ILLINOIS POLLUTION CONTROL BOARD
May 28,
1985
IN RE:
SITE—SPECIFIC
RULEMAKING FOR THE
)
R84—30
CITY OF EAST PEORIA
)
OPINION AND ORDER OF THE BOARD (by B. Forcade):
On July 16, 1984,
the City of East Peoria (“East Peoria”)
filed a petition for site—specific rulemaking with the Board.
The petition requests
a rule which would allow East Peoria’s
Sewage Treatment Plant No.
1
to change the location of their
sewage effluent discharge point from the Illinois River
to a
small waterway adjacent
to the Illinois River,
known as Ditch
A.
In order
to facilitate this change, East Peoria seeks relief
from the effluent limitation of 35 Ill. Adm. Code 304.120(c),
which sets maximum contaminant levels at 10 mg/i of BOD and 12
mg/i
of suspended solids
to waterways such as Ditch A.
East
Peoria seeks
to have its discharges to Ditch A regulated at 20
mg/i SOD and 25 mg/i of suspended solids; that
is,
the same
limitations that presently apply under Section 304.120(b)
to the
facility’s discharges into the Illinois River.
Hearing was held
in this matter on September 10,
1984.
Thereafter,
the Illinois Department of Energy and Natural
Resources filed a “Negative Declaration” of economic impact on
November’ 29,
1984.
The
Economic Technical Advisory Committee
concurred on January 23, 1985.
The Board proposed the site—
specific rule on June
13,
1985.
First notice of the rulemaking
was published at 9
Ill. Reg.
12579 on August 16,
1985.
The first
notice comment period expired on September 30, 19~5. Only one
comment was received, from the Illinois Environmental Protection
Agency (“Agency”), which opposed the proposed rulemaking,
On January
9, 1986,
the Board adopted for Second Notice East
Peoria’s requested effluent limitation with some monitoring
requirements added at the request of the Agency.
The Board
delayed submission
to the Joint Committee on Administrative Rules
(“JCAR”)
to allow the participants an opportunity to comment on
the new monitoring requirements.
On January 24,
1986,
the Agendy submitted
a public comment
(P.C.
No.
3)
requesting the Board further defer sending the
proposed rule to JCAR until
the United States Environmental
Protection Agency (“USEPA”) had reviewed the matter.
On March
26,
1986, USEPA’s review of the
rule was
filed with the Board
as
P.C.
No.
4.
USEPA’s comment generally supported the Agency’s
position
in this rulemaking that the petitioner
failed to
adequately demonstrate technical infeasibility, economic
unreasonableness,
or lack of potential influence on water quality
78-275
—2—
standard attainment
in the proposed receiving waters.
The USEPA
can object
to any future NPDES permits issued under the site—
specific rule, pursuant
to 40 C.F.R.
123.44.
On March
31,
1986,
the hearing officer, at the direction of
the Board,
transferred copies of PC.
Nos.
3 and
4
to East Peoria
in order
to provide an opportunity for response and comment.
Neither the Agency nor USEPA had copied East Peoria on any of the
correspondence.
On April 28,
1986, East Peoria, by letter,
requested additional time to provide comments
to P.C. Nos.
3 and
4 and requested that the Board defer action
in this matter
(P.C.
No.
5).
On May 5,
1986,
East Peoria filed
its response
to P.C.
Nos.
3 and 4
(P.C.
No. 6).
East Peoria requested the Board
submit
the proposed rule
to JCAR and proceed
to final promul-
gation of the site—specific rule.
On June
5,
1986,
the Board adopted an Order
rescinding the
Second Notice Opinion and Order, and allowed the First Notice of
the proposed rule to lapse.
This action was the result of three
factors.
First,
the delays caused by the Agency’s post—second
notice comments
(P.C. Nos.
3,4) precluded the Board from taking
final action within the time requirements imposed by the
Administrative Procedures Act.
Second,
during the pendency of
this proceeding
the Fourth District Appellate Court announced its
Opinion in Central Illinois Public Service Company v. IPCB,
142
Ill. App.
3d 43.
That Opinion implied that the Board lacked
authority to grant site—specific relief from a general
rule
in
a
regulatory proceeding,
absent specified levels of justification
for such relief.
The third reason
for the June 5,
1986 Order was
the unresolved conflict as
to whether the proposed regulatory
relief
for East Peoria would
be approvable by USEPA.
Accordingly,
the Board
stated:
Therefore,
the
Board
will
allow
the
proposed
rule
to
lapse
and,
by
this
Order,
rescind
its
January
9,
1986,
second
notice
Opinion
and Order.
The Board
intends
to
let
this proceeding
remain
on
its
docket pending
resolution
of
issues
regarding
site—specific
relief.
If
this
course
of
action
is
not
acceptable
to East Peoria
or
the Agency,
they
are
free
to
submit
a
motion
for
reconsider-
ation
of
today’s
action,
recommending
an
alternative approach.
The Board has not received any filings
in this docket since the
June 5,1986 Order.
Since
the June 5,
1986, Order,
the site—specific rulemaking
problems posed
by the Central Illinois Public Service Company
decision have been resolved.
On April
2,
1987,
the Illinois
Supreme Court reviewed the Third District opinion, as well as
78-276
—3—
subsequent amendments
to the Environmental Protection Act.
Central Illinois Public Service Company v.IPCB (Slip Opinion,
April
2,
1987). The court concluded that the Board does possess
the authority to grant site—specific relief
in the context of
a
regulatory proceeding.
Thus,
the only remaining concern
is
whether the Board should adopt the substantive relief East Peoria
requests
in light of the USEPA concerns.
If so,
the Board should
proceed
to a second First Notice.
If not, the Board should
dismiss the proceeding.
The thrust of the USEPA concerns were expressed in a March
21,1986,
letter from Mr. Douglas Ehorn, Planning and Standards
Section, USEPA to Mr. James Park of the Agency
(P.C.
No.
4). That
letter states:
The most significant unresolved issue surfaced
during
our
review
was
the
potential
for
ammonia—N
Water
Quality
Standards
(WQS)
violations given approval of the relocation of
the effluent discharge
point.
Based upon the
information
presented,
it
is
likely
that
relatively
stringent
ammonia—N
limitations
would
be necessary
to protect WQS
in
the new
receiving stream.
Clearly,
as pointed out by
IEPA
in
the
record,
the
characterization
of
current
effluent
quality
may
not
be
repre-
sentative of
future effluent quality from the
facility.
Overall,
we
concur
with
the judg-
ment
that
the
record
presents
an
inadequate
demonstration of the capability of the receiv-
ing waters
to assimilate the wastewater with-
out
resulting
violations
of
ammonia—N
and
dissolved oxygen WQS.
We
further support the
Agency’s contention that the
Board
should
not
disregard
the
issue
of
the likelihood
of WQS
violations
when
considering
the
requested
relief.
Effluent limitations contained in the
East Peoria NPDES permit must be sufficient to
achieve
and
maintain
WQS,
particularly
for
dissolved oxygen and ammonia—N.
Under Federal
regulations,
the
relief
in
effluent
limits
proposed
in
the Board’s draft order cannot
be
realized
in
the
NPDES
permit
without
supplemental information.
Overall,
USEPA supports the contention by IEPA
that
the
petitioner
failed
to
adequately
demonstrate
any evidence
of
technical
infea—
sibility,
economic
unreasonableness,
or
lack
of potential
influence
on WQS
attainment
in
the
proposed
receiving
water.
Indeed,
the
Board
record
characterizes the
annual
savings
78-277
—4—
as
“minimal”
and
explicitly
indicates
the
technological infeasibility and economic hard-
ship
would
not
result
if
the
request
were
denied.
In view of
the record and the exist-
ing use designation
of
the proposed receiving
waters, the evidence is deemed insufficient to
satisfy
Federal
regulations
requiring
the
demonstration of
a substantial
and widespread
social
and
economic
impact
to
justify
a
WQS
variance.
We concur
with the contention that
a
slight
annual
cost—saving
should
not
be
dispositive
in
a
site—specific
rulemaking
request which may influence WQS attainment.
(P.C.
No.
4)
On May
5,
1986, East Peoria responded
to the USEPA comments
regarding water quality violations
(P.C.
No. 6).
In essence,
East Peoria asserted that the Board’s water quality standards for
general use do not apply
to Ditch A:
In any event,
it appears that the general
use
water
quality
standards
applicable
to
waters
of
the
state
as
set
forth
in
the
Illinois
Administrative Code
at
title
35,
subtitle
C,
part
302,
subpart
B are not applicable
to the
ditches
in
question.
The
cited
regulations
are
applicable
to
“waters”
of
the
state.
However,
the definition
of
“waters”
found
at
title
35,
subtitle
C,
chapter
1,
section
301.440
of
the
Illinois
Administrative
Code
excludes
“sewers”
from
its
definition.
A
“sewer”
is
defined
at
section
301.390
as
“a
stationary
means
of
transport
or
stationary
system of
transport,
excluding natural water-
ways
or
land
run—off, or both.”
It
is there-
fore,
a
sewer.
The
water
quality
standards
with which
the
IEPA and USEPA are so concerned
do
not
appear
to
apply
to
the
ditches
in
question.
Unfortunately, East Peoria’s assertions are
in direct
conflict with the Board’s prior holdings
in this proceeding.
In
its June 13,1985,
First Notice Opinion,
the Board stated,
“East
Peoria seeks relief from the effluent limitation of 35 Ill.
Adm.
Code 304.120
(C),
which sets maximum contaminant levels....to
waterways such as Ditch A...”
(Emphasis added, Opinion,
p. 2),
and
“In granting this relief, the Board recognizes that water
quality standards will continue to be applicable
to Ditch A”
(Opinion, p.5).
The Board has consistently held that the general
use water quality standards are applicable
to Ditch
A.
_n
ann
—5—
The actual
conflict regarding East Peoria’s discharge can be
distilled
into
a simple question, “How much information is enough
information on the environmental impact”.
After
reviewing the
information in the record, the Board concluded:
As stated above, the environmental information
and water quality data supplied by the City is
sketchy
and
would
be
considered
insufficient
to
support
the
granting
of
relief
in
most
situations
involving
such requests.
However,
given the facts in the instant proceeding,
the
Board
does
not
believe
that
any
significant
benefit
to the environment
or
public
interest
would
be
served
by
denying
the
requested
relief.
USEPA reviewed
the relevant information and reached a
different conclusion, “overall,
we concur with the judgment that
the record presents
an
inadequate demonstration of the capability
of the receiving waters
to assimilate the wastewater without
resulting violations of
ammonia—N and dissolved oxygen ~QS.”
Under the present scheme of federal—state environmental decision—
making for NPDES permits, USEPA retains ultimate authority to
determine what constitutes acceptable NPDES effluent limits for a
discharger such as East Peoria.
40 C.F.R. 123.44
(1986).
In
effect,
if USEPA disagrees with the Board’s decision on the
adequacy of the
information, USEPA can “veto”
that decision by
issuing a federal NPDES permit with more stringent limits.
The
March 21,1986,
letter from USEPA clearly states that under
federal regulations and based
on the existing factual record,
“...the relief
in effluent limitations proposed
in the Board’s
draft order cannot be realized
in the NPDES permit...”.
In addition, on May 21,
1987, the Board received a com-
munication from the United States Environmental Protection Agency
which expressed concern,
inter alia, with NPDES
site—specific
rulemaking.
The Board will include the portion of that document
which relates to
the East Peoria proceeding as
a public comment
in this proceeding.
In
its June 13,1985, First Notice Opinion and Order, the
Board made
a very close judgment call
in a difficult case,
based
on admittedly sketchy information.
Based
on the opposition to
that judgment call as expressed by the Agency
and USEPA and based
on USEPA’s ultimate authority to determine whether the relief can
issue, the Board will reverse
its position on this issue.
Accordingly,
the Board finds that East Peoria has failed
to
demonstrate that effluent discharges to Ditch A will not cause
or
contribute
to violations of applicable general use water quality
standards and the requested regulatory relief
is denied.
—6—
ORDER
The petition for site—specific rulemaking
filed
by the City
of East Peoria is denied, and this proceeding
is dismissed.
IT
IS SO ORDERED
I, Dorothy
‘1. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certi~y.thatthe above Opinion and Order was
adopted on the
~4’~4-dayof
)“7i
,
1987, by a
vote of
~
.
Illino
Control Board