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CITY OF ROCK ISLAND,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

Ms. Dorothy M. Gunn

Illinois PoIluHon Control Board

J 00 West Kandolph Street

Suite 11-500

Chicago, Illinois 6060 I

John

C. Knittle, Esq.

Iliinoif, Pollution Control Board

100 W. Randolph Street

Suite

11-500

Chicago, IL 60601

)

MAY - B 2000

)

STATE OF ILLINOIS

PCB 00-73

pollution Control Board

NPDES Permit Appeal

NOTICE OF FILING

Richard C. Warrington, Esq.

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois ""2794-9276

PLEASE TAKE NOTICE that on

M('~lday,

May 8, 2000, we filed the attached Post

Hearing Brief of City of Rock Island with the Clerk of the Pollution Control Board, a copy of

which is herewith served UpOll you.

Roy

Harsch

Roberta

M. Saielli

GARDNER, CARTON

DOUGLAS

321 N. Clark Street

Suite

3400

Chicago, Illinois 6061 Ow4795

THIS FILING IS SUBMITTED ON RECYCLED PAPER

ECEIVEO

Ii.

CLE.RK'S OFfiCE.

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 0ijl\'{ -

8 2000

IN THE MA TIER OF:

CITY OF ROCK ISLAND,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

THE STATE OF ILLINOIS

ILUNOIS

STATE OF

Board

)

pollution control

PCB 00- \)73

(NPDES Permit Appeal)

POST HEARING BRIEF OF CITY OF ROCK ISLAND

Petitioner City of Rock Island ("Rock Island"), by its attorneys Gardner, Carton

Douglas,. hereby files its Post Hearing Brief.

INTRODUCTION

On March 24, 1998, Rock Island applied to the Illinois Environmental Protection Agency

("IEP A") for reissuance of its existing NPDES penuit to discharge from its Main Sewage

Treatment Plant ("Plant") to the Mississippi River, Sylvan Slough and Blackhawk Creek. After

IEP A prepared a proposed NPDES permit, Rock Islnnd submitted written comments and

objections.

IEPA responded by issuing a final permit on September 14, 1 S99 with revisions to

address the concerns of Rock Island (the "Permit"). (See Pet. Exh. 12, Exh.

A).

However, lEPA

declined to make certain changes requested by Rock Island, and made other changes in response

to comments by the United States Environmental Protection Agency

("V.S.

EPA"). Rock Is.and

filed

an appeal of the Permit, and a hearing was held on March 22, 2000 in Rock Island, Illinois,

THIS FILING IS BEING SUBMITTED ON m:CYCLED PAPER.

at which Rock Island presented evidence in the fonn of testimony and entered into certain

stipUlations with the State

of Illinois regarding certain facts.

Rock

IsI&nd also filed a Petition for a Variance, which addresses certain issues that are

pertinent to the appeal of the Pennit. A hearing was held on March 22,2000, in conjunction

with the hearing on

this Permit Appeal. The testimony and exhibits in the Variance proceedings

were incorporated

reference into the record of this case pursuant to agreement of the parties.

(Tr.

3122/00,

PCB 00-073, p. 7).

Rock Island appealed two uncorrected legal/f8ctual errors in the Permit, and also

appealed the new chlorine residual limitation

for two new outfalls. By stipulation, the parties

agreed to remand the issue

of the chlorine residual limitation for basin discharges 011 and 012 to

the Illinois Environmental

Protection Agency ("IEPA''). (Tr.

3/22/00,

PCB 00-073, p. 8).

Pursuant to the stipulation, lEPA is to include a c!110cine residual limitation of 1.0 mg/L, subject

to the

IEP A's ability to lower that number

it is

de~eh"J.ined,

aITer use, that Rock Island can meet

the fecal coliform limitation

in the Permit and still maintain the luwer chlorine residual. (Tr.

3/22/00,

PCB 00-073, p. 8). Rock Islr.ad requests lhat the Illinois Pollution Control Board

("Board") order that this issue be remanded to IEPA in accordance with the stipulation.

The two factuaillegal errors that were not corrected

by IEP A in the Permit pertain to the

designation

of the Plant as a 16 million gallon per day ("MGD") plant, and the designation of

Outfall 007 as a sanitary sewer outfall. IEPA stipulated that because of differences in language

between the

Permit and letters from U.S. EPA and IEPA to the City that discuss it, there is a

possibility

of confusion as to whether the designation of the Plant as a 16 MGD plant for

Because=the hearings for both PCB 00-073 and PCB 98-164 were held on the same date,

th~

transcript

for PCB 00-073 shall be referred to herein as "Tr.

3/22/00,

PCB 0.0-073, p. _" and the transcript for PCB

98- I 64 shall be referred to herein

Tr.

3/22/00,

PCB 98-164, p. _".

purposes of requiring that

tr~atment

capacity to be met ocfv.e use of the c(-'mbined sewer

overflow

("CSO") bypass through Outfall OOIA would be allowed. (Tr.

3/22/00,

PCB 00-073,

pp. 22-23). IEPA stipulated that one reading of the requirement would be that the City must

physically treat 16 million gallons

of wastewater on any day that it has a bypass.

(Tr.3/22/00,

PCB 00-073, pp. 22-23). IEPA stipulated that the language in the Permit also could be read to

require that the City provide a treatment

of a flow rate of 16 MGD before it would be allowed to

use the bypass. (Tr.

3/22/00,

PCB 00-073, p. 24). Rock Island maintains that th.e draft NPDES

permit, prior to revision in response to U.S. EPA comments, recognized that issue because it

required the City to treat the

'TIaximum flow practicable prior to using the CSO bypass rather

than referring to the 16

MOD designation. Rock Island requests that the Board remand this issue

IEPA to revise the Permit in accordance with the stipulations at the hearing.

As Rock Island demonstrated through the testimony and exhibits at hearing, these errors

must be corrected to

reflect the true situation.

II.

ARGUMENT

The Plant Capacity Issue

The Plant was designed in the late 19601} pursuant to then-existing design criteria of the

Illinois Sanitary Water Board, which required only that the Plant meet narrative requirements for

secondary treatment and that design

of secondary clarifiers be based on design average flow rate.

Cfr.

3/22/00,

PCB 98-164, pp. 67-68). The Plant, at that time, could meet those requirements as

designed with an 8 MGD design average flow rate. Based on state policy

of multiplying the

design average flow rate by 2 or 2.5, the

Plant was rated at that time as a 16 MGD design

maximum flow rate plant. (Tr.

3/22/00,

PCB 98-164, p. 71). At that time, because there were no

numeric limitations in state regulations for biochemical oxygen demand

("BOD") or total

suspended solids ("TSS"), even ifbiosolids would wash out of the Plant at a flow of 16 MOD,

the Plant could meet its permitted limitations.

(Tr.

3/22/00,

PCB 98-164, p. 68).

Subsequent

to the design of the Plant, numerical limitations for BOD and TSS were

promulgated by the Board and limits

of20 mglL BOD and 25 mg/L TSS were placed in the

Plant's original operational permit. Because treatment

for BOD and TSS relies upon the

presence

of biosolids in the treatment plant, the Plant was no longer

c~pable

of caking 16 MOD

thr0ugh

the Plant, while still meeting its permit limitations for BOD and TSS, due to washout of

the biosolids necessary for such treatment. Using current !EPA design criteria, the Plant as it is

currently constructed has a design maximum flow of

MOD, due to the size of the secondary

clarifiers. (Tr.

3/22/00,

PCB 98-164, p. 25). The testimony of James Huff and Robert Hawes

demonstrated that it is presently physically impossible

to send flows through the plant in excess

MOD and consistently comply with the NPDES permit limits. (Tr.

3/22/00,

PCB 00-073,

p. 32; Tr.

3/22/00,

PCB 98-164, p. 21). The historical designation of the Plant erroneously

identified it

as a 16 MOD plant, as doeH the current NPDES permit issued by IEP

(Petitioner's

Exhibit

12, Exh. A). Rock Island has been granted a construction pennit to increase the plant's

maximum design flow to 16 MOD and is expeditiously proceeding with construction of the

improvements necessary

to increase the design maximum flow rate to 16 MOD. (Tr.3/22/00,

PCB 98-164, p. 15).

Previous NPDES permits issued to Rock Island, including drafts of the most recent

Permit, did not prohibit the use of Outfall OOIA for CSOs at flows under 16 MOD. Instead,

those

pem1its required Rock island to treat "maximum practical flow." (Tr.

3/22100,

PCB 98-

164, p. 74). According to the testimony of Thomas McSwiggin, manager of the Permit Section

of the Division ufWater Pollution Control ofIEPA, requiring treatment plants to treat the

maximum practical flow prior to use of a CSO bypass is consistent with standard IEP A practice

and policy. (Tr.

3/22/00,

PCB 98-164, p. 74) Mr. McSwiggin testified that it is not possible to

state with any certainty wh(;Jt the maximum flow rate is that can be treated at a given sewage

treatment plant. (Tr.

3/22/00,

PCB 98-164, p. 68).

is clear. however, that the maximum

practical flow for the

Plant is not 16 MOD because it cannot sustain that flow without losing

biosolids and still maintaining compliance with

its permit limitations. (Tr.

3/22/00,

PCB 98-164,

pp.

25,75, 101-02). This is the very reason that IEPA implemented its policy regarding

maximum

practical flow.

U.S. EPA seeks to have maximum practical flow be defined by the design maximum flow

of 16 MOD, which was only applied to the Plant because ofIEPA's policy to list design

mt:~dmum

flow as 2 to 2

times the design average flow, which has nothing to do with the

Plant's physical capabilities for treatment. (Tr.

3/22/00,

PCB 98-164, pp. 71-72). Not only is

U.S. EPA's position erroneous because it is impossible to detennine with any certainty what the

maximum

flow rate would be for the Plant, but also because there is no legal basis for it in state,

or federal regulations

or the Clean Water Act. "Maximum practical flow" is not defined by

IEPA precisely because it is viewed as the flow rate 1hat the plant can treat while still meeting its

effluent limitations, regardless

of what the design maximum flow rate designation may be for the

plant. (Tr.

3/22/00,

PCB 98-164, pp. 74M7S). Finally, IEPA has had this policy of requiring

plants to treat maximum practical flow prior to using a

eso bypass since the mid-1980s and

applies it to all

munic.ipalities in Illinois that have wet weather CSO discharges. (Tr.

3/22/00,

PCB 98-164, p. 73). To place the 16 MOD requirement on the City would inconsistently and

unfairly treat it differently than any other such municipality in Illinois.

A 16 MGD designation exceeds the capacity of the plant to handle flows and will result

in a washout

of solids and violation of the permit. (Tr.

3/22/00,

PCB 98-164; p. 74-75). Rock

Island's

Petition for Variance in PCB 98-164 seeks relief from the requirement to meet CSO

requirements while carrying out its construction of the necessary improvements to increase the

design maximum flow to 16

MOD. Based on the testimony presented, the Board should direct

the

IEPA to remove the erroneous ] 6 MOD designation and require only that the Plant must treat

the maximum practical flow, which

is consistent with its design and the long-standing policy of

the IEPA.

Outfall 007

The NPDES Permit also erroneously designates Outfall 007 as a sanitary sewer overflow

point rather than part

of a combined sewer system and prohibits discharges from 007. (Pet. Exh.

12, Exh. A, Special Condition 7). The difference between a Combined Sewer and a Sanitary

Sewer is provided in the Board's regulations.

At the hearing, IEPA agreed that a Combined

Sewer is a sewer designed and constructed to receive both wastewater and land runoff. (Tr.

3/22/00,

PCB 00-073, p. 17);

see also

3511. Adm. Code § 301.255. IEPA also agreed that a

Sanitary

Sewer is a sewer that carries wastewater together with

incidental

land runoff. (Tr.

3/22/00~

PCB 00-073, p. 17);

see also

35 II. Adm. Code § 30 1.375 (emphasis added). IEPA

agreed that the sewers tributary to 007 were originally constructed as combined sewers and that

they convey more than incidental runoff. (Tr.

3/22/00,

PCB 00"073, p. 10, 17). Since then,

Rock Island

(~ommittcd

to and completed a project to remove catch basins and street drains from

the area. (Tr.

3/22/00,

PCB 00-073, p.

11),

Rock Island never committed to totally separate the

system, and after the partial separation,

Outfall 007 still conveyed a significant anlotmt of storm

water.

Cfr.

3/22/00,

PCB 00-073, p. 11). Rock Island neither committed nor was required to

disconnect residential footinc drains, sump pumps or roof drains from these sewers. (Tr.

3/22/00

PCB 00-073, p. 11).

Rock Island petitioned the Board for an exception from regulations

applkable to sewer

overflows for

Outfall 007 and 010 in PCB 80-212.

(Tr.

3/22/00,

PCB 00-073, p. 10). In that

proceeding, the Board required Rock Island to eliminate the overflows from

Outfall 007. (Tr.

3/22/00,

PCB 00-073, p. 10). In that proceeding, neither Rock Island nor the Board referred to

Outfall 007 as a

sanir

lry

sewer. (Tr.

3/22/00,

PCB 00-073, p. 11). Aithough Rock Island

disagreed with IEP A that Outfall 007 was a sanitary sewer, and the Board did not designate it as

such in the proceeding, this partially separated sewer system was referred to as a sanitary sewer.

(Tr.

3122/00,

PCB 00-073, p. 12). Subsequent to entry ofthe Board's order in PCB 80-212,

Rock Island agreed to carry out a municipal compliance plan to address alleged violations

relating to

Outfall 007. (Tr.

3/22/00,

PCB 00-073, p. 11), Notwithstanding, this sewer was

never constructed, reconstructed, or modified in a manner that would convert it to the type

sewer that fulfills the regulatory definition of sanitary sewer. That IEPA agreed that the sewer

system would not undergo complete separation is undisputed. (Tr.

3/22/00,

PCB 00-073, pp. 13-

18). After consultation with

IEP A, Rock Island applied for and was issued permits to construct

the Franciscan Medical and

Saukie Park retention basins on the sewer system tributary to Outfall

007

al) part of its municipal compliance plan. efr.

3/22/00,

PCB 00-073, p. 14). The basins were

sized to accommodate a five-year rainfall event.

Events in excess of the tive-year storm or

events occurring before the basins emptied would be expected to result in overflows from Outfall

007.

(Tr.

3/22/00,

PCB 00-073, pp. 14-15). Rock

I~land

constructed these retention basins and

2 Outfall 010 has been physically sealed and is removed from the NPDES Permit.

IEPA has never sought to enforce against Rock Island for overflows that occurred as a result of a

greater than 5-year rainfall event.

In order to address continuing

IEPA concerns with overflows from Outfall 007, and

concerns over overflows from sanitary sewers, Rock Island proposed to convert the two storage

basins to treatment basins, and

IEPA agreed to permit this. (Tr.

3/22/00,

PCB 00-073, p. 18).

Rock Island has completed construction of modifications to these basins, with the exception of

certain electrical equipment, and once these treatment basins are totally operational, Rock Island

expects that any overflows from

Outfall 007 will be eliminated following the completion of the

replacement

of the Black Hawk State Park sewer in fall 2000. (Tr.

3/22/00,

PCB 00-073, p. 19).

Mr. Huff testified that it is his opinion that with the construction of the retention basins,

the sewer allows for conveyance

of first flush and flows in excess often times dry weather flow

rates, and, thus, meets the requirements for

CSOs. (Tr.

3/22/00,

PCB 00-073, pp. 30-31). In the

course

of making improvements to eliminate the overflows from Outfall 007, IEPA instructed

Rock Island that it was to convey the maximum flow possible (first flush and 10 times dry

weather flow) to the proposed new lift station to the basins prior to diversion to the basins. (Tr.

3/22/00,

PCB 00-073, p. 20). The reference by IEPA to "first flush 10 times dry weather flows"

is a reference to rules that apply to CSOs, and not sanitary sewer overflows. 35 Ill. Adm. Code

§306.305;

see also

Tr.

3/22/00,

PCB 00-073, p. 20). Thus, IEPA has been treating Outfall 007 as

aCSO.

Because Outfall 007 originally was designed find constructed as a CSO, Rock Island and

th Board have never treated it as a sanitary sewer, and IEPA has treated it as a CSO during

constmction

of improvements to the system, the Board should correct the factual elTOl' in the

Permit and properly designate Outfall 007 as a CSO.

•

WHEREFORE, Rock Island respectfully requests the Board to enter an Order:

Recognizing that the Plant's present maximum design flow is 12 MOD, thus

eliminating the prohibition on discharging from

AOt at flows less than 16 MdD;

Designating Outfall 007 as a combined sewer instead of a sanitary sewer, thus

removing the prohibition on discharge from this outfall; and

Remanding to IEP A the issues of the increase in the chlorin(; limitation for

Outfalls 011 and 012 from 0.75 mg/l to 1.0 mg/l and the clarification of what it would mean to

require treatment

of 16 MGD.

Roy M. Harsch

Roberta

Saielli

GARDNER,

CARTON

DOUGLAS

321

Clark Street

Suite

3400

Chicago, I1linois 60610-4795

(312) 644-3000

CHO III 207 I 43

J.I

CERTIFICATE

SERVICE

The undersigned, an attcmey, certifies that he caused to be served a copy of the City of

Rock Island's Post Hearing Brief of City of Rock Island on the following:

John

C. Knittle, Esq.

minois Pollution Control Board

100 W. Randolph Street

Suite 11-500

Chicago, IL 60601

by U.S. Mail delivery on this 8

day of

Richard C. Warrington

Associate Counsel

Illinois Environmental

Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-92