ILLINOIS POLLUTION CONTROL BOARD

February

6,

1975

VILLAGE OF CARY

)

Petitioner

v.

)

PCB 74—429

ENVIRONMENTAL PROTECTION

AGENCY

)

Respondent

OPINION AND ORDER OF THE BOARD

(by Mr. Zeitlin):

In a Petition filed November 19,

1974,

the Village of

Cary

(hereinafter “Petitioner”) seeks the following alter-

native forms of relief from the phosphorus discharge limitation

of Rule 407(b)

of Chapter

3, Water Pollution Regulations,

and from Rule 1002(b) (i)

which requires an implementation

plan to be filed prior to July

1,

1972, as follows:

1.

A one-year Variance from Rule 407(b), which sets

an effluent limit for Phosphorus discharges within the Fox

River Basin of 1.0 mg/i by December 31,

1974.

(as amended

by Rule 409 for those eligible for a construction grant

under Section 201(g) of the Federal Water Pollution Control

Act Amendments of 1972.

33 USC 1251 et. seq.);

2.

A one—year Variance from Rule 407, but granted in

such

a way as to allow commencement of construction of the

treatment facilities required to achieve compliance with

that rule,

upon the expiration of such variance;

(this is in

effect

a Variance for one year plus the construction time);

3.

A Variance for one year as to the Implementation

Plan requirements of Rule 1002 (b) (1),

as applicable

(if at

all)

to completion of the required treatment facilities for

compliance with Rule 407(b);

4.

A five-year Variance from Rule 407(b)

should the

Board determine that Petitioner~streatment facility is sub-

ject to the NPDES Permit requirements of Section 39

of the

Illinois Environmental Protection Act,

(the Act),

such five-

year period being permitted under Section 36(b)

of

the

Act;

or,

15—389

---

—2—

5.

A Variance to the extent that the Board shall

determine that the Village of Cary should not be required to

remove phosphorus from its effluent,

and should be given an

exemption from the compliance standards of Rules 407(b) and

1002(b) (1).

This is,

in effect,

a request for a permanent

Variance.

Petitioner

is an Illinois Municipal Corporation located

in McHenry County, along the Fox River.

The Village has

approximately 1,400 occupied living units, with a population

of about 4,800.

Domestic and industrial sources in the vii-

lage generate an average daily flow df 705,000 gallons of

raw sewage, treated at a modern facility.

(The maximum flow

is approximately 886,000 g.p.d.)

Petitioner’s sewage treat-

ment plant does not currently treat the raw sewage influent

to remove phosphorus, which tests have shown to be as high

as

10 mg/i.

The effluent concentration of phosphorus

is

about 8.0 mg/l.

This is eight times greater than the allow-

able concentration of 1.0 mg/i under Rule 407(b)

for the Fox

River Basin.

Petitioner claims that it would constitute

an arbitrary

and unreasonable hardship to require that it comply with the

limits of Rule 407(b).

The crux of Petitioner’s hardship

argument is that to require compliance would place

a financial

burden upon the small population

of Cary,

and would in

addition be ineffective as a cleanup measure for the Fox

River.

The low bid for a treatment plant addition to eliminate

phosphorus

in Petitioner’s treatment plant effluent is

alleged to be $84,000, with an annual cost of chemicals to

operate the system of $20,000.

Petitionet estimates that

these costs would run to $60.00 per household for capital

costs, and $14.20 per year in operating costs for each

household thereafter.

The agency,

in a Recommendation filed December 23,

1974, contends that these figures do not lead to a finding

of hardship.

The Agency states that such costs are not

excessive, and in addition would not be borne by the current

population exclusively.

The Agency alleges that Cary is”...

an attractive growing community in an area of significant

development.

The fact that the treatment plant has capacity

more than twice present needs, indicates the expectations of

Petitioner.”

The sewerage treatment facility has a design

population equivalent capacity of 10,500 persons, a far-

sighted and commendable growth objective,

considering the

present population of Cary is 4,800 persons.

The Agency then assumes that by using long term financing,

Petitioner could distribute the costs of compliance among

the present and future residents of the area having the most

to gain from improved water quality in the area.

15

—

390

---

—3--

More importantly, the Agency also notes that Petitioner

has not sought state or federal grant funding to carry out a

compliance plan for phosphorus.

The Agency states that such

grant funding is available for treatment plant construction,

and could significantly reduce the burden of Petitioner’s

residents.

As to effectiveness, Petitioner claims that for it to

comply with the limits of Rule 407(b) would not reduce the

problem of algae in the Fox River Basin.

Petitioner apparently

commenced this Variance action upon learning of the evidence

and testimony presented in hearings before the Board in

Aurora Sanitary District v.

EPA, PCB 72—276,

January 16,

1975.

Testimony in that case to the effect that the treatment

of Illinois sewage treatment effluent to eliminate phosphorus

would have no effect on algae in the Fox River system was

incorporated by reference into the instant Petition.

Although

the incorporation of this testimony by Petitioner was vague

and inexact, the intent of that testimony was correctly

carried over.

The testimony of Dr. Clarence Sawyer at the

June 10,

1974 hearing in the Aurora matter was to the effect

that other sources of phosphorus, particularly from the

Chain of Lakes upstream from Cary and various impoundments

of the Fox River between Aurora and Cary,

and from phosphorus

contamination originating in Wisconsin,

are of such magnitude

that control of Illinois sewage treatment plant effluent

phosphorus concentrations

(as it relates to the Fox River)

would have no signficant effect on the algae problem.

PCB

72-276,

R-64,

75—77.

(We may properly assume that since

Petitioner has incorporated the testimony in Aurora into its

Petition,

it will not object to the incorporation of the

entire record of that proceeding.) Aurora’s ban on phosphate

detergents has resulted in their phosphorus discharge to be

4.7 mg/l whereas Cary’s discharge is 8.0 mg/i.

The Agency contends in its Recommendation that the

testimony received in Aurora

in inapplicable

to the problem

faced in this matter.

While Petitioner

in this case is,

like the Aurora Sanitary District, discharging its effluent

into the Fox River System, the two municipalities are se-

parated by more than thirty miles; that interval is highly

developed,

and contains such municipalities as Elgin, Carpenters—

yule,

and St. Charles.

The Agency further feels that the

problems of eutrophication are more serious between Cary and

Aurora than those downstream of Aurora. The Agency states

that the interval contains six dams and impoundment areas,

exacerbating the build-up of algae.

The problem of eutrophication has been before the Board

many times.

The Board recognized the need for phosphorus

limitations to control algae as early as January

6,

1971,

when

it

reduced by one-third the prior standards as to

15—391

---

—4—

phosphorus

in Lake Michigan.

Phosphorus Regulations, PCB

R70-6, January

6,

1971,

1 PCB 163,

169.

The implication of

phosphorus control and algae in eutrophication is more fully

discussed in the Board’s opinion on the matter.

In Re Phosphorus

Water Standards, PCB R70-6, April

28,

1971,

1 PCB 515,

517.

That Opinion fully explores the relationships between various

forms of phosphorus contamination and the resultant algae

blooms, and discusses the proper levels of control to prevent

the premature ageing of Illinois waters.

Id.

at

520—21,

527; See

G. Fitzgerald, Nutrient Sources For Algae and Their Control,

63, U.S. EPA Project #16010 EHR, August,

1971;

in the matter

of proposed Regulation Banning Phosphates

in Detergents, PCB

R7l-lO, Mar 14,

1972,

4 PCB 71,83; but see, Phosphate Water Standards,

PCB R70-6, April

14,

1971,

1 PCB 475

(Supplemental Opinion

of Mr. Aldrich).

The application of that reasoning to the Fox River

Basin is specifically explored by the Board in its later

Opinion adopting Rule 407 itself.

The Board in that case

stated that “tjhe

River and its tributary lakes are clogged

with nuisance blooms of algae, and it is time to activate

the requirements of SWB-ll.”

Effluent Criteria,

etc.,

PCB

R70—B,

71—14,

71—20, January

6,

1972,

3 PCB 401,

407.

Further, the need for phosphorus control in the Fox River

Basin was the subject of a special Board meeting in November,

1970.

Id.

In that Opinion, the Board also noted that there

was “no doubt of its

treatment

technology’sJ practicability

today” for phosphorus removal.

Id.

The testimony in Aurora, referred to by Petitioner in

this case,

does not indicate that the problem in the Fox

River has become less severe.

If anything, that testimony

states that the problem may be worse,

and is practically

uncontrollable.

The Agency in its Recommendation argued against the

grant of this Variance,

as was also the case in Aurora.

The

Agency states, correctly,

that a currently degraded condi-

tion in the environment cannot justify further degradation.

Illinois Power Co. v.

EPA, PCB 72-190,

Oct.

24, 1972,

6 PCB

17,

27.

That case in not controlling here,

however.

In the

Illinois Power Co. decision, the Board specifically pointed

out that controls “would on the evidence in this case have a

highly significant favorable impact on the undesirable air

quality in the area.”

Id.

at

29.

That is not the true of

the problem now before us.

Since the filings in this matter the Board has decided

the Aurora case.

PCB 72-276, January

9,

1975.

The Board

found that the expenditures required for Aurora to meet the

phosphorus effluent limits would not be matched by equivalent

15—392

---

—5—

water quality improvements in the Fox River.

Based on the

evidence in that case, the Board found that it would be an

arbitrary and unreasonable hardship on the Petitioner

in

that case

to require phosphorus removal until other problems

had been solved.

The Board found that even if the phosphorus dis-

charge limits were met by Aurora, sufficient phosphorus

would be present to nourish the algae,

and to cause noxious

algae blooms.

See also, Village of Grayslake v.

EPA, PCB

74-409, January

23,

1975, Opinion at p.

2

(Algae problems

in

Third Lake, tributary to Des Plaines River;

the Agency

recommended that the Variance be granted.)

The same underlying rationale applies here.

Were the

Board to require Petitioner in this case to undergo the

expense of treating its effluent for phosphorus in compliance

with Rule

407(b), the algae problem in the Fox River would

remain unabated. However, though we may temper the imple-

mentation of

a long—range environmental objective because of

a number of unknowns, we should not lose sight of the fact

that Petitioner

in treating its phosphorus effluent, by

whatever means are feasible and economical, would not then

add to the severity of the algae problem as it exists.

While we do not repudiate or revoke the language of the

Board which accompanied the adoption of Rule 407 (b), we find

that it would be unreasonable to require immediate compliance

of this Petitioner.

We note that the Illinois Institute for

for Environmental Quality is currently conducting

a compre-

hensive study of the Fox River

-

Chain of Lakes system,

the

initial phase is of which is expected to be completed by

June 1975.

As the Board stated in the Aurora opinion, the

Institute is encouraged

to complete its study as soon as

possible, PCB 72-276, Opinion at p.

3.

Insofar as that study remains incomplete, and as the

record in this case is far from complete even with the

adoption of the Aurora record, there are insufficient facts

before the Board to allow serious consideration of Petitioner’s

alternative request for a five—year variance period.

For

that reason, we will not approach the question of the applicabil-

ity of Sections

36(b)

and 39 of the Act to this Petition.

This reasoning applies similarly to Petitioner’s indefinite

request for a Variance of one year plus the time required

for construction.

Should extension of these Variances be necessary,

Petitioner will undoubtedly be prepared after a period of

one year to better address the troublesome issues presented

here.

15—

393

---

6—

Such actions would be of assistance

to Petitioner in

showing good faith;

it is difficult to determine such good

faith in the instant case, based on so scanty a record.

It

can be assumed that were it not for the Aurora case, Petitioner

would have taken the first step to comply with the implementation

plan requirements of Rule 1002 (b) (1), from which it also

seeks a Variance.

Petitioner had applied for a construction

permit from the Agency for phosphorus treatment modification

to its present plant, which permit

(No. 1974—AB-1684)

igas

allegedly issued on October 31,

1974.

The Village Engineer

for Petitioner had also allegedly prepared plans and specific—

atloas for an Alum and Polymer feed system for phosphorus

removal,

and had received bids for

the

construction of

such

a system. But strict compliance has not been shown as to the

requirements of Rule 1002 (b) (i), which compliance will be

expected in keeping with the other portions of this Opinion.

The timetables required under that Rule shall remain in

keeping with the period of this variance.

This should not

constitute any hardship for Petitioner, insofar as it has

already made plans for compliance with Rule 407(b).

No discussion will be given to Petitioner’s request for

a permanent Variance,

or a Board finding that Rule 407(b)

should not be applied as against

it.

The grant of this variance similarly does not relieve

petitioner from attempting to alleviate the hardship found

in this case.

Petitioner shall

inquire into the avail--

ability of federal and state grant funding for phosphorus

control, and shall apply if eligible.

The Board has pending before it R74-l7 which would

extend the deadline date presently existing to meet effluent

standards,

from December 31, 1974 to July

1,

1977;

this

regulation proceeding would affect Petitioner

if adopted by

the Board.

No hearing was held in this matter.

This Opinion constitutes the Board’s findings of fact

and conclusions of law.

ORDER

IT IS THE ORDER of the Pollution Control Board that:

1,

Petitioner

is granted a variance from the phosphorus

effluent discharge limits of Rule

407(b)

of Chapter

3, Water

Pollution Regulations,

from January

1,

1975 until December

31,

1975, subject to the conditions

stated below.

15

—394

---

—7—

2,

Petitioner is granted a variance from the Implementation

Plan requirements of Rule 1002(b) (i)

of Chapter

3, Water

Pollution Regulations,

to the extent consistent with this

Opinion and Order, from July

1,

1972 until September

1,

1975, pursuant to Section 35 of the Environmental Protection

Act.

The above Variances are subject to the following:

a.

Petitioner’s discharge of phosphorus into the Fox

River shall not exceed concentrations of

8 mg/l.

b.

Petitioner shall explore alternate means of treatment

to reach discharge concentration levels in compliance with

the limitations of Rule

407(b), and report on the same to

the Agency on

a bimonthly basis, such reports to be submitted

on the 15th of the month and commencing in April,

1975.

c.

Petitioner shall apply for all applicable state or

federal grant funding available to Petitioner for the removal

of phosphorus from its treatment plant effluent and shall

submit by September 1,

1975

a report to the Agency as to

availability of funding.

3.

Petitioner shall file with the Agency a project

completion schedule by September 1,

1975, pursuant to Rule

409 of Chapter

3 of the Water Pollution Regulations.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Opinion and Order

were adopted on the

~

day of February,

1975 by a vote

of

S~

-

anL.~?2~Ek

Illinois Pollution Control Board

15