ILLINOIS POLLUTION CONTROL BOARD
    November 14, 1974
    FIRST NATIONAL BANK AND TRUST COMPANY
    )
    OF EVANSTON, TRUSTEE OF TRUST
    NO. R-1692, and S.
    S. KRESGE CO.,
    Petitioner,
    vs.
    )
    PCB 74—308
    ENVIRONMENTAL PROTECTION AGENCY,
    Respondent.
    Robert Cohen, Attorney for Petitioners
    Barbara Sidler, Attorney for the EPA
    OPINION AND ORDER OF THE
    BOARD
    (byMr. Henss)~
    First National Bank and Trust Company of Evanston and S.
    S.
    Kresge Company have filed an Appeal from a Permit Denial issued
    by the Agency on June 12,
    1974.
    Petitioners seek permission for
    a sewer connection
    at a new K—Mart retail store to be constructed
    in the southwest section of Springfield,
    Illinois.
    Because of an
    overload condition at the Springfield Sanitary District, which is
    particularly acute during periods of precipttation, the City of
    Springfield is currently under a sewer ban imposed by the Agency.
    The parties are in agreement that the sole issue before the
    Board is Paragraph
    2 of the permit denial which states:
    “since
    the holding tank and telernetering equipment must be operated in
    conjunction with sewers owned and operated by the Springfield
    Sanitary District, the Sanitary District must assume operational
    responsibility for the proper operation and maintenance of
    the
    closure system
    (sensor, telemetering system7
    shut—off valve and
    valve opening).
    It will be necessary to provide us with a letter
    from the Sanitary District stating that it accepts
    this responsi-
    bility.”
    All other reasons for the permit denial have been
    essentially resolved, and the Agency can issue the permit when
    “responsibility” for the proposed holding tank and telemetering
    equipment has been established.
    Petitioner will install a five day sewage holding tank at
    the site of the store.
    Elimination of sewage from the tank will
    be controlled by means of
    a remote probe which is to be installed
    14—423

    —2—
    in a manhole at Cherry Road and Outer Park Drive.
    The probe will
    determine flow conditions
    in the sewer system of the Sanitary
    District and then transmit a signal over telephone lines to the
    tank site.
    When a “pump” signal is received the K—Mart system
    will automatically pump sewage from the tank.
    Upon receiving
    a
    “no pump”
    signal,
    the system will automatically close and the
    tank will begin to fill.
    A signal will be relayed inside the store
    so that the retail manager
    will be aware that the tank
    is filling.
    If the tank reaches an accumulation equivalent to three days
    capacity another signal is then transmitted to the store indicating
    to the retail manager that the tank has only
    2 days capacity
    remaining.
    The manager then must arrange to have the tank pumped
    out and the sewage disposed of.
    The proposed system is designed to be fail-safe in that any
    malfunction or loss of signal will cause the pump to shut off and
    the discharge valve to close.
    A manual valve accessible only
    through a bolted door
    is located within the tank
    as required by
    the
    Agency design specifications.
    In the event the tank fills
    to
    capacity, the retail manager would then have three options:
    1)
    arrange to have the tank pumped out,
    2)
    let the sewage back up into
    the store,
    or
    3) descend into the tank and open the manual valve
    thereby releasing the sewage into the Sanitary District’s sewer
    system.
    Petitioner asked the Sanitary District to assume the responsi-
    bility for this closure system, but the Sanitary District declined
    on the ground that “the facilities are benefiting the Petitioner
    and they should be responsible for the operation and maintenance
    of them”
    (R.
    48).
    Petitioners profess
    to have the necessary
    expertise available to perform required inspections and maintenance
    and are willing to accept responsibility for the proper operation
    of the system.
    From the record it appears that there are several reasons for
    the Agency’s insistence on retaining this provision in the permit.
    First,
    the Agency seeks to avoid the possibility that K-Mart
    personnel might attempt to override the automatic controls or open
    the manual valve if faced with the possibility of sewage backup into
    the store.
    To this Petitioner answered K—Mart personnel cannot
    override the automatic system and that illegal opening of the manual
    valve would possibly subject the store to prosecution under the
    Environmental Protection Act and relevant regulations.
    Second,
    the Agency contends that there is the possibility that
    other projects may seek to install similar systems
    to be controlled
    by the same closure system and telemetering sensors that control
    the K-Mart holding tank.
    Petitioners acknowledge this possibility
    but state this argument favors K—Mart control so that K-Mart could
    be protected from interference with its system by another user.
    14
    424

    —3—
    Finally, the Agency seeks to avoid
    a possible proliferation
    of such independently operated systems which could cause additional
    overloading at the Sanitary District’s treatment works.
    During the hearing the Agency sought to introduce testimony
    regarding possible future nermit applications for similar systems.
    Hearing Officer Zelle ruled that such testimony did not pertain
    to
    the
    current issue and refused to allow the introduction
    of such
    testimony.
    The Agency now seeks to have this ruling set aside and
    to be allowed to submit the information by affidavit.
    It is
    the ruling of the Board that the Hearing Officer’s
    decision on such speculative testimony was correct.
    The
    information
    would
    be
    of
    interest
    to
    the
    Board,
    but
    it
    has
    no
    direct
    bearing
    on this appeal.
    Many “possibilities”
    exist in the realm of
    pollution control, but only
    a
    few actually materialize into real
    events.
    If the Agency has information showing that such independent
    systems will proliferate to the detriment of sanitary districts,
    perhaps
    a change is needed in the Water Pollution Control Regulations.
    In this
    case, however,
    the Motion to Overrule is denied.
    Petitioners have apparently gone the extra mile to receive
    this permit.
    The records show that the system will be operated in
    the automatic mode thus alleviating the possibility of sewage
    entering the Springfield Sanitary District system during periods
    when the Sanitary District cannot adequately treat the additional
    load.
    Maintenance for the system is available locally and
    Petitioners’ witnesses have testified that such maintenance will
    be provided.
    Indeed,
    a malfunctioning system would be
    a severe
    detriment to continued operation of the retail store.
    Since the Acrency fears K—Mart personnel might open the manual
    valve at the wrong time,
    consideration should he given
    to sealing
    the valve with some material that must be broken in order to operate the
    valve.
    Petitioners’
    permit could be so worded that breaking of seal
    without Agency permission would he grounds for revocation of the
    permit.
    Routine inspections by Agency personnel would reveal
    a
    broken seal.
    In addition, Petitioners would also be
    subject
    to
    prosecution for violations
    of the Environmental Protection Act and
    applicable regulations.
    It is
    the finding of the Board that the Agency did wrongfully
    deny permits to Petitioner.
    The K—Mart system appears
    to have been
    designed with sufficient safeguards to preclude additional peak
    loading on the Springfield Sanitary District’s
    sewer system.
    If
    all other conditions for the permit are met to the Pigency~ssatis-
    faction, the permit shall be
    issued.
    The Agency shall not decline
    to issue the permit solely on the premise that the Springfield
    Sanitary
    District
    accept
    operational
    responsibility
    for
    the
    proposed
    sewage
    system.
    14—425

    —4—
    ORDER
    It
    is the Order of the Pollution Control Board that the
    Environmental Protection Agency shall not deny Petitioners a
    permit for construction of a proposed sewage system as des-
    cribed elsewhere in this Opinion solely on the basis that the
    Springfield Sanitary District assume responsibility for operation
    and maintenance of the proposed system.
    I, Christan L.
    Moffett, Clerk of the Illinois Pollution Control
    Board, he eby certify the above Opinion and Order was adopted
    this
    \‘4~
    day of
    .~Jj4~
    1974 by a vote of
    £~
    to
    c
    cr)r
    14
    426

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