ILLINOIS

POLLUTION

CONTROL

BOARD

January

22,

1981

BANK

OF DeSOTO

AND VILLAGE OF DeSOTO,

)

Petitioner,

v.

)

PCB 80—219

ILLINOIS

ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

OPINION

AND

ORDER

OF

THE

BOARD

(by

J,

Anderson):

This matter comes

before

the

Board on the petition

for

variance filed December

4,

1980 by

the

Bank of DeSoto

(Bank)

and

the Village of DeSoto (Village),

in Jackson

County.

Petitioners

seek variance from

Rule 962(a)

of Chapter

3:

Water Pollution,

in

order to receive authorization to continue sewer service

to four

homes connected to a sewer extension which had been constructed

and operated without

permits, and to service one

additional home

to be connected to said sewer.

The Agency filed

its

Recommen

-

dation in support

of

variance with conditions

on December

31,

1980.

Hearing was waived,

and none was held,

This petition

is being

given expedited consideration as

requested at the time of filing.

The “unperrnitte&

sewer extension at issue here is located

in River Bend Estates

Subdivision in DeSoto, and

is

connected to

the Village’s sewage

treatment plant,

which has been on

restricted

status since July 28,

i977~ The improper

construction and

operation of this

sewer was the

suhiect

of

an

enforcement action

before the Board

which was settled by the

parties

with the

Board~s

approval

in IEPA v.

Village of DeSoto and Clifford Hale,

PCB 79-24,

37 PCB 193, January

24, 1980.

According to the terms

of the stipu-

lated settlement,

Clifford Hale, as the River Bend developer and

person who had

constructed the sewer, was to have petitioned for

variance

for the four

a1ready~connectedhomes on or before

February 23,

1980,

and to have

corrected deficiencies

in

the sewer.

As

Mr.

Hale has failed

to perform as

agreed,

the Village has filed

this petition and appears

to have

agreed to upgrade the sewer.

The Bank,

as well as

the Village,

petitions for variance to

connect

a fifth home which had been constructed but not connected to the

sewer

at the

time of the enforcement action.

Each home is estimated

to

discharge approximately 300 gallons

per day

(gpd)

of domestic sewage

to the

sewer.

As four homes are

already connected,

the

total increase in loading would therefore

be about 300 gpd.

Although

the

Villag&s plant remains on

40

359

---

2

restricted status,

the Village is currently in the Step

I phase

of the USEPA construction

grants program, and may be eligible

for

Step

2 funding by

the Spring of 1981.

The Village~sengineer

indicated that completion

of plant upgrading could be achieved

by January

1,

1984,

depending on timely availability of grant

funds,

The Agency

believes that the plant~srestricted status

will improve the

Villag&s chance of getting Step

3 construction

grant monies, in

spite of its high priority

number

of 757.

Were variance

denied, each homeowner could install an

individual septic

system at a cost of about $2500.

However, the

Village notes,

upon completion of plant construction and lifting

of restricted

status, the homeowners could be required to connect

to the Village sewer

system.

It is asserted that it would he

arbitrary and unreasonable

to deny variance to the owners of the

4 homes already connected,

as they have had no control over this

situation.

While

the buyer of the fifth home was aware of the

lack of permit and

restricted status,

it

is stated that he acted

in reliance on the

settlement

in PCB 79-~24,expecting variance

to be applied for and

supported by the Agency as agreed.

The

Agency, as

it stipulated in PCB 79—24,

supports grant

of variance.

Although

the plant has had problems, the Agency

believes that it

is being properly operated and maintained

so as

to produce the best

quality effluent possible from that facility.*

The Agency does however

believe that variance should be conditioned

on performance of

the remedial work outlined in the PCB 79-24

agreement,

and

correction of a certified operator contract defi-

ciency of which the

Village had received prior notice.

Under all

the circumstances presented here, the Board finds

that denial of

variance would be arbitrary and unreasonable.

Variance from Rule

962(a)

of Chapter

3 is hereby granted.

The

grant of variance

will minimize the environmental impact and at

the same time relieve

the homeowners’

potentially severe economic

burden,

since the

Board grants variance subject to the conditions

suggested by the Agency

for the expeditious upgrading by the

Village of the sewer

extension and the treatment plant and its

operations,

including the

corrections

outlined in the PCB 79~24

stipulation.

This Opinion

constitutes the Board’s findings of fact and

conclusions of

law in this matter.

ORDER

1.

Petitioners,

the Village of DeSoto and the Bank of

DeSoto,

are hereby granted a variance from Rule 962(a) of Chapter

*The Board

notes

that the Agency~sRecommendation at p.

4

states that the Village

is not currently meeting its NPDES permit’s

interim discharge

U

limits of

40 and 80 mg/l for BOD5 and

Suspended

Solids.

These limits

are higher than any established

in Rule

404,

which maximum limits

are 30 and 37 mg/i.

40—360

---

3

3:

Water Pollution to permit issuance of an operating permit for

an “unpermitted” sewer extension which serves four houses on Pine

Wood Court in DeSoto,

Illinois which are currently connected to

the “unpermitted” sewer extension and to allow connection of the

fifth house to the same sewer extension in River Bend Estates

Subdivision,

subject to the following conditions:

a.

Within 60 days of the date of this Order, the

Village of DeSoto shall

submit as—built plans for

the “unpermitted” sewer extension in River Bend

Estates, including the connections to the five

houses.

b.

As expeditiously as possible,

the

Village of

DeSoto shall make the corrections to the present

sewer system in the River Bend Estates Subdivision

outlined in the settlement agreement in PCB 79-24

which is incorporated by reference herein as if

fully set forth,

c.

The Village of DeSoto shall

submit quarterly reports

updating its progress on improvements to the “unper-

mitted” sewer extension in River Bend Estates

Subdivision.

The first report shall be due within

60 days of

the date of

this Order, and the reports

shall be sent to

the following adresses:

Environmental Protection Agency

Division of

Water Pollution

Control

Variance Unit

2200 Churchill

Road

Springfield,

IL

62706

Environmental

Protection Agency

Marion

Regional

Office

DWPC

-~

Region

7

2209

West

Main

Street

Marion,

IL

62959

d.

The

Village

of

DeSoto

shall

continue

to

diligently

pursue

upgrading

the

DeSoto

sewage

treatment

plant

and

sewer

system

through

the

construction

grants

program.

e.

The Village

of

DeSoto

shall

employ

the

best

possible

operation

and

maintenance

practices

for the DeSoto

sewage treatment

plant and sewer

system to achieve

the optimum effluent

quality possible

from

the

existing facility,

and to

eliminate any and all

sewage overflows.

f.

The Village of DeSoto shall

submit a contract for

Agency approval which

meets the certified operator

40—361

---

4

2.

Within 45 days of the date

of

this Order, each Petitioner

shall

execute and forward to the Illinois Environmental Protection

Agency, Variance Unit, 2200 Churchill Road, Springfield,

IL

62706,

an executed Certification of Acceptance and Agreement to be bound

by all conditions of the variance.

The

forty—five day period

herein shall be stayed during judicial review of this variance

pursuant to Section 41 of the Environmental Protection Act.

The

form of said certification shall

he

as follows:

CERTIFICA

TI

ON

I,

(We),

____

__________________________,

having read the

Order of the Illinois Pollution Control Board

in

PCB 80—219,

dated __________________________, understand and accept the said

Order,

realizing that such acceptance renders all terms and

conditions thereto binding

and

By:

Title

IT IS SO ORDERED.

I, ~hristan L.

Moffett, Clerk

of the

Illinois

Pollution Control

Board,

hereby,~certify that

the

above Opinion

and

Order

were

adopted

on the

~

day of

~

1981

by

a vote of

______-.

/

)

(,)

1~~

Christan

L. Moffet~Clerk

Illinois

PollutioI~~c~ontrolBoard

40—362