ILLINOIS POLLUTION CONTROL BOARD

June

29,

1972

METROPOLITAN SANITARY DISTRICT

OF GREATER CHICAGO

v.

)

 72-ill

ENVIRONMENTAL PROTECTION AGENCY

ENVIRONMENTAL PROTECTION AGENCY

V.

)

 72—135

METROPOLITAN SANITARY DISTRICT

OF GREATER CHICAGO

Mr. Melvin Rieff and Mr. Douglas Moring,

 for the Environmental

Protection Agency

Mr. Allen

 S. Lavin, Attorney, by Mr.~PauiID.

 Lindauer.,

 Jr., Mr. Sidney

13. Baker,

 Mr. Phillip Rothenber,

 for the Metropolitan Sanitary

District.

Mr. John Petrie, Village Manager,

 for the Village of Streamwood:

Opinion of the Board

 (by Mr. Currie):

The Metropolitan Sanitary District operates

 a sewage treatment

plant at Streamwood,

 in Cook County.

 Equipped with trickling filters

designed to give secondary treatment to 1.2 million gallons of sewage

per day

 (Amended petition*,

 p.2),

 the plant has become seriously over-

loaded, receiving an average of 1.76mgd overall

 in recent months and

2.36mgd

 in April,

1972

 (MSD ex.

 14).

 A program for improved treatment

at Streamwood was shelved by the District in early 1968 in favor of a

p

embracing the construction of

 a larger regional facility

 (Poplar Creek)

that would meet the new standards and permit abandonment of

 the Stream—

wood plant.

 (Amended petition,

 p.5).

Overloaded conditions were not the only problem at Streamwood.

Sanitary Water Board standards SWB-14 required tertiary treatment by

July,

 1972.

 Whether the Poplar Creek plant would have been ready in tim

for the July 1972 deadline

 if all had gone well is not clear, and in

any case no provision was made at that time for improving the quality

of the effluent in the meantime.

 The January 1971 date

 for submission

plans for facilities to meet the

 1972 standards passed without the

submission of plans either for Streamwood improvements

 or for Poplar

Creek,

 and no request for extending the deadline was received until

July of 1971.

~Tfleparties stipulated

to

 ttie truth of the allegations in the

amended petition and

 its attachments,

 and to Environmental Protection

Agency Exhibits 1-16

(R.

 7-8).

—

737

At that time the District filed its first variance petition

(#71-183),

 reciting that Poplar Creek had been delayed by a dispute

over inclusion of that facility in the regional plan of the North-

eastern Illinois Planning Commission, without which neither federal

 nor state money would be available to help foot the bill.

The

District then sought an indefinite relaxation of the effluent standards,

promising to carry out certain interim improvements at Streamwood

while further pursuing a permanent solution.

 Finding no commitment

to any long—term program for compliance, no adequate justification

for the delay in meeting the standards,

 and an inadequate interim

program, we denied the variance with a warning that the District

was subject to an enforcement proceeding for failure to meet the deadline

for submittIng plans and advising the District “to get started with

dispatch upon adequate interim measures to alleviate the present

intolerable situation and upon the construction of whatever it decides

is the appropriate means of achieving compliance with the effluent

standards of SWB—14.”

Metropolitan Sanitary

 District v.

 EPA,

 #71—183

 (Nov.

11,

 1971).

On March 24,

 1972,

 the District filed a second variance petition

(#72-111)

 which in amended form

 is before us today.

 On April

 3 the

Agency filed a complaint against the District

 (#72-135)

 arising out

of the Streamwood situation, and the two proceedings were consolidated

for hearing.

The first question for decision is the adequacy of

 the District’s

present program.

 The interim program proposed in the 1971 petition,

which we disapproved, contemplated operation of a facultative

lagoon in parallel with the existing trickling filters, producing an

effluent unsatisfactory even by secondary treatment standards and

further degenerating over time,

 The present program envisions conversior

of the trickling filters to aeration tanks for an activated sludge plant

with adequate capacity, to produce a good secondary effluent estimated

at 11 mg/l of five-day biochemical oxygen demand

 (BOD)

 and 16 mg/I

of suspended solids.

 An optional additional feature is the construction

of tertiary filters to achieve 4 mg/I of BOD and 5 of suspended solids.

On either option the improvements are to be completed by June 30,

 1973.

(Amended petition, p.4).

It is clear enough that the District should proceed at once with the

conversion to activated sludge and the provision of additional capacity,

as all parties agree.

 The present effluent quality is poor

 (averaging

BOD 36, solids

 60 over five recent months, MSD Ex.

 14);

the

stream

is

in bad condition

 (EPA Exs.

 3,lO,ll,14c,16);

 the District acknowledges

that the improvements will make a big difference in stream quality (R.l51);

the Poplar Creek plant is an estimated five years away from operation

(R.

 45);

 interim improvements will enable the District to meet the

revised effluent standard for July, 1972 one year late and, once they

are completed, will permit the District to lift its present prohibition

 on new sewer connections.

 The cost

 is about $560,000

 (Amended petition,

p.

 4), which the District is willing

 to pay and which we consider

entirely reasonable.

4—

738

The District contends, however,

 that it would be

 a waste of

money to build

 the additional tertiary filters that will be required

to meet our effluent standards after December

31,

1973

(R.

 151-53).

The Agency disagrees, pointing out that the Poplar Creek plant will

in no case be available in less than

 five years and arguing that the

additional

 $200,000

is

 a reasonable cost

(R.

 263).

 We agree with the

Agency that there is no justification on the record

 for an exemption

from the December,

 1973 requirements.

 The dispute over an ultimate res-

olution of Poplar Creek is still unresolved,

 the District lately having

once again requested the Planning Commission to revise its plan

 so that

federal and state funds will be available

(R.

 52).

 While the District

has

 stated its “intention~ to proceed with Poplar Creek

 (ibid), we

cannot ascertain from this record

 a firm commitment

 to go it alone if

necessary.

 Even if we could,

 it will be

 a long time before Poplar

Creek

is

 a reality; we agree with

 the Agency that the price

is

a

reasonable one to assure compliance

 in the interim.

 The District

testified that in its opinion other waste sources discharging to the

sa~iecreek were substantial enough that reducing Streamwood’s BOD

from 11 to

 4 would have no significant effect

(R.

 152), but no sup-

porting information was given,

and

 the answer to pollution by other sources

would be

 to clean them up as well.

 The District refers also

(R.

 171)

to the Board’s opinion in Water Quality Standards,

 #71-14

 (March

7,

 1972),

in which we recognized

 t~iatin some situations

 it may be possible to

maintain adequate stream oxygen without going to the most sophisticated

treatment.

 But the District overlooks the conditions imposed upon

our somewhat relaxed rule in that regard; specifically, among other

things,

 it has introduced no evidence that adequate oxygen levels would

exist in this particular stream if only secondary treatment were pro-

vided.

 Our opinion at the time stressed that such proof was essential

before any relaxation could be afforded.

 We do not hold that tertiary

filtration must be provided at Streamwood as

 a part of the interim

program.

 What we hold is that the District must comply~withthe more

 stringent requirements of Rule 404 by December

31,

 1973.

 Whether

tertiary filters will

 in fact be required by

 Rule 404 depends upon

information submitted

 to the Agency on applying

 for permits and seeking

approval of its compliance schedule.

The third question is what

 the District can and should do to

improve its effluent while it is constructing

 the interim facilities

discussed above.

 The Agency’s recommendation,

 filed before hearing,

asked that during this period the effluent meet

 a standard of

 30 mg/i

BOD and 37 suspended

 solids.

 Agency

 testimony at

 the hearing

 (R.201-06)

endeavored

 to show, using limited flow information and standard refer—

ence materials,

 that such an effluent should be attainable even when one

of the two trickling filters

 is out of

 service during actual conversion.

Cross-examined on the basis

 of actual recent information, however,

the

Agency witness acknowledged

 that his computations were inapplicable to

the Streamwood situation;

 that, because of the considerable overload,

effluents considerably worse than those he predicted represented fairly

good operation under

 the circumstances; and that, given the actual

operating data, he would not adhere to his estimate that the 30/37

standard could be met

(R.

 219-22)

 Moreover,

 in response to our opinion

in denying the earlier variance, the District introduced careful

testimony as to the utility of adding chemicals for interim improvement

of treatment.

 Following laboratory tests indicating significant

—

739

improvement,

 the District began adding both polymers and ferric

chloride at Streamwood, but no measurable improvement occurred because

the hydraulic overload was so great that retention time ~4asreduced

to the point where the materials precipitated could not settle out

(R.

 140-43,

 158—64), effectively distinguishing today’s case from

the Orland Park and Danville Sanitary District cases, *#71-166

(Sept.

16,

 1971)

 and 71-28

 (May 26,

 1971).

 Until additional holding

capacity is provided,

 the District testified without contradiction,

there is nothing that can be done to improve the situation

(R.

 157).

On the basis of this testimony we think the best we can do is to order

the District to provide the best practicable treatment under the

circumstances;

 to keep its BOD below

 50 and solids below 65, as agreed

to in the District’s Additional Statement filed June

26;

 to expedite

those portions of its construction program which will provide such holding

 capacity; and to utilize chemicals as soon as holding capacity is

available.*

 The same problem, and the same solution, are presented

with respect to disinfection

 (EPA Ex.

2;

R.

 168).

The next issue

 is that of penalties.

 Violations alleged by the

Agency, and not denied,

 include water pollution; the discharge of

materials causing objectionable bottom deposits or other nuisance

conditions; failure to remove color, odor, turbidity, and settleable

solids;

 and violation of dissolved oxygen standards in the receiving

stream.

 Evidence in support

 of these charges consisted entirely of

exhibits, with no testimony or interpretive argument to enlighten us

as to what the Agency thinks went wrong or what it wants

 us to do.

We

should appreciate more informative presentations in future cases.

As we read the exhibits, they focus upon two distinct problems.

The first, as Illuminated by the District’s testimony,

 is that from

September 22 to

24,

 1971 one of the two trickling filters was taken

out of service during replacement of a mercury seal, which the Agency

had ordered

CR.

 84-88).

 The result was that nearly half the sewage

reaching the plant was bypassed after only primary treatment directly to

the stream

CR.

 98),

 Dissolved oxygen went to zero at more than one place

in the stream,

 and 230 to 250 fish were killed

 (EPA Exs~8,

 l5a).

The District responded by denying there was anything it could do at the

time to prevent the discharge of inadequately treated effluent while

making the necessary repair

(R.

 90, 93-122), and the Agency had nothing

to say in rebuttal.

 But we do not think this disposes of

the

issue.

Our decisions have consistently recognized an obligation to perform

necessary repairs without wrecking the receiving stream.

 See Springfield

v.

 EPA,

 #71—125

 (Aug.

13,

 1971); EPA v.

 Lake Zurich,

 #72—26 (May,

30,

1972

This obligation requires planning ahead

 in the construction of a treatment

plant,

 to include holding tanks, duplicate facilities, or other means

for preventing harm when one unit

 is out of service.

 That no such

means were provided at Streamwood is no defense.

It

 is proof that

inadequate precautions were taken and cause for imposing a money penalty.

The’District testified that six hours’ detention time upon completion

of the large primary and final tanks will allow a satisfactory effluent

even during actual conversion of the trickling filters

(R.

 155).

Chemicals should be used at that time.

—

740

:n other cases

 of this kind we have

 in addition ordered payment to the

~onservation

 Fund to the extent of the value of fish killed, hut there

is

r~oevidence of such value in this case.

The second problem addressed by the Agency’s complaint

 is the

more general one of continuous inadequate treatment resulting

in

harm to the stream.

 This too is proved.

 Biological

 samples showed

no life below the Streamwood outfall, contrasted with a normal envir-

onment above

 (EPA Exs.

11,

 12).

 Mucky sludge deposits six inches,

deep were attributed

 to Streamwood discharges

 (EPA Ex.

 10).

As

is

not denied,

 the District has caused water pollution under section 12(a)

of the Environmental Protection Act and has violated the cited

provisions of Rules and Regulations SWB-14 with respect both to stream

nuisance conditions and to the removal of gross contaminants.

The

issue is

what penalty,

if

 any,

 is called for.

The District has allowed the Streamwood plant to become grossly

overloaded to the point where nuisance cOnditions occur in the stream.

Its attempt justification is that the Poplar Creek plant, which will

ultimately solve this and other problems, has been held up because

of the dispute over regional planning.

 We acknowledge the District’s

interest in obtaining as much outside financial assistance as

 it can

 in curing its problems, and we favor regional solutions.

 But, as we

said in denying the earlier variance petition, neither construction grants

nor regionalization should be pursued to the exclusion of correcting

current problems.

 Whatever the situation when the originally planned

Streamwood improvements were put on th~shelfin 1968,

 it should have

been clear

 to the District some time ~age~thatPoplar Creek would not be

available for several years and that

the

problem had become

 so acute as

to demand

an

interim improvement.

 This was especially so as January,

1971 approached with its deadline for submitting plans to meet a more

stringent effluent standard.

 The District began thinking about interim

facilities in August, 1970

 (Amended petition, p.9); but the plan was

rejected by the Agency and found wholly inadequate by this Board.

About

a year and a half went by as the District sought approval of a

scheme it should have known was insufficient.

 The program that

 is before

us today is adequate, but it is tardy.

 The District is doing now what it

should have done some time ago.

 Once it became clear that the effluent

was seriously out of compliance and that Poplar Creek was years

 away,

it

was the District’s obligation to scramble to make interim improvements with

all speed.

 Indeed the overload that is responsible for the violations

 should have been anticipated and expansion undertaken early enough to

prevent it.

 We think the District was unjustifiably slow in coming

up with interim measures that will significantly alleviate the problem.

Penalties are therefore called for.

 Without them we could not consider

giving the District a shield against future. complaints during the

construction program.*

 Once again,

 the amount of the penalty

 is less

We note with displeasure the District’s statement(R.

 70) that without

a variance the improvements are not likely to be built.

 No variance

is needed to correct existing violations.

 The notion that a polluter

need not stop violating the law unless he

 is given immunity until the

construction is done is quite unacceptable.

—

741

than

would otherwise be appropriate because we are dealing with a

governmental body.

 See City of Springfield v. EPA,*70-55

 (April,

7,

 1972).

The

Agency

asks

that

security

for

performance

required,

and

shall set it at the cost of the improvements.

 We think $500,000 will

suffice under the precedent of Illinois Power Co.

EPA,

#71—193

(Oct.

 1, 1971)

 We deny the Agency’s request that the District be ordered

to proceed with Poplar Creek, since the improvements we have required

will so far as the record shows assure compliance at Streamwood.

The

Agency also asks us to require the District to continue forbidding new

sewer connections until the improvements are done.

 The record graphically

demonstrates the adverse effect of additional connections on a plant that

has reached its hydraulic capacity, even to the point of rendering

interim chemical treatment useless.

 We assume

the

District,

 in recog-

nition of its sorry effluent and its duty to maintain an effluent of

50/65 during the coming year, will not permit further connections; the Agency

has its own permit powers which it is free to invoke to protect against

new sources;

 and the Board

 is always open to additional enforcement

proceedings, with proper statutory notice,

 to impose a connection ban

if other channels fail.

ORDER

1.

 The Metropolitan Sanitary District of Greater Chicago

 (District)

shall within 35 days after receipt of this order pay to the State

of Illinois the following sums as penalties for the violations

indicated:

a.

 $1000 for violation of stream standards SWB-14 respecting

dissolved oxygen during replacement of a trickling filter

seal;

b.

 $5000 for water pollution and violation of SWB-l4 nuisance

 standards for effluent and stream quality.

Such

payment

shall

made

check

payable

Environmental

Protection

Agency,

Fiscal

Service

Division,

2200

Churchill

Road,

Springfield,

 Illinois

 62706.

2.

 The District shall construct and operate, as soon as

 is practicable

but in any event by June 30,

 1973, the secondary treatment facilities

described in its amended petition for variance.

3.

 Pending completion of the facilities described in paragraph two

of this order,

 the Streamwood plant shall provide the best practicable

treatment under the circumstance,

 and in no event shall the effluent

from the Streamwood plant exceed BOO of

 50 mg/l or suspended solids

of 65, computed on a 30-day moving average basis consistent with

Board regulations.

4.

 The District shall expedite construction of those portions of

the facilities described in paragraph 2 of this order which w~ill.

provide additional retention time and,

 as soon as such portions are

ready, shall utilize them to provide improved disinfection and

chemical additions for removal of solids and BOO.

—

742

The

district

shall,

within

 35 days after receipt of this order,

post

with

the

Agency

bond

other

adequate

 security in the amount

of $500,000’ to assure compliance with the terms and conditions of

this order.

6.

 The District shall construct whatever facilities may be necessary

to meet the more stringent requirements of Rule 404 by December 31, 1973.

7.

 The District is hereby granted a variance until June

29,

 1973,

from Rule 404 of Chapter

 3 of the Rules and Regulations of the

Pollution Control Board, on condition that the other provisions of

this order are complied with.

I, Christan Moffett, Clerk of the Pollution Control,~Board,certify

that the Board adopted the above Opinion this

‘

 day of June,

1972, by a vote of

q’..~

4—743