ILLINOIS POLLUTION CONTROL BOARD

August 22, 1972

THE VILLAGE OF DE SOTO

v.

)

PCB 72—224

ENVIRONMENTAL PROTECTION AGENCY)

William G. Ridgeway for The Village of DeSoto;

Thomas J.

Inixuel, Assistant Attorney General, for

the Environmental Protection Agency.

OPINION AND ORDER OF THE BOARD

(by Mr.

Parker):

By letter to the Agency dated May 18,

1972 the Village of

De Soto in effect seeks a variance from the requirement of Rule 405

of Chapter

3 of the Water Pollution Control Regulations requiring

that after July 31, 1972 no effluent shall exceed 400 fecal coliform

per 100 ml.

Petitioner says it will be able to comply with the

effluent standards for fecal coliform by July of 1973 when it

hopes to install and have in operation an upgraded sewage treat-

ment plant.

The petition asserts that to provide temporary

chlorination facilities pending completion of the upgraded plant

would be “most uneconomical and unwise” and that “there is inade-

quate space facilities

to provide for chlorination at the present

site.”

Petitioner presently treats its wastewater by means of a

single cell lagoon having an area of

8.7 acres and a

3 foot

water level.

The effluent which is the subject of this petition

is discharged to the Little Muddy River.

At the public hearing, held July 21, 1972, Petitioner waived

the statutory 90 day period for

Board

decision under Section 38

of the Act

(R.5),

and the parties stipulated that the following

levels of fecal coliform were present in samples taken by the

Agency on the dates indicated

(R.

2-3,

5):

March

16, 1970

260/100 ml

May 19, 1970

180/100 ml

April

28, 1971

100/100 ml

March

8, 1972

100/lOt., ml

June 2,

1972

400/100 ml

and

June 23, 1971

4000/100 ml

December

9, 1971

4000/100 ml

January 12, 1972

6000/100 ml

May

3,

1972

11000/100 ml

As will be apparent, the fecal coliform levels for the last

four listed samples exceed the 400 limit permitted by the regula-

tions.

In its recommendation, filed on July 13, 1972 before the

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hearing,

the Agency characterized these excessive coli.form levels

as

“not outrageously high”,

a reference no doubt to the fact that

even the highest measured level of 11,000 is far below the est-

imated average

5 to 10 million level which may be attributed to

the feces from a single person.*

The Agency’s recommendation

also acknowledged that the effluent was not presently causing any

violations

of the fecal coliform standards set for the Little

Muddy River.

A consulting engineer for the Village testified at the hearing

that pursuant to request made by the Village in May of 1970

he prepared an engineering report and layout calling for installing

two additional lagoon cells and a chlorination tank

(R.

10),

which would have permitted the effluent to meet all standards

(R.

11).

The original construction cost was estimated to be

$56,000.

When land and administrative costs were added to this,

the total

was $96,500.

(R.

12).

But the Village was unable to purchase

the necessary land

“for a reasonable price”

(R.

12).

The engineer said that he is now studying the possibility of

using a different type treatment plant

(contact stabilization with

filtration and chlorination) which could be built on the existing

lagoon ground

(R.

13).

A rough cost estimate of $211,000. has

been made, and the Village is proceeding with

a preliminary design

to be submitted to the Agency for approval

(R.

14).

Estimated

time of completion of the project is about one year after letting

of the contract

(R. 14-15)

.

Applications have been made for

Federal and State grants

(R.

15), which applications are still

pending.

The witness said it was doubtful that such an upgraded

plant could be built and in operating condition by July

1,

1973

(R.

15).

The difficulty we have with this case is that the record

fails to show why it is that temporary chlorination facilities

cannot be installed now,

or how such an immediate installation

might work an arbitrary or unreasonable hardship on Petitioner.

Aside from the conclusory statement of the engineer for the

Village that “the only place that they can chlorinate at the pre-

sent location is right adjacent to the road which is going to be

very very difficult and cause

a hardship”

(R.

19), we find nothing

in the record on the point.

The only cost data in the record has

to do with the ultimate costs of providing permanent treatment

facilities.

As Petitioner is well aware, our Board Procedural Rule 401

(a)

(2)

requires

a

petition

for

variance

to

set

forth

“a

description

of

the

costs

that

compliance

would

impose

on

the

petitioner

and

others”.

While the instant petition as filed in this case is

conclusory and therefore deficient in this respect, this short-

*A Practical Guide to Water Quality Studies of Streams by

F.W.

Kittrell, U.S. Department of the Interior,

1969, pp. 97,

127.

5—

234

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coming in no wise excuses the failure of proof.

The situation

is

particularly

aggravating

because

Petitioner

was

warned

by

the

Agency

of

this

problem

of

proof

in

advance

of

the

hearing,

viz:

“Petitioner has provided no cost estimates nor

precise technical reasons as to why it is actually

unfeasible

to install the necessary facilities to

consistently produce an effluent of 400 or less fecal

coliform per 100 ml by the July 31, 1972 deadline

date.”

(par.

6 of Agency Recommendation)

Yet the record is silent as to what the costs would be of com-

pliance on a temporary basis pending completion, of permanent

upgraded sewage treatment facilities.

Because of Petitioner’s failure to prove its costs of

temporary compliance we must deny the petition as unsupported by

a showing of the requisite arbitrary or unreasonable hardship.

Petitioner may prepare and file

a new petition for variance,

if it

S(

desires, accompanied by a verified showing

(e.g.

by affidavit)

of the necessary cost information.

In this event we will await

the Agency recommendation and then decide whether any further pub-

lic hearing is necessary.

This Opinion constitutes the Board’s findings of fact and

conclusions of law.

ORDER

The petition for variance is denied without prejudice to

the filing of a new petition in

accordance

‘with the Act and

Procedural Rules and as deslcribed

in the above opinion.

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

Board, certify that the Board adopted the above Opinion and Order

this

~

day of August, 1972,

by a vote of_________

ristan

L. Moffe~ Clerk

Illinois Pollution Control B

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