ILLINOIS POLLUTION CONTROL BOARD

March 2, 1972

NORTH SHORE SANITARY DISTRICT

#PCB71—343

v.

ENVIRONMENTAL PROTECTION AGENCY

MR. MURRAY H. CONZELMAN and MR. JOHN H. SLOAN appeared for the

NORTH SHORE SANITARY DISTRICT

MR. RICHARD COSBY

and MR. THOMAS W. SCHUENEMAN 

appeared for the

ENVIRONMENTAL PROTECTION AGENCY

MR. RICHARD M. KATES appeared for the 

LEAGUE OF WOMEN

VOTERS

MR.

THOMAS H. COMPERE and MR. BERLE 

L. SCHWARTZ appeared for

the CITY OF HIGHLAND PARE

OPINION OF THE BOARD (BY MR. KISSEL):

On January 31, 1972, the Board entered its order in this case

after consideration of all of the evidence and arguments by the pa: 

—

ties: The North Shore Sanitary District (“District”), the Agency nd

the League of Women Voters (“League”) 

Although the order must,

of course, speak for itself, generally it granted the District a

variance to permit the connection of 1,000 living units (4,000 Pop

lation Equivalents) on certain conditions. On February 10, 1972, the

District filed a “Petition for Reconsideration and Rehearing” with

the Board in which it objected to the following paragraphs of the

January 31, 1972 order, and here seeks to have those orders modifI ~d.

2. “The District shall be permitted to add a total of 100)

living units or 4000 P.R. to the sewers tributary to the

Clavey and Waukegan plants.”

14. “The District shall install disinfection facilities ~:

the Water Street and Gillette Avenue Sewers. Within 45 days

of the entry of the order, the District shall present a time-

table for the installation of such facilities to the Agency an

the Board. The Agency shall formulate a written response to t

Board within 15 days of receipt of the District timetable. Tt

Board shall then issue an implementation schedule.”

Its objections to the quoted paragraphs were nuxnerous~

3

—

697

1. The District would not realize sufficient revenues from

the 1000 living units to finance the various interim

improvements required by the Board in previous orders,

including the January 31, 1972 order and particularly

the requirement for interim chlorination at the Water

Street and Gillette Avenue Bypasses;

2. The issuance of only 1000 permits precludes developers,

contractors and others engaged in the Lake County housing

industry from proceeding with concrete commitments for

construction in the upcoming years; and

3. The chlorination facilities required by the Board would

not insure the use of the beaches in 1972 and 1973.

The League filed a brief with the Board suggesting that the Board

grant the variance for 5000 units on condition that the District

expedite the construction of the Waukegan retention basin, and com-

plete it by June 1973. The League’sposition was that if the

retention basin would be completed by that date, or soon thereafter,

there would be no need to require the disinfection facilities

at the Water Street andGillette Avenue overflows. The Agency

recommended that the Board not grant the additional variance

requested by the District.

As a result of the District’s motion,

a public hearing was held before the entire Board on February 22,

1972 at the Board’s office in Chicago, Illinois. At that hearing,

the City of Highland Park sought leave to intervene in this case;

the City’s motion was objected to by each of the parties on the

ground of lack of proper notice. Opposing counsel were given five

days to respond to the City’s motion. The City remained, at the

hearing and was afforded an opportunity to present its position

for the record. After receipt

of the arguments of opposing counsel,

the Board agrees that the City of Highland Park

should be added

as a party to the case.

The Board has considered motions made by other parties in other

cases for reconsideration of the Board’s order against them. We have

consistently taken the position that we will not reconsider our

initial decision unless there is a significant change in the circum-

stances, or there is new evidence available after the hearing which was

not available at the time of the hearing. We think that both of those

circumstances exist in this case.

The

order of January 31, 1972 was predicated on the Board’s con-

clusion that granting of the variance under the conditions detailed

in this order would actually improve the quality of the water of Lake

Michigan, and that had the variance not have been granted, (and therefore

the conditions are met) 

the

Lake wouI~Thave continued to show signs

of bacterial contamination near the beaches located within the District’s

bounds. One of the

most important conditions of the variance was,

therefore, “paragraph 14” which required disinfecting of Water

Street and GilletteAvenue bypasses by September of 1972. If met,

this would have meant that for part of the 1972 and all of the 1973

bathing season, the bacterial contamination from the overflows would

have been substantially

reduced and the beaches within the District

most likely would have been useable during those periods.

In its motion

—

698

;i r.o:o: 

i1e~   

~:::~rictcb;e:;’.ed

caragi 

oph t.4” on a number

(LO.

05. 7    OL j~15~   

~dtLLVeS COOS 

(.tsrnd

by rho 

Board before

T:~cL .j~~nuaroI .;rcwr 

arc: now favcyed by the District, was

~ooct. :~:~a 

chlorine

r.Lor, 

~.t rhf. Wabor Street and GIllette Avenue

we..~ crib: 

r~e

i&;ent3cr~ 5asz~ at ~aukegan

plant

lb aro~ ~oi-aii~.

no ~hct at. couid handle the overflows,

and treat

r.enocs I.

t ‘sos ce~.met: 

bc do. Tut based upon the evidence in the

•:n: ir~!-:rtI

he.ar:LrLu, 

ahe lntLcr was not: a feasible alternative

at that tine

boc~~~cof abe tie t~rict’

:5  si stcro of 

delay in completing not only

ci sf sts oro-~arts

but this r:o~uct

Jo particular.’ 

if the “reten—

son ~

:~ltcroatavc nod

been 

the

one selected by 

tao Board in its

iu:iny 31

order, disinfection of one cverfiows 

would not have been

occvtded

untis ar least September, 

1973

and perhaps later, knowinci

Lh.:: t:~s Cistrich

had

a nor 

coano for I~1ay in completing its projects.

in thr’

hearing on abe 

Motion for Reconsideration,

the District’s

en t:o ccu:piet on of

the

“rateotaon 

casIo” pro300t

was strongly

Tue District: has 

actually awarded the contracts for the retention

and

for th~:

sttendant 

oumping facilities

since the original

bearing on the I.

rariance no sr tion.

The contract provides for

c::’mpiatlon date ~or cii scsi: 

faciiat~os of September 1, 1973, which

the Dastrict testified

at would reguire be met.

Further, it may also

be

possible to advance that completion date by declaring the retention

oasis 

pro~ecb. at:

Waukecan 

an ‘emergency project’, as t has done in other

other cases,

Since the installation

of the retention basin and the pump-

ing faciliti.’

basically determines whether or not Lake Michigan bathing

can occur

in

197:3, we believe that cause exists for the use of the

Distrtct’s

‘emergency” declaration

power. One 

way

of

completing the

project earlier would be for the District to employ overtime whenever

that will speed up work.

Another way of speeding up would be the

leasing of

the

necessary pumps and using

them 

before

tire 

installation

of the permanent pumps. We will require, therefore, that the District

complete the retention

basin no later than Sept. 1, 19732 and

investigate

all means available to speed up this project,

including

the availability

of leased pumps, and toe use of overtime work, and

report to the Board and the other parties the results of its investigation,

the manner in which it intends to proceed, and the reasons therefor.

Even given the availability

of the retention basin and the atten-

dant facilities

by the end of the summer, 1973, the Board believes that

disinfection

of the Water Street and Gillette Avenue bypasses would

have been the most appropriate measure to be taken.

Unfortunately,

the evidence presented at the recent hearing indicated that disinfection

facilities

could not be installed

by September, 1972 as originally

forecast.

prospects are also dim for installation

by summer, 1973, the

next bathing season.

In order to install the disinfection

facilities

at the Water Street bypass, the District would have to acquire rights

from E.J.&F.. Railroad.

Under the Eminent Domain Act, this could

not be done without prior approval from the Illinois

Commerce Commission:

i-The original contemplated completion date was March, 1973, and

the contemplated date now ~s September 1, 1973.

2The League has asked us

to

recuirs: a completion date of June 1973.

hut based

upon the present record on do not know 

if this car, be done,

we

agree with the League that all sccns an the tiOtrict’s

disposal should

be used

to speed 

up the Project and ~: after .tnvestiqation the June

dote can be met, we will

require it.

—

699

cwo proceedings, one before the Commerce

Commission and 

then a condemna-

tion suit, would most likely have to

occur 

ti-ien before the District could

obtain the necessary right—of—way.

A seven-’rnonth construction

period

would then be pyramided on top of those hearing processes..

The water

Street project therefore appears to be effectively

stymied.

that is the case, then to chlorinate

at Gillette

Avenue will make

little

sense since with Water Street still untreated,

a large amount

of untreated sewage will still be cascading into Lake Michigan wheb

overflow conditions occur.

Therefore,

Paragraph 14 of the Board

order of January 31, 1972 will be rescinded;

instead,

the District

will be ordered to take the steps outlined above to advance the avail-

ability date for the Waukegan retention

basin, the pumping station, and

the interceptor

and relief sewer.

While Lake Michigan will suffer

for a few more months under this new Order, the people of the county will

not he required to waste their money on a useless,

and maybe, never

available project.

At the recent hearing,

the District also objected to the Board’s

limitation

of 1000 hookups (4000 P. E.) to the Clavey Road and Waukegan

Sewage Treatment plants. In support 

of this contention, the District

indicated that

it would not receive sufficient revenues from the 1000

permits granted to finance the 

improvements which the Board had ordered

because

the grant of only 1000 permits would preclude developers, con-

tractors and others in the housing and building industry from proceeding

with concrete conirnitmen~s for construction in 1973 and 1974. Though

the District’s

first argument has been somewhat obviated by the Board’s

rescission of its order directing that disinfection take place at the

bypasses (because the disinfection facilities involved a large part of

the cost)

the

second contention still remains a

matter for concern.

At the recent hearing, the District introduced new evidence regarding

the need for 5000 permits.

Allan Pickus, a Waukegan architect and

contractor, indicated that scheduling and financing of projects requires

that preparations 

be made several years in advance. Thus, for the

lifting of this sewer ban to have any beneficial

economic effect,

the

District would require that a sufficiently

large number of

permits be

granted so that construction

can proceed at an appropriate

pace.

This is necessary because builders need

to obtain financing for the

total construction

project,

be it an apartment house, or private homes,

so that the costs common to the entire project, i. 

e., roads, sewers,

etc. can be done at once and amortized over the entire project. Without

the firm commitment to connect the entire construction project, builders

could not risk the funds for the common costs. Pickus’ testimony was

corroborated by that of Thomas A. Rostron, President of the First Federal

Savings and Loan Association of Waukegan, who stressed that developers

must be assured that sewers will be available at the conclusion of a

project before they can commit capital toa building program. He

in-

dicated that no lending institution would make a mortgage commitment

unless there were written approval from the Board as to the availability

of sewer hookups. Based on this new evidence, the District shall have

the power to issue 5000 living unit (20,000 P.E.) permits for the

Waukegan and Clavey Road plants. Just because the Board authorizes

the issuance of 5000 permits does not mean that such connections will

occur within the next year; as Pickus indicated, actual connections

to the plants will most likely total 

between 700 and 1000 the first

3—

700

year, with approximately 2000 occurring ih each subsequent year.

prime consideration

in limiting the original grant to 1000 units was

the Board’s desire to maintain a continuing supervision over the Dis-

trict’s

expansion program.

Placing the limitation

at 1000 would force

the District to return to the Board at the end of that first year in

order to renew the variance; at such a time, the District

would have

to show substantial

compliance with the deadlines under their construc-

tion program.

Raising the level to 5000 does not preclude the maintenance

of such supervision, sinpe in order that advance

planning can take place

for construction year 1975,

the District will most likely have to

return to the Board in about a year for a renewal of its variance.

If the District is not

complying with our Order, or proves that it 

has

not exercised all good faith in trying to comply, new variances should

not be granted in the future beyond those granted today. In addition,

through the District’s

monthly progress reports,

the Board and the

Agency will continue to be apprised of the District’s

activities.

It is important to note that the granting of a variance for 5000

living units is essentially

the same grant as previously made by the

Board on January 31. In the January 31 order, the Board

granted a variance for 1000 units for the next year,

recognizing that

if

the District met its schedule,

it

would receive per-

mission to connect additional living units in the next year, probably

2000 such units, and so on. With the present grant of 5000 units, the

testimony is that not more than 1000 units will be connected in the

first year anyway. What the Board is really doing is to give the

builders the wherewithal

to build the 1000 units this year.

Under

the January 31 order, the manner of apportioning the 1000 unit allotment

was left to the discretion of the District.

Since 5000 units will

ultimately be connected to the District system under this variance,

however, we must now take into account the relative capacities of the

Clavey and Waukegan plants.

Accordingly, the District shall apportion

the loadings under this variance in the approximate one—third to Clavey,

two-thirds to Waukegan ratio proposed by

the District in its original

variance request in this case.

One other point must be mentioned

---

the District’s

financial

problems. Testimony at the

hearing established that the value of 

the

appraised real estate in the District had increased by 150 million

dollars

since the voters in the District had passed the original 36 million dollar

bond issue in 1968. This increase

in assessed valuation makes 7.5

million dollars available to the District for its programs.

Such funds

are available within the five percent bonding limitation imposed on the

District under Sec. 285,. Ch. 42,

Ill. Rev. Stat. (1971)

At present,

the District is committed to a large—scale construction and expansion

program. Those 

facilities are being constructed in order to abate pollu-

tion. (See Opinion, PCB7O—7, 12, 13 and 14, March 31, 1971) 

The

facilities ordered in this variance case are also directed to abating

pollution (See opinion PCB71—343, January 31, 1972).

To comply with

such an order, the District is authorized by Section 46 of the Environ-

3

—

701

mental Protection Act to issue general obligation

or revenue bonds, if

necessary,

without referendum.

No specific order to issue bonds is

necessary; we leave the question of how to raise money to the District.

but the money must be raised.

See Ruth v. Aurora Sanitary District,

17 Ill.

2d 11, 158 N.E. 2d 601 (1959).

The parties

entered :into a stipulation

regarding certain matters

and •the League has asked that the Board make the stipulation

part

of the Board’s order.

The stipulation, inter alia, would provide

for operation of interim

chlorination facilities at the North

Chicago plant during the 1972 swirnminq season, for ample notice in

the District and to

contractors regarding the district’s

bidding

processes,

and

for the adoption of a fine schedule by the

District.

Such steps, we believe will assure better operation

and a higher quality effluent,

as well as possibly advancing the

completion date for the District’s

expansion program.

The stipulation

shall

be incorporated into the Board Order.

-ORDER-

Upon examination of the record, the Order of the Board of

January 31, 1972 in the ‘above—entitled case, PCB 71—343, granting the

North Shore Sanitary District a variance from Paragraph 7 of the

Order of the Board in the case of the League of Women Voters, et al

v. North Shore Sanitary District, PCB 70-7, 12, 13 and 14 is hereby

modified as follows:

1. Paragraph 2 of the Board Order of January 31, 1972 is

hereby repealed in full and replaced as follows:

2. The District shall be permitted to add a total of

5000 living units or 20,000 P.E. to the sewers

tributary to the Clavey and Waukegan plants.

2. Paragraph 4 of the Board Order of January 31, 1972 is

hereby repealed in full and replaced as follows:

4. The District shall apportion the allotment under the

variance between the subject plants in approximate

ratio of one—third of the new connections to Clavey,

the remainder to Waukegan. Such apportioni~ent shall

also be subject to the conditions in Paragraph 5 below.

3. Paragraph 14 of the Board Order of January 31, 1972 is

hereby repealed in full.

4. The following paragraphs are hereby added to the Board Order

of January 31, 1972:

21. The District shall have the retention basin at the

Waukegan plant (P3B) 

the pumping station (P3F), and

the interceptor and relief sewers (S6A) (hereinafter

called “retention basin”) tributary

to the basin in

operation as soon as possible and no later than Septem-

—

702

her 1, 1973.

The District

shalL employ all means avail-

able to advance the date of operation of the retention

basin.

The District shall investigate

all available

means to advance the date of operation of the retention

basin, including the use of its emergency powers, over-

time

and leased pumps. Within 

days of the entry of

this Order, the District shall begin reporting in its

monthly progress reports to the Board,the Agency and

the

other parties in this case, the results of its

investigations,

the steps it has taken to 

advance

the

operation date, the manner in which it intends to

proceed, and the reasons therefor.

Such reporting

shall be included within each monthly progress report

until the date of completion of the retention basin

report.

22,

The District

shall abate its discharge of untreated or

inadequately

treated sewage and its violations

of the

Environmental Protection Act and of regulations

thereunder,

in accordance with this Order and the Board Orders of

January 31,. 1972, June 23, 1971 and March 31, 1971.

23.

Within 90 days of the entry of this Order, the District

shall submit to the Agency and the Board a plan assuring

financing of the program herein and heretofore

approved,

together with a study by bond counsel discussing

the various

financing alternatives

available.

5. The following stipulation

is hereby incorporated, into the Board

Order of January 31, 1972:

24.

Within sixty (60) days from the date of this Stipulation,

the North Shore Sanitary District will adopt a fine schedule

to a certain Ordinance relating to sewers and sewer

systems as amended.

25.

That the North Shore Sanitary District will take whatever

legal steps

are necessary in the matter of illegal

connections to its systems and facilities.

26.

That the North Shore Sanitary District

will study the

toxicity

of polymers it plans to use by making a study

of the literature

and report its findings to the Illinois

Pollution Control Board.

27. That in connection with the interim chlorination

facilities

at its North Chicago Plant, the North Shore Sanitary

District will install and operate such facilities

for

the swimming season of 1972.

28. That the North Shore Sanitary District states that it 

;

advertises for bids on construction contracts in the Waukegan

Nev~’s-Sun and notifies the

Dodge Reports. That in addition

it furnishes notices to contractors.

‘03

29. That a pilot study of ozone may be done at a plant

approved by the North Shore Sanitary District

done

by the Illinois

Institute

for Environmental Quality or

other governmental agency so long as such study does not

interfere

with construction.

30.

That the North Shore Sanitary District will file its

impact study of a sludge disposal site in Newport Township,

Lake County, Illinois

with the Federal Environmental

Protection

Agency as soon as a permit is issued by the

Illinois

Environmental

Protection Agency.

6. All other conditions

of the variance granted on January 31,

1972 in this cause shall remain in full force and effect.

I, Christan Moffett, Clerk of the Illinois Pollutoin Cont~1. Board,

certify that the above Opinion & Order was adopted this  day of March

1972, by a vote of 

9-c

~‘t4;L&v~~,

3

—

704

ILLINOIS POLLUTION CONTROL BOARD

March 2, 1972

NORTH SHORE SANITARY DISTRICT

v.

)

PCB 71—343

ENVIRONMENTAL PROTECTION AGENCY

Concurring Opinion by Jacob D. Dumelle

While I concur in

the

Board’s decision to grant 5,000 connec-

tions as it did this date I do not agree with all the language of

the March 2, 1972 opinion.

In my dissent filed February 17, 1972 to the original January

31, 1972 Board order granting only 1,000 connections I fully explored

my reasons. Those reasons still hold and I shall not repeat them

here.

I do not feel that the “new evidence” mentioned in the Bo~d

opinion (p.4) was needed or necessary. I think that our exten~ive

sewer ban hearings plus the instant case proceedings fully developed

the material for the conclusions reached.

The

distribution of the connections between the Waukegan and

Clavey plants in the 2:1 ratio is not one I would have made. The

Clavey plant’s effluent has been of such good quality 

that I

would

have reversed the ratio or made an unlimited grant at Clavey subject

to the effluent stanc ~rd for secondary plants not being exceeded.

r\~/

If.,!

\/~//~~

th~-b2~_

/ ____________________________________________

,Jacob D. Dumelle

/Board Member

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

Board, hereby certify the above Concurring Opinion was filed on the

.~2//~dayof March, 1972.

Christan L. Moffe’~t~4Clerk

Illinois Pollution control Board

3

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705