ILLINOIS POLLUTION CONTROL BOARD
October
5,
1982
VILLAGE OF ASHLAND,
Petitioner,
v.
)
PCB 82—1
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
THOMAS
R.
APPLETON, PRESNEY, HUFFMAN, KELLEY
& APPLETON,
APPEARED
ON BEHALF OF PETITIONER, AND
BRUCE
L.
CARLSON APPEARED ON BEHALF
OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on the petition for
variance of the Village of Ashland
(Village),
filed January
4,
1982 as amended February 23,
1982.
The Village
seeks
a five—
year variance from Rule 602(c)
of Chapter
3:
Water Pollution
since
codified as
35 Ill.
Adm. Code Title 35, Subtitle
C, Chap.
1,
Sec.
306,103(c).
On March 25,
1982 the Illinois Environmental
Protection Agency
(Agency)
filed
its Recommendation opposing
grant of variance.
On May
6,
1982 a hearing
was held at which
no members of the public were present.
The Village filed a
closing brief on June
30,
1982,
as did the Agency July
19,
1982.
The Village of Ashland, Cass County, owns and operates a
wastewater treatment plant along with tributary combined and
sanitary sewers, which serves its 1351 residents
(550 water
users).
The Village
is involved
in an application for funding
under the Construction Grants Program to
a)
install a separate
sanitary sewer system,
and b)
to modify its existing sewage
treatment plant, built in 1967,
from a contact stabilization
plant to a single stage aeration plant with tertiary filtration
and chlorination.
Present estimated costs for the entire
project total $2,449,000,
of which about $400,000
is attributable
to plant improvements.
The Village’s
25
“local share”
of this
project would be about $724,400.
The Village has received a
commitment from the Farmers Home Administration
(FmHA) for a loan
at an interest rate of
5
for a 40—year term.
Essentially, the Village
seeks variance to allow it to
forgo construction of the $2,000,000 sanitary sewer
line.
It
argues that the environmental impact of a variance would be
49-27
2
minimal, that denial of variance would impose an arbitrary or
unreasonable hardship, and cites the pendency of the Board’s
review of Rule 602 in R81-17 as an additional reason for the
Board to allow delay of sanitary sewer construction.
At hearing, Village President William Roth and consulting
engineer Donald L.
Damotte presented testiomny and exhibits on
the Village’s behalf.
They explained that the Village currently
has one sanitary sewer
line,
carrying flows directly to the
sewage treatment plant
(STP), which services 10 to 15
of the
Village’s residents
(R.
27,
56),
The
flows to the other,
combined sewer line, are the subject
o1
this variance.
The Village’s 1977 Facility Plan,
prepared by the
Village’s prior consultant, David
C.
Loveland (Resp.
Ex.
1),
outlines the history of the Village’s “sewer system”.
Runoff
from approximately 1000 acres located north to northeast of
the Village
follows natural drainage patterns through the
Village, discharging
into the north
fork of Little Indian Creek.
(At hearing, however,
there was testimony that drainage from
9
square miles flowed through the Village.)
Beginning in 1930,
drain tile segments began to be
laid,
to avoid flooding streets
crossing the creek.
From that time the drainage system, and
its attendant problems,
like Topsy “just grew”.
The Facilities Plan characterizes
the system
as “a
random
patchwork with no discernable planned pattern”.
The main trunk—
line was laid in a channel of the creek which once extended
into the Village
(Id. at
11,
8), but the system has been
constructed piecemeal
as the Village has grown.
The various
materidis used include open—jointed field tiles
(used up until
the mid—1960’s),
bell and spigot clay tile, concrete sewer
pipe,
and ABS truss pipe
(Resp.
Ex.
1,
p.
11,
R.
35—36).
Some
drainage segments were installed by individual landowners,
and
others by the Village, which ignored “legal niceties” such as
easements,
etc.
Many segments were buried only a few feet
under the ground;
“it
is not unusual after a
heavy
rain storm
for the Village to experience cave-ins caused by failure of a
section of the drainage tile system
(Id. p.
13).
At some places within the Village itself,
flow is
transported through open ditches
(R.
38-39).
At the west side
of the Village, the system reaches
a 60—inch diameter pipe
with outlet to a tributary of Little Indian Creek.
A diversion structure in the pipe,
about 8-10 inches high,
diverts
flows to a lift station, which pumps them to the STP.
The STP can treat a design average flow of 150,000 gpd;
excess
Uows
go
to a primary lagoon for settling and eventual discharge
into Little Indian Creek.
Actual flows
received by the STP
have not been recorded “over the last few years” because of an
inoperable flow meter
(R.
36,
38—39,
40,
49—50).
49-28
3
Flows
passing over the diversion structure discharge
into
an unnamed tributary
of Little Indian Creek in
an open area
bordered by homes
and some agricultural land,
“virtually in
the...Village”.
Overflows occur
in all
hut the driest months
(R.
47,
62,
69).
While
the drainage system was intended to
carry only storm
water,
at some time it became a ‘~combinedsewer”,
As expressed
in the Facilities Plan,
“Because of
..
.indigenous soil factors, septic
tanks were
contraindicated,
However, they
were
nonetheless installed.
Seotic tank draina9e fields
were
eminently unsuccessfu~.
A noisome nuisance
was created by unabsorbed septic water
rising
to
the surface and collecting in stagnant pools
in
yards, roadside
ditches, hollows, and
depressions
in the land.
In an attempt to
remedy
the situation,
the
residents started connecting
the septic
tank
outflows into the drain
tile system.
This
abated
the
immediate residential problem but created a
greater
environmental evil.
,The overflow from
the drainage system,
(which contains only liquid septic
tank drainage)
causes the same noisome problems that were
individually created before connection to the drain
tile system.
Now,
instead of being dispersed as
previously,
it
is in one concentrated area.
Odor
and a myriad
of attendant public health problems
proliferate.
Not the least of these problems
is insect control.
Rapid growth of vegetation
in
the outfall area makes insect abatement programs
futile”
(Resp,
Ex,
1 at 9).
Because of the chronic overflows from the drainage system,
the
Agency imposed restricted status on December
6,
1976, which
continues
in effect
(Resp,
Ex.
2,
R.
24—26).
From the overflow location,
the Creek’s unnamed tributary
travels for about 150 feet, passes through a culvert, and
runs about
300 feet before joining another tributary.
The
combined tributaries flow downstream past the STP.
The STP
discharges into them at a location about one—quarter mile
downstream of the overflow point
(R.
71-72),
Each of the Village~switnesses presented testimony
relating to the environmental impact of the untreated overflows
on the receiving tributary.
Village President Roth,
a nearly
life—long Ashland resident, testified that he had seen varying
degrees
of algae present
in the stream since
the 1940’s.
He
never observed fish “because a
lot of times
the
stream
didn’t
have any water in it”.
Mr. Roth testified that he had never
heard of any human or animal health problems arising from the
Village’s drainage system
(R.
8,
17).
49-29
4
Engineer Damotte testified that the overflow smelled
“at times”,
He too observed algal growth near the diversion
structure.
Mr. Damotte testified that on the one occasion he
had observed the stream about three-eighths of a mile down-
stream, he saw no unusual growths or deposits
(R.
39,
46—47).
The Agency presented four witnesses,
three of whom spoke
to the environmental impact
issue,
William Tucker presented
testimony concerning the importance of the aquatic life
activity occurring in intermittent streams (such as Little
Indian Creek)
to the life in larger downstream waters,
and the
detrimental effects of even small quantities of conventional
pollutants
in a small stream with a low dilution factor.
Mr. Tucker’s conclusions were based on
a study he prepared
after study of six intermittent streams,
none of which were
the Little Indian Creek
(R.
73,
88).
Toby Frevert and Charles Brutlag spoke of their field
observations of Little Indian Creek.
Mr. Frevert testified that
on a visit made
in the summer,
1974, he inspected the creek
center from the lift station and overflow points,
and for about
one quarter to one half mile downstream.
He noted organic
sludge deposits related to sanitary sewage in the creek bed,
and a high concentration of filamentic algal growth in the
immediate vicinity of the overflow point and lesser quantities
downstream.
In Mr. Frevert’s opinion,
the sewage discharge
provided the organic enrichment causing and contributing to
the growth of this material.
Mr. Brutlag testified concerning conditions he observed
in March,
1982.
At the overflow point itself,
a sewage odor
was noted,
About 150 feet downstream
the stream bed was
covered with black sludge deposits and filamentous growth;
similar conditions were observed for about 300 feet downstream
(R.
69,
71).
Each of the Village’s witnesses addressed its economic
hardship argument.
As
a result of a survey of its residents
conducted
in connection with an HUD grant application, the
Village has determined that 48
of the households within
it
have household incomes of less than $13,600
(many of these
householders being retirees)
(Pet,
2,
R.
15,
32).
To finance
the aforementioned $724,400 25
local
share for sanitary
sewer construction, even as based on the FmHA 5
interest
figure, the Village calculates that its annual sewer expense
will be increased from about $47,500 to $93,940.
Water users——commercial and residential alike——are
currently charged a flat sewer charge of $3.50 per month.
As
part of its Facilities Plan, the Village discussed the rate
increases needed to finance improvements.
The proposed rate
structure would be tied to water usage, with $1.95 to be the
monthly service charge and the service rate
to be $2.85 per
49-30
5
1000 gallons.
The Village alleges that the minimum monthly
bill would thus be $4.80, and the average monthly bill would be
$12.50
(based on use of 3700 gallons per month).
The Village
argues that payment of this additional $9.00 per month would
impose an arbitrary or unreasonable hardship, particularly
in
light of the fact that each household would also be forced to
pay a one—time $400 charge for a sewer hook—up from the
household to a sanitary sewer
(Resp.
Ex.
3,
R.
54—56).
The Agency does not dispute the fact that sewer charges
would increase.
It notes, however,
that according to the
Village’s own figures,
28.2
of its customers use less than
1000 gallons per month,
with 20
using between 1,000
—
2,000
gallons, and an additional 16.9
using between 2,000
—
3,000.
Fully 65.1
of the water customers would thus be paying less
than the “average” projected bill of $12.50 per month.
The
Agency suggests that after transition
to
a graduated system,
that many users might also have an incentive to reduce the
amount of any increase by implementation of water—saving devices
and practices.
Further, as
to the $400 sewer connection fee,
the Agency suggests that this might be offset by savings
in
septic tank maintenance, since tanks would he rendered obsolete.
Even assuming the correctness of the Village’s higher
figures,
the Agency argues that these costs do not constitute
an arbitrary or unreasonable hardship, particularly as balanced
against the evidence of environmental harm.
The Agency submits
that grant of variance could ultimately
lead to imposition of
greater costs at a later
time.
Construction costs would rise
with inflation,
and the interest rate for financing the local
share would probably be less favorable later——even now, new
FmHA loan applications are subject
to interest rates of 12.375
(R.
29).
Finally,
the Village argues
that thependancy of the
R81—17 proceeding justifies grant of variance relief,
as the
Village believes “it will
in fact fall within the exceptions
to Rule
602
(sic)
provided by said proposed amendment”
(Brief
at 4).
The Agency counterargues that even if Rule 602 were
modified as proposed,
that the Village would be required to
make a demonstration justifying the exception, based upon
analysis of water quality effects,
stream uses, and control
strategy alternatives, as well
as economic considerations.
As the Village has not here presented a compliance plan,
the
Agency suggests that variance should not be granted solely on
the basis of speculation as to the ultimate availability of
regulatory relief, citing ~
f_Sauget_etal.v.IEPA,
PCB 80—176, April
16, 1981.
The Board finds that the Village has failed to prove that
denial of variance would impose an arbitrary or unreasonable
hardship.
In its own Facilities Plan, the Village has “admitted”
to the potential public health problems, actual environmental
49-31
6
problems, and actual economic problems which result from
maintenance of the status quo,
all of which have been amply
demonstrated by the testimony presented to the Board.
The Board concurs that
“There does not appear to be any alternatives
sic)
to the development of a sanitary waste col-
lection system.
The soils of the area preclude
the return to septic tanks with attendant seepage
fields.
The implications of a “no action” plan would,
under
the current restrictions placed on the Vil-
lage by the Illinois
EPA, mean the abandonment of
any planned construction with resulting economic
loss.
Such a “no action” plan would, in all
probability,
lead to increased pollution of Indian
Creek,
as electric cost and maintenance costs
increase beyond the realistic ability of the
Village to pay for the continual use of an inef-
ficient treatment facility”
(Resp.
Ex.
1 at 14).
Perhaps more importantly, the Board cannot condone
continued operation
in any part of the Village of what amounts
to “open sewers”.
Under any modification to Rule 602,
the
Village would bear a heavy,
if not nearly insurmountable,
burden of persuading the Board that combined sewer overflow
control
strategy alternatives to construction of a sanitary
sewer system would adequately and cost efficiently address
the Village’s multiple problems.
Variance is denied.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner,
the Village of Ashland,
is hereby denied
variance from Rule 602(c)
of Chapter 3:
Water Pollution
35
Ill.
Adm.
Code, S306.103(c).
IT
IS SO ORDERED.
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, hereb~certify that the ~boye Opinion and Order
was
adopted
on
the
~—V~
day
of
L,I~_t~
—._____
1982
by
a
vote
of
~
~
L
~1~L
~J:~’)
~
Christan L. Moffet~’~Clerk
Illinois Pollution ~ontrol Board
49-32