MrMacombHonorable

appeared

. Bruce

;

on

William

Biagini,

behalf

Jof

City

. Scott,

the

Attorney,

Environmental

Attorney

appeared

General,

Protection

on

by

behalf

MrsAgency

.

of

Mary

the

;

Schlott,City

of

MrPete . Robert

Kline ;

Karton of Kreger & Karton, Ltd ., appeared on behalf of

Mr . James Lloyd of Claudon, Elson & Lloyd, Ltd ., appeared on behalf

of Melwood, Inc .

OPINION AND ORDER OF THE BOARD (by Mr . Goodman)

:

On December 19, 1975, the Environmental Protection Agency (Agency)

ILLINOIS POLLUTION CONTROL BOARD

January 6, 1977

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

)

v .

)

PCB 75-484

CITY OF MACOMB and MELWOOD, INC

., )

Respondents .

)

-

and -

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

)

v .

)

PCB 75-489

CITY OF MACOMB and PETE KLINE,

)

Respondents .

3

- and -

)

CITY OF MACOMB,

)

Petitioner,

)

v .

)

PCB 76-27

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent .

)

---

-2-

filed a Complaint

against the City

of Macomb (City) and Melwood,

Inc

. (PCB 75-484) and also filed a Complaint against the City and

Pete Kline (PCB 75-489)

. Each Complaint charged Respondents with

operation of a sanitary sewer extension without an operating permit,

in violation of a special condition in the permits issued for the in-

stallation of the sewer extensions and in violation of the Environ-

mental Protection Act (Act)

. On January 26, 1976, the City filed a

Petition for Variance from Rule 203(b) and Rule 203(f) of Chapter 3

of the Board's Rules and Regulations

: Water Pollution (PCB 76-27)

.

On February 11, 1976, the City filed an Amended Petition for Variance,

which provided additional information supplemental to its Petition for

Variance

. The Agency filed its Recommendation in PCB 76-27 on

April 20, 1976

. On March 11, 1976, the above-described cases were

consolidated

. Hearings were held on the consolidated matters in the

City of Macomb, McDonough County, on June 14, 1976 and July 7, 1976

.

Respondents, Melwood, Inc

. and Pete Kline, are the developers of

Melwood Estates and Springview Hills Subdivisions, respectively

.

Melwood Estates is a 74 lot subdivision located on the north edge of

Spring Lake across from the City of Macomb

. Springview Hills is a 40

lot subdivision located adjacent to Melwood Estates

. (Agency Exhibits

1, 2, and

3.) . The City, Melwood, Inc

. and Pete Kline made a written

agreement

the City would

on or

provide

about July

water

17,

and

1971,

sewage

and

treatment

on November

facilities

20, 1972,

to

thatthe

subdivisions by July, 1973

. The two developers were to provide sani-

tary sewers in the subdivisions

. (Agency Exhibits 16, 17 and 18 .)

Subsequently, the parties applied to the Agency for permits

for the construction of sanitary sewers in Melwood Estates and

Springview Hills

. Permit #1973-HB-144 was issued to Pete Kline to

install

sewer extension

and the

to

City

serve

of Macomb

Springview

to own

Hills

but

Subdivision

not to operate

in

a

Macomb

sanitarywith

outlet to an 8 inch sanitary sewer, thence to a proposed Macomb-Spring

Lake Sewage Treatment Plant

. Special conditions for this permit re-

quired that the sanitary sewer extension not be operated until the

Agency issued an operating permit which was not to be issued until the

proposed treatment plant was constructed

. (Agency Exhibit 2

.)

On February 10, 1972, Permit #1972-HB-167 was issued to Melwood,

Inc.,

to install and to the City of Macomb to own but not operate a

sanitary sewer extension to serve Melwood Estates Subdivision with

outlet to the wet well of the lift station and thence to the pro-

posed Macomb-Spring Lake Sewage Treatment Plant

. Special Condition

#2 of this permit required that the sanitary sewer extension not be

operated until the Agency issued an operating permit

. (Agency

Exhibit 2 .)

The proposed plant was permitted pursuant to Agency permit

#192-AA-550 issued to the City of Macomb

. (Agency Exhibit 4) . The

---

-3-

Plant has not been constructed

. (Agency Exhibit 10 .)

At the hearing on July 7, 1976, the Agency recommended that the

Complaint as to Pete Kline and Melwood, Inc

., be dismissed (R .299-

Melwood

302) . Because

operated

there

the

is

sewer

no evidence

extensions

that

or

Respondents

otherwise violated

Kline andthe

permits' conditions, the Complaint as to each of them is hereby

dismissed .

The City admits in its Admission of Facts and Final Argument

that it operated the sewer extensions without a permit

(R

.5) . An

Agency inspector learned from the City in December of 1973 that the

residences were built in the two subdivisions and connected to the

sanitary sewer extensions and that the City pumped sewage out of the

two sewers on a weekly basis and hauled the waste to the Macomb treat-

ment plant (Agency Exhibit 10)

. On November 13, 1975, an Agency in-

spector examined the two sanitary sewers and observed raw sewage in

the manholes

. As of the hearing, thirteen homes in the subdivisions

had been constructed and occupied (R .204) .

The Board finds that the City did violate conditions in its

operating

permits to

the

install

sewers

the

without

sanitary

a permit

sewer

and

extensions

that, therefore,

involved herein

the Cityby

violated Section 12(b) of the Act

. However, at the hearing the City

presented many facts in mitigation

.

anticipated

The evidence

grant

submitted

assistance

at

for

the

the

hearing

construction

indicates

of a

that

sewage

the

treat-City

ment plant as early as 1967 (R

.64) and that the City had applied for

grant money by 1971 (R .39) .

Its belief that grant assistance would

be forthcoming was the basis for its agreement with Melwood and Kline

to provide sewer service to the subdivisions

. In October, 1973, the

Agency published its first priority rating for grant assistance

. The

City was rated number 16 (R.21) .

However, in the April, 1974,

priority rating published by the Agency, the City dropped in priority

to number 644 (R.36) .

The Agency testified at the hearing that it

was required to compile the initial list in haste and had commited

many errors (R

.188)

. The City argues that it allowed the connection

because it expected funding for the construction of the plant

. It

began tank trucking the sewage in order to keep the developers, who

had a large financial commitment based on the expectation of funding,

from bankruptcy and protect its water supply at the same time

.

The Agency argues that the plant project was financially feas-

ible for the City

. In its Recommendation, the Agency found that the

cost of the sewage treatment plant and interceptors would be $300,000,

and that the cost per person, in a City of 22,000, would be $13

.64 .

However, at the hearing Dr

. Richard Hattick, an economist with Western

---

-4-

Illinois University, testified as to available money that the City is

more like a City of 10-12,000 persons due to the large number of

students in its population and its very limited tax base . Witnesses

for the City also testified that in the past year the City has had

a substantial deficiency in its General Corporate Account, that there

is no money in the Sewer Extension Fund, that the Sewer Surplus Fund

has a negative balance of $2,393 .00, and that revenue bonds on the

project would be impossible to sell (R .448) .

The Agency presented no evidence of any actual pollution having

resulted from the City's tank trucking of the sewage . The Agency

testified that the tank trucking system is too dependent on variables

and that a number of possibilities exist for critical situations

which may result in sewer overflows . However, no evidence was

presented that any critical situations resulting in sewer overflows

actually occurred . Furthermore, the City deliberately chose the

tank trucking method over allowing the installation of individual

septic tanks in order to protect Spring Lake (R .20) .

A witness for

the City testified that the City has spent $20,000

.00 in engineering

fees in an attempt to solve the sewage treatment problem (R.21) .

The Board has considered the factors enumerated in Section 33(c)

of the Act . The Board finds that the City relied in good faith on

the

assurances

sewage in

that

an

grant

effort

assistance

to meet its

would

agreement

be forthcoming

with the

and

developers

tank truckedin

an environmentally sound manner . The Board finds that no penalty is

warranted in this case

.

After the hearings were concluded, the City received an offer

to purchase a three year old "package" sewage treatment plant with a

both

P .E .

subdivisions

of 350 . The plant,

when fully

which

developed,

would have

is

adequate

to be placed

capacity

near

to

theserve

Spring Lake dam, and the effluent will be discharged into the stream

below the dam . The City will apply for the necessary permits as well

as a Pfeffer exemption . The Agency indicates in a letter to the

City's Mayor that, if the above-stated assumptions are correct, the

proposed plan for sewage treatment has the preliminary approval of

means

the Agencyof

resolving

. The Board

the

finds

sewage

that

treatment

the proposed

problem

plan

involved

is a reasonableherein

. The

City indicates it will need adequate time to install the sewage treat-

ment plant and construct intercepting sewers . The Board will, there-

fore, order the city to continue tank trucking of the sewage until

July 1, 1977, at which time installation of the proposed sewage treat-

ment plant shall be completed, provided the proper permits have been

obtained .

As to the requested variance from Rules 203(c)(phosphorus) and

203 (f) (ammonia nitrogen), such variance was sought for the discharge

to Spring Lake from proposed septic tanks followed by sand filters

and chlorination . However, because of the package plant the City

---

-5-

intends to

purchase, the septic tank

proposal has been abandoned .

The Board, therefore, finds the variance petition to be inapplicable

to the present situation and will dismiss it without prejudice .

This Opinion constitutes the findings of fact and conclusions

of law of the Board in this matter .

ORDER

It is the Order of the Pollution Control Board that :

1 . The City of Macomb is found to have violated Special

Condition #3 of Permit #1973-HB-144, Special Condition #2

of Permit #1972-HB-167, and Section 12(b) of the Environ-

mental Protection Act .

2 .

The City shall obtain the proper permits from the

Environmental Protection Agency and shall execute its

as

proposal

outlined

to install

in its Final

and operate

Argument

a sewage

and attached

treatment

Exhibit

plant,A,

by July 1, 1977 .

3 .

The City shall continue to haul the sewage from

Springview Hills and Melwood Estates to the City's

sewage treatment plant until the proposed plant is in

operation .

4 .

prejudice

The Complaint

as against

in

Melwood,

PCB 75-484

Incis

.,

hereby

and the

dismissed

Complaint

within

PCB

Pete

75-489

Kline .

is hereby dismissed with prejudice as against

5 .

The City's variance petition, PCB 76-27, is hereby

dismissed without prejudice .

Mr . Young abstained .

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

Board, hereby certify the above opinion and order were adopted on the

LA~

day of

I

, 1977 by a vote of2-0

A

Christan L . Moffett lPllerk

. rol Board