ILLINOIS POLLUTION CONTROL BOARD
February
5, 1987
IN THE MATTER OF:
)
JOINT PETITION OF THE METROPOLITAN
)
PCB 85-202
SANITARY DISTRICT OF GREATER CHICAGO
)
AND THE ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY FOR EXCEPTION
)
TO THE COMBINED SEWER OVERFLOW
)
REGULATIONS
MR. PAUL D. LINDAUER, JR. APPEARED ON BEHALF OF THE METROPOLITAN
SANITARY DISTRICT OF GREATER CHICAGO.
MS. H.E. HANSON APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by J.D. Dumelle):
This matter comes before the Board upon a December 16, 1985,
joint petition for exception to the combined sewer overflow
regulations filed by the Metropolitan Sanitary District of
Greater Chicago
(MSD)
and the Illinois Environmental Protection
Agency
(Agency).
The MSD and the Agency request an exception
pursuant to Subpart
D (Sections 306.350 et seq.)
from the
compliance date established for the treatment of combined sewer
overflows (CSOs~ by subsections
(b)
and
(c)
of Section
306.306(b).
They request that such dates
be moved out until
January 1, 1996.
On September
25,
1986,
the Board entered an
order requesting additional information.
The parties responded
to that request on November 6,
1986.
The MSD has been designated by the Agency as “the lead
agency for facility planning purposes relating to wastewater
collection and treatment needs
of the residents and municipal
governments within its service area.”
(Pet. at
1).
In that
capacity,
it seeks this relief not only for itself,
but also for
29 municipalities within its service area, all of which are
expected to achieve compliance by 1996 through completion of the
Tunnel and Reservoir Project
(TARP).
The TARP system “was
selected as the best and most cost—effective method of removing
CSOs from receiving waterways within the
MSD
District.”
(Pet.
at
2).
A grant application for TARP was first made in 1974, and
approval was received and construction commenced in 1975.
(Pet.
at 2).
At present 47 of
the 110 miles
of the TARP system are
complete,
3.5 miles are
in progress,
and 66
of all the CSOs
in
the service area have been intercepted.
(Pet,
at
3).
60 more
miles are to be constructed to eliminate the
remaining 167 CSOs
in the
29 municipalities.
(Pet, at
3).
MSD alleges that it has
75-182
—2—
“diligently and successfully pursued implementation”
of the
program and that
it intends “to continue implementing TARP,
segment by segment, as funding becomes available”
on either the
state or federal level.
(Pet,
at
3 and 4).
Because of the
“complexity and unpredictability of future economic conditions
and federal fiscal policy,” the MSD has agreed to “reevaluate
project status, funding prospects and projected completion
schedule
in 1990.”
(Pet. at 4).
The threshold question before the Board is whether the
requested relief
is necessary.
Pursuant to Section 306.306(d),
a
discharger
is not subject to the otherwise applicable compliance
dates under the following conditions:
1)
The discharger’s combined sewer overflow
is eligible
for a construction grant under Section 201(g)
of the
CWA; and,
2)
The discharger has filed an application for
a
construction grant on or before March
1,
1977; and,
3)
The discharger has timely taken all appropriate pre—
grant and post—grant actions necessary to the specific
grant step for which the discharger
is then eligible,
or
4)
The discharger has been granted an exception by the
Board pursuant to Subpart D, an exception procedure is
pending, or the Agency has not notified the discharger
pursuant to Section 306.352.
With respect to the MSD, each of these conditions has
clearly been met, and the Agency has taken the position that the
relevant municipalities are
in turn protected by the MSD’s
actions.
(Closing Comments at 5).
However,
the parties point
out that a literal reading of 306.306(d)(2) would render that
subsection inapplicable
to the municipalities in that the~ydid
not apply for
a construction grant;
rather they relied upon the
MSD’s umbrella application.
(Closing Comments at
5).
The Board does not, however,
read Section 306.306(d)
that
literally.
Pursuant to Ill.
Rev. Stat.,
1985,
ch.
42, par.
326
the MSD, as unit of local government, has the authority to
“provide
for the drainage” within its district.
Furthermore,
pursuant to Section
10 of Article VII
of the Illinois
constitution,
the MSD has the authority to
“contract or otherwise
associate”
with other units of local government.”
As Mr.
Nicholas Melas, President of the MSD, pointed out regarding the
TARP project,
the MSD has “taken the initiative and assumed the
responsibility for the solution to the CSO pollution of the
waterways by the extension and completion of TARP.
Thus, TARP
represents inter—governmental cooperation and action.”
(R.
75-183
—3—
14).
He went on to testify that the MSD and the Agency have
“presented a working program to complete TARP for the 29
municipalities who have joined
in this petition.
The mayors of
these cities have gone on record that,
on the local
level, the
CSO problem cannot be solved.”
(R.
15).
Furthermore,
at least
27 of the 29 local
units of government affected by this
proceeding have filed letters
in support of the petition.
While the record is not as clear on the MSD/municipality
relationship as could be hoped, the Board concludes that in
proceeding toward the completion of TARP,
the MSD has acted on
behalf of each of the affected municipalities,
and as such, the
municipalities are not subject to the compliance deadline of
Section 306.306.
Therefore no relief
is needed in that regard.
The Board does note,
however, that having
found such
a
relationship, the municipalities are linked
to the MSD
in such
a
manner that the MSD’s failure
to continue to take appropriate
construction grant action would result
in the municipalities loss
of the Section 306.306(d)
relief.
Of course, any failure by a
municipality to take necessary action
in furtherance of the
timely completion of TARP would result in the same loss.
MSD and the Agency state that relief
is “also necessary to
protect the
Metropolitan
Sanitary
District and municipalities
from federal enforcement.”
(Concluding comments at 5).
In
its
January
2, 1984,
“National Municipal Policy,” USEPA states that
the permitting authority must establish enforceable compliance
schedules
for any POTW that will not be
in full compliance by
July 1,
1988, and that “this proceeding will serve
to establish
such a schedule.”
(Concluding Comments at 6).
The MSD and the
Agency further state that “in administering
the policy throughout
Illinois the Agency has required that dischargers address excess
flow needs as
a component of
their individual Municipal
Compliance Plans
(MCPs).
In virtually every case where
a CSO
exception was an element of
the MCP and the proposed
implementation schedule extended beyond July
1,
1988,
the Agency
has required that the schedule be incorporated into the draft
order presented for Board consideration.”
(Response at 5).
The
MSD and the Agency conclude that “it is prudent for the Board
to
sanction the schedule proposed” and that “this position is fully
consistent with all
other CSO petitions in which
the Agency has
been a joint proponent.”
(Response at 5).
Pursuant
to subsections
(g)
and
(1)
of Section
4
of the
Illinois Environmental Protection Act,
the Agency is the
permitting authority
in the state and
is designated as water
pollution agency for purposes of the Clean Water Act.
As such,
the Agency,
not the Board,
is responsible for establishing
enforceable MCPs for facilities with implementation schedules
which extend beyond July
1, 1988.
The Board concludes that there
is no necessity for
it to put its
irnprirnatur on the Agency—
imposed MCP.
75-184
—4—
Having thus concluded that there
is no necessity for Board
action
in this matter, the Board next reaches the question of
whether
it
is “prudent”
to take some action.
While MSD and the
Agency argue that the granting of the requested relief is fully
consistent with other
CSO petitions,
they fail to recognize that
this petition
is unlike any other CSO petition which has been
filed.
In all other
cases the petitioners are seeking relief
from the substantive provisions of Section 306.305 treatment of
CSOs.
As such,
there
is no intent to fully comply with the
deadlines of Section 306.306, and
it
is appropriate for the Board
to establish some schedule for compliance with the exception
order.
Here, however, the MSD and the affected municipalities do
intend to fully comply with the substantive provisions of Section
306.305 and with the compliance deadlines as allowed pursuant to
Section 306.306(d), as discussed above.
If the Board were to
impose some other deadline for compliance,
it would be limiting
the rights that the MSD and the affected municipalities enjoy
under the existing rules.
The Board finds such action to be
inappropriate.
For the foregoing reasons,
the Board concludes that the
requested relief
is unnecessary and inappropriate and, therefore,
should be denied.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Joint Petition of
the Metropolitan Sanitary District and
the Illinois Environmental Protection Agency for Exception to
Combined Sewer Overflow Regulation filed on December
16,
1985 is
hereby denied as unnecessary.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Op~nionand Order was
adopted on the
_______________
day of-~z~-(~..~
,
1987 by a vote
of
___________.
/
~,.
~
Dorothy M. ~4inn,Clerk
Illinois Pollution Control Board
75- 185