ILLINOIS POLLUTION CONTROL BOARD
May 22, 1975
ZIMCO ENTERPRISES,
Petitioner,
v.
)
PCB 75-39
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Dumelle):
ZIMCO Enterprises,
a division of ZIMCO Metalfab
(hereinafter,
“ZIMCO”)
seeks relief from
a sewer ban imposed by the Environmental
Protection Agency on the City of Highland, Illinois.
More
specifically, ZIMCO seeks a variance from Rule 962(a)
of Chapter
3:
Water Pollution Regulation of Illinois, which provides t~he
standards for issuance of permits for treatment works, waste-
water sources and sewer connections.
The petition for variance was filed on January 27,
1975.
ZIMCO desires to add three sewer lines to its third subdivision
of Town and County Estate so that it might develop property to
be
sold to individuals or contractors for the purpose of building
single family residences.
On February
6,
1975 we ordered ZIMCO to submit additional
information giving the strength of the effluent from the
Highland sewage treatment plant and the condition of the
receiving stream.
A letter purporting to convey such information
was filed on March
20,
1975.
The Environmental Protection
Agency
(Agency)
filed its recommendation to deny the variance on
April 18,
1975.
The Sanitary Water Board placed the City of Highland
on a sewer ban on February 20, 1969 because of the hydraulic
and organic overloading of the City’s sewage treatment plant.
The Agency has continued to restrict its status with respect
to sewer extensions imposed by the Sanitary Water Board.
ZIMCO
seeks a permit to provide sewer extensions which would
serve
approximately 34 additional lots in Town and Country Estates.
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The Agency, assuming four persons per residence,
estimates
that granting this variance would result in an additional
load on the City’s sewage treatment plant of
136 population
equivalents or 13,600 gallons
a day of domestic waste or
23
pounds of BOD5 per day.
The Agency recommendation alleges
that the Highland sewage treatment plant has a design hydraulic
capacity of
0.55 mgd and an organic capacity of 7,000 P.E.
Approximately 1 mgd has been reaching the treatment plant
for the past three months.
The plant consists of a bar
screen working in parallel
with
a comminutor,
three primary
clarifiers
in parallel,
a dosing tank with
a count meter,
a
trickling
filter,
a final clarifier, and a mechanical coil
spring sludge dewatering filter.
Effluent
is
discharged
into an unnamed tributary of Sugar Creek which is tributary
to the Kaskaskia River which is tributary to the Mississippi
River.
Petitioner’s response to the Board Order seeking additional
information consisted of a letter which identified undated
attached information as coming from the files of the City of
Highland.
The only substantial information contained therein
is the average BOD loading of the treatment plant which is
given as 1,250 pounds per day.
It also contains the figure
of 840 pounds per day of average suspended solids.
The
Agency considers this later figure unreliable since it is
based upon an assumption of
a standard of 0.15 pounds per
day per capita.
The information given on the condition of
the receiving stream is limited to testimony given by an
Agency employee, William Tucker,
in connection with a biological
stream survey conducted May 12,
1972.
Mr. Tucker testified
that the stream was polluted both above and below the treatment
plant but that increased BOD loading at the plant would in
all probability push the recovery base further downstream.
The Agency recommendation contains results of recent
investigations which confirm this appraisal of this stream.
These investigations by the Agency indicate that the stream
is semi—polluted and unbalanced above the discharge and is
polluted up to 1.5 miles downstream from the discharge.
Additional contaminants would further degrade the receiving
stream.
Agency investigators have observed the effluent to
be turbid gray.
Monthly grab samples have shown the following
contaminant concentrations in the effluent:
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130
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Date of
BOD5
S.S.
in
Ammonia Nitro-
Fecal Coli-
Sample
in mg/l
mg/l
gen in mg/i
form/lOO ml
8/6/74
240
160
11.1
3,600,000
9/11/74
25
41
3.0
60,000
10/31/74
80
60
9.0
11,000,000
12/5/74
60
70
9.2
640,000
2/13/75
240
12
10.0
l,lOOr000
In addition to the poor, quality of the effluent,
the Agency
alleges that some bypassing has been occurring almost every day
since.the beginning of 1975.
It also received several complaints
since 1971 concerning the condition of the sewer system,
the
treatment plant, and the receiving stream.
ZIMCO cites several reasons why it should receive
a
variance.
It alleges that sewer permits have been issued to
the restrooms on Interstate
70, and that a local subdivider
has permits covering enough ground for about 300 or 400
homes, which can’t be built for many years.
The Agency
denies that any sewer permits have been issued to the restrooms
on Interstate
70.
The Petitioner appears to be correct, however.
See City of Highland v.
E.P.A., PCB 73-221,
(August 23, 1973).
The Agency also claims that no other sub-divider has been
issued permits for sewer extensions servicing three hundred
or more residences since the imposition of the sewer ban.
Even if ZIMCO’s allegations were true,
these arguments would
not be relevant without a showing that ZIMCO would suffer an
unreasonable or arbitrary hardship if the variance were not
granted.
Petitioner completely fails to meet its burden in
this respect.
Although no monetary figure is cited with regard to
Petitioner’s hardship,
a figure of $190,000 is alleged to
have been spent on the development of
a different subdivision
which
is not the subject of this variance petition.
The
Agency points out that any discussion of the cost of development
is incomplete without also considering the income received
from a sale of the lot involved.
More importantly,
the Petitioner
has failed to show that it incurred any of its costs prior
to the issuance of the sewer ban.
The Agency alleges that
ZIMCO was notified in
a letter, dated September
12.,
1969,
that the City was under a sewer ban.
We have previously
denied variances where no substantial steps toward completion
of the project have been taken prior to the imposition of a
sewer ban, Monyek v.
EPA, PCB 71-81,
2 PCB 125
(1971) and
Wagnon v.
EPA, PCB 71-85,
2 PCB 131
(1971).
In this instance,
Petitioner has not even alleged any substantial steps taken
prior to the ban.
As the Agency points out in its recommendation,
a petitioner cannot “bootstrap” himself into a self imposed
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economic hardship so as to justify the grant of
a variance.
Petitioner having failed to make out a case of aribitrary or
unreasonable hardship, which would justify the substantial
increase in the pollution of the receiving stream, must be
denied the requested variance.
This Opinion constitutes the Board’s findings of fact
and conclusions of law.
ORDER
Petition for variance from Rule 962(a) df Chapter
3: Water
Pollution Regulations of Illinois is hereby denied.
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board,
hereb,y certify the above Opinion and Order were
adopted on the~t~)U day of May,
1975 by
a vote of ~~o
OLc~iii
o~2~
Christan L. Moff~ty?/~lerk
Illinois Po1lutio~,~ntrolBoard
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