City of Mendota v. Pollution Control Board

549 N.E.2d 26, 192 Ill. App. 3d 704, 139 Ill. Dec. 703, 1990 Ill. App. LEXIS 5
CourtAppellate Court of Illinois
DecidedJanuary 5, 1990
DocketNo. 3—89—0270
StatusPublished

This text of 549 N.E.2d 26 (City of Mendota v. Pollution Control Board) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Mendota v. Pollution Control Board, 549 N.E.2d 26, 192 Ill. App. 3d 704, 139 Ill. Dec. 703, 1990 Ill. App. LEXIS 5 (Ill. Ct. App. 1990).

Opinion

JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from an opinion and order dated April 6, 1989, of the Illinois Pollution Control Board (the Board) pursuant to section 41(a) of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1987, eh. IIIV2, par. 1041(a)). In its order, the Board denied appellant’s, the City of Mendota’s (the city’s), request for site-specific relief from section 306.304 of the Board’s water pollution regulations, which prohibits overflows from sanitary sewers. 35 Ill. Adm. Code §306.304 (1985).

The city owns and operates a sewage treatment plant and a separate sanitary sewer water system which serve approximately 7,000 persons and discharge into Mendota Creek and the Little Vermilion River. The plant has a design maximum flow of 2.8 million gallons per day (mgd), and can provide tertiary treatment for 1.8 mgd. Two excess flow lagoons are also located at the plant. Excess flows to the plant are bypassed to the “west” lagoon, then to the “east” lagoon. The effluent from the ponds discharges to the Little Vermilion River (without chlorination) and averages 20 milligrams per liter (mg/1) of five-day biochemical oxygen demand and total suspended solids. The effluent rarely exceeds 30 mg/1 for either parameter. ■

During wet conditions, 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. A bypass refers to an intentional discharge of wastewater prior to complete treatment necessary to prevent operational problems within a facility. The city upgraded its system in 1977 for the intended purpose of reducing infiltration and eliminating sewage bypassing. Bypassing continues to occur, however, at seven locations.

In June 1983, the Board granted the city a variance from section 306.304 of the Board’s regulations. That variance expired on September 10, 1984, and the city did not attempt to renew the earlier variance until December 10, 1985, when the city requested a two-year variance to continue operation of seven overflow locations. The Board denied the city’s petition, and this court affirmed the Board’s decision. See City of Mendota v. Pollution Control Board (1987), 161 Ill. App. 3d 203, 514 N.E.2d 218.

On January 15, 1988, the city filed a petition with the Board seeking site-specific relief. The rulemaking petition proposed a site-specific exemption for five location points which allow untreated discharge to flow into receiving waters during high flow periods. In accordance with section 28 of the Act (Ill. Rev. Stat. 1985, ch. IIIV2, par. 1028), a hearing was held on August 5, 1988, concerning the city’s petition.

At this hearing, the record from the 1985 variance request was incorporated into the proceeding. In its 1985 petition for a variance, the city proposed several changes that it has made or intends to make in the future. The city installed a recirculation line from its east lagoon to the tertiary treatment facility in order to enable the lagoon to handle higher volumes during wet conditions and a motorized gate valve at the head of the plant to control flows into the plant when an operator is not on duty. The city’s witnesses stated, however, that these measures would not eliminate the need for bypassing.

The city highlighted other work it had been doing to improve the system. The city used dye and smoke to determine where the storm sewers were running into the sanitary sewers and made corrections to the system eliminating the detected bypasses. The city is also repairing leaking manholes, relining sewers to prevent infiltration of surface waters, repairing broken tiles in its storm sewers and catch basins, and recently passed an ordinance requiring downspouts that drain into the city sewer system to be permanently blocked.

The city further contends that the engineering firm it utilized for the 1977 system upgrade severely underestimated the volume of infiltration into the system. Richard Spencer, an engineer hired by the city, stated that the engineers responsible for the 1977 project erroneously estimated the inflow into the system for a five-year storm. The engineers on the project estimated that for a five-year storm the maximum inflow to the plant would be 5.8 mgd. Spencer testified that for a five-year storm there would be 11,389,000 mgd delivered to the treatment plant. As a result, the city maintains that inadequate modifications were made to the system, which makes the treatment plant unable to meet the regulations and guidelines set forth in the Act. The city also warns 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 addition, Spencer testified as to two studies conducted by his consulting firm on behalf of the city. The first study proposed a $1.6 million plan to upgrade the system. This upgrade would reduce the number of bypasses to two or three a year. Spencer also declared that in order to eliminate bypasses entirely, the sewer system would need to be completely replaced at a cost in excess of $14 million. The results of the second study, a stream assimilation study, indicate the overflows and bypasses do not adversely affect the water quality of the streams. According to Spencer, even if the overflows were eliminated, there would not be any significant improvement in the general water quality of the stream.

Michael Wasmer, the city clerk, testified as to the financial condition of the city. Wasmer stated that the city was essentially in the same financial condition as in 1985. At that time, the city had the fifth highest tax rate in La Salle County, and ranked 34th among 37 communities in per capita income. Wasmer also noted that the community is, for the most part, elderly.

In its opinion and order, the Board denied the city’s petition for site-specific relief for two reasons: first, the Board determined that the city, by presenting evidence on only limited alternatives, had not met its burden of establishing that compliance was technically infeasible and economically unreasonable; and secondly, the Board concluded that allowing the city’s petition would discourage efforts to improve the environment, and thus, would not be consistent with the statutory purpose of restoring, maintaining, and enhancing the purity of the State’s waters.

On appeal the city raises two issues: (1) whether the Board acted arbitrarily, capriciously, or unreasonably in determining that the city had not proven it was technically infeasible or economically unreasonable to comply with the Board regulation prohibiting overflows from sanitary sewers; and (2) whether the Board acted arbitrarily, capriciously, or unreasonably in its consideration of environmental factors in view of the statutory purposes of the Act.

Initially, we note that it is not for this court to determine whether the Board’s action was wise, or even if it is the most reasonable action based on the record. (See Massa v. Department of Registration & Education (1987), 116 Ill. 2d 376, 507 N.E.2d 814

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Mendota v. Pollution Control Board
514 N.E.2d 218 (Appellate Court of Illinois, 1987)
Central Illinois Public Service Co. v. Pollution Control Board
507 N.E.2d 819 (Illinois Supreme Court, 1987)
Massa v. Department of Registration & Education
507 N.E.2d 814 (Illinois Supreme Court, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
549 N.E.2d 26, 192 Ill. App. 3d 704, 139 Ill. Dec. 703, 1990 Ill. App. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-mendota-v-pollution-control-board-illappct-1990.