ILLINOIS POLLUTION CONTROL BOARD
September
11,
1986
CITY OF LOCKPORT
)
Petitioner,
v.
)
PCB 85—50
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by R.
C.
Flemal):
This matter comes before
the Board upon the June
14, 1985,
Amended Petition
for Variance filed by the City of Lockport
(“Lockport”).
Lockport seeks
a five—year variance
from 35
Ill.
Adm.
Code 302.209
(Fecal Coliform)
and 304.121
(Bacteria)
so that
it may forego the necessity of chlorinating the discharge from
its sewage treatment plant.
Lockport filed
its initial Petition for Variance on April
18,
1985.
On May
2, 1985,
the Board
found this petition
to be
deficient,
and allowed Lockport
45 days
in which
to file an
amended petition curing those deficiencies.
It was
in response
to
the May
2,
1985,
Board Order
that Lockport filed
its June
14,
1985, Amended Petition.
Two citizen objections
to
the granting of variance
to
Lockport, apparently submitted independently of one another, were
received by the Board on May 14 and May 22,
1985.
One was simply
withdrawn prior
to hearing.
The other was withdrawn, renewed,
arid
then withdrawn again,
all prior
to hearing.
The Illinois Environmental Protection Agency (“Agency”)
filed
its initial Recommendation in this matter
on June
14,
1985,
and its Amended Recommendation (“Amen.
Rec.”)
on January
6,
1986.
Both documents recommend the granting of the requested
variance relief
to Lockport, subject to conditions.
BACKGROUND
Lockp’ort has a population of approximately 10,000,
and
is
located near
the Chicago Sanitary and Ship (“S&S”)
Canal on the
banks
of
the Illinois and Michigan (“I&M”) Canal
in Will County,
Illinois.
Lockport’s sewage treatment plant (“plant”)
is designed
to
serve
a population equivalent of 15,000, and has an average flow
72.256
—2—
of 2.0 million gallons per day (“mgd”)
(R.
at 9).
Influent to
the plant passes through a bariminutor
and grit chamber before
entering primary settling tanks
(Id.).
Flows less than 4.25 wgd
are provided with secondary treatment by the activated sludge
process operating
in
a contact stabilization mode
(Id.).
Effluent from the secondary settling tanks,
and flows in excess
of 4.25 uigd from the primary settling tanks,
are combined
in the
chlorine contact tank (Id.).
Final treated effluent is
discharged through an outfall directly to Deep Run Creek
(R.
at
9—10).
Deep Run Creek, which drains a basin of less than one square
mile between the I&M Canal
and the S&S Canal, receives overflow
from
the I&M Canal
at its headwaters and from the S&S Canal via
several
infiltration points
(Id.).
Below the plant, Deep Run
Creek is approximately eighty feet wide and one foot deep,
and
is
bordered by the Santa
Fe Railroad tracks on one side and the S&S
Canal embankment on the other
(Id.’J.
Deep P~u~c~
Creek,
empt!~.ee
into the S&S Canal below the Lockport locks
(approximately one
mile below the treatment plant discharges)
(Amen.
Pet.,
par.
2).
Lockport is
in the process of upgrading
its sewage treatment
works.
The total cost of the project was estimated
in 1985 to be
$10,007,220
(Amen.
Pet.,
p.
2).
Lockport’s share of this cost
was estimated to be $3,795.853
(Id.).
THE REQUESTED RELIEF
Lockport seeks relief
from the fecal coliform effluent
standard
of
35
Ill. Adm. Code 304.121 and the fecal coliform
water quality standard
of 35 Ill. Adm. Code 302.209.
Section
304.121 limits
the level of fecal coliform that may be discharged
in
an effluent to 400 per 100 ml.
Section 302.209 states
in full
that:
Based on
a minimum of five samples taken over
not more than a thirty day period,
fecal coliform
(STORET number 31616)
shall not exceed
a geometric
mean of 200 per
100 t~1,nor shall more than 1~
of
the samples during any thirty day period exceed
400
per 100 ml.
72.257
—3—
Lockport seeks
the requested variance for
a period o~five
years or
until
the Board adopts
a new biological standard
(Amen.
Pet., p.
1).
Lockport seeks this variance
in order
to avoid
the
necessity of chlorinating flows from its plant which have
received secondary treatment.
Currently,
the plant can provide
secondary treatment for flows of less than 4.25 mgd.
Lockport
proposes
to forego chlorination of flows below this amount, but
continue chlorination of
all
flows exceeding 4.25 mgd
(R.
at 12—
13).
After
the plant
is upgraded,
it will
be capable of
providing secondary treatment to flows
of up to 6.14 mgd
(R.
at
12).
After
that occurs, Lockport proposes to chlorinate only
those flows exceeding 6.14 mgd or those exceeding the volume of
wastewater receiving secondary treatment, whichever
is less
(R.
at 12—13).
ENVIRONMENTAL IMPACT
Deep Run Creek
is a man—made stream, approximately 3.7 miles
in length
(R. at 13).
It presently supports
a small minnow
population,
and due
to its limited canopy cover, limited pool
development, and shallowness,
is considered
to be habitat limited
(Id.).
Lockport and
the Agency agree that given
these
characteristics,
the Creek’s relative inaccessibility,
and the
fact that there are no known sanctioned public uses of the Creek,
the addition of (secondary)
treated but unchlorinated effluent
will not adversely affect
the environment or public health
(Rec.,
p.
4).
Lockport added
that it believes the granting of variance
here would improve conditions
in 9eep Run Creek by reducing the
potential effects of chior—arnines
in
the discharge.
1There
is presently pending before
the Board,
in the R85—29
docket,
a proposal which would readopt the fecal coliform
regulations
as they existed prior
to the Board’s action
in the
Matter of Amendments to Chapter
3: Water Pollution (Effluent
Disinfection)
(R77—l2, Docket D) and also amend
them so as
to
require chlorination on a seasonal basis only.
There are at
present no proposals before
the Board which suggest the adoption
of either alternative biological standards or alternative
disinfection technologies.
Thus,
there currently are no
proposals before the Board which,
if adopted would obviate the
need for chlorination.
2A by—product of the chlorination process.
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—4—
HARDSHIP
Lockport contends that requiring
it to comply with
302.209
and 304.121 would
impose an arbitrary or
unreasonable hardship on
it.
The June 14,
1985, Amended Petition
filed by Lockport does
not clearly delineate the aspects
in which Lockport will suffer
hardship
if denied variance relief.
On page
1 of the Amended
Petition, Lockport states:
A variance
is requested... for
the express purpose
of deferring or eliminating the need
to construct
new chlorination facilities at Lockport’s sewage
treatment plant.
However, on page 4 Lockport states:
chlorination facilities will
be provided for
stormwater overflows as part of the upgrading
of
the Lockport sewage treatment plant;
these
facilities can also be used to chlorinate
the
effluent which receives full secondary treatment.
Confusion surrounding
the hardship was somewhat diminished
by the stipulation of fact read
into the record at hearing.
That
document, stipulated
to by counsel for Lockport and
the Agency,
contains the following statement:
“Lockport
is seeking relief from this
fecal coliform
standard
to avoid having
to chlorinate flows
from its
plant which receive secondary treatment.
The City,
in its improvement project, will provide the physical
facilities necessary to
treat all of its flows, but
by not chlorinating flows which receive secondary
treatment,
it wills save approximately $5,000
a year
in chlorination costs.
Apparently,
contrary to its assertion otherwise, Lockport
is
therefore not seeking variance
in order
to avoid the construction
of new chlorination facilities at the plant.
Thus,
the Board
will assume that Lockport’s upgraded plant will
indeed contain
chlorination equipment,
arid that Lockport seeks variance in order
to avoid the necessity of using
it to chlorinate effluent which
has received secondary treatment.
COMPLIANCE PLAN
Lockport does not offer
a compliance plan
in its Amended
Petition, even though such a plan is required by 35
Ill. Adm.
Code 104.121(f).
Rather, Lockport only generally states that
it
will comply by the end of the variance term or apply
for site—
specific relief
(Amen.
Pet.,
par.
10).
The Agency, noting
the
72.259
—5—
absence of a compliance plan, observed
that “(Lockport)
is
apparently hoping that a regulatory change will eliminate the
need for disinfection”
(Rec.,
p.
7).
CONCLUS ION
Lockport has not met an essential prerequisite
to the
granting of variance relief:
the identification of, and
committment to,
a compliance plan.
It is
riot enough for
a
petitioner
to generally promise
to attain compliance by the end
of
a variance period;
a compliance plan must include a detailed
description of
the method of control
to be undertaken
to achieve
compliance,
including a time schedule
for attaining each
increment of progress.
Lockport’s Amended Petition
is clearly
deficient
in this regard.
Moreover,
it
is also inappropriate for
a petitioner
to
seek
variance relief on the basis of potential changes in the law
which may result from pending
regulatory proceedings.
As has
been noted by the Illinois Appellate Court, “If the speculative
prospect of future changes
in the law were
to constitute an
arbitrary and unreasonable hardship, then the law itself would be
emasculated with variances,
as there
is always
the prospect for
future change”.
Citizens Utilities Company of Illinois
v.
Illinois Pollution Control Board,
No.
3—84—0412 and No.
3—83—
0498, consol.
(June 17,
1985).
The
Board further believes Lockport has not shown that it
would
suffer arbitrary or unreasonable hardship if denied the
variance relief it seeks.
The sole hardship asserted by Lockport
is the $5,000 annual cost of chlorinating its secondary treated
effluent.
Though not an insignificant sum, an annual expenditure
of $5,000
to
a municipality the size of Lockport is not
in this
instance
a substantial
enough amount
to warrant
a Board finding
that arbitrary or
unreasonable hardship would result from
compliance being required.
The Board
is also concerned about an underlying
issue which,
though largely unstated, permeates the record
in this case.
That
is the matter of the relative merits of chlorination as a
disinfection practice.
Lockport relies heavily on the fact that
in the Matter of Amendments to Chapter
3: Water Pollution
(Effluent Disinfection)
(R77—l2), the Board deleted the fecal
coliform water
quality standards for general use and secondary
contact waters and relaxed the
feca.
coliform effluent
limitation.
As noted
in Lockport’s Amended Petition, the
Illinois Supreme Court
in People
v. Pollution Control Board,
103
Ill.
2d 411, 469 N.E.
2d 1102
(1984)
reversed
the Board’s repeal
of the fecal coliform water quality standard relating
to general
use waters
and
its revision of the fecal coliform effluent
limitation.
The Supreme Court remanded the matter
to the Board
72.260
—6—
for further
consideration.
As described
in footnote
2,
the fecal
coliform regulations presently pending before the Board as
a
result of the Supreme Court
remand
are
in the R85—29 docket.
Lockport apparently assumes, based on the Board’s action
in
R77—12, that the Board believes the disadvantages of chlorination
as
a disinfection practice
to outweigh its merits.
Lockport’s
assumption, stated another way, might be that the Board still
stands by the rationale and specific conclusions of its Opinion
and Order
in R77—12, Docket
D.
This assumption is implicit
in
Lockport’s assertion that, under the R77—l2, Docket D Opinion and
Order,
it would
not have had
to chlorinate
its effluent because
its discharge
is more than twenty miles upstream of any public
water supply or bathing beach
(Amen. Pet., par.
5).
Lockport therefore seems
to justify its requested variance
relief
in part on
the Board’s action in R77—l2, Docket D.
The
Board’s difficulty with this position
is that
it assumes that the
Board already has, or will
in this proceeding,
determine the
relative merits of chlorination as
a disinfection practice.
In
response,
the Board notes
that it has not already made this
determination;
the Supreme Court remand of R77—l2, Docket D
essentially wiped
the slate clean
insofar
as Board action in the
fecal coliform area
is concerned, and there has been no final
action
taken
at this time
in the matter
of R85—29.
The Board
similarly notes that it will not judge
the merits of chlorination
in this proceeding,
for
a regulatory proceeding, and not
a
variance case,
is the proper forum
for such
a determination.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The City of Lockport’s request for variance from 35
Ill.
Adm.
Code 302.209 and 304.121
is denied.
IT
IS SO ORDERED.
I, Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that_the above Opinion an
Order was
adopted on the
//(4-
day of
____________,
1986,
by
a vote of
____________.
o~_
Dorothy M. Gu~n,Clerk
Illinois Pollution Control Board
72.261