ILLINOIS POLLUTION CONTROL
BOARD
March 22,
1990
IN THE MATTER OF:
)
PROPOSED SITE SPECIFIC RULE CHANGE
)
R87—34
FOR THE CITY OF ROCK ISLAND’S
)
(Site—Specific
PUBLIC WATER SUPPLY TREATMENT
)
(Rulemaking)
PLANT DISCHARGE:
35 ILL. ADM.
)
CODE 304.217
)
OPINION AND ORDER OF THE BOARD
(by
3.
Anderson):*
This matter
is before the Board on a petition for site—
specific rulemaking
filed by the City of Rock Island (Rock
Island).
In its petition,
filed September
29, 1987,
Rock Island
requested the Board
to adopt
a rule which would “allow the
discharge of solids from Rock Island’s public water treatment
plant located
in Rock
Island County,
Rock Island,
Illinois
to
allow for the discharge of effluent containing solids
to the
Mississippi River”
(Exh.
1,
p.
1).
That discharge does not meet
the requirements of 35
Ill. Adm. Code Section 304.106 and
304.124(a)
for iron,
manganese or
total suspended solids
(TSS).
The Section 304.124(a)
standards for these contaminants are 20
milligrams per liter
(mg/i)
for iron,
1.0 mg/i for manganese, and
15 mg/i for TSS.
Section 304.106 prohibits effluent which
contains
“settleable solids,
floating debris,
visible oil,
grease,
scum or sludge solids” and states that
“color,
odor and
turbidity must be reduced
to below obvious levels.”
Rock Island Proposal
As an alternative to the general standards,
Rock Island
urges
the Board to adopt the following as a new
rule addition to
Subpart
B: Site Specific Rules And Exceptions Not Of General
Applicability,
of
the Board’s water pollution
rules
(35
Ill.
Adm.
Code Title
35,
Subtitle C, Chapter
I):
Rock
Island Water Treatment Plant discharges
This
Section
applies
to
the
existing
water
treatment
plant
known
as
the
Rock
Island
Public Water
Supply Treatment
Plant,
owned by
the City
of Rock Island, which discharges
into
the Mississippi
River.
Such discharges
shall
*
We express our great appreciation
to Mr. Phillip Van Ness,
who
acted as Hearing Officer
in this proceeding,
and for his
contributions
to the drafting of
this Final Opinion and Order.
We also thank Mr. David O’Neill.
for conducting
the February
8,
1989 hearing.
109—599
—2—
not
be
subject
to
the effluent
standards
for
total
suspended solids,
iron and manganese
of
35
Ill. Adm. Code 304.124.
Procedural History
On November
12,
1987,
the Environmental Protection Agency
(Agency)
filed a motion
to consolidate
the instant
proceeding
with Board proceeding R87-35 which regards
a similar petition for
a site—specific rule on behalf
of Rock Island’s sister city,
the
City of East Moline; Rock Island opposed the motion.
On December
12,
1987,
the Board denied the motion.
Pursuant to Board Resolution 88—1
(i.e., without
consideration of the merits
of
the proposal),
the Board
on April
21,
1988,
adopted the Rock
Island proposal for First Notice
publication
in the Illinois Register.
The proposal appeared in
the Illinois Register for May
20,
1988
(12 Ill.
Reg. 8531).
An
economic impact analysis was
filed on June 30,
1988
by the Small
Business Office
of the Department
of Commerce and Community
Affairs
(DCCA; PC#l),
indicating that there would
be
“no
effect”on
small businesses.
In response
to the Hearing Officer’s
Order and following an extension
of time granted by the Hearing
Officer, Rock
Island pre—filed testimony and exhibits on October
17,
1988.
In addition, both the Agency and the Department of
Energy and Natural Resources
(DENR) pre—filed comments and
questions for hearing.
On December
7,
1988,
the Hearing
Officer
issued a revised Order
regarding pre—hearing submission
of
testimony and exhibits, and set hearing
in this matter for
February
8,
1989.
Rock Island pre—filed amended testimony and
exhibits on January 19,
1989.
On January
24,
1989,
the Hearing Officer ordered
participants
to file comments regarding the necessity
for an
economic impact
study
(EcIS).
Although Rock
Island indicated an
EcIS was necessary
(PC#4),
neither the Agency
(PC#3)
nor the DENR
(PC#2) agreed; on February 23,
1989,
two weeks following the
hearing
in this matter,
the Board entered
an order finding that
no EcIS was necessary.
Upon petition from Rock Island,
the
Hearing Officer granted an extension
of
the deadline for filing
of final post-hearing comments.
Post—hearing comments were
timely filed by the Agency (PC#6 and #8) and Rock Island
(PC#7).
One comment was provided
to the Hearing Officer at the
hearing by Mr. John Hass,
President of The Valley Group
(PC#5).
On June 9,
1989,
pursuant
to Section 5.01(d)
of
the
Administrative Procedure Act,
Ill.
Rev.
Stat.
ch.
127,
par.
1005.01(d),
the Board refiled the original proposal for First
Notice publication
in the Illinois Register
this appeared in the
Illinois Register for June
23, 1989
(13
Ill.
Reg.
9421).
During
the following First Notice comment period, comments of a
technical nature were received from the Administrative Code
Division of the Office of the Secretary of State
(PC#9)
together
109—600
—3—
with substantive comments from the Illinois—American Water
Company
(PC#ll).
DCCA filed another Impact Analysis,
identical
in all essentials to the original
(PC#l), on July 31,
1989
(PC#10).
No discussion of the procedural history of this case would
be complete without mention of
the other proceedings before the
Board regarding the Rock
Island facility.
Two of
these
proceedings are identified by Rock Island
in its Motion
for Leave
To File Site Specific Rule Change Petition without Supporting
Signature Petition, which accompanied the original petition,
as
well as
in the testimony provided by Rock Island
(Tr.
12—13).
These proceedings
include two variance proceedings, one which
relates
to
the Board’s effluent limitations for trihalomethanes
(PCB 87_l3)* and the other which sought variance
(temporary)
relief
for
the same purposes as the instant site specific rule
request
(PCB 85_ll8).**
The
third proceeding was
a failed
earlier attempt by Rock
Island to secure site—specific
rule
relief
(R84—18), dismissed in part for lack of information
regarding environmental impact
(Tr.
60).
Background
The effluent
in question emanates from Rock Island’s public
water treatment plant located on a
23 acre site
in Rock Island
(Tr. 77).
The land, which was purchased in the late 1800’s
for
the water treatment plant,
is today shared by the plant
(10.9
acres) and an open area which is heavily used by the City’s park
district and its residents as a park
(12.9 acres), often referred
to as “Reservoir
Park”
(Tr.
30—32; 36—37;
79—82;
96—100;
171;
237—240).
However,
the City does not assert that the plant
is
“landlocked” or
that the usage
of the area as
a
“park”
supersedes
or precludes use of
the land for expansion of the plant
(Tr. 238—
240);
the City does claim
that loss of
the “park”
would impact
it
directly,
since
the City’s own Parks and Recreation Department
(rather than an independent park district) utilizes the “park”
and would be forced
to attempt to secure an alternative
(Tr.
241—
243).
The plant, which was originally built
in
1898,
provides
clarified,
filtered and disinfected water
to approximately 47,000
residences and 1,000 businesses
in the City (Tr.
51).
Rock
Island’s sourceof raw water
is the Mississippi
River.
A pumping sta~tionat 24th Street
in Rock Island pumps
the
*
The Board granted Rock Island’s variance request by order of
May
14,
1987.
**
The Board granted the variance on October
1,
1987
(Order
corrected October
15,
1987),
subject
to the conditions that Rock
Island either obtain a site—specific rule change
as herein
requested,
or implement the appropriate remedies for complying
with the limitations
of rule Section 304.124(a).
Variance relief
expires
no later
than December
1,
1991.
109—601
raw water approximately one mile to the treatment plant.
The
plant has a capacity of
16 million gallons per day
(gpd);
however,
for the last five years,
it has only treated about 5.5
million gpd
(Tr.
52).
The raw water
is first pumped
to rapid—mix
flocculation units,
thence to two rectangular sedimentation
basins; sedimentation
is aided by the addition of alum and lime
(Tr.
51—52).
Since
1977,
some
of the sediments
in the
sedimentation basins have been continuously removed utilizing
four circular sludge rakes
65
feet in diameter installed
in the
upper two—thirds of the basins
(Tr.
54; Exh.
5).
Clarified water
from the sedimentation basins
is routed through gravity filters
and thereafter
is directed to “clear lakes”
for disinfection and
fluoridation prior
to entering the
storage and distribution
system
(Tr.
52;
Exh.
4).
Wastes from the water treatment process consist
of backwash
water from the filters and sludge from the settling basins
(Tr.
53;
104; 211—212).
Sludges from the sludge rakes and from the
filters are continuously removed.
These sludges (approximately
19
of the total sludges generated by the plant) are dewatered by
use of
a backwash recovery basin,
a sludge thickener and four
basket centrifuges
(Tr.
54).
The dewatered sludges are then
hauled to a regional landfill
12 miles from the plant
(Tr.
54;
212).
The
largest proportion of solids
(approximately 81)
are not
captured by the sludge rakes and the filter backwash.
It
is
therefore necessary that the settling basins be
taken off-line
approximately twice
a year to remove
the sludges which are not
captured by the
rakes;
the City calculates that the average daily
rate
of accumulation of
these sludges
is 4,800
lbs.
per day
(Tr.
53).
It
is undisputed that approximately 50
of the solids
in
Rock Island’s discharge originates from the Mississippi River;
the balance
is
added in the course of treatment
(Ibid.).
The
“added” solids
(expressed as percentage
of
the whole)
consist
of
23
aluminum hydrate and 27
calcium hydrate
(Ibid.).
These
accumulated solids are flushed from the sedimentation basins with
fire hoses;
flows
from the flushing are directed via
a 0.4 mile
long storm sewer
to Black Hawk Creek, an intermittent stream
which is tributary to the Rock River
(Tr.
57—58).
Flushing takes
approximately five days,
during which solids are discharged at
the rate of 144,000
lbs. per day
(Tr. 66—67).
The average
concentration of TSS, iron and manganese in Rock Island’s
discharge
to Black Hawk Creek
is as follows:
TSS
14,450 mg/i
Iron
928 mg/i
Manganese
300 mg/i
(Tr.
58).
Rock Island does not seek to continue discharging
to Black
Hawk Creek as
it has for approximately
70 years;
rather,
it seeks
to reroute its outfall
to the “Sylvan Slough” portion of the
Mississippi River,
being that portion which passes between the
109—602
—5—
Rock Island Arsenal
island and the City
(Tr.
62—63; Exh. A of
Exh.
3).
Applicable Law
Proposals for site—specific regulations are governed by the
provisions of Title VII of the Act, specifically Section
27
(Ill.
Rev. Stat.
ch. 1ll~,par.
1027).
Subsection
(a),
in relevant
part,
states as follows:
a.
The
Board
may
adopt
substantive
regulations
as
described
in
this
Act.
Any
such regulations may make different provisions
as
required
by
circumstances
for
different
contaminant
sources
and
for
different
geographical
areas.
.
.and
may
include
regulations
specific
to individual
persons
or
sites.
In promulgating regulations under
this
Act,
the
Board
shall
take
into
account
the
existing physical conditions,
the character
of
the
area
involved.
.
.
the
nature
of
the.. .receiving
body
of
water.. .and
the
technical
feasibility
and
economic
reasonableness
of
measuring
or
reducing
the
particular type
of pollution.
The Rock Island plant’s physical condition has been
described at length
(Tr.
51—58;
104—105).
Nothing
in
the record
indicates that the plant’s physical condition, per
se, poses any
particular
impediment
to compliance with the general
rule,
although Rock Island has,
as noted above, provided extensive
testimony regarding the evident
need for
a number
of maintenance
and improvement projects
(Tr.76—77;
Exh.
6).
The character of the surrounding area has been at issue
here,
to the extent that all or some of
the adjoining ground
(12.9 acres)
upon which any sludge handling facilities would be
constructed
if relief hereunder were denied
is heavily utilized
as a “park” although the property
is clearly not
a park
in that
it has always been owned and held by the City’s public water
supply depar.tment as room for possible expansion or other
use.
Rock Island and several community witnesses described the
importance of the “park”
in terms of
its usage,
locational
attributes and cost and difficulty of replacement
(Tr.
30—32;
36—
37;
79—82;
96—100;
171;
237—240).
According to
this testimony,
the “park” serves some 40,000 persons per
year,
including some
26,500 participants
in organized recreational activities
(softball, baseball,
soccer,
etc.)
sponsored by the Rock Island
Park and Recreation Department
(Tr. 79—80).
The City estimates
that replacement of the “park” would cost the city $2,400,000
if
the City had funds available for
that purpose
(Tr.
98;
196);
using
an assessment technique reported by DENR,
it
estimates the
economic value of the
“park”
in terms of
lost recreational
opportunities
to be $138,000 per year
(Tr.
197—198;
Exh.
8).
The
109—603
—6—
City indicates that for
a variety
of reasons,
other available
lands
that could be used for park purposes are either
intrinsically less desireable
(e.g., access is more hazardous)
or
poorly located for
the purpose
(Tr.
32;
98—99;
Exh.
8).
In
addition, Rock Island has provided considerable testimony and
exhibits characterizing the area in terms
of
its significant
economic downturn since the late l970s,
including the loss of
numerous businesses
(Tr.
22;
23—24;
35;
41;
74’75;
86—94;
173;
225—226);
we will address economic matters below,
in the context
of Rock Island’s contentions regarding economic reasonableness.
Finally, Rock Island does not contend
that compliance with
the existing regulation
is not technically feasible
(Tr.
68;
PC#7,
p.
16).
Rather,
Rock Island argues that compliance with
the general standard
is economically unreasonable;
by extension,
Rock Island suggests that
the economic reasonableness of
compliance
is
related to the nature of the receiving body of
water.
Nature of the Receiving Body of Water
As noted previously, Rock Island’s effluent discharges
directly
into, and comprises,
the headwaters of Black Hawk Creek,
a tributary of the Rock River.
The City does not propose to
continue that discharge,
however.
Rather,
the City proposes to
direct
its sludge flows
to the swiftly moving waters
of the
“Sylvan Slough” branch of the Mississippi River
(Tr.
12;
43;
62;
66;
157;
177—178; 212—214).
The Mississippi River,
of which
Sylvan Slough
is part,
is
extremely large;
Rock Island indicates the mean average flow of
the river
is 52,200 cubic
feet per second that of Sylvan Slough
is 9,000 cubic
feet per second
(Exh.
1,
p.
11).
The average
suspended solids concentration of
the river’s water
is
57 mg/I
(Ibid.), which exceeds
the standard
(15 mg/i)
set
by
35
Ill. Adm.
Code 3O4.124(a); average total iron concentration of the river
has been measured at Clinton,
Iowa, some 40 miles upstream,
at
1.675 mg/l, with a maximum recorded concentration of
2.7 mg/i
(Ibid.,
p.
16) and thus may also exceed
the standard
(2
mg/l).
The City of Mugcatjne
(Iowa)
public water supply intake
is
located some
25 miles downstream of the Rock Island discharge
(Tr.
120).
Fish are plentiful
in the Rock Island area of
the
river, with the variety changing
with
the bottom conditions
(Exh.
1,
p.
16;
Exhs. Bl and B2
of
Exh.
1).
Fish are
also abundant
in
the Sylvan Slough portion of the river;
two “important” game fish
species
(walleye and sauger)
are thought
to spawn
in the tailrace
of the slough
(Exh.
1,
p.
17).
Impact on the Receiving Body Of Water
Mr.
James Huff testified on behalf
of Rock Island regarding
the effects of Rock Island’s discharge on water quality and other
features of Black Hawk Creek
(Tr. 106-114)
and the Rock River
(Tr. 110—11;
113).
He stated that results of analysis of
109—604
—7—
sediments and water quality of
the creek
indicated that the poor
water quality of the creek,
as measured
in terms of its
Macroinvertebrate Biotic Index
(MBI) was due
to factors other
than the treatmeht plant
sludge,
in light of the
fact that MBI
readings
in areas of the creek unaffected by the sludge
discharges were essentially similar
to areas
that were affected
(Ibid.,
pp. 107—108).
As for sediments,
he found “no
relationship” between plant sludge and creek
sediment with
respect
to
iron, manganese and volatile
solids
(Ibid.,
p.
113;
Exh.
5 of Exh.
3).
Finally,
he found no effect of the Rock
Island discharges on
the Rock River
(Tr.
110—111;
113;
Exhs.
4
and
5 of exh.
3).
Mr.
Huff also testified
regarding the
anticipated effect of Rock Island’s proposed direct discharge on
the Mississippi River
(Tr. 114—121;
128—129;
177—178).
He
testified that the high and relatively constant rate of flow in
Sylvan Slough
(8,000—10,000 cubic
feet per second,
year
round)
resulted
in minimal sediment accumulation
(Ibid.,
pp.
120-121).
Where sediments had accumulated,
the number
of taxa and organisms
increased (Ibid.).
Comparing Rock Island’s proposed intermittent
outfall per day
(87,600
lbs.)
to the average daily sediment load
of Sylvan Slough (2,800,000
lbs.) and the Mississippi
River
(16,000,000
lbs.), Mr.
Huff opined that the effect of Rock
Island’s discharges
(of which 49
is from the river)
would be
minor
(Ibid.,
121—123).
The Agency raises two arguments against Rock Island’s
assertions
regarding environmental impact.
First,
the Agency
restates the position taken by the Board
in its Final
Order and
Opinion
in the first Illinois—American Water Company site-
specific case, R85-li, dated September
25,
l986.*
The Agency
notes that
in
that case the Board made clear
that the
assimilative capacity of the Mississippi River
could
not suffice
as a reason
to abandon the State’s technology—based effluent
standards (PC~8, p.
5).
The Agency
further asserts that the City
misunderstands the concept of “mixing zones”, asserting (citing
the proposed language of
the Board’s current water toxics
rulemaking proceeding, R88—2l)
that mixing zones are not intended
to be used as
zones fo~unnatural sedimentation
(Ibid.).
In any
event,
the Agency asserts,
“the fact that
the sludge deposits
caused by Rock
Island’s discharge are,
in
time, diluted does not
*
Upon motion by
Illinois—American,
the
Board allowed Illinois—
American
to subsequently reopen the record so that
it could
submit additional information regarding alternative treatment
methods.
This reopened,
or “second”, proceeding eventually
resulted in the Board’s granting
of a .tempora~yand conditional
rule allowing
the Illinois—American facility
in East
St.
Louis
to
be exempted from the general effluent standards
while
it
experimented with
the exclusive use of biodegradeable coagulants
(R85—ll, Final Opinion and Order
of
February
2,
1989).
This
latter decision
is cited by both East Moline
(see PC ~8, p.
29-
30) and Illinois—American
(PC #10,
p.2—3).
109—605
~iegatethe fact that those sludge deposits are there and may be
redeposited somewhere else”
(Ibid.).
Rock Island states that the cost of control
is approximately
$4,000,000, based upon the recommended least—cost alternative
considered, which consists of building sludge drying beds (Tr.
71;
202).
Other alternatives considered included discharge
to
Rock Island’s sanitary sewer system, construction of new sludge
lagoons,
and construction of additional mechanical dewatering
devices
(Tr.
69).
According to Rock Island,
discharge
to its
sanitary sewer
system
is not viable absent the construction of
a
new sewage treatment plant, which would cost the City far more
than $4,000,000
(Tr.
70;
200)
.
Also, Rock Island asserts that
construction of new sludge
lagoons would be more expensive than
S4.000,000,
in light
of the fact that such lagoons would require
more land
(15 acres)
than
is available at
the present location
and that pumping of sludges
to
a more distant available location
(some
6 miles away)
may not be possible
(Tr.
70; 201-202).
The
final alternative,
installation of additional mechanical
dewatering devices, has been rejected by the City
in light of
its
poor experience
(poor
results
in
terms of dewatering, high
downtime and excessive maintenance costs)
with the devices
(basket centrifuges) presently employed
(Tr.
70—71;
104—105;
168;
Exh. 14,
p.
19).
AL present,
Rock Island
is using, and
considering some additional use of
polymers
(Tr.
55;
141—146;
148—149).
Rock Island acknowledges that recent
tests
of
use of
polymers show some promise (Ibid.);
in particular, Rock
Island
indicates
that the resulting sludges do pass the Paint Filter
Test
(Tr.
151—152), whereas sludges obtained without use
of
polymers generally fail that
test
(Tr.
71;
104—105).
As
for
the economic reasonableness of
requiring adherence to
the general standards
rather than allowing
it
to
discharge to the
Mississippi River,
Rock Island argues that the limited
impact on
the river,
both
in terms of Rock Island’s discharges
(as noted
previously) and
in terms of similar discharges
to the Mississippi
River,
does not warrant the $4,000,000 expense of controls,
particularly
in light
of Rock Island’s present economic
difficulties.
In its comments,
Illinois—American suggests that,
in light of
the other site-specific factors,
the expense of
controls
is not warranted even if one discounts Rock Island’s
economic condition as one such factor
(PC#11,
pp.
18—19).
Illinois—American suggests that,
in light
of
its substantial
expenditures for (relatively unsuccessful) sludge
dewatering
devices, Rock Island
is entitled to relief on equitable grounds
Ibid.,
p.
10).
Rock Island notes that numerous other communities along
the
Mississippi River discharge
their water plant sludges to
it,
including
St.. Louis and Cape Girardeau,
Missouri, Davenport
(including Bettendorf),
Iowa and Alton,
Illinois
(Tr.
115—116).
Rock Island further notes that the Ohio River Valley W~ter
Sanitation Commission (ORSANCO),
of which Illinois
is a member,
favors allowing the controlled release of water
plant sludges
on
109—606
—9—
a case—by—case basis, provided there are no adverse stream
effects
(Tr.
116;
178—182).
Rock Island cites ORSANCO studies
which conclude that technology—based effluent limits are
inappropriate because of the high cost compared to the lack of
significant benefits
(due to
the
large dilution capacity of the
river and temporal variability of
the background water quality
(Tr.
116;
Exh.
13).
Rock
Island also directed the Board’s
attention to the results of studies performed by the Illinois
State Water Survey
(ISWS) on the impact of wastes
from other
water treatment plants
in Illinois, including that of the City of
Pontiac on the Vermilion River
(Exh.
12),
the City of Alton on
the Mississippi River
(Exh.Il) and the City of East St.
Louis on
the Mississippi River
(Exh.
16).
Each of these studies generally
concluded that the subject discharge had no significant effect on
the receiving river beyond a very small area nearest the outfall
and that such effect might
in certain cases be beneficial
(PC#7,
p.
29).
Mr.
Huff testified, with regards
to the ORSANCO study
(Exh.
13),
that the Ohio River
is similar
to the Mississippi
River
in
this regard
(Tr.
221).
Rock Island strongly suggests that its situation closely
resembles that of Alton,
to which
this Board on March
8,
1984,
granted site—specific rule relief
in docket R82—3
(PC#7,
pp.31).
Illinois—American concurs,
suggesting further that a
grant of “complete relief”
to Rock Island by the Board in the
present case will not be inconsistent with its grant of limited
relief
to Illinois—American
in R85—ll
(PC#ll, pp. 14—15).
Illinois—American takes particular note of the Agency’s
position
in docket R87-27
(adopted by the Board)
favorable to
downgrading water quality and effluent standards affecting the
Metropolitan Sanitary District of Chicago, now known as
the
Metropolitan Water Reclamation District
(MWRD).
In that
proceeding,
Illinois—American argues,
the Agency in effect
endorsed the ORSANCO position, stating
that:
lit
is not cost effective to spend
taxpayers’
money
for
major
wastewater
treatment
facilities
which
result
in
marginal
water
quality
improvements.
In
the
Matter
of
Amendments
to
Water
Quality
and
Effluent
Standards
Applicable
to
the
Chicago
River
System and
the Calumet
River
System,
PCB R87-
27, Tr.
13.
Illinois—American notes
that the Board subsequently adopted
the proposed Opinion and Order with but one change,
requiring the
MWRD,
like Illinois—American in the East St.
t~ouiscase
(R85-ll),
to perform
a comprehensive study of water quality
(PC#ll,
p.
13).
Illinois—American suggests that the Agency’s position
in
the MWRD rulemaking, which
involved sewage waste
rather
than
water supply waste,
cannot be reconciled with its position in
opposition to relief
for public water supplies
(Ibid.,
pp.
13—
14).
109—607
—10—
As the third basis for
a finding that compliance with the
general standards would
be economically unreasonable, Rock
Island
asserts the alleged hardship that would attend full compliance.
Rock Island offers two means of demonstrating this alleged
hardship.
First,
Rock Island points out that the capital costs of
compliance measured by the pounds of
solids discharged and
removed per day would be $833 per pound per day for Rock
Island.
This cost compares to $240 for
Altori and $103 for East
St. Louis
(Tr. 230—231).
Second,
Rock
Island and several other witnesses repeatedly
point out that the city’s economy has suffered serious setbacks
in the l980s
(Tr.
22;
23—24;
35;
41;
74—75;
86—94;
173;
225—
226).
It asserts that denial of the rule change request would
necessitate a
24 percent
increase
($40.50 per year)
in the
average household water bill to pay
for the needed improvements
(Tr.
76).
Further, Rock
Island points
to a long list of
needed
repairs and improvements
in its public water supply system and
wastewater treatment system
(Tr. 76—77).
It characterizes these
other needed improvements as competing for scarce public funds
(Tr. 76—79;
PC#7,
pp.
34—35).
It notes
that property tax and
sales tax
revenues have dropped since the early
l980s while
the
costs of borrowing funds have risen
(Tr.89—93):
the City
apparently has no bond rating, due
to the weakened economy
(Tr.
73—74
In rebuttal, the Agency asserts
that the hardship alleged by
Rock Island
is temporary,
suggesting that variance,
not permanent
rule relief,
is appropriate
(PC#8,
p.
3,
citing Tr.
20,
43, and
226).
The Agency argues that Rock Island residents “have
for
years avoided the compliance costs that were long ago paid by
other Illinois communities.
Equity demands
that the costs of
pollution abatement be fairly allocated among all illinmois
communities...”
(Ibid., pp.
3—4).
Consistency With Federal Law
In its petition, Rock Island asserts
that federal
law does
not prevent
the Board from granting the requested relief
(Exh.
1,
p.
23).
In testimony, Rock Island again asserts that,
insofar
as
the United States Environmental Protection Agency
(USEPA) has not
adopted categorical Best Practicable Technology
(EPT)
standards
applicable
to public water supply treatment plant
discharges,
the
Board
is empowered to adopt standards
on
a case—by-case basis
using Best Professional Judgment
(BPJ)
for the establishment
of
NPDES effluent limits
(Tr.
164).
In
its final comments, Rock
Island again asserts this view, with somewhat more elaboration
(PC#7,
pp.
37—43).
Rock Island states
that
a permit writer
using
BPJ
in
the absence of categorical standards
is to consider the
factors set forth
at Section 304(b)
of the Clean Water Act
(CWA),
“which include cost/benefit considerations”
(Id.).
It further
states that the federal anti—backsliding statute
(Section 402(o)
109—608
—11—
of the CWA,
33 U.S.C.
1342(0)) and rule
(40 C.F.R.
122.44(1))
apply only where a facility’s new permit contains less stringent
requirements than the previous permit.
It asserts that the fact
that its permit application is still under consideration renders
the “backsliding” provisions inapplicable (Ibid.,
p.
38).
Finally, Rock Island asserts as follows:
Regardless
of
whether
a
permit
can
be
issued
which
contains no limitation
on the discharge
of
suspended
solids,
the
Board
can certainly
exempt
Rock
Island
from
the
generally
applicable
rule.
In
turn,
if
a
limit
is
required
in
the permit,
the Agency can impose
a
limitation
in
the
permit
based
on
its
best
professional judgment...”
(Ibid., p.42).
On the other
hand,
the Agency asserts that the effluent
limitations
at issue are BPT and that the factors enumerated
in
Section 304(b)
of
the CWA and 40 C.F.R.
125.3(d) are exclusive in
making a BPT determination; these factors,
the Agency asserts,
preclude the consideration of economic effects and environmental
impact
(PC#6; PC#8, p~.6—7).
The Agency again argues that
permanent relief would constitute “backsliding” prohibited by the
Clean Water Act
(Ibid.,
p.
7).
By far
the most extensive treatment of this subject was
provided in the final comments of Illinois-American
(PC#ll).
Like Rock Island,
Illinois-American asserts that the relief
sought
is not inconsistent with federal
law.
Like Rock Island,
Illinois—American points
to the lack of categorical standards
(BPT)
under Section 304(b) of the CWA; unlike Rock Island or
the
Agency,
however,
Illinois—American argues that permits
for public
water supplies are written under
the BPJ case—by-case provisions
of Section 402(a)(l) of the CWA
(33 U.S.C.
14l2(a)(l)) and 40
C.F.R.
125.3(c), not under any part (including case—by-case
provisions)
of Section 304 of the CWA or any rule promulgated
thereunder
(Ibid., pp.
5—7).
Further, Illinois—American, unlike
either the City or
the Agency,
contends that “backsliding”
applies only to permits that were issued when there were no
federal
effluent guidelines for the discharge category, but are
being renewed,
reissued or modified after USEPA has promulgated
less
stringent guidelines under Section
304(b)
(Ibid.,
pp.
6—
8).
Finally,
Illinois—American argues that even
if
“backsliding”
did apply,
the subsection
(B)(ii) exception
of CWA Section
402(o)(2) would apply,
due
to the Agency’s “mistake of
law”
in
issuing Rock Island’s permit
(Ibid.,
pp.
8—9).
Illinois-American
notes
that the Board has previously addressed and rejected the
Agency’s contentions
regarding the applicability of BPT
provisions
in
its September
25, l986~June16,
1988,
September
26,
1988,
and February 2,
1989 Opinions and Orders
in R85—ll
(Ibid.,
pp.
5—6).
109—609
—12—
Threshold Issues
We shall deal
first with the threshold questions raised in
this proceeding.
These are,
first, whether
federal law precludes
this Board from granting
the relief sought, and second,
the
applicability and effect
of
35
Ill. Mm. Code 304.103 and “mixing
zone” provisions.
Federal Law
As to the question of federal law, we are unpersuaded by the
Agency’s arguments.
The Agency has identified no reason why the
Board’s long—standing position on this issue should change.
To
our knowledge,
USEPA still
has not promulgated regulations
establishing effluent limitations on water treatment plant
waste.
In the absence of such regulations,
effluent limitations
are to be established
on a case—by—case basis under CWA Section
402(a)(l).
The Agency has not
identified any newer federal
guidelines which might countermand the USEPA directives upon
which the Board has relied since its initial determination of
this issue on September
25,
1986,
in R85—11
(72 PCB 429,
437—
438)
The Board also notes
that CWA Section 402(a)(l)
on its face
relates to the permitting function, which is the province of the
Agency.
That being so,
it would appear
that,
as Rock
Island has
suggested, grant
by the Board of the requested regulatory relief
does not preclude the Agency from exercising
its responsibilities
and discretion as the permitting agency for Illinois pursuant to
Section
39 of the Act.
Under any outcome of
this proceeding,
the
Agency will continue to be responsible
for establishing such
permit terms and conditions as necessary to assure that effluent
discharges from East Moline do not violate or contribute
to
violation of applicable standards,
including water quality
standards (see
35
Ill. Adm. Code 304.105).
As
for the “backsliding”
issue,
the Board agrees with
Illinois—American
that.the anti—backsliding provisions do not
apply to
this proceeding
in the absence of promulgated federal
standards.
To hold otherwise would preclude the State from
exercising
its own
judgment over
its own waters even where,
as
here,
there has been no corresponding federal pronouncement on
the subject.
Particularly inasmuch as the Agency retains its
permitting powers and responsibilities irrespective of the
Board’s determination in this proceeding,
“backsliding”
is not an
issue.
Other Threshold Issues
Rock Island has somewhat casually raised
the issue of
whether
35
Ill. Adm. Code 304.103 exempts
it from compliance with
the effluent standard for iron and manganese,
since
these heavy
metals originate in the raw water
of the Mississippi River
(PC#7,
pp.
4—5).
It cites no authorities
for its position and
109—610
—13—
acknowledges that its process does serve to concentrate these
constituents
in its effluent
(Ibid.,
p.
5).
We find that the
concentrations of iron and manganese
in Rock Island’s effluent do
not result entirely from influent contamination as
35
Ill. Adm.
Code 304.103
requires.
Finally, Rock
Island states that “there
is some question
as
to whether
relief
is necessary from 35
Ill. Mm. Code 302.203
or 304.106”
(PC#7,
p.
5).
Rock Island suggests, again without
citing authority, that
a “mixing zone” concept applied
to bottom
deposits would obviate the need for such relief
(Ibid., pp.
5
6).
As we have done in other cases
(e.g.,
In the Matter Of:
Proposed Site Specific Rule Change
For the City of East Moline’s
Public Water Supply Treatment Plant Discharge, Opinion and Order
dated March
8,
1990,
p.
15), we reject Rock Island’s arguments.
We agree with the Agency that
the mixing zone concept
is not
intended to apply
to stationary bottom deposits.
Conclusions
We turn now
to the question as
to whether Rock Island
is
entitled to the permanent site—specific relief
it seeks.
As
noted above,
that issue
turns on whether Rock Island has shown
that site—specific circumstances make compliance with the general
standards economically unreasonable.
Rock Island’s first articulated argument in support
of
its
contention that compliance with general standards would be
economically unreasonable
is rooted in the alleged lack of
environmental impact associated with its discharges.
Rock Island
has demonstrated a very limited negative impact on the
Mississippi River could be
expected, given
the assimilative
capacity of
the river,
the flow characteristics
of Sylvan Slough,
and the solid
rock river bottom in the slough.
We do not know
whether Rock Island proposes
to equip the proposed direct
discharge with devices to facilitate
rapid mixing as
it intimated
(Tr.
259),
or,
if
so, whether such devices would be efficacious;
however,
the record suggests
that,
even absent such devices,
the
impact on
the river
in terms of measurable and observable impact
would likely be small.
We do not know whether
this apparent lack
of observable impact
is due
to the lack of such an impact,
or
to
the difficulty
in measuring
that impact
in great bodies
of water
such as the Mississippi River.
We do know that in this case the
city’s contribution of solids,
as
a percentage
of
the total
solids content of its discharge,
would be
substantial, on the
order of
50;
this
is not merely a case of returning solids
to
the river.
We are not persuaded by Rock Island’s second argument
regarding economic reasonableness,
namely,
that Rock Island’s
situation
is analogous
to that of other dischargers
to the
Mississippi River.
Rock Island has not shown
that,
like Alton,
it requires permanent relief because
it
is physically prevented
from constructing the required treatment facilities on—site by a
109—611
—14—
lack of available space,
by incompatible adjacent land uses,
or
by any other
factor.
We certainly ~il1 not take
it upon
ourselves to pass upon the value of
a “park” which the community
itself acknowledges has not been reserved for such a purpose.
The City has not shown,
as did Illinois—American
in the East
St.
Louis
case,
that
it requires temporary relief to facilitate
research
into novel treatment techniques.
In short,
it has not
shown a comparable combination of unique factors that would
distinguish
it from the host of Illinois communities which are
subject
to Illinois’ technology-based standards.
The
fact that
communities
in other states may be allowed to pollute
the river
with their
public water supply treatment wastes
is beyond our ken
and irrelevant
for purposes of determining the merits
of
a site—
specific claim for relief.
We should not
be understood as
ruling on the merits of the
concepts espoused by ORSANCO and endorsed
by both East Moline and
Illinois-American.
However,
these concepts
reflect an approach
which would represent
a broad departure from Illinois’ current
technology—based standards, and must be addressed in the context
of general rulemaking,
not
in the context
of
a site—specific
rule.
To do otherwise would induce chaos and inequitable
treatment of similarly—situated dischargers.
Moreover,
to do otherwise flies
in the face of this State’s
conscious decision,
now
decades old,
to reject the notion that
environmental regulation must await proof
of environmental
degradation.
The Environmental Protection Act and our
regulations thereunder essentially recognize,
through the device
of technology-based standards and the Act’s call
for
environmental restoration and enhancement
(see,
e.g.,
§1(b)),
that real harm to the environment sometimes results from the
cumulative effects -of many small injuries, rather than a single
blow.
It
is indeed difficult
to identify or quantify the harm
where the subject
is a major body of water.
No better example
exists than that of the mighty Mississippi, which serves as the
drinking water supply,
recreational resource and vital
transportation link for millions of Americans.
We also believe
that the comments of
the Board almost
20
years ago
in an opinion drafted by Mr. Currie are
as relevant
today as
they were then.
“...it
would
be
folly
to
set
effluent
standards
at
such
a
level
as
to
permit
existing
pollution
sources
in
every
case
to
degrade
the
water
to
the
level
set
by
the
standard.
To
do
so
would transform standards
designed
to
protect
the
environment
into
licenses to degrade.
It would ignore
the fact
that
a
water
quality
standard prescribes
not
the
ideal condition of
the environment,
but an
outer
limit
of
dirtiness
that
should
be
avoided
if
it
reasonably
can
be.
It
would
109—612
—15—
commit
us
to
the
philosophy
of
allowing
the
environment
to be as dirty as we can bear
it,
when our correct philosophy
should be
to make
the
environment
as
clean
as
we
reasonably
can.
Finally,
to allocate
to
existing
users
the
entire
waste—diluting
capacity
of
the
environment
would
leave
no
room
for
new
industry, encourage inefficient practices,
and
either
discriminate
against
new
entrants
or
require
a
re—examination
and
tightening
of
effluent limit whenever a new facility was
contemplated.”
(R70—5,
Opinion,
p.
4
adopted
March 31,
1971.
Also see PCB 88—47,
p.
8).
We are also unpersuaded by Rock Island’s final argument
regarding economic reasonableness,
based on the “compliance
hardship”.
First, we reject
the rationale underlying Rock
Island’s comparison of the costs,
in dollars per pound per day,
of solids removal for Rock Island as opposed
to other
communities.
Such an approach
is fundamentally at odds with a
technology—based standard
(it
is always harder
for
some persons
to comply with a law or rule than it
is
for other persons).
Moreover,
such an approach leads us down the slippery slope of
attempting
to divine the maximum “right” price of compliance with
standards.
Second,
we believe that a temporary 24
rate hike amounting
to approximately $3.50 per month per customer does not constitute
an unreasonable economic burden of compliance.
In a related
vein, we find unpersuasive Rock Island’s assertions that this 25
increase would drive industrial users away.
While we are
sympathetic
to the present economic plight of Rock Island and its
residents, we cannot ignore the fact that Rock Island has chosen
to put off full compliance with the clear requirements of the law
for at least
12 years.
It has,
unlike some of
its neighbors,
made some effort
to control its sludge problem.
Nevertheless,
it
has consistently avoided making the hard choices
necessary to
gain control of the situation;
the Board views
the obviously
futile act of installing undersized
round sludge scrapers in
rectangular settling basins as illustrative.
Meanwhile,
according
to its own testimony
(and,
by implication, according
to
the testimony
of several witnesses),
for much of
the time that
it
deferred effective action
it was experiencing an economic boom
(Tr.
20;
22;
86—87).
Taken together, we cannot conclude that the
economic forces acting upon Rock Island entitle
it
to permanent
relief as requested,
or distinguish
it
in any way from many other
industrial communities.
In like manner, we do not believe that Rock Island’s list of
competing public works projects under contemplation render
compliance with the general effluent standards of
35
Ill. Mm.
Code 304.106 and
304.124(a) economically unreasonable.
We note
that many of these projects are normal maintenance items with
109—613
—16—
which water
suppliers must generally cope;
in any event,
we will
not take
it upon ourselves
to reorder
or second—guess
the City’s
priorities.
As we noted
in the East Moline case, competing uses
for public funds
could be assembled by any community in Illinois;
this hardly distinguishes Rock Island.
Perhaps the most compelling case presented by Rock Island
and members of the community
is with regards
to the so-called
“Reservoir Park”.
Clearly,
the loss of the entire “park” would
deal
a blow to
the community.
However, we do not believe
that
Rock
Island has demonstrated that it will have to use up all
of
the available land,
as opposed to a small fraction,
thus making
both needs compatible;
at hearing, Rock Island suggested its
earlier estimate was perhaps overly—optimistic,
indicating that
virtually all of
the. “park” would be taken.
It would appear that
the costs
of some of
the alternatives considered by Rock Island
are capable of some interpretation,
and may be dependent on a
range of
assumptions.
Equally important, as a matter
of policy,
we
cannot weigh the relative value of
this “park” against the
value of compliance
with environmental directives,
particularly
where the land at issue already belongs
to the public water
supply.
The “park” land in question has for almost a century
been dedicated
to
possible use for the needs
of the water
treatment plant;
the potential for precisely the type of problem
before
the city today has existed for all that time.
We must
properly leave
to the City and its Park Department the role of
remedying the problem.
ORDER
For the reasons discussed above,
the Board declines
to
continue
further with this proposed rulemaking.
The petition of
the City of Rock Island
is denied and this Docket
is closed.
IT
IS SO ORDERED.
I,
Dorothy M.
Gunn, clerk
of the Illinois Pollution Control
Board,
hereby certify that
the ab9ve Opinion and Order was
adopted on the
~~‘~‘
day of
~
1990 by a vote
of
7-(~
/~-
/
/
~
..
/
~2.
Dorothy M.
Gu’nn, Clerk
Illinois Pollution Control Board
109—614
