ILLINOIS POLLUTION CONTROL BOARD

October 5, 1995

THE GALESBURG SANITARY    

)

DISTRICT,

)

Petitioner,

)

PCB 96—46

)

(Variance-Water)

)

ILLINOIS ENVIRONMENTAL    

)

PROTECTION AGENCY,      

)

Respondent.

ORDER OF THE BOARD (by J. Yi):

On August 23, 1995 the Galesburg Sanitary District (District)

filed a petition for variance for its wastewater treatment plant

located at 2700 W. Main Street, Galesburg, Knox County Illinois.

The District is requesting relief from the requirements of 35

Ill. Adm. Code 304.207(b) (1) as this section applies to the

District’s deoxygenating waste discharges. The District filed

the petition pursuant to Section 35 of the Environmental

Protection Act (Act). (415 ILCS 5/35 (1994).) Alternatively,

the District requests the Board to enter a order which dismisses

“...the petition on the basis that the relief requested is

unnecessary in that it reflects the Board’s intent as to how that

rule (35 Ill. Adm. Code 304.207(b) (1)) is to be interpreted.”

(Pet. at 1.)’ Essentially the District is requesting the Board

to interpret its own rule, and if necessary, based on this

interpretation, seeks variance reller.

The Illinois Environmental Protection Agency (Agency) filed

a motion to dismiss the petition as being inadequate and

insufficient on September 7, 1995. Additionally, the Agency

argues that the Board does not have the authority to grant the

relief requested by the District in the context of a variance

petition. The Agency also filed a motion for extension of time

to file its recommendation should the Board not dismiss the

District’s petition.

In response to the Agency’s motion to dismiss the District

states “~the District does not desire to obtain a variance and

if it does obtain a variance, that would imply that the District

‘The petition for variance will be referenced as “Pet. at 

“,

the Illinois Environmental Protection Agency’s motion to dismiss

will be referred to as “Mot. at 

“,

and the District’s response to

the motion to dismiss will referenced as “Resp. at 

“.

would have been in noncompliance with its site-specific rule

since 1984.” (Resp. at 1-2.) The District argues that it seeks

the dismissal of the variance on the same basis as in Safety—

Kleen v. Illinois Environmental Protection Agency, (February 7,

19g0), PCB 50—12.

(Resp. at 2.)

BACKGROUND

On April 19, 

1984 the Board adopted as a final rule Section

304 .207 (b) (1). (In the Matter of the Petition of the Galesburg

Sanitary District to Amend Regulations, R 80-16, (April 19,

1984).) Section 304.307 states in pertinent part:

Section 304.207  

Galesburg Sanitary District

Deoxygenating Wastes Discharges

a)  The deoxygenating wastes general effluent standards of

Section 304.120(c) shall not apply to the Galesburg

Sanitary District discharges into Cedar Creek. Such

discharges must meet the deoxygenating wastes general

effluent standards set below:

** *

b)  The above standard shall apply so long as the Galesburg

Sanitary District achieves:

1)  by November 1, 1984, compliance with 35 Ill. Adin.

Code 302.206 throughout Cedar Creek downstream of

the treatment plant outfall, by effluent aeration,

in-stream aeration, or other means,

The Board stated in its opinion concerning the deoxygenating

wastes and the dissolved oxygen requirement the following:

Section 304.207(b) (1) requires that the District assure

compliance with the downstream dissolved oxygen limitations

by November 1, 1984, in order to qualify for relaxed

biochemical (sic) oxygen demand (BOD) and suspended solids

(SS~ limitations. It does not exempt the District from the

dissolved oxygen limitations of Section 302.206 with regard

to any reach of Cedar Creek.

Rather, the rule is based upon the recognition that upstream

dissolved oxygen violations may result from factors over

which the district has no control. If, however, dissolved

oxygen violations can be found to result from the District

(sic) activities, it is subject to enforcement. (In the

Matter of Galesburg at 8-9.)

3

In explanation of the instant variance petition, the

District states that “ijn the spring of 1994, however, the

Agency raised the issue of whether the District continued to be

entitled to the relief provided by Section 304.207 due to

continuing exceedances of the dissolved oxygen standard in Cedar

Creek.” (Pet. at 2.) Additionally, the District states that it

responded to the Agency’s position by sending information to the

Agency which explained that the Board’s intention is that Section

304.207(b)(l) 

“...

should be read in light or Section 304.105

which requires that a discharges not cause or contribute to water

quality violations.” (Pet. at 2.) The Agency sent a Pre-

Enforcement Conference Letter (PECL)

to the District dated June

14, 1995.

(Pet. at 

2, Pet. Attachment C.)

The PECL set forth the

statutory and regulatory requirements

and stated

the following:

On April 19, 1984, the Pollution Control Board issued its

Order adopting an adjusted standard tor the Galesburg

Sanitary District discharges, but stated that the relaxed

standards applied so long as the Galesburg Sanitary District

achieved compliance by November 1, 1904 with 35 Ill. Adrn.

Code 302.206 throughout Cedar Creek downstream of

the

treatment plant outfall, by effluent aeration, in—stream

aeration or other means and also complied with other

listed

conditions.

The Board further stated that

if any of these

conditions were not met, the deoxygenating wastes (“D.O.”)

general effluent standards of Section 304.120(c) “shall

apply”(Pet.

Attachmentto

the GalesburgC

at 3)Sanitary

District 

into Cedar Creek.2

Based on the PECL and the District’s

failed attempt to

persuade the

Agency to refrain from enforcement, the District

filed this petition to either, a) receive a variance from Section

304.207 (b) (1) or the water quality requirements of Section

302.206 as they apply to Cedar

Creek; or b) a determination from

the Board that the Board intended that the District’s discharges

themselves can not violate Section 302.206 when we adopted

Section

304.207(b) (1).

STATUTORY FRAMEWORK

In determining whether any variance is to be granted, the

Act

requires the Board

to determine whether a petitioner has

presented adequate proof that immediate compliance with

the Board

regulation at issue would pose an arbitrary or unreasonable

2The Board notes that the Agency designates deoxygenating

waste as “D.O.” in the PECL but then proceeds to list sample

results for dissolved oxygen using the “D.O.” as its designation.

hardship. (415 ILCS 5/35 (a) (1994).) Furthermore, the burden is

on petitioner to show that its claimed hardship outweighs the

public interest in attaining immediate compliance with

regulations designed to protect the public. (Willowbrook Motel

Pollution Control Board (1st Dist. 1977), 135 Ill.App.3d 343,

481 N.E.2d 1032). Only with such a showing can the claimed

hardship rise to the level of arbitrary or unreasonable hardship.

(We Shred It, Inc. v. Illinois Environmental Protection Agency,

(November 18, 1993) PCB 92—180 at 3.)

A further feature of a variance is that it is, by its

nature, a temporary reprieve from compliance with the ~

regulations, and compliance is to be sought regardless of the

hardship which the task of eventual compliance presents an

individual polluter. (Monsanto Co. 

Pollution Control Board,

67 Ill.2d 276, 367 N.E. 2d 684, (1977).) Accordingly, except in

certain special circumstances, a variance petitioner is required

as a condition to the grant of a variance, to commit to a plan

which is reasonably calculated to achieve compliance within the

term of the variance.

DISCUSSION

Jurisdiction

The District is requesting variance relief from a site—

specific rule or in the alternative a determination by the Board

that the requested variance relief is unnecessary. As the

District has noted, the Board has found in prior cases before the

Board that a petitioner was in compliance with the regulation

from which it requested variance relief and consequently

dismissed the variance petition as unnecessary. (See Safety—

Kleen.) However, the Board has also found that a variance

petition is not an appropriate proceeding for a determination as

to whether a certain material was an acceptable alternative for

landfill cover. (See 

Lo~ieStar v. Illinois Environmental

Protection Agency, (May 20, 1993), PCB 92-134.) Moreover, the

Board made a preliminary determination as to the applicability of

the regulations in an adjusted standard proceeding. (See In the

matter of Petition of Illinois Wood Energy Partners, L.P. for an

Adlusted Standard from 35 Ill. Adm. Code 807 

or~in

the

alternative, a Finding of Inapplicability, (December 1, 1994), AS

94-1.) In doing so the Board reasoned that its jurisdiction in

making such a determination is the result 

of the

petitioner

seeking relief from a requirement which would result in violation

if such relief was not granted. 

at 2.) Finally in ~

Specialty Resins Corporation v. Illinois Environmental Protection

Agency, (April 20, 1995), PCB 95-98, the Board concluded that the

variance proceeding was specifically envisioned by the drafters

of the Environmental Protection Act as an appropriate means of

deciding whether a determination of the Agency was correct in the

5

first instance, or in the alternative, granting a limited time to

achieve full compliance with the regulation, and that this method

of review has been in accepted use for sometime. 

at i.)~

In this case, in order for the Board to grant variance

relief, the Board must determine whether a petitioner has

presented adequate proof that immediate compliance with the Board

regulation at issue would pose an arbitrary or unreasonable

hardship, If the consequence or the Board’s interpretation or

the rule is that the District is in compliance with the

regulation, variance relief need not be granted as it would be

unnecessary. For these reasons, the Board finds that it has the

jurisdiction to make a determination as to whether a petitioner

is in compliance with the regulation from which petitioner is

seeking variance prior to ruling on the requested relief. Since

the Board has the jurisdiction in this variance proceeding to

make a preliminary determination with respect to Section

304.207(b) (1) we will also consider the sufficiency of the

petition for these purposes and the Agency’s motion to dismiss.

Sufficiency of Variance Petition

Section 104.121 states “to enable the Board to rule on the

petition for variance the following information, where

applicable, shall be included in the petition.” The following is

a discussion of the petition’s deficiencies as alleged by the

Agency.

Section 104. 121 (a~

A clear and complete statement of the precise 

extent 

of

the

relief sought, including 5pecific identification of

the particular provisions of the regulations or Board

Order from which the variance is sought.

The District requests that we modify the language of Section

304.207(b) (1) to read:

b)  The above standard shall apply so long as the Galesburg

Sanitary District achieves:

1)  by November 1, 1984, compliance with Section

304.105 with respect to 35 Ill. Adm. Code 302.206

throughout Cedar Creek downstream of the treatment

plant outfall, by effluent aeration, in—stream

aeration, or other means,

We do not believe that, in this proposed modification, the

3(See also Container Corporation of America v. Illinois

Environmental Protection Agency, (June 2, 1988), PCB 87-183)

District has requested any effective relief from a Board

regulation or order.

The District is requesting that 35 Ill. Adiu. Code 304.105 be

reflected in the language of Section 304.207(b) (1) with respect

to Section 302.206. Section 304.105 would apply to the

District’s discharge whether or not it is included in Section

304.207(b) (1). The Board, when adopting the District site-

specific rulemaking, did not specifically exempt the District

from Section 304.105. Section 304.105 provides:

In addition to other requirements of this Part, no effluent

shall, alone or in combination with other sources, cause a

violation of any applicable water quality standard. When

the Agency finds that a discharge would comply with effluent

standard contained in this Part would cause or is causing a

violation of water quality standards, the Agency shall take

appropriate action under Section 31 or Section 39 of the Act

to require the discharger to meet whatever effluent limits

are necessary to ensure compliance with the water quality

standards. When such a violation is caused by the

cumulative effect of more than one source, several sources

may be joined in an enforcement or variance proceeding, and

measures for necessary effluent reductions will be

determined on the basis of technical feasibility, economic

reasonableness and fairness to all dischargers.

The effect of inclusion of a reference to Section 304.105 in

Section 304.207(b) (1), then, is identical to that of leaving the

reference out.

In addition, the District is requesting the Board to modify

the language of a regulation through the variance process instead

of requesting a variance from the requirements of the regulation.

The variance provisions of the Act do not give the Board the

authority to modify regulatory language. Section 35 of the Act

allows the Board to give individuals variances from the

requirements of a rule or regulation or Board order upon adequate

demonstration of proof that compliance with any rule or

regulation or order of the Board would impose an arbitrary or

unreasonable hardship. Modification of a regulation must be

accomplished via a rulemaking pursuant to Section 27 of the Act.

In summary, the Board finds that the District has failed to

give a clear and complete statement 

the precise extent of the

relief sought, including specific identification of the

particular provisions of the regulations or Board order from

which the variance is sought.

Section 104.121(e)

Data describing the nature and extent of the present

7

failure to meet the numerical standards or particular

provisions from which the variance is sought and a

factual statement of why compliance with the Act and

regulations was not or cannot be achieved by the

required compliance date;

The District states that “...since it has been adding more

oxygen to Cedar Creek than the incremental oxygen demand it adds

to the creek (slc) by discharging BOD above the generally

applicable levels, it has complied with Section 304.207(b) (1)

such that relief afforded by Section 304.207 continues to apply.”

(Pet. at 7.) Therefore

the District believes it is complying

with Section 304.207(b) (1). However, the District also states

that if the Agency is correct, in that it has not met the

requirements of Section 302.206 and therefore is not in

compliance as required by Section 304.307(b) (1), it “...cannot

meet the applicable standards with its present plant, as the

discharge data presented demonstrates.” (Pet. at 7.) The Agency

argues that since the District believes that it is in compliance,

the District has failed to provide information describing the

nature and extent of its present failure to meet the

requirements.

(Mot. at 4..)

The Board finds that, at this point in this proceeding the

District has met the informational requirements of Section

104.121(e).

The District has supplied the information necessary

to describe the nature and extent of the present failure to meet

the numerical standards of a particular provisions if the Board

were to determine that the District has failed to meet the

requirements of Section 304. 307(b) (1).

Section 104.121(f)

A detailed description of the existing and proposed

equipment or proposed method of control to he

undertaken to achieve full compliance with the Act and

regulations, including a time schedule for 

the

implementation of all phases of the control program

from initiation of design to program completion and 

the

estimated costs involved for each phase and the total

cost to achieve compliance;

The District asserts that it is uncertain of its compliance

plan for several reasons, including whether they are actually in

violation, whether the relief being requested in AS 94-20, In the

Matter of: The Galesbura Sanitary District Petition for an

Adjusted Standard from 35 Ill. Adm. Code 304.105 is granted, and

what effects closure of other facilities discharging to the creek

and to the plant will have to the water quality on the creek and

its discharge. (Pet. at 8-9.)

The District offers a compliance plan which concludes with

8

it either building the necessary treatment facilities as required

based on further studies or seeking adjusted standard relief.

(Pet. at 9-10.) However, the plan does not contain specific

information and only estimates the costs for installation of the

digester supernatant treatment and partial nitrification. (Pet.

at 9-10.) The Agency argues that since the plan fails to have

specific information the variance petition is deficient. (Mot.

at 5—6.)

The Board finds that, in this case and at this point in the

proceeding, the District’s variance petition is sufficient

concerning the requirements of Section 

104.121(f). 

Although the

District has not given many specifics, the Board has granted

variances for studies to be conducted to determine the necessary

compliance plan with a commitment by petitioner’s to the eventual

implementation of such plan. (See Mobil Oil Corp. v. Illinois

Environmental Protection Agency, (March 3, 1994), PCB 93—151.)

Additionally the Board has accepted as part of a compliance plan

the petitioner seeking adjusted standard relief In very unique

situations such as where petitioner has exhausted compliance

options, petitioner is actively pursuing permanent relief, the

term 

of

variance is for the limited time ncceo~ary

to

resolve the

matter of permanent relief, and hardship of immediate compliance

clearly outweighs impact of grant of the variance. (See 

Akzo

chemicals. Inc. v. Illinois Environmental Protection Agency, (May

5, 1994), PCB 94—76.)

Sectioii. 104. 121(g)

An assessment, with supporting factual information, of

the environmental impact 

that 

the variance will impose

on human, plant, and animal life in thc czffcctcd arc~,

including, where applicable, data describing the

existing air and water quality which the discharge may

~ f

fec

The District asserts that the 

“. .

.requested relief will have

no adverse impact upon the environment in that the District is

not seeking any relief from the dissolved oxygen standard in

Cedar Creek which is the water quality characteristic of concern

in this matter.” (Pet. at 10.) The District also states that,

if it is not in compliance and is required to achieve the

generally applicable standards concerning BOD5 and suspended

solids, it would no longer be required to operate the aerators

which 

would 

actually increase both in 

~~magnitl1de and frequeney~I

the violation of Section 302.206. (Pet. at 10.) The Agency

argues that the District’s petition fails to provide an

evaluation of the impact of the requested relief. (Mot. at 7.)

The Agency argues that the requested relief adds 

“. .

.an

additional hoop the Agency would have to jump through to pursue

enforcement” and that “~a)lthough it may be hard to quantify,

contrary to Galesburg’s statement, the Agency believes that such

9

requested relief would have an adverse environmental impact.”

(Mot. at 7.)

At this point of the proceeding, the Board finds that the

impact information is sufficient to meet the requirements of

Section 104.121(g) considering the unique posture of this case.

The District states that if the variance is granted the “status

quo would be maintained.” (Pet. at 10.) The District states it

is not requesting variance relief in order to discharge anything

other than what it is already discharging.

Section 104.121(h)

Past efforts to achieve compliance including costs

incurred, results achieved, permit status, and, for

publicly-owned treatment works or connections thereto,

construction grant status;

The District claims it has been In compliance with Section

304.207 (b) (1) and has made no efforts beyond the installation of

the aerators and injecting more oxygen than is required by

Section 304 

•

207(b) (1). (Pet. at 11.) The Agency argues that the

petition is insufficient because it does not provide any

information as to compliance efforts.

The Board finds that the District’s petition has met the

requirements of Section 104.121(h). The District has been

operating under the assumption that it was only required to meet

the standards of Section 302.206 as far as its discharge not

contributing to a violation of the water quality standard for

dissolved oxygen in Cedar Creek. The District states its past

effort was to inject dissolved oxygen into the creek so that the

standards of Section 302.206 are achieved in relation to its

discharge. Since the District believed that by injecting

dissolved oxygen it was in compliance, those were its compliance

efforts and there is no other applicable information.

Section 104.121(i)

A discussion of the availability of alternate methods

of compliance, the extent that such methods were

studied, and the comparative factors leading to the

selection of the control program proposed to achieve

compliance;

As stated previously concerning the requirements of Sect.i.on

104.121(g), the District states that it has not investigated

alternative compliance methods since it believed it was in

compliance and that it is unreasonable to require any further

investigation until the impacts of the closure of Gunther

Products, a company which discharges to the District, and the

Board’s decision in AS 94-20 is known. The Agency argues that

10

the compliance methods have not been investigated and therefore

the petition is deficient. (Not. at 8.)

The Board finds that, at this point in the proceeding, the

District has met the applicable informational requirements of

Section 104.121(i). In this case the District has supplied the

information that is applicable at this time.

Section 104.121(1)

A statement of the measures to be undertaken during the

period of 

the

variance to minimize the impact of the

discharge of contaminants on human, plant, and animal

life in the affected area, including the numerical

interim discharge limitations which can be achieved

during the period of the variance;

The District states that there is little it can do to

minimize the environmental impact during the variance term as a

result of its National Pollution Discharge Elimination System

(NPDES) permit limiting the amount of dissolved oxygen levels it

can inject into Cedar Creek at 150 saturation. (Pet. at 11.)

The Agency states that the District’s statements are in direct

conflict with the earlier statement that there is no impact and

asserts that the information made by the District provided is

inadequate to meet the requirements.

The Board finds the information is adequate concerning the

petition for variance. The variance is not requesting the

ability to discharge anything additional to the creek during the

variance, thus the impact of the discharge during the variance

will be the same as it is without the variance. Furthermore,

since there is a question of the interpretation of Section

304.207(b) (1) as it relates to Section 302.206, the District has

provided the applicable information at this time.

Section 104. 122 (b)

All petitions for variances from Title III of the Act; from

35 Ill. Adm. Code, Subtitle C, Ch I; or from water pollution

related requirements of any other title of the Act or

chapter of the Board’s Regulations shall indicate whether

the Board may grant relief consistent with the Clean Water

Act

(33 U.S.C. 1251,), 

U.S.E.P.A.

effluent guidelines and

standards, any other Federal regulations, or any areawide

waste treatment management plan approved by the

Administrator of U.S.E.P.A. pursuant to Section 208 of the

Clean Water Act.

The District states that the relief requested is consistent

with federal law and the Board’s intent of Section 304.207(b) (1).

(Pet. at 12.) The District in its response to the Agency’s

motion states that the federal law has not changed in 15 years

which could render the relief sought inconsistent with federal

law. (Resp. at 1.) The Agency argues that the District has not

provided enough information for the Board to determine whether

the relief requested is consistent with federal law.

The Board finds that the District has provided adequate

information to indicate that the relief can be granted consistent

with federal law.

CONCLUSION

Usually, when the Board has found the variance petition to

be deficient, we would require the petitioner to amend its

petition prior to proceeding with the matter. However, due to

the unique posture of this matter we will not direct the District

at this time to amend its petition. we will instead proceed to

make a determination as to the interpretation of 35 Ill. Adin.

Code 304 

•

207(b) (1). If necessary, the District may amend its

variance petition correcting the deficiencies and to provide

additional information as it deems appropriate.4 Although

arguably there exists no variance action before us at this time

due to the insufficiency of the requested relief, due to the

unique posture of this matter we will proceed with the

determination concerning Section 304.207. Furthermore, our

finding on the sufficiency of the petition at this time, except

for the relief requested, does not mean we are finding that the

information submitted is sufficient to justify grant of variance.

For the reasons stated above we deny the Agency’s motion to

dismiss.

As to the Board’s determination of the interpretation of

Section 304 ..207 (b) (1), the Board will allow the Agency twenty-one

(21) days from the date of service of this order to respond to

the District’s assertions as to the interpretation of Section

304.207 (b) (1). After the Agency files its response, or that time

expires, within seven (7) days the District may file a response.

The Board will then determine the interpretation of Section

304.207(b)(1). Then if the District desires to proceed with the

variance it may do so by filing an amended petition. If the

District does not file an amended petition we will dismiss the

case and close this docket. Since the Board will be directing

the District to file an amended petition, if this matter

proceeds, the Agency will be able to file its recommendation 30

days after the filing of the amended petition, making its motion

for an extension of time to file its recommendation moot.

4The filing of an amended petition will restart the Board’s

decision timeclock in this matter.

12

IT IS SO ORDERED.

I, Dorothy M. ,Gunn, Clerk of the Illinois Pollution Control

Board, hereby cer~~~.batthe above order was adopted on the

day of _____________________, 1995, by a vote of 7c~

Dorothy M.,4unn, Clerk

Illinois ~71lution Control Board