ILLINOIS POLLUTION CONTROL BOARD
June
26,
1975
CITIZENS FOR A BETTER ENVIRONMENT,
Complainant,
v.
)
PCB 74—285
NORTH ELMHURST SANITARY DISTRICT,
)
a Municipal Corporation,
and
CITY OF ELMHURST,
a Municipal Corporation,
Respondents.
Mr. Dennis L. Adamczyk, Director of Environmental Research
and Mr. Sherwood
~.
Levin, Attorney, appeared for Complainant;
Mr.
James F, Whitfield, Attorney, appeared for North Elmhurst
Sanitary District;
Mr.
Peter N.
Ernst, Attorney, appeared for the City of
Elnthurst
OPINION AND ORDER OF THE BOARD
(by Mr. Zeitlin):
This action was filed by Complainant Citizens For A
Better Environment
(CEE) against the North Elmhurst Sanitary
District (District)
on July 31,
1974.
An amended Complaint
which named the City of Elmhurst
(City)
as Respondent,
together
with the North Elmhurst Sanitary District, was
filed on October
10,
1974.
The North Elmhurst Sanitary District owns
a sewage
treatment plant located at Eastland and North End,
Elrnhurst,
DuPage County,
Illinois,
The City of Elmhurst furnishes
labor and material for the operation of the plant, and has
done so since July,
1971.
The design capacity of the plant
is
.35 million gallons per day, and the average dry weather
flow is
.5 million gallons per day.
When the flow into the plant exceeds
.75 million gallons
per day, sanitary wastewater
is bypassed to the polishing
lagoon for retention
(R.
7,8) and is chlorinated before
discharging to Addison Creek.
The major cause of the excessive
flows is due to infiltration into the sewer system, which is
very difficult to prevent and to
pinpoint.
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—387
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Complainant charges that:
1.
Subsequent to January
6,
1972 and up to the date
of the complaint,
after heavy rainfalls,
Respondents caused
or
allowed the overflow of raw sewage wastes into basements
and streets of Elmhurst in such a manner as to cause or tend
to cause
water
pollution in violation of Sec.
12(a) and
12(d)
of the Environmental Protection Act
(Act).
Ill.
Rev.
Stat.,
Ch, 111
1/2,
Sec.
1012(a), (d) (1973);
(Amended Complaint
Count
I, Paragraph
5).
2.
Subsequent to January
6,
1972, Respondents operated
the sewer treatment plant in such a manner that the maximum
practicable flow is not conveyed to the treatment facility,
thus causing or allowing the existence of raw sewage overflows
from the sanitary sewers, such occurrences constituting a
violation of Rule 602(b)
of Chapter
3, Water Pollution,
of
the Pollution Control Board Regulations,
(Regu.lations);
(Amended Complaint Count
I, Paragraph
6)
3.
Subsequent to June 30,
1974,
Respondents caused or
allowed the use and/or operation of said existing •treatment
works, which has a population equivalent
of under 10,000
with at least 60~of the loading being sewage, without a
permit having been issued by the Agency,
in violation of
Rule 903(c) (3)
of the Regulations;
(Amended Complaint Count
I, Paragraph
7)
4.
Subsequent to January
6,
1972, including but not
limited to July
23 and 25,
1974, Respondents operated the
sludge drying beds and/or the polishing pond of the sewage
treatment plant in such a manner as to frequently and periodically
cause or allow the emission of odors into the ambient
atmosphere of the area surrounding the sewage treatment
plant,
so as to cause or tend to cause air pollution,
in violation
of Section 9(a)
of the Act,
Ill.
Rev. Stat., Chapter 111
1/2,
Sec.
1009(a) (1973) (Amended Complaint Count II, paragraph
2)
A hearing was held February 5,
1975 at Elmhurst, Illinois,
GEE brought
7 citizen witnesses to testify at that hearing.
A Mr. Gentile testified that he lived about 1/2 block from
the retention pond,
and that whenever the wind was from the
west he smelled an odor of human waste, which was stronger
in the summer than in the winter
(R. 47,48).
He stated that
the odor was strong enough so that he could hot use his
backyard when the wind was from the west,
and that this
would happen about twice a week
(R.
48).
Antoinette Johnson testified that she has quite frequently
smelled the
odors in question, on the average about 3 times
a
week, especially after
rains
(R.
60).
She has a pool in
her yard,
and has had
to
cancel
pool parties and take
people
indoors.
She experienced this odor
3 or
4 times a week in
the summer time,
and less often in other seasons
(R,
61).
She definitely identified the odors as coming from the
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388
—3—
plant.
She also complained to the Elmhurst Dept.
of Public
Works
(R.
63), but no improvement was noticed.
Lillian Zanibetta has resided at her present address
near the plant for
3 years.
She has suffered from odors
repeatedly, and identified them as coming from the drying
beds
(R.
70), the polishing pond and the plant
(id),
Odors
occurred an average of once or twice
a week, and on weekends
(R.
71). Complaints were made to the City of Elmhurst
(R.
71).
Her activities, she stated, were severely restricted
by the odors
(R.
72),
Kathleen Priester •lives close to the other citizen
witnesses and essentially provides the same testimony as the
others;
i.e.,
there are odors of human wastes, use of her
yard is restricted, and this occurs several hundred times
a
year
(H, 78,79).
Mr. Salaway lives in one of the same gKoups of houses
as the others and substantially confirms the testimony of
the others
(R. 86,87,88,89).
When he bought the house he
was told the Treatment Plant was a water filtration plant
(H.
87).
He has suffered from the odor between 10
and 20
of the time in summer.
The rest of the year was not nearly
as bad
(H,
87).
Kathleen Evanson, another citizen witness, substantially
confirmed the testimony of the previous witnesses
(H. 9l~
96)
The parties also introduced two Stipulations
of Facts
at the February
5,
1975 hearing.
The first of these, applying
only to Respondent North Elmhurst Sanitary District, admits
that subsequent to June 30,
1974,
the District owned and
allowed the operation of the treatment works in issue here,
without the operating permit from the Agency required under
the Board~sRegulations.
The second, more lengthy Stipulation of Facts was
signed by Complainant CBE and Respondent City of Elmhurst;
Respondent North Elmhurst Sanitary District accepted and
signed this second Stipulation with certain exceptions made
orally in the record,
In substance,
however,
this latter
Stipulation admits on the part of both Respondents that
sewage was inadequately treated and bypassed during periods
of excess flow,
and that the operation of the sewage treatment
plant resulted in “the emission of malodors~into the ambient
atmosphere of the area surrounding the.
.
.plant,
so as to
cause or tend to cause air pollution in the immediate proximity.,.
(Stip. para.
6).
17
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389
—4—
Although the North Elmhurst Sanitary District claims
that certain of these admissions may be beyond the direct
knowledge of that District, we find that they are material
to the Board’s determination of whether the District violated
the Act and the applicable Regulations by allowing such
violations to occur.
Insofar as we find that the District
is charged,
as owner of the plant, with a duty to be aware
of violations at the plant,
and that it is liable for violations
allowed in the face of that duty,
these admissions are
indeed central to our determination here.
See,
EPA v. City of Champaign,
PCB 7l-5~1c, 2 PCB 411,
429
(1971)
(duties of sewer owners); City of Mattoon v. EPA, PCB 71—8,
1
PCB 441,
444
(1971) (reliance on consultants-treatment
works construction); Spartan Printing Co. v; EPA, PCB 71—19,
2 PCB 19,
25
(1971) (reliance on others),
See Also
EPA v. Harshany,
Inc.,
PCB 72-151,
6 PCB 89,
90,
92
(1972) (duties
of landowner).
The basic problem is that the capacity of the plant is
insufficient, The installation consists of
a Walker Package
Plant using the contact stabilization process,
a waste
stabilization pond,
and drying beds.
The design capacity is
350,000 gpd;
the average dry weather flow is 500,000 gpd.
When the flow
exceeds
750,000
gpd.,
by-passing takes place,
which means that the polishing pond is now used as a raw
sewage
reservoir,
with
the
consequences testified to by the
citizen
witnesses.
The
polishing pond~scapacity is between
0.5 and 1.0 million
gallons;
excess beyond that storage
passes over
a spillway
and into Addison Creek
(R.
30).
It is obvious that the
plant
has insufficient capacity
to treat the dry weather flow,
let alone the flow during
periods of rainfall,
The plant has been in service since at
least 1971, although the record
does
not show when the plant
was installed,
We also infer, from the citizen testimony,
that the plant was in service when the witnesses moved into
their present houses,
Respondents allege that the overloading
of the plant was compounded by the issuance of
a permit by
the Agency to a
115 unit apartment house, allowing connection
to the North Elmhurst Sanitary District sewers,
and thus
causing about a 10
increase in loading on the Treatment
Plant.
It is impossible for
us, with the present record,
to
decide
at this time
whether the District was at fault originally
for installing
a plant which later proved to be inadequate,
There is no doubt,
though,
that the plant is presently
inadequate.
17
—390
—5—
However, the City of Elmhurst, which has been operating the
plant under contract with North Elmhurst Sanitary District,
has been planning for three years to phase out the plant and
install a pumping station and force main which would convey
the sewage to the City of Elmhurst Sewage Treatment Plant.
This is by far the best solution to the problem, since it
would eliminate the polishing pond,
drying beds,
and the
inadequate Walker Package Plant,
This should eliminate all
odors and overflows of incompletely treated sewage.
We note that two separate contracts have been awarded,
one for the installation of the force main,
the other for
the installation of the pumping station,
While the contract
completion dates are July 13, 1976 for the pumping station
and May 20,
1975 for the force main,
Mr. Borchert, Director
of Public Works for the City of Elmhurst holds out very
strong hope that the completion
date
could be some time in
January,
1976,
if
deliveries
are favorable.
In any case,
full relief
should occur by July,
1976.
(Res.
Ex, 2—City of
Elmhurst),
The infiltration problem is being solved by
installation of
a
2 mgd capacity pumping station which
apparently
will
be sufficient to prevent overflows in the
future.
The existing waste stabilization pond
will
be abandoned
and covered
with
one foot of fill material as a
part
of the
contract.
The
City of Elmhurst Department of Public Works
will
fill the
pond to match existing ground levels after the
contractor finishes his work,
The existing contact
stabilization
tank
will
be stripped of all equipment and piping.
The
walls
will
be removed to an elevation of
24 inches below
existing grade
and the
tank filled with structural fill
material,
The existing control building is to be removed
and the drying beds are to be abandoned and filled to meet
the adjacent ground elevations.
Complainant has withdrawn the charge contained in
Paragraph
5 of Count I
(H.
106), charging Respondent with
causing or allowing the overflow of raw sewage wastes into
basements and streets in Elmhurst. Complainant failed to
prove Paragraph
6 of Count
I, charging a failure to have
maximum practicable flow conveyed to the treatment facility.
Complainant offered no evidence that maximum practicable
flow was not conveyed to the treatment facility.
It was
stipulated that the flow is by—passed to the polishing
lagoon
(pond) after it exceeds
.75 mgd.,
which is apparently
the hydraulic capacity of the treatment plant
(R.
7).
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391
—6—
Paragraph
7 of Count I charges operation of the Sewage
Treatment Plant without
a permit,
in violation of Rule
903(c)
(3)
of Chapter
3, Part 9 of the Water Pollution
Regulations.
The permit should have been acquired by June
30,
1974.
On August 22,
1974,
an attorney for the Agency wrote
the North Elmhurst Sanitary District, that it had until
October
1,
1974 to file its permit application
(H.
125).
The
peimit was applied for on September 24,
1974.
We find that both the North Elmhurst Sanitary District
and the City of Elmhurst relied on each other to fulfill the
permit requirements. They were both clearly in violation of
Rule
903(c) (3)
of Chapter
3,
from July
1,
1974 to August 22,
1974, when the permit application letter described above was
sent by the Agency.
Insofar as the Agency is the authority
charged under our Regulations with the administration of the
permit system, we find that Respondents properly and detrimentally
relied on that letter during the period after August 22,
1974.
For that reason, we find that the Respondents are not
chargeable with a violation of
903(c) during that period.
We accept the pleadings
in Respondent’s Reply Brief by
the North Elmhurst Sanitary District that failure to obtain
a permit was by inadvertance.
“The inadvertance referred to
was the assumption---that
the
City of Elmhurst did have---or
had applied for an operating permit pursuant to the rule.
The opposite of this---is that the City of Elmhurst could
have presumed that the North Elmhurst Sanitary District held
or had applied for the necessary permit”,
(Reply Brief,
pp.
2,3).
We find that this inadvertant failure was no threat
to the
permit system, although in fact a violation.
Nor,
we
note,
is an operating permit, other than that required
under the NPDES program,
now required for Respondents’
treatment plant.
Therefore,
we will
impose no penalty.
Nor do we
feel that a
penalty is called for by the odor
violations found here.
As stated above, the Respondents in
this matter have opted for a final compliance plan which we
feel will provide the best solution for the
problems
which
have existed at this treatment plant.
When the pumping
station has been completed,
the odor problem
will have been
completely abated.
Further,
in light of the fact that
the
Respondents here are governmental bodies,
we
feel that the
facts
here indicate that any
possible penalty monies would
be
better spent in that abatement
project.
In
reaching that
decision,
we hope that the Respondents understand that the
Board expects expeditious action in the completion of the
pumping station.
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392
—7—
The
bypassing of the raw sewage to the polishing pond
unquestionably resulted in
a
violation
of Sec.
9(a) of the
Act because of the
odors generated.
From the testimony of
the
citizen witnesses described above, all of whom lived
adjacent to the plant site,
the suffering of injury and
inconvenience from odors originating at the plant
cannot
be
doubted.
We can see only two solutions to this problem;
either
1)
increase the capacity of the installation
to about
1 mgd
or more,
or
2) eliminate the treatment plant entirely.
Respondent, City of Elmhurst has decided to eliminate the
plant entirely, and install a force main and pumping station
to convey the sewage to its larger plant, which is a permanent
installation,
In reaching these conclusions, we have thoroughly
considered the reasonableness of Respondents’ odor emissions,
including the factors enumerated in Section 33(c)
of the
Environmental Protection Act,
I.
As our discussion above clearly shows, the character
of the emissions from the sewage treatment plant were such
as to seriously interfere with the normal enjoyment of life
and property, particularly insofar as those emissions affected
the citizen witnesses who presented testimony at the hearings
in this matter,
As regards the permit violation,
the necessity of the
permit system has often been discussed by the Board.
The
potential for injury is too great for the Board to
ignore
even inadvertent violations such as that found here.
2.
The social and economic value of
a properly operated
sewage treatment plant need not be explained here,
But when
these plants are improperly operated or overloaded,
as we
have found was the case here,
they in part lose their value;
instead of abating pollution,
as is their function, they in
fact become
a pollution source.
While the value of such
pollution source here is high,
if properly operated within
its capacity,
it
is clear that the sewage plant at
issue
here should not even
have been such a source,
That high
value, further,
is enhanced and ensured by the permit system.
Indeed, the social and economic value of all treatment
plants
is increased by the permit system;
finding a permit
violation here can in no way decrease such value.
3.
The priority in location of
a sewage treatment
plant starts,for purposes of determining an odor violation,
only from the date at which the plant becomes a source of
odors.
Further, this Board has in the past noted that
priority in location does
not, and cannot, constitute
a
permanent license to pollute.
It is patent that an improperly
operated or gtossly overloaded treatment plant
is unsuitable
to any area.
By the nature of our findings here,
we need
17
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393
—8—
not consider whether a properly run plant with suitable
capacity would be appropriate to the area in question.
4.
As is plain from the remainder of our Opinion,
there is clearly an adequate remedy for the problem, which
is now being implemented by the Respondents.
This Opinion constitutes the findings of fact and
conclusions of law of the Board in this matter.
ORDER
IT IS THE ORDER OF THE BOARD that:
1.
Respondent City of Elmhurst is found to have
operated the North Elmhurst Sanitary District Sewage Treatment
Plant in violation of Section
9(a)
of the
Environmental
Protection Act.
a.
The City of Elmhurst shall cease and desist
from such violation not later than July 13,
1976.
It
shall also pursue every means at its disposal to have
the contracts for force main and pumping station construction,
described in the accompanying Opinion, completed with
all due haste.
b.
The City of Elmhurst shall make every effort,
including liming and chlorination,
to abate odors from
the drying beds and polishing pond of the North Elmhurst
Sanitary District sewage treatment plant.
2.
Respondent North Elmhurst Sanitary District is
found to have caused or allowed the operation of the North
Elmhurst sewage treatment plant in violation of Section
9(a)
of the Environmental Protection Act.
a.
Respondent North Elmhurst Sanitary District
shall cease and desist such violation not later than
July 13,
1976, and shall use every means at its disposal
to assist Respondent City of Elmhurst in efforts to
achieve compliance.
3.
The City of Elmhurst and the North Elmhurst Sanitary
District are found to have violated Rule
903(c) (3)
of Chapter
3:
Water Pollution from July
1,
1974 to August 22,
1974,
4.
Paragraph 5,
Count I of the Amended Complaint is
dismissed on motion of Complainant.
17
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394
—9—
5.
Paragraph
6 of Count
i
is dismissed
for. lack of
proof.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board hereby certify that the above Opinion and
Order were adopted on the
,~‘
day of
________________
1975 by a vote of ______to
Q
eMJ4M1
c~.
/W?dt(~)
Christan L.
Moffett, C’erk
ILLINOIS POLLUTION CONTROL BOARD
17 —395