ILLINOIS POLLUTION CONTROL BOARD
January 31, 1974
THE HINSDALE SANITARY DISTRICT,
a municipal corporation of
Cook and DuPage Counties,
Complainant,
v.
)
PCB 73—417
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, DUPAGE COUNTY DEPARTMENT
OF PUBLIC HEALTH, CITY OF OAK
BROOK TERRACE, ILLINOIS CorkMERcE
COMMISSION, ROBERT R. KRILICH,
CHICAGO TITLE AND TRUST COMPANY,
as trustee under Trust No. 51272,
RIVERWOODS DEVELOPMENT CORPORAT ION)
Respondents.
Louis R. Main, Attorney for Hinsdale Sanitary District
Marvin I. Medintz, Assistant Attorney General for the EPA
Daniel I-I. Pappas, Attorney for Robert Krilich, Riverwoods
Development Corporation and Chicago Title and Trust
Company as trustee
Joseph B. Bonk, Assistant State’s Attorney for the DuPage
County Department of Public Health
OPINION AND ORDER OF THE BOARD (by Mr. Henss)
On January 6, 1972 the Pollution Control Board adopted
a Regulation (Chapter IV Water Pollution, Part 11, Regional
Sewage Treatment), to advance the consolidation and regionalization
of sewage treatment facilities in DuPage County. The Preamble of
the Regulation (Rule 1101) stated:
“The proliferation of numerous small sewage treatment
plants in densely populated and rapidly developing
DuPage County constitutes. a severe and intolerable
impediment to the correction of present water
pollution and a continuing threat of additional
pollution in the future. Not only do the higher
unit costs of constructing and operating small
plants waste finite dollars and therefore
contribute to pollution; small plants cannot
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produce as satisfactory an effluent as
can
larger
plants, because they cannot provide certain types
of
sophisticated treatment, because they cannot
practicably be adequately supervised or maintained,
and because they cannot provide adequate standby
treatment capacity to prevent pollution in the
event of a malfunction.
The establishment or con-
tinued operation of sewage treatment plants so small
as to exhibit these deficiencies, in areas
such as
DuPage County where the population density is
high
enough to
make
larger plants economically feasible
and indeed economically far more desirable, is
contrary to the anti-pollution policy of the
Environmental Protection Act. The nine service—area
concept for DuPage County proposed by the Northeastern
Illinois Planning Commission sets forth a reasonable
geographical basis upon which to base a regionalization
scheme in DuPage County and the Board endorses this
concept in principle. All regionalization efforts
made under this Chapter shall be directed toward a
reduction in the number of sewage treatment facilities
at the earliest reasonable deadline. A series of
regional plants, well—operated and strategically
located, will greatly minimize the pollutional load
upon the DuPage County streams and assure conformance
with the Environmental Protection Act.
In order to accomplish the
above
goals, the Board
will appoint
a nearing Officer for each of the nine
regions; he shall bring the various Parties in that
region together; either jointly or individually, the
Parties shall submit a Regional Plan to the Hearing
Officer; the Hearing Off icer shall conduct hearings on
these submissions and make recommendations
to the Board;
based on these recommendations, the Board shall determine
a program for each region, and,
after publication, give
final approval to a regional was tewater treatment
program for DuPage County.”
Other parts of the Regulation
establi
shed a
procedure
for
accomplishing the “above goals” including; The designation of
parties to the proceeding, the appointment of hearing officers,
the requirement for submission of regional plans and guidelines
for the hearing officer to submit recommendations to the Board
regarding the regional plans. The Regulation provides that after
receipt of the recommendations from the hearing officer. the Board
shall issue a regional program for each of the nine regions which
program shall provide specific findings in each region as to
how
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regionalization will be accomplished. The
regional program to
be issued under Rule 1108 will designate
those plants to remain
in service or to be expanded as regional plants and those plants
which will be designated as interim facilities with specific
phase-in and phase-out dates; will designate in each of the nine
regions the governmental agency responsible
for sewage treatment;
will delineate areas of future growth within the County making
provision for regional sewage treatment plant expansion when
necessary; will provide for a sufficient transport system to
carry sewage to the regional treatment plants; will evaluate
the ability of each regional sewage treatment plant to handle
its capacity consonent with predicted growth patterns within the
County; and will provide that
presently unserviced areas are
guaranteed service on a reasonable cost basis.
The Regulation further provides in Rule 1113:
“No permit shall be granted for the construction or
operation of any additional sewage treatment plant
in DuPage County, except for interim facilities in
the event of a
demonstrated emergency,
that does not
conform with the principles of the regional program
described in Section 1108 of this Chapter,
or that is
of capacity so small as to create an insignificant
risk of inadequate treatment, according to the
policies expressed in Rule 1101 of this Chapter.”
In the Opinion adopting this Regulation (R70-17) the Board
said that the actual structuring of a regional solution to sewage
treatment problems must take place at the local level. It is
clear enough that the Regulation did not adopt a specific regional
plan but provided a mechanism for further action toward the goal
of regionalization.
Hearings have been held to establish boundaries for the nine
sewage treatment regions in DuPage County. Proposed boundary
lines
have been made public in order to facilitate comment by
members of the public, but regional boundaries have not yet been
finally established.
The regional plans for sewage treatment
which are contemplated by the Regulation have not yet
been
formulated.
At this stage of affairs the Environmental Protection Agency
issued a permit (Permit No. 1973-GA-1765) for the construction and
operation of a package sewage treatment facility for the Riverwoods
Development in DuPage County. The Hinsdale Sanitary District
promptly filed this action (PCB 73-417) asking us to revoke the
permit which had been issued by the EPA and to issue a cease and
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—4—
desist order terminating the construction or operation of
Riverwood’s sewage treatment system. The Complaint alleges
that the Hinsdale Sanitary District, as responsible governmental
agency, has prepared a plan for the treatment of all sanitary
wastes within Region III and will be able to serve the needs of
Riverwoods Development, which is located within the proposed
Region III. It is alleged that the developers have chosen to
install a privately owned sewage system in the belief that it
will be less expensive than a connection to the sewage system
operated by Hinsdale. Hinsdale claims that the installation of
the package sewage treatment facility violates the Regulation
on Regional Sewage Treatment and also an ordinance of the
Hinsdale Sanitary District.
The Hinsdale Sanitary District has adopted an ordinance
providing for the extension of its own authority beyond its
corporate limits, as is provided by Statute, and prohibiting the
construction of privately owned sewage disposal systems within
three miles of the boundaries of the District.
Some of the Respondents filed Motions to Dismiss, contending
that there could be no violation of Rule 1113 until a regional
program has been promulgated under Section 1108 of the Regulation.
Respondents argue that the acceptance of this lawsuit at this
time would give Hinsdale exclusive jurisdiction in matters involving
the discharge of sewage in the area.
We believe this action is premature and will dismiss it. We
believe that such actions will be appropriate after the regional
plans have actually been adopted. Complainant contends that it is
the principle of the regional prograni and not the actual regional
program which is important and that the issuance of the permit in
this case does violate the principle of regionalization.
The Board did “endorse the concept in principle”, and provide
for further hearings to develop plans “to accomplish the above
goals” (Preamble Rule 1101). However, we need more than a concept
to entertain this lawsuit. Too many procedural problems remain
undecided. We have not finally established boundary lines nor have
we adopted specific plans for the nine separate regions. One of the
issues which must be resolved bears upon the finanàing and timing
of improvements to sewage systems or acquisitions of existing
facilities. Guidelines for actions of this type have not yet been
es,tablished.
We are willing to entertain lawsuits for the revocation of
sewage treatment permits if those lawsuits are brought within the
framework of our Water Pollution Regulations. However, no allegation
was made here that the Riverwood sewage treatment system would be
inad&iuate to treat the sewage within the area it will serve. No
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allegation was made that the Riverwood sewage treatment system
would in actuality cause water pollution. The Complaint is
essentially founded upon the “regionalization” theory of R70—l7
and the Hinsdale ordinance. Complainant has not presented us
an issue to be decided under the Environmental Protection Act
and the regulations adopted pursuant to that Act.
We have made a commitment to the concept of regionalization
but it will be necessary to have a regional plan or program in
existence prior to the acceptance of lawsuits of this type. This
action is not yet ripe and will be dismissed.
This Opinion constitutes the findings of fact and conclusions
of law of the Illinois Pollution Control Board.
ORDER
It is the Order of the Board that this action (PCB73-4l7)
be dismissed.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Order was dopted
this
~f4~
day of~~
,
1974 by a vote of ___toO
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