ILLINOIS POLLUTION CONTROL BOARD
January 27, 1983
VILLAGE OF WAUCONDA,
)
)
Petitioner,
)
v.
)
PCB 82—28
)
ILLINOIS
ENVIRONMENTAL
1
PROTECTION AGENCY,
Respondent.
MR.
HERCULES
PAUL
ZAGORAS,
ATTORNEY-AT-LAW,
APPEARED
ON
BEHALF
OP
THE
VILLAGE
OF
WAUCONDA;
MS.
MARY
E.
DRAKE
APPEARED
ON
BEHALF
OF
THE
IL.INOIS
gNVIRON—
MENTAL
PROTECTION
AGENCY.
OPINION
AND
ORDER OF THE
BOARD
(by J.D. Dumelle):
On March 18,
1982 the Village of Wauconda (Wauconda) filed a
petition for variance or for extension of variance from old Rule
407
(c)
now
Section 304.123(c)
of Chapter 3:
Water Pollution,
as it relates to phosphorus discharges.
Hearing was held on
August 4, 1982 and a second hearing was scheduled for September
9,
1982 upon Wauconda’s request.
However, on September
9,
1982
Wauconda waived the second hearing.
On August 30,
1982 the
Illinois
Environmental
Protection
Agency
(Agency)
filed
a
recommendation
that
the
requested
variance
be
granted.
The
recommendation
was
accompanied
by
a
motion
to
file
instanter
which is hereby granted.
Wauconda owns and
operates
a
sewage
treatment plant which
provides secondary treatment for a design population equivalent
of 8,000.
Discharge is to Bangs Lake Creek, which is tr$butary
to the Fox River.
Disharge is pursuant to NPDES Permit
74o.
IL0020109 which upon reissuance, absent variance, will require an
effluent phosphorus limitation of 1.0 mg/l.
On
August
4,
1977 Wauconda was granted a variance (PCB
77—125, 27
PCB
157) from old Rules 203(c) and 402 of Chapter
3
until January 1, 1981 or until the Board modified the phosphorus
standards, whichever came first.
Those standards were modified
on April 26, 1979, at which time the variance expired.
On
February 5, 1981 Wauconda requested a variance from the old
Rule
407(c) phosphorus limitation (PCB 81—17, 41
PCB
431) which
request was denied
on
May 1, 1981 due to the discharge’s ‘adverse
impact
on
Slocum Lake and for failure to allege any hardship in
meeting
the 1.0 mg/l phosphorus standards.
On
June 5,
1981
Wauconda filed a motion for reconsideration which was denieci
51-51
by
Board
however
Waucond
-
Appel
lat-~
1982)
ation
herS
We
ic
forupga
construct
r
a bypas
~-
Wauconda
for the
date ot
c.
about
Oc~
Agency
the
gra
1.
In
~
tion
of
a
first
c~ a
Slocum
I ~i
United
‘~t
c~
that tie
tj
studied
found
to
c
The stu~j
mini
mi za.d
“intense
fish
krI
an oxida~
281
(42
PCB
123).
In the denial order,
1.
that
it
would
consider
a
new petition.
d
a
decision
to
the
Second
District
r
n
affirmed
the
Board~s
denial
.~3and~FPA,
Gen.
No,
81-568,
January 26,
.dr
filed
the
petition
under consider—
ia
ence
from
the
phosphorus
ilinita—
toild
be
granted,
the
Board must
-a
ital
impact.
That impact is upon
aubje(t
of
a 1976 study conducted by the
~r
ea
~ ~
Protection
Agency which indicated
e
t~opnic,
ranking 27th of 31 lakes
~ida’~-
wastewater
treatment
plant was
a
.~tc
nearl\
53
o~ the
total
phosphorus loading.
‘~c~
ti-it
aJI
phosphorus
inputs
should be
~
/
~tment
of
Conservation
letter noted
anl
nimerous
summer
and
winter
d
at
~the
lake
is nothing hut
C~
1u~ e
it
receives,”
Pressa
r~mova
plugging
notes
the
1977 coar
L(~~
lo
~
~s
not
providing
adequate phosphorus
~
~-irate co-itinuously due to frequent
te
~inter
months,
though
the Agency
effluent
levels have improved from a
-nj/I
to
1981
levels of
3 mg/l.
Ho ~e
even
Ia
in
achie~
Waa~
high
co~..
estimates
I
with
a
d
have
to
ra-~
-
operatl
facility,
operatia
a
facility
ise~t
poor
condition
of Slocum Lake,
/
acep~-ahIe
absent
substantial hardship
~rc
th
the
1~0 mg/l
standard.
ja’-
1.
~-
‘
sich
hardship
exists due to the
c
A~cncy
agrees with Wauconda’s
c
ioia-ice
a
permanent treatment facility
~t
12,000
opulation
equivalents would
cc
at
a
cost
of
$125,000
and
would require
I
~
~
to
$64,500
per year,
A temporary
~d
be
bult
for $10,000
—
$15,000 with
I
Oc
According
to
Wauconda,
such a
~
s’tently
meet
the
1 mg/i phosphorus
i
tic
Construction Grants Program
e~ tr..atnent
facilities and for
Ci~~take
Creek
diversion channel to provide
-
~‘
r
effluent around Slocum Lake.
a
a
-
o
peparing
plans
and
specifications
t.
a
~
~-
2
(design)
phase.
As of the
)
of
the
project
was expected
to he
th~
~i.
e
of
its recommendation,
the
a
.~
ccrpletion
schedule
was reasonable
-
orrsothly,
if
—3—
limitation,
but it could easily meet
a
3 mg/i standard.
The Agency,
however, states that it “could probably meet the 1.0 mg/i limitation
if sufficient alum is used”
(Ag.
Rec.
4),
Certainly, construction of permanent facilities
is un-
reasonable.
Not only would
a minimum expense of $125,000 be
incurr:e1,
hut by the time such facilities were completed,
the proposed bypass
around Slocum Lake would probably be completed,
thereby obviating
the need to meet the
1 mg/I limitation.
The Agency,
therefore,
recommends that variance be granted
subject to certain conditions,
including a
3 mg/i phosphorus
limitation and the construction of temporary facilities which,
according to Wauconda, would take
3 to
6 months to build,
although
Agency personnel and Waucond&s permit application state
that
construction should only take one month.
At some time in the past,
the Agency~recommendation would
have been reasonable.
However, as time passes,
the reasonable-
ness of any further expense
for new phosphorus control
facilities
lessens
in that the overall pollutant loading reduction decreases
as the date for completion of the bypass approaches.
At hearing,
the completion of the diversion of the Creek was expected by
October
1,
1983
(R.
31),
However,
that date was premised upon
approval by United States Environmental Protection Agency
(USEPA) by November
1,
1982
(R.
28),
Most recently, however,
Wauconda~sengineer has indicated USEPA approval to he on or
about April
1,
1983.
(See letter filed January 13,
1983),
Assuming that that delay causes
the same delay in completion,
the diversion should be operational by March
1,
1984.
Therefore,
if the Board were to follow the Agency~srecommen-
dation, Wauconda would be required to expend $34,000 to $39,000
to replace the present system
(which has been producing an average
monthly effluent of 1.9
to 4.0 mg/i of phosphorus) with temporary
facilities
(which would produce an effluent with 1,0 to 3.0
mg/i)
for a one year period.
That,
too, appears unreasonable.
However, it
is also unreasonable for the Board to allow
continued non—compliance and the use
of a “jerry built system”
that the Board has already found to be “wholly inadequate”
(41 PCB 432).
The reason
for this dilemma is clear,
If Wauconda had properly
complied with the Board~sOrder of August
4,
1977,
it would have
built a system capable of meeting the 3.0 mg/i limitation established
in that variance and would have applied for an extension of that
variance about August
26,
1979 when that variance expired according
to its own terms.
Instead, Wauconda used an inadequate system and
did not apply for an extension until February
5,
1981. at which
time it inadequately carried its burden of showing an arbitrary
or unreasonable hardship.
It then failed to take any action toward
immediate compliance,
but rather brought this petition at a time
when any further expense appears unreasonable,
51-53
—4—
Based upon these
facts, the Board cannot find that Wauconda
has shown “satisfactory progress” as required for the granting
of an extension of variance under Section 36(b)
of the Environ-
mental Protection Act (Act).
That the petition in this matter
should be treated as being
for an extension of variance is clear;
otherwise,
by simply waiting until the previous variance expires
prLor to reapplication, the petitioner can avoid the burden of
showing satisfactory progress.
Such could not be the intent
of the Act.
Thus,
the Board
finds that variance must be denied.
Obviously,
such denial leaves Wauconda open to an enforcement
action.
In that regard, the Board notes that the reasonableness
of Wauconda’s actions and any steps taken to reduce the adverse
impact of the discharge must be taken into the Board’s consider-
ation of any penalty that may be imposed in a future enforcement
proceeding.
This opinion constitutes
the Board3s findings of fact and
conclusions of law.
ORDER
The Village of Wauconda is hereby denied variance from
Section 304.123(c)
of Subtitle
C:
Water Pollution.
IT IS SO ORDERED.
I, Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, her~Dycertify that the above Order wa~adopted
on
the -~7~day
~
,
1983 by a vote of:
~.
Christan L, Moffettz,pierk
Illinois Pollution Control Board
51~54