ILLINOIS

POLLUTION

CONTROL

BOARD

May

5,

1983

VILLAGE

OF

ELIZABETH,

Petitioner,

V.

)

PCB

83—20

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

Respondent.

OPINION

2~ND

ORDER

OF

THE

BOARD

(by

D.

Anderson):

This matter comes before the Board upon

a petition for

variance

filed February 17,

1983 by the Village of Elizabeth.

The petition requested a variance from fecal coliform moni-

taring requirements of the NPDES permit for the Village’s

wastewater treatment plant.

On March 16,

1983 the Illinois

Environmental Protection Agency

(Agency)

recommended that the

variance be denied.

No hearing was held

and

the Board has

received no public comment.

The Village, which has a population of 772, operates

a

wastewater treatment plant in Jo Daviess County.

Pursuant

to NPDES Permit No.

IL0022373,

the plant discharges 91,000

gallons per day to the Apple River,

a direct tributary of the

Mississippi River.

From 1976 through September 24,

1982, the NPDES permit

contained a condition requiring that residual chlorine be

maintained between 0.2 and 0.75 mg/l in the effluent; the

current permit limits fecal coliform to 400 counts per 100 ml,

The old permit required monitoring by residual chlorine; the

new requires monitoring of fecal coliform by actual count.

The new permit condition was based on the 400 count/lOO ml

fecal coliform standard of 35 Ill. Adm. Code

304.121, which

has been repealed by the Board (R77-12D,

6

Ill.

Reg.

13,750,

effective October 26,

1982)

.

The repeal of Section 304.121

was stayed by the Appellate Court.

The Agency imposes monitoring conditions pursuant to

35 Ill. Adm. Code 309.146.

Compliance with such conditions

is

required by 35 Ill.

Adm. Code 305.105(b).

The petition identifies no Board rule from which a vari-

ance is requested.

The Agency recommends that the petition be

construed as

a request for a variance from Section 305.1U2(b),

and as such be denied.

52-145

---

—2—

The Board will not construe the petition as

a request for

a variance from Section 305.102(b).

To do so would invite

back door requests for variances from permit conditions con-

trary to

the

intent of Section 35(a)

of the Environmental

Protection Act

(Act).

To be effective,

a variance

from the

requirement to comply with monitoring conditions would have

to address Section 12(f)

of the Act and the Clean Water Act.

The correct procedure is to request a variance from any under-

lying Board rule requiring the condition.

Permit modification

can

be ordered pursuant to Section 309.184.

The Village would

have the opportunity to show that,

as

a matter of fact, residual

chlorine levels correlate with fecal coliform levels

so that

residual chlorine

is representative of fecal coliform levels.

Such a showing should be made by way of a request for a permit

modification.

Agency refusal to modify may be appealed to the

Board pursuant to 35 Iii.

Adm.

Code 105.

In that the Board is unaware of

any

regulation which

requires monitoring by fecal coliform count,

it will deny the

petition requesting relief which the Board cannot grant.

The Agency has advanced an argument that 40 CFR 122.11(b)

requires that all permits shall specify:

...(b)

Required monitoring including type, intervals,

and

frequency sufficient to yield data which are

representative of the monitored activity including,

when appropriate, continuous monitoring;

The Board questions whether

40 CFR 122.11(b)

applies to

NPDES permits issued by the Agency.

When adopted by the Board,

the

rules now found at 35 Ill.

Adin.

Code 309, Subpart A

wei~

drawn from the federal NPDES rules, which are now consolidated

in 40 CFR 122.

There is no corresponding requirement in 35

Ill.

Adm.

Code 309.146.

The Agency may wish to propose new

rules to track new federal NPDES procedures.

However, until

it does so,

the rules adopted by the Board and approved by USEPA

are the rules applicable to NPDES permit issuance

(40 CFR 123.13

and 123.15).

The petition is denied.

This Opinion constitutes the

Boardts findings of fact and conclusions of law in this matter.

ORDER

The petition is denied,

IT IS SO ORDERED.

52-146

---

—3—

I,

Christan

L.

Moffett,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby

certify

that

the

above

Opinion

and

Order

were

adopted

on

the

~

day

of

~‘i~

,

1983

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Illinois

Pollution

Control

Board