ILLINOIS POLLUTION CONTROL BOARD

October 18, 1979

CITY OF LaHARPE,

)

Petitioner,

v.

)

 PCB 79—121

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

OPINION AND ORDER OF

THE

 BOARD

(by

Mr.

 Goodman):

The

City

of Lallarpe requests a variance from items listed

in a complaint filed with the Board by the Environmental Pro-

tection Agency (Agency) against Petitioner

 (PCB 79—102)

 on May

2,

 1979.

 The complaint alleges violations of Sections 12(a)

and 12(f)

 of the Environmental Protection Act

 (Act) and of

Rules 410(a),

 502(a)

 sic,

 601(a),

 602(b),

 901 and 1201 of

Chapter 3:

 Water Pollution Control Rules and Regulations

(Chapter

3).

The

Agency

recommends

that

the

variance

denied.

Petitioner

has

waived

its

right

hearing.

The

City

 LaHarpe,

 located in Hancock County,

owns

and

operates a sewage treatment plant and sewer system that serves

approximately 690 customers.

 Lift station *1 expels overflow

sewage through

 a pipe into a nearby watercourse during wet

weather.

 Excess flow causes the other

 lift station,

 located

at the treatment plant,

 to allow sewage to bypass an activated

sludge unit and to

 flow directly into a polishing lagoon.

The

frequency,

 duration and magnitude of the overflows are unknown.

Discharge monitoring reports indicate that the Petitioner

has been exceeding the effluent limitations of its NPDES per-

mit of

 30 mg/I BOD6 and 30 mg/I suspended solids

 (SS).

 Peti-

tioner has failed

 Eo monitor the overflows or to install an

auxiliary pump at lift station #1.

 Installation of a total

sewage flow meter and an auxiliary pump is presumed to now

have been installed

 (p.5).

 Petitioner claims that violations

of the BOD5 and SS effluent

 limitations,

 overflow at the lift

station,

 and bypassing at the treatment plant can only be

eliminated

 if federal funding

 for upgrading the treatment

plant is obtained.

Petitioner contends that denial of the variance would im-

pose an arbitrary and unreasonable hardship upon

it.

 Petitioner

35—523

—2—

indicates that the estimated cost of compliance of $381,880

cannot

 be borne

by 690 customers,

 and that significantly in-

creased user

 rates would promote an exodus o~residents to

nearby

 towns having

 lower rates.

 Revenue bonds

 issued when

the present

sewer

system was constructed have not been retired;

therefore,

the

city

 is not

 in a strong position to obtain local

financing

 for extensive upgrading of

 its treatment plant.

The

Petitioner has applied for Step

 1 funding

 in the Municipal

Wastewater Treatment Works Construction Grant Program.

The Board, pursuant to Section 35 o~the

Act,

must grant

variances consistently with the provisions of the Clean Water

Act.

 Sections 304(b) and 304(d)

 of the Clean Water Act author-

ize the Administrator of

 the U.

 S. Environmental Protection

Agency to set effluent limitations.

 Effluent from a secondary

tr(~atmentworks may have

 a maximum average concentration of

30 mg/i BOD5 and 30 mg/i SS for

 a 30 consecutive day period.

41

 30785,

 §133.102(a) and

(b)

 (July 26,

 1976).

Petitioner’s current NPDES permit requires that SOD5 and

SS concentrations each be limited to 30 mg/l.

 Petitioner’s

request

 for a variance from Section 12(f) of the Act and from

Rules

 401(a) and

 901 of Chapter

 3 asks that it he allowed to

ecceed these permit limits.

 Under Section 3011(1) of the

Clean Water Act, Petitioner h~duntil June 26,

 1978 to request

that these permit limitations be modified by the Agency and

to gain an exemption until July 1,

 1983 from the effluent reg-

ulations.

 Petitioner failed to make such a request and must

be held to the current permit limitations.

 Granting a variance

that would allow discharges beyond the 30 mg/i SOD5 and 30

mg/i SS

 limitations would be inconsistent with the Clean Water

Act.

 The Board denies Petitioner a variance from Rules

 401(a)

and

 901 of Chapter

 3 and from Section 12(f)

 of the Act.

Turning to Petitioner’s request for a variance from Rules

502 and 602(b) of Chapter

 3 the Board notes that the Agency

describes Section 502 when referring to Section 502(a).

 Since

Rule 502 has no subsections,

 the Board presumes that the Agency

has made a clerical error and interprets

 all references

to

502(a)

 as referring to Rule

 502.

Rule 502 requires that all effluent be measured.

The

City has made funds available for the installation of a flow

meter at the plant.

 Completion of this project is scheduled

for mid—October,

 1979.

 Without the variance, Petitioner could

be subject to

 a penalty in an enforcement action for a con-

tinuing violation of Rule 502.

 However, upon examination of

Exhibits 2—6 to the Agency’s recommendation,

 the Board finds

that Petitioner was made aware of the need for the flow meas-

uring device as early as March of 1974 and was reminded no

less than five times

 in the subsequent four-year period of

the deficiency.

 Under these circumstances the Board

 finds

that any hardship imposed by refusing to grant a variance

35—524

—3—

from the requirements of Rule 502 is

 a self-imposed one.

The

Board therefore denies Petitioner a variance from Rule 502 of

Chapter

3.

Rule 602(b) prohibits overflows

 in sanitary sewers.

 Over-

flows occur

 in the City of LaHarpe during wet weather.

The

overflow problem cannot be rectified until the treatment plant

is reconstructed.

 Federal

 funding

 is necessary to finance

this project and without the variance requested,

 the City of

LaHarpe would be subject to an enforcement proceeding for the

continuing violation of

 602(b).

 On August 10,

 1978 the Agency

advised Petitioner that Step

 1 funding was available from the

federal government

 for the purpose of starting the reconstruc-

tion of the treatment plant

 (Agency Rec.,

 Ex.1).

 Petitioner

did not apply for such funding until June 19,

 1979, with the

apparent results that Petitioner will not be added to the

priority list until 1980 and that it will be at least three

to five years beyond that date until Step

 2 or Step

3

 funds for

engineering and construction may become available.

 Indeed,

Petitioner has filed no application for federal aid from 1971

until

 1979.

In

 its amendment to the petition for variance

filed August

21,

 1979 Petitioner states “past City adminis-

trations for the Petitioner have not applied for funding

available to them through the Agency because of a number of

complex political and personal reasons.”

 The Board finds that

Petitioner’s inaction has been self—serving and constitutes a

significantly delayed compliance.

 The Board therefore denies

Petitioner’s request for variance from Rule 602(b)

 of Chapter

3.

The City’s variance petition requests relief from all

violations alleged in the Agency’s complaint in EPA v. LaHa~,

PCB 79—102.

 Variances from Rules

 601(a) and 1201 of Chapter

3,

 as well

 as from Section 12(a)

 of the Act, remain to be con-

sidered.

 Rule 601(a) requires that an auxiliary power source

be available at a sewage treatment plant in cases

 of emergen-

cies or power outages, while Rule 1201 requires that a properly

certified operator be employed at the plant.

 Petitioner indi-

cates that an auxiliary pump was scheduled to be installed by

 August

1,

1979

 (p.5) and that proper certification has been

obtained by its plant operator

 (p.7).

 From these statements

the Board presumes that the City has no need for a variance

from these

 rules; consequently, the petition as it requests

relief from Rules 601(a) and 1201 of Chapter

 3 is hereby dis-

missed as moot.

Section 12(a) provides that no person shall cause or

threaten

the

discharge of contaminants that cause or tend to

cause water pollution within the State or that violate the

regulations and standards of the Board.

 Because of problems

of

 interpretation,

 the Board does not favor granting variances

from general provisions

 of the Environmental Protection Act.

From our rulings herein, the Board finds

 that Petitioner is

not entitled to any such extraordinary relief and denies

variance from Section 12(a)

 of the Act.

3

5—525

—4—

This Opinion constitutes the findings of fact and conclu-

sions

 of law of the Board in this matter.

ORDER

1)

 The City of LaHarpe’s petition for variance from Rules

601(a) and 1201 of Chapter

3:

 Water Pollution Control

Rules and Regulations is hereby dismissed as moot.

2)

 The City of LaHarpe is hereby denied a variance from

 Rules

 410(a),

 502,

 602(b) and

 901 of Chapter 3:

 Water

Pollution Control Rules and Regulations and from Sections

12(a)

and

12(f)

 of the Environmental Protection Act.

IT

 tS SO ORDERED.

I,

 Christan L.

 Moffett,

 Clerk of the Illinois Pollution

Control Board,

 herelly certify

the a

o e Ooinion and Order were

adopted on the

~‘

 day of

__________________

1979

a vote of

o4t~tL

Christan L. Moffe~

erk

Illinois Pollution

 rol Board

35—526