ILLINOIS POLLUTION CONTROL BOARD
February
5,
1981
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
V.
)
PCB 79—35
CHEVY CHASE WATER AND SEWER CO.,
Respondent,
AND VILLAGE OF BUFFALO GROVE, COUNTY OF LAKE,)
Additional Party Respondents.
WILLIAM J.
BLAKNEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF THE COMPLAINANT,
ROBERT
C. JOHNSON AND MARK J.
FRIEDMAN,
SONNENSCHEIN, CARLIN,
NATII
AND ROSENTHAL, APPEARED ON BEHALF OF RESPONDENT, CHEVY CHASE WATER
AND
SEWER COMPANY,
¶‘IILLIAM G.
RAYSA,
BLOCHE, FRENCH
& RAYSA, APPEARED ON BEHALF
OF
RESPONDENT,
VILLAGE OF BUFFALO GROVE,
GARY NEDDENRIEP, ASSISTANT STATE~SATTORNEY, APPEARED ON
BEHALF OF
INTERVENOR-RESPONDENT LAKE COUNTY.
OPINION AND ORDER OF
THE
BOARD
(by J.
Anderson):
This matter comes before the Board on a complaint filed
February 21,
1979 by the Illinois Environmental Protection Agency
(Agency) against the Chevy Chase Water and Sewer Company (Chevy
Chase).
Chevy Chase,
initially the sole respondent,
was
charged
with violations of the Environmental Protection Act (Act)
and
Chapter
3:
Water Pollution,
resulting from its operation of a
wastewater treatment facility located in an unincorporated area of
Lake County near the Villages of Buffalo Grove and Wheeling.
On November 28,
1979,
the Agency and Chevy Chase filed a
Stipulation of Facts and Proposal
for Settlement with the Board
for its approval.
By its Order of February
7,
1980, the Board
rejected this Stipulation,
which would have required the consent
and cooperation of two non—parties,
the Village of Buffalo Grove
(Buffalo Grove) and Lake County.
By its Orders of May 15 and
June
12, 1980 the Board ordered joinder of Buffalo Grove as an
additional party respondent “necessary for the Board’s complete
determination of these proceedings.”
40—385
2
Hearings were held in this matter on July 21-22,
1980,
at
which evidence concerning the offenses charged and the rejected
stipulation was presented.
On July 21, the Hearing Officer
granted Lake County’s petition for leave to intervene as a party
respondent.
Finally, various motions made by the parties during
and subsequent to hearing will be addressed by the Board in the
course of this Opinion.
The Agency’s five Count Complaint charges Chevy Chase with
the following violations, occurring in some or all of the months
between and including October,
1977 and July, 1978~
a)
discharging effluent exceeding the limitations for BOD5,
suspended solids,
fecal coliform,
and chlorine residual contained
in its NPDES permit,
in violation of Sections 12(a) and
(f)
of the
Act,
and Rule 901 of Chapter
3
(Count I),
b)
discharging effluent exceeding the BOD5 limit established
by the Board for Chevy Chase in Village of Bloomingdale v.
EPA,
PCB 78—124,
and exceeding that limit by five times on June 14,
1978,
in violation of Section
12(a)
of the Act and of Rule 401(c),
404(f)
and 901 of Chapter 3
(Counts II,
III),
c)
failure to record and report data concerning certain
parameters and failure to report non—complying discharges as
required by its NPDES permit,
in violation of Sections 12(a)
and
(f)
of the Act and Rule 901 of Chapter
3
(Counts
IV, V).
The Complaint further alleged that these violations would
continue.
The Agency’s proof at hearing included introduction of Chevy
Chase’s
Discharge Monitoring Reports
(DMRs)
filed for the months
October, 1977 to July,
1978
(Agency Ex.
2), DMR’s for the months of
August,
1978 to February, 1980
(Agency Ex~ 3), and photographs and
testimony concerning discharges resulting from a sand filter dike
break in May,
1980
(Agency Ex. IA-lw).
The Board finds that adrnis—
sion of exhibits
1 and
3,
which refer to violations after the
dates alleged in the complaint,
over objection was proper,
in view
of
the
Agency’s
allegation
of the continuing nature of the offense,
and
as evidence of aggravation.
Chevy Chase did not challenge the information contained in
the Agency’s exhibits or in the testimony of its two employee
witnesses,
other than to question the actual design capacity of
the plant
(R.
84).
(It did however elicit testimony from the
Agency witness and its own witness that its response to the May,
1980 dike break had been prompt,
and that the discharge had been
reported.)
The Board finds that Respondent Chevy Chase has
violated the Act and Chapter
3 as alleged.
Chevy Chase, in reply, presented evidence concerning its
financial status,
past efforts towards compliance, and two options
40—386
3
whereby it could achieve compliance with the Act and the Board’s
rules.
William Johnson Jr., vice—president and secretary—
treasurer
of
Chevy
Chase,
a
closely held “family” corporation,
testified
that
Chevy
Chase was founded in 1956 for the purpose
of
serving
a
small
subdivision built by his uncle, and currently
serves 75 single family users,
4 restaurants,
a country club,
and
2 office buildings.
Water and sewage rates have remained the same
since
1958,
although a petition for rate increase was submitted
to the Illinois Commerce Commission in May,
1980.
Mr. Johnson
stated that even if the increase were approved,
Chevy Chase would
operate at an annual deficit of about $5,000.
In July,
1980 the
corporation,
which has never paid dividends or salaries to its
shareholder officers, was $20,000 in debt,
and had cash assets
of $400.
Other corporate assets included only the value of its
stock, and the value of the property on which stand the treatment
plant and water facility
(P.
267—270,
273, CC EX,
31—51),
Mr. Johnson testified that he personally first learned of
compliance problems concerning Chevy Chase
in 1975 or 1976,
Since
the filing of the complaint,
Chevy Chase has attempted to improve
its maintenance procedures, but has made no improvements
in the
facility itself other than installation of flow meters.
Failure
to take other steps was due “simply to a lack of money”
(P.
343,
302).
The
first
of
Chevy
Chase’s compliance options, which it least
favors,
is rehabilitation of the existing plant.
The “most cost
effective
figure”
for
rehabilitation
of the existing plant would
be
$745,400,
in the best engineering judgment of Thomas Tutein
of
Baxter
and
Woodman, Inc.,
who both prepared and testified con-
cerning this estimate
(P.
367-438 CC Ex.
52).
Financing of this
cost “would be a tremendous burden for the users
to hear,” said
Mr.
Johnson,
since Chevy Chase intends to “pass on” the costs of
upgrading
the plant
(P.
305—306).
Chevy
Chase
favors the option contained in the November,
1979
proposed settlement,
This would involve the construction,
at an
estimated cost of $179,500
(CC Ex.
53) of about 4600 feet of sewer
line
to
carry
the effluent currently treated by Chevy Chase to an
existing Lake County sewer trunk serving the nearby inverrary
subdivision.
This sewer line also is necessary to enable Lake
County to provide service to “eight or ten” commercial properties
in the County,
according to Mr. Glenn Miller,
the Chairman of the
Lake County Board
(R.
451,
452),
This trunk delivers sewage to
the Des
Plaines
River Regional
Treatment Plant,
sometimes called
the Pekara Southeast Facility (Pekara), which has the capacity to
service the area and which is owned and operated by the Lake County
Department of Public Works,
Under this option, the Chevy Chase
treatment
plant
would be phased out of operation and the property
on which it stands would be developed.
Ownership of the existing
Chevy Chase sewer system would be transferred to Lake County
(R.
308—309).
40—38 7
Before entering into consideration
of
the complexities of
the sewer service and consent questions,
it must he noted that
the existing Chevy Chase sewer system is an older se4~er
system.
Although an evaluation of the sewer system
was
not
p~artof the
scope of the Baxter and Woodman,
Inc.
study, engineer Tutein,
“on my own time” conducted an “hour or two hours”
inspection and
observed that it had either an infiltration or inflow problem
(R.
436).
The condition of the sewer system,
and the financial liabi-
lities it could impose, could
in and of itself cause Lake County
to refuse its consent
P.
155, Lake County Petition to Invervene
~11(b)1
It is abvious why the consent of
Lake County is necessary,
since
it will receive and treat the chevy Chase sewage.
Buffalo
Grove becomes a necessary party because of the contents of an
inter—governmental
agreement between it and Lake County.
A
provision in the April
18,
1972 agreement whereby Lake County
agreed to treat sewage generated by Buffalo Grove,
states that
Lake County may not accept sewage
from any person located within
a
delineated
“sphere of influence” outside Buffalo Grove’s corporate
limits,
unless and until Buffalo Grove consents,
in writing, to
such acceptance
CC
Ex.
2,
Sec.
2(a).
As Chevy Chase
and. its
users are located within the “sphere,” Buffalo Grove must give
the necessary consent
(P.
117).
Connection
of the Chevy Chase service area to the Pekara
facility has been contemplated since 1974,
when the corporation
approached Lake County to do so.
Although then
-
Public Works
Director,
Robert Degan, expressed some reservat:Lons
ifl
Aeril,
1974
(CC Ex.
27),
Lake County applied to
the
Agency for a 75
construction grant in aid of this project,
In May,
1974,
Lake County, Buffalo Grove and ~i1liam
Johnson,
Jr. ‘s father, William Johnson,
Sr.
had. reached tentat~~7u
agreement,
contingent on annexation
of
Chevy Chase and certain
et.he~ Johnson
property
into
Buffalo
Grove.
Lake
County
was offered the requested
75
financing grant in late 1975 or early
1976
(CC Ex.
26).
and
requested Buffalo Grove
to
commit to
the
25
local
share
~CC
Ex.
4).
Meanwhile, the death
of
Mr.
Johnson,
Sr. caused the above agreement
to
fall
throuqh
(CC
Ex.
28).
For reasons not made explici’~in this
record,
Lake
County
rejected the grant.
This grant app) icatien ha~
continued
to
appear
on Agency grant priority lists,
and
in L980 had
the
high
priority
number
of
172,
Lake
County cottid st.ill “reactivate’
its application,
and receive construction funds,
accc~rdinqto Lake
County Public Works Director Martin Galantha
~L. 121~L29, CC Sx.
1).
Director Galantha also noted that Buffalo Grove,
under the
terms
of
the
agreement
presumably
relating to the incorporated
areas,
would
possibly
“end
up
as
the agency owning and oper~t~ng”
the
existing
Chevy
Chase
sewer
system
(R.
136.
Buffalo Grove has continued to deny its consent
to the hook—
on of Chevy Chase to the Pekara treatment plant, unless the Johnson
family agrees to annex to Buffalo Grove certain other property,
40—388
5
referred
to
simply as “the Johnson property.”
Annexation of
this
“Johnson
property,”
which
would
be
suitable
for
development
as
an
industrial
park,
and
which
lies
between
Buffalo
Grove
and
the
Chevy Chase
service area,
has
been
the
subject
of
competition
between Buffalo Grove and the Village of Wheeling
(Wheeling).
This competition
is germane to the resolution of this case, by
reason of actions
Wheeling has taken in regard to
sewer
service
for this area
during
the
course
of annexation negotiations with
the Johnsons.
Wheeling
petitioned
the
Metropolitan
Sanitary
District of
Greater Chicago
(MSD)
to enter into an agreement to
provide
“extra—territorial”
service to the “Johnson
property”
in
Lake County,
in the event of its annexation to Wheeling.
The
prospect
of
the
eventual
annexation
of and sewer service
for
Chevy
Chase was mentioned
in the petition,
but was not made part of
Wheeling’s formal
request to MSD (Buffalo Grove Ex.
2,
Letter of
Wheeling to MSD 12—12—79, Wheeling Statement 5—22—80).
Both Buffalo Grove and Lake County objected to this petition
(BG Ex.
17,
LC Ex.
1).
The
Board takes official
notice
of
the
minutes
of
the
meetings
of
the
MSD
Committee
on
Engineering
held
January
29,
1980 and
May
22,
1980.
At
the
latter
meeting,
autho-
rity to enter into negotiations
for
a
sewer
service agreement
between the MSD and
Wheeling was approved
(See also BC
Ex.
2),*
On July 23,
1980 Chevy
Chase moved the Board for entry of
an Order to compel Buffalo
Grove to consent to connection of
its customers to
the
Lake
County
Pekara
facility.
This motion
is denied.
Based
on this record, the Board declines to exercise
at this time any
jurisdiction
it may have to issue the requested
Order.
Even
were
the
Board
to
compel
Buffalo Grove to consent,
Lake County has
clearly reserved its right to refuse to accept
ownership of
the
Chevy
Chase sewer system,
as it would with
any
system,
if
it
does
not meet its standards.
Much
of
the
information here presented has related to the
economic reasonableness
component of Section 33(c)(4)
of the
Act,
and whether plant
rehabilitation
is more cost effective than other
service
alternatives,
Yet
it
is noteworthy that the Johnson’s
(and
therefore Chevy Chase’s) negotiations with Lake County and with
Wheeiing/MSD have barely touched on all relevant factors, including
the
economics
relative to the existing sewer system.
Accordingly
*The~tJember 12, 1980 Chevy Chase Motion to Strike portions
of the Village’s closing brief
is granted in part and denied in
part.
The
Hearing
Officer’s refusal to admit Buffalo Grove Ex.
I
was not clearly
erroneous,
and the Board affirms
it:
references
to that exhibit are therefore stricken.
As no timely objection
to
Buffalo
Grove
Ex.
2
was made,
and as the Board may take of-
ficial
notice
of
public
records
such
as the MSD meeting minutes
at
issue,
the
motion
to
strike references to these matters
is
denied.
40—389
6
the Board cannot
exercise
an
informed
discretion
based
on
the
evidence here presented,*
Chevy Chase has created the long term pollution problem here
complained of, and therefore has the clear duty to abate
it.
The
record indicates that the connection to the Pekara plant is agreed
by all parties as being the least costly option.
Since the
abatement of the pollution as quickly as possible is the Board’s
overriding concern, the Board must determine whether voluntary
agreement on this option is possible before considering and
ordering other alternative approaches,
Chevy Chase is ordered
to commission
a sewer survey that includes the estimated
cost
of
eliminating
any
infiltration or inflow into its sewers beyond
the
obvious
inflow
abatement
steps
contained
in
this
Order.
In
addition,
Chevy
Chase is to proceed to upgrade
the
sewers
and
plant as outlined
in the attached Order, which incorporates
cor
-
rective measures
suggested in the parties’ proposed stipulation.
Although a fine
is warranted here as a necessary aid to
enforcement of the Act,
in light
of
Chevy
Chase’s
poor
financial
condition
and its certain need
to make significant expenditures
in pursuit
of compliance, the Board assesses a fine of $500.
The
Board
will retain jurisdiction in this matter.
This Opinion constitutes
the Board’s findings of fact and
conclusions of law in this
matter.
ORDER
1.
Respondent, Chevy Chase Water and Sewer Company,
is
hereby
found
to
have violated Rules 401(c),
404(f)
and 901 of
Chapter
3:
Water
Pollution and Sections 12(a) and
(f)
of the
Environmental Protection
Act.
2.
Chevy
Chase
Water and Sewer Company shall commission
a
sewer survey which
shall
include
the estimated costs of
sewer
rehabilitation
and elimination of infiltration and inflow not
corrected
pursuant to paragraph
5 of this Order,
The results of
this
survey
shall
he completed and presented to Lake County and
the Village of
Buffalo Grove within 90 days of the date of this
Order,
3.
Chevy
Chase
shall promptly renew its petition to the
Village of
Buffalo Grove for its consent to the hook—on of Chevy
Chase customers
to the Des Plaines River Regional
Treatment Plant.
Within 120 days of
the
date
of this Order,
Respondent shall
advise
*The request of Chevy Chase for a variance,
in the alternative,
in its October
6,
1980 argument cannot be considered unless sub-
mitted in conformance with the Act and Board Procedural Rules.
Also,
its October
6,
1980 request for oral argument
is denied in
light of the need to further develop the record.
40—390
7
the Board in writing as to the result of any formal
action
on the
matter made by the Village’s Board of Trustees.
For the purpose
of this proceeding only,
lack of affirmative action by the
Village’s Board of Trustees will be deemed denial of its consent.
4.
Within 120 days of the date of this Order, Respondent shall
advise the Board in writing as to
the
result
of
any
formal action
taken by Lake County on the following matters:
a)
Lake County’s
willingness to accept, with any agreed conditions, ownership of
Respondent’s
sewer system,
b)
Lake County’s reapplication for a
federal or state grant to finance 75
of the cost of constructing
the necessary 4600 foot sewer line,
and c)
Lake County’s plans
regarding construction
of this line after grant funds are obtained.
For the purposes
of this proceeding only,
lack of affirmative
action by Lake County
will
be
deemed
denial
of
its
consent
to
these undertakings.
5.
Within 60 days of the date
of this Order,
Chevy Chase
shall comply with the interim operating procedures and standards
set forth below and shall:
(a)
Thoroughly clean sand filter after having obtained a
core sample to determine
the
depth
of solids penetration therein.
(b)
Thoroughly clean
the dosing tank and thereafter provide
regular and proper
maintenance
for
the
tank.
(c)
Obtain the
design data of the plant equipment
(Imhoff
tank,
dosing tank,
pump,
dual sand filter, etc.)
for use in the
operation
and
maintenance
of the sewage treatment plant.
(d)
Install facilities for the periodic chlorination of the
sand filter inlet.
(e)
Locate and
correct any obvious sources of inflow,
such
as downspouts,
low
manholes, storm drains to the sanitary sewer,
etc.
(f)
Demand effective grease removal
facilities to be instal-
led by restaurants
served by the treatment plant.
(g)
Hire a
properly certified operator to direct and super-
vise the operation
of the plant.
Such operator shall
he hired
for such
periods of time as are necessary to operate the plant
as efficiently as
practicable.
(h)
Install proper flow measuring facilities.
(i)
Install necessary facilities so that a sample of the
effluent can be
obtained at the point after the final treatment
process and before discharge to or
mixing
with the receiving
waters.
40—39 1
(j)
Cause to
be performed regular and proper maintenance of
the
plant
facilities
and
grounds.
(k)
Cause
to be performed regular and proper maintenance of
the Imhoff
tank,
including but not limited to, periodic sludge
level measurement,
skimming, and squeegee
cleaning of
the sloping
walls of the settling
compartment.
(1)
Develop
an operating procedures manual, a copy of which
is to be forwarded to the
Agency.
(m)
Inform the Agency in writing within 14 days of any delay
caused
by inclement weather, but prompt compliance must be resumed
as the weather permits.
Respondent shall also notify the Agency
within 14
days
of
the completion of
the
procedures required in
Paragraph
4 of this Order.
6.
Within 90 days of
the date of this Order Chevy Chase
Water and Sewer,
Co. shall, by certified check or money order
payable to the State of Illinois, pay a penalty of $500 which
is
to he sent to:
Illinois
Environmental Protection Agency
Fiscal
Services
Division
2200 Churchill Road
Springfield,
IL
62706
7.
Respondent Chevy Chase’s Motion
to Compel of July 23,
1980
is hereby denied.
8.
Respondent Chevy Chase’s
Motion
to
Strike
of
November
12,
1980
is granted in
part and denied in part.
9.
Respondent
Village
of Buffalo Grove’s
July
23,
1980
Motion to Dismiss is denied.
10.
The Board
will
retain
jurisdiction
in
this
matter,
IT
IS
SO
ORDERED.
I, Christan
L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify
that the above Opinion and Order
were adopted by the
Board on the
Jf~
day of
,
1981
by a vote of
~
.
-
C~
~,Mof~lerk
Illinois
Pollutió~ñ~’Control
Board
40—39 2