewer

service

 (Pet,

Ex.

service with construction specifications

(

sewer

permits

 (Pet,

Ex.

8)

 and constructed

Mt.

Olive had actual,

 as well as construct~

South

Plant was on restricted

 status,

~quivocally

ipproved sewer

~x. 7), issued

-rs of its own.

knowledge that the

housing,

 the Board will grant a variance.

One

key

factor

 in this

decision

 is that Mt. Olive,

 as a petitioner, has subiected itself

to the lurisdiction of this Board, allowing

 the imposition

conditions which will rapidly alleviate the

 acute

wet—weather

problems.

In granting this variance, the Board

imposing

several

conditions~

 First, MCHA must

 install water—saving devices in

the

apartment complex and Mt.

Olive

 must distribute information on

water conservation for homeowners to all residents

the

city.

Second,

 Mt. Olive must prohibit any new

connnections

any

type

to

the

 East Colfax Street sewer

 lines

that

prompted

this

case.

Most importantly, the Board is

imposing

condition

eliminate

improper

connections

clownspouts

the

Mt.

Olive

sanitary sewers tributary to the South Plant.

 Downspout

connections to this sanitary sewer were

 listed as one of the

malor problems causing excessive wet weather

flows

(Joint

Ex.

Attachment C,

pp.

6 &

9),

Downspouts

should

not

connected

sanitary sewer;

 they can be easily detected and

easily

disconnected.

This should provide greater relief from wet

 weather

 problems than

the additional apartment complex flows will

 cause.

 The 8oard

will allow 90 days for Mt. Olive to prepare a plan

 for submission

to the Agency.

 That plan must provide

 a viable mechanism

 ‘for

Mt.

Olive to detect and enforce disconnection of at

least

of

those

downspouts.

 That plan must

implemented,

and

 of the

downspouts

actually

disconnected,

not

later

than

June

 l~85.

The Board has provided a variance

for

the

construction

sewer

 lines that have already taken place.

 However,

 the variance

for the operation permit is for the MCFIA apartment complex

 only,

and only for one year.

 If at the end of one

 year improvements to

the system have not resulted in a lifting of restricted status,

the Board will scrutinize Mt.

 Olive’s efforts to eliminate wet

weather flows in deciding on any extension to this variance.

In the Board’s September

6,

 1984, Order

in

this

case,

the

certificate of acceptance was

inadvertently

omitted.

That

over-

sight

 will be corrected here by

 modifying the Order to include an

acceptance.

 The downspout elimination plan

due

days

from

September 20,

 1984.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

 The City of Mt. Olive and the Macoupin County

ffousing

Authority

are

hereby

granted

variance

from

Section

309.202(a)

subject

the

following

condition:

a)

 this variance applies only to the

approximately

300

feet of sewer and laterals already

constructed

along

East

Coif ax

Street.

II,

 The City of Mt.

 Olive and the Macoupin

County

Housing

Authority are hereby granted a variance

from

Section

309.303(a) subject to the following

 conditions:

a)

 this variance applies only to the three

buildings

East Coifax Street owned and operated

the

Macoupin

County Housing Authority.

b)

 This variance shall expire October

1985.

c)

 MCHA shall install

 darns

all

 toilet

flush

tanks

and

flow

 restrictors

in

all

shower

heads

each

apartment

in

the

 three

building

complex

East

Colfax

Street.

d)

 Within

 90 days,

 the City

 of Mt.

Olive

shall

develop

and

submit to the Illinois Environmental

Protection

 Agency.

2200 Churchill Road, Springfield,

Illinois

62706,

program for disconnection of

 downspouts

the

sewers

tributary to the South Treatment Plant.

 That plan

shall provide for disconnection of

90

 of the presently

 connected downspouts not later than

 June 1,

 1985.

e)

 The City of Mt. Olive shall distribute

to all

residents

of the City water conservation information

for home—

owners.

 Packets of such information

may

available

from Mark Enstrom, Illinois Department

 commerce and

Community Affairs, 630 East Adams,

5th

Floor,

Spring-

field, Illinois 62701

 (telephone:

 217—785—6158).

f)

 The City of Mt. Olive shall prohibit

any

new cortnection~,

regardless

of

whether they serve single

or

multiple

family dwellings or commercial establishments,

to

the

approximately 300 feet of new sewer

laid

alonq

 ‘~ast

Colfax Street.

60-79

S

CERTIFICATION

(We)

hereby

accept and agree to he bound by all terms

 arid

conditions

the

Order of the Pollution Control Board

in

POD

 83—9,

 of September ~

and September 20,

 1984.

City of Mt. Olive

 Macoupin

 County Housing

 Authority

Authorized Agent

 Authorized Agent

Title

Date

IT IS

 SO ORDERED.

I, Dorothy M.

 Gunn, Clerk of the Illinois Pollution Control

Board, hereby certif” that the above Opinion and Order was adopted

on the

 day of

____________,

 1984 by a vote of

‘7,.

Dorothy M.

 Guhn, Clerk

Illinois Pollution Control Board

60-80