ILLINOIS POLLUTION CONTROL BOARD

December 21, 1971

CITY OF LINCOLN

v

)

PCB 71—295

ENVIRONMENTAL PROTECTION AGENCY

Warren Peters, attorney for the City of Lincoln

Frederick C. Hopper and Thomas 3. Immel, attorneys for the

Environmental Protection Agency

Opinion and Order of the Board (by Samuel R. Aldrich):

Petition for variance was filed October 1, 1971, by the City of

Lincoln, Illinois, requesting a variance of one year from the time

schedule contained in Section 14 of Rule 1.08 of Article I of Rules

and Regulations SWH—L4. The Rule provides a schedule of construction

of municipal treatment works improvements to adequately meet the

water quality standards by July 1972. The City seeks an extension

of time in which to redesign and construct additional facilities

at its sewage treatment plant.

Rule 1.08 of SWB-l4 requires that by July 1972, municipal treatment

plants discharging to small intrastate streams produce an effluent

not exceeding 4 mg/l BOD and 5 mg/l suspended solids. The record

indicates that the City’s present treatment facilities produce an

effluent averaging 20 mg/i BOD (R. 41). The present capacity of the

sewage treatment plant is 2 1/4 million gallons per day (mgd) for

secondary treatment and 5 mgd for primary treatment (R. 42). The

average daily flow is 2.14 mgd. During wet weather, the plant’s cap-

acity is at times inadequate to handle the combined input of sewage

and storm water, with the result that the overflow is passed

untreated to the Rubicon Creek (R. 41, 52, 76). Information as to

the frequency with which wastes are bypassed and the quantity of

wastes bypassed is not available. An inspector for the Agency

testified that on one occasion he observed that none of the sewage

flowing to the plant was receiving any treatment. The plant

operators explained that they had closed down the plant to prevent

grit and rags from entering and clogging the raw sewage pumps (R. 80).

Rule 1.08 of SWB-l4 requires that plans and specifications for

improvements to treatment facilities b~ submitted 30—33 months prior

to the completion date. The latter requirement was met by the City

which submitted preliminary plans and specifications on September 23,

1969 CR. 15). These plans called for the construction of two lagoons

and of a pumping station to pump the effluent from the present plant

plus the first flush of storm water from the combined sewers to the

lagoons CR. 24). Provisions were also made for increasing the

plant’s capacity and for chlorination of the effluent. On September 2,

1970, the Environmental Protection Agency (~‘Agency”) approved the

— 295

preliminary engineering report subject to the receipt of final

engineering plans (Pet. Ex 1—A).

The City submitted detailed plans and specifications for its proposed

improvements on April 26, 1971 CR. 26). A permit was received from

the Agency on August 2, 1971 (Pet. Ex. 5) 

Issuance of the permit

was, however, conditioned upon the submittal of engineering plan

documents for additional facilities to remove BOD and suspended

solids. This condition, denoted Condition #9 in the permit, was

imposed pursuant to Technical Policy 20-24 which requires removal of

algae from the effluents of waste stabilization ponds. According

to the City’s petition, that Technical Policy was adopted by the

Agency approximately two weeks before the City was issued its

permit on August 2, 1971. The City received no notification of the

change in policy prior to issuance of the permit CR. 29).

It is Condition #9 from which the City’s present difficulty stems.

Leonard K. Crawford, a consulting engineer for the City, testified

that the requirement for additional treatsient would necessitate

redesigning the City’s proposed facilities. In its petition, the

City contends that the requirement that it satisfy Condition #9 would

pose an arbitrary and unreasonable hardship upon it: arbitrary,

because at present there is no known professional engineering

knowledge available to permit compliance; and unreasonable, because

the Agency adopted Condition #9 after the City had submitted its

plans and specifications on April 26, 1971, and did not inform the

City of the change in policy until the permit was issued.

Although knowing of no case in which algae are satisfac.torily removed

from lagoon effluent on other than an experimental basis, Mr. Crawford

was of the opinion that such removal could be accomplished (R. 28, 34).

His firm proposed to eliminate the use of the secondary lagoon and

to substitute in its place two final settling tanks provided with

mechanical sludge removal, and to construct a mixing tank for possible

future addition of chemical flocculants (R. 34) 

Mr. Crawford was

of the opinion that the primary lagoon would be a necessary component

of any system designed to upgrade the City’s effluent (R. 47).

Preliminary plans and specifications incorporating the new proposals

were submitted to the Agency on November 18, 1971 (Pet. Ex. 7-A).

The City now awaits approval of these plans.

Mr. Crawford indicated that once the preliminary plans and specifi-

cations were approved, detailed plans could be prepared within

sixty days (R. 36). He estimated that construction could probably

k~eginin July of 1972 provided prompt approval of both preliminary

and detailed plans was received from the Agency and provided the

necessary additional monies could be raised CR. 38, 36). He indicated

that the project could then be completed by July nf 1973 (R. 38). The

City thus requests a variance of one year from the time schedule

contained in Rule 1.08 of SWB—14.

3—

296

There is no question that the City has been placed in a difficult

situation by the Agency’s new requirements for treatment of lagoon

effluents. The City had complied fully with the provisions of

Rule 1.08 by the timely submittal of preliminary plans and speci-

fications, only to have the rules changed at the last minute. To

require compliance with the orginal schedule now would impose a

substantial hardship on the City. We are therefore persuaded that

the City deserves additional time in which to comply with the rules

governing effluent criteria. Cf. EPA v. City of Marion, PCB 71—25,

(October 28, 1971). The Agency recommends that a variance be granted

for a period of six months (Ex. B). The City contends that this

is insufficient CR. 104). We agree that the City is likely to need

more than six months in view of the technical and financial prob-

lems to be overcome. Section 36(b) of the Environmental Protection

Act permits the granting of variances for a period not exceeding

one year. We will therefore grant to the City a variance of one

year from the date the accompanying order is entered, that is,

until December 21, 1972. At that time the City may request addi-

tional time if the project has not been completed.

We are concerned that the City proceed with the completion of its

improvements with ~ll due speed. The evidence indicates that a primary

lagoon will have to be built on the same site regardless of what

other steps are taken. We will therefore require the City to submit

additional information indicating any additional costs that would

result from proceeding immediately with the construction of a lagoon

and the date by which completion of such a lagoon could be expected.

If construction of a lagoon in the near future is feasible we shall

require that steps are taken to do so at once.

Finally, we note the objections of several local citizens to the

construction of the proposed lagoon. Some of those testifying felt

that in the event of flood conditions, the lagoon would threaten

water supplies and recreational facilities in the area (R. 100, 102).

However, it is not for us to decide the merits of those claims.

Section 39 of the Environmental Protection Act grants to the Agency

the authority to grant permits for. the construction of pollution

control facilities upon proof that the facilities will not violate

the Act or applicable regulations. In issuing a permit for con-

struction of the facilities originally proposed by the City, the

Agency has already indicated its approval of the lagoon. Thus, we

can only assume that adequate measures will be taken to assure the

safety of the surrounding area.

This opinion constitutes the Board’s findings of fact and conclusions

of law.

3

—

297

ORDER

1.

A variance from Section 14 of Rule 1.08 of Rules and

Regulations SWB—14 until December 21, 1972 is hereby

granted to the City of Lincoln, Illinois, for comple-

tion of improvements to its sewage treatment facili-

ties.

2.   The City of Lincoln shall, by January 15, 1971,

submit to the Pollution Control Board an affidavit

indicating any additional costs that would result

from proceeding immediately with the construction

of a primary lagoon and the date by which completion

of such a lagoon could be expected.

3.   The City of Lincoln shall post a bond or other secu-

rity in the amount of $150,000 in a form acceptable

to the Agency within 35 days after the date of this

Order, such bond to be forfeited in case of failure

to comply with the provisions of this Order.

4.   The City of Lincoln shall file quarterly reports

with the Pollution Control Board on March 1, 1972

and at 3—month intervals thereafter to show progress

toward achieving the plan approved by the Agency.

I, Chr~stan Moffett, Acting Clerk of the Pollution Control

Board, certi~fythat the above Opinion and Order was adopted on this

21st day of December, 1971 by a vote of 4—0.

Christan M ff

Acting Cle

—

298