APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
514 N.E.2d 218, 161 Ill. App. 3d 203, 112 Ill. Dec. 752
Petition for review of order of Pollution Control Board. 1987.IL.1478
JUSTICE WOMBACHER delivered the opinion of the court. STOUDER and HEIPLE, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER
On December 10, 1985, the city of Mendota (city) filed a petition with the Pollution Control Board (Board) seeking a variance or exception from section 306.304 of the Pollution Control Board's rules, which prohibits overflows from sanitary sewers. (35 Ill. Adm. Code 306.304 (1985).) On July 11, 1986, the Pollution Control Board (Board) denied the variance/exception petition. On August 13, 1986, the city requested that the Board stay its decision or modify its order. The stay was denied by the Board on August 28, 1986. The city then filed the instant petition for direct review of the Board's decision pursuant to section 41 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1041).
The city owns and operates a sewage treatment plant and a separate sanitary sewer water system which discharges into Mendota Creek and the Little Vermilion River. The city holds a National Pollutant Discharge Elimination System permit which, within prescribed limits, allows for the discharge of contaminants from point sources into navigable waters. The city's NPDES permit imposes effluent limits of 10 mg/1 for biochemical oxygen demand and 12 mg/1 for suspended solids on monthly averages. The treatment effluent from the system during 1985 was within permit limits, averaging 3 mg/1 for BOD and 5 mg/1 for SS.
During wet conditions, however, the city finds it necessary to allow excess flows to bypass the system, thereby allowing raw sewage to pass directly into Mendota Creek and the Little Vermilion River. The sanitary sewer system and waste water treatment plant were upgraded in 1977 in an attempt to reduce infiltration into the system and to eliminate occurrences of sewer bypassing. However, despite the rehabilitation project in 1977 at an approximate cost of $2 million, bypassing continues to occur at seven locations.
The city's plant is designed to provide complete treatment for a design maximum flow of 2.8 million gallons a day (mgd) and accommodates storage of another 1.5 mgd in the excess flow lagoon for later treatment when the excess flows can be returned to the head of the plant. This effluent represents flows receiving secondary and tertiary treatment estimated to be up to 1.8 mgd. Flows exceeding this amount are bypassed to the excess flow lagoons and discharged into Mendota Creek and the Little Vermilion River directly, without chlorination. The untreated effluent from the excess flow lagoons averages 20 mg/1 for BOD and SS, which exceeds the permit limits.
The city maintains that the engineering firm responsible for the 1977 project underestimated the volume of infiltration into the system. The engineers on the 1977 project had estimated that for a five-year storm the maximum inflow to the plant would be 5.8 mgd. At the hearing on the city's petition for a variance, G. Richard Spencer, the city's present engineer, stated that the engineers responsible for the 1977 project erroneously estimated the inflow into the system for a five-year storm. Spencer testified that for a five-year storm there would be 11,389 mgd delivered to the treatment plant. As a result, the city maintains that inadequate modifications were made to the system. Because of the erroneous estimates, the treatment plant is unable to meet the EPA regulations and guidelines. The city has filed suit against the engineering firm for damages because of the alleged design flaws. The city claims that any money it recovers as a result of the lawsuit will be used to help alleviate the bypass problems. The city contends that if it is not permitted to bypass, sewage backs up into the basements of approximately 75 residents, 8 to 10 times a year.
In June 1983, the Board granted the city a variance from section 306.304 of the Board's regulations, which forbids bypassing. The city's variance expired on September 10, 1984, and the city did not attempt to renew the earlier variance until December 10, 1985, when the city filed the petition for variance which forms the basis of the instant litigation.
In its current petition for variance, the city proposed several changes to its system that it has made or intends to make in the future. The city installed a recirculation line running from the east lagoon to the plant's tertiary treatment equipment in an attempt to accommodate higher volumes during wet conditions. The city also proposed to install a motorized gate valve, at a cost of $30,000, which would control flows into the plant during periods when an operator is not on duty. City witnesses testified that the city intends to correct other problems of infiltration as they are found. The city's witnesses admitted, however, that these measures would not eliminate the need for bypassing. In order to eliminate the bypassing entirely, complete replacement of the sanitary sewer system would be necessary at an approximate cost of $14 million.
The city submitted data addressing the environmental impact of the bypassing. The data represented a sampling of the effluent discharged during bypassing events from May 1985 through March 1986. The sampling indicated that permit limits for SS and BOD were being exceeded at the bypass points, occasionally by as much as three times the regulated level. The city, however, did not submit flow data for the bypasses, Mendota Creek, or the Little Vermilion River. The plant operator testified that tests for contamination of Mendota Creek have never been performed after bypassing events. He admitted that no flow data had been compiled or submitted to the Board. The city's witnesses also admitted that no environmental impact study had been performed, although the city has contracted for a stream assimilation study/report to be performed.
The mayor of the city, James Troupis, testified that the city is experiencing economic difficulties and revenue shortfalls. The city presently has the fifth highest tax rate in La Salle County, yet ranks 34th among 37 communities in per capita income. The sewer rates charged by the city exceed the average of 36 Illinois communities. He testified that it would cost in excess of ...