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BEFORE THE ILLIN0ffl-,'

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O,L BOARD

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STATE OF ILUNOIS

CITY OF ROCK ISLAND,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent.

Ms. Dorothy M. Gunn

Illinois

Pollution Control Board

100 West Randolph Street

Suite

11-500

Chicago, Illinois 60601

John C. Knittle, Esq.

Illinois Pollution Control Board

100 W. Randolph Street

Suite

11-500

Chicago, IL 60601

)

Pollution Control Board

)

PCB 00-073

(NPDES Pennit Appeal)

NOTICE OF FILING

Richard C. Warrington, Esq.

Illinois Environmental

Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

PLEASE TAKE NOTICE that on Friday, June 16,2000, we filed the attached Post

Hearing

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

of which is herewith serVed upon you.

Roy M. Harsch

Roberta

M. Saielli

GARDNER, CARTON

DOUGLAS

321 N. Clark Street

Suite

3400

Chicago, Illinois 6061

0~4

795

RespectfuIr y Submitted,

CITY OF

ROCK

ISLAND.

gWtc(~~

One of Its Attorneys

TIllS FILING IS SUBMITTED ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD OF

THE STATE OF ILLINOIS

IN THE MA TIER OF:

CITY OF ROCK ISLAND,

Petitioner,

PCB 00- 073

RECEIVED

CLERK'S OFFICE

JUN 1 6 2000

STATE OF ILLINOIS

Pollution Control Board

)

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

POST HEARING REPLY BRIEF OF CITY OF ROCK ISLAND

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

Douglas, hereby files its Post Hearing Reply Brief.

PLANT CAPACITY

Regardless of the designation of the Rock Island treatment plant as having a design

maximum flow of

16 million gallons per day ("MGD"), this does not require Rock Island to treat

16 MOD prior to use of the CSO bypass. IEPA has admitted that the plant was never designed to

treat a maximum

flow of 16 MGD and meet the permit limits that it is subject to today. (Tr.

3/22100,

PCB 98-164, pp. 66-67),

was the Illinois Sanitary Water Board practice in the eady

1970s to design and permit treatment plants based on the design average flow.

(Tr.

3/22/00,

PCB 98-164, pp, 67-68).

The State attempts to make much of the fact that Rock Island's permit application

indicated that

the design maximum flow rate was16 MOD, However, Mr. McSwiggin testified

that

it was the common practice to

use

a peaking factor of 100 percent.

(rr.

3/22/00,

PCB 98-

THIS FILING IS BEING SUBMITTED ON RECYCVlD PAPER.

164, p. 71). Mr. McSwiggin further testified that that designation "has nothing to do with Rock

Island's treatment plant being physically capable

of treating 16 million gallons per day and

complying with the current applicable effluent

limitations." (Tr.

3/22/00,

PCB 98-164, p. 72).

Rock Island was simply following accepted practice in completing its application.

The

State seems to argue that Mr. McSwiggin's proposed definition ofthe term

"maximum practicable flow" supports the argument that the designated design maximum flow of

16 MGD must be the maximum practicable flow, aJ U.S. EPA suggested. This is not at all what

Mr. McSwiggin stated, Mr. McSwiggin's definition

of the "maximum practicable flow" is the

"maximum flow that a plant can sustain without using

the solids and stilI maintainin;:

compliance with the conditions ofthe permits." (Tr.

3/22/00,

PCB 98-164, p. 75). Mr.

McSwiggin also testified that

"it is impossible to state with certainty that

the maximum flow

rate is and can be treated at a given sewage treatment plant because

of the variation in individual

cl:aracteristics", which include the "design oftreatment plant units, raw waste water, treatment

plant microorganisms, operation and maintenance schedules, and other physical parameters such

as temperature, pH, et

cetera" (Tr.

3/22/00,

PCB 98-164, p. 69). According to Mr. McSwiggin,

the main

purp08e behind IEPA's long-standing policy of requiring treatment of maximum

practicable flow prior to use

of the CSO bypass, rather than simply requiring treatment of the

plant's stated design maximum flow, is to avoid solids washout. (Tr.

3/22/00,

PCB

98~164,

pp.

74-75). Washout

of solids has the potential to cause a substantially greater environmental impact

than allowing a

CSO bypass, once the maximum practicable flow is treated.

This may be a transcription error.

appears from the context, that Mr. McSwiggin said "losing" the

solids.

Again, there appears to be a transcription error. It appears from the context that Mr. McSwiggin said

"what" and not "that" here.

is readily apparent why IEPA did not simply state that the design maximum flow must

be treated prior to using a

eso bypass. First, ifIEPA intended "maximum practicable flow" to

be the same as design maximum flow, it would have been easier for

IEPA, and certainly for Mr.

McSwiggin, to just say that. Second, based on Mr. McSwiggin's testimony, because it is so

difficult to determine what the actual maximum flow rate that can be treated (and avoid solids

washout and

meet pennit limits) by

any

particular plant because of all of the variables discussed

by Mr.

McSwiggin, saying that the design maximum flow must be treated prior to eso bypass

would potentially cause a substantially greater

eh','ironmental impact than allowing eso bypass

once the maximum practicable flow (whatever that is) is treated.

is unclear why the State raises the issue of standard condition 3 in paragraph 6 ofits

Brief. What Rock Island is arguing is that IEPA has determined that prior to allowing a eso

bypass, a treatment plant must treat the maximum practicable flow, which is not the same as the

design maximum flow

of the plant. Nowhere in the federal or state regulations is there a

requirement that the design maximum flow

of the treatment plant must be treated prior to use of

a eso bypass. This has never been a legal requirement. If that were the requirement, then IEP A

would have to apply that, as it would be a more stringent requirement. In this case,

U.S. EPA

has sought to simply and arbitrarily insert the design maximum flow of 16 MGD in place of '

"maximum practicable flow," when that clearly is not IEPA's intent in its administration of the

NPDES program in Illinois, nor is it required by federal regulations.

If the State has raised this because it believes that Rock Island should not be allowed to

use its

eso bypass at all if it cannot treat 16 MGD prior to use ofthe bypass, that would go

against the long-standing policy

of avoiding solids washout. In addition, this would impose a

serious hardship, not only on Rock Island, but all

cfthe citizens of Rock Island because they

would have no treatment plant. To the extent that the State is arguing that the 16 MGD provision

must be included in the permit

to ensure that a more stringent federal provision is placed in the

permit, there is no requirement that treatment to the design maximum flow rate occur prior to use

of a CSO bypass.

II.

OUTFALL 007

Outfan

007

The State, again, agrees that difference between a Combined Sewer and a Sanitary Sewer

is provided in the Board's regulations, At the hearing, and in its Brief, the State agrees 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

35 II. Adm. Code § 301.255. The State also

agrees that a Sanitary Sewer is a sewer that carries wastewater together with

incidental

land

runoff.

(Tc. 3122/00,

PCB 00-073, p. 17);

see also

35 II. Adm. Code § 301.375 (emphasis

added). The State agrees that the sewers tributary to

007 we;'e originally designed and

constructed as combined sewers and that they convey more than incidental runoff.

(Tr.3/22/00,

PCB 00-073, p. 10, 17). The State claims that sewers tributary to outfall 007 have

"performance" characteristics not satisfying either regulatory definition. However, because they

were designed and constructed to receive both wastewater

ana land runoff (the definition of a

combined sewer), and they convey more than incidental runoff (sanitary sewers may convey only

incidental runoff), it is clear that

they do not fit the definition of Sanitary Sewer. What

"performance" characteristics the State is talking about do not appear in the record.

In its Municipal Compliance Plan, Rock Island committed to and completed a project to

remove catch basins and street drains from the area to eliminate domestic surcharges and

overflows. (Tr.

3/22/00,

PCB 00-073, p. 11). However, Rock Island never committed to totally

separate the system, and after the partial separation,

Outfall 007 still conveyed a significant

amount

of storm water. (Tr.

3/22/00,

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

was required to disconnect residential footing drains, sump pumps or roof drains from these

sewers. (Tr.

3/22/00

PCB 00-073, p. 11).

The State is correct that Rock Island petitioned the Board for an exception from

regulations applicable to sewer overflows for

Outfall 007 and 010 in PCB 80-212.

(Tr.3122/00,

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). The State admits in its brief that

in that proceeding, neither Rock Island nor the Board referred to Outfall 007 as a

sanitalY

sewer.

(Tr.

3/22100,

PCB 00-073, p. 11). Although Rock Island disagreed with IEPA 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 solely by IEPA. (Tr.

3/22/00,

PCB

00-073, p. 12). Subsequent to entry of the Board's order in PCB

80~212,

Rock Island agreed to

carry out the Municipal Compliance Plan to address alleged violations relating to

Outfall 007,

despite the fact that it did not agree that it was a sanitary sewer. (Tr.

3/22/00,

PCB 00-073, p.

11). That IEPA agreed that the sewer system would not undergo complete separation is

undisputed. (Tr.

3/22/00,

PCB 00-073, pp. 13-18).

IEP A has never enforced against Rock Island for overflows from Outfall 007.

has

never sought to prohibit them. In fact, Rock Island and IEP A had discussed,

at a meeting on

June 10, 1999; the fact that IEPA wouid be willing to change the permit to correct the error in

designation of Outfall 007 if Rock Island could provide infonnation showing it had been

3 Outfall 0 I 0 has been physically sealed and is removed from the NPDES Permit.

designed and constructed as a combined sewer. (Permit Record at p. 000042). After that

meeting, Rock Island provided

IEP A with information regarding Outfall 007' s design and

construction

(Permit Record at pp.

000020~41),

but then IEP A did not make the change when it

issued the final permit, which

is the subject of this appeal. (Permit Record at p. 000001). The

only reasons they cited

for not doing so were that it had always been referreci to as a sanitary

sewer overflow,

and that there was an issue regarding dispersion of grant money. (Permit

Record at p. 00(001). IEPA presented no evidence at hearing, and there is no evidence in the

record, that supports the grant money issue,

and the State has not argued it in its Brief.

In addition, the

State is well-aware that there would be overflows from Outfall 007, and

that

is why they agreed to and permitted Rock Island's construction of the Fransiscan and

Saulkie Basins

to capture 5-year storm eventD. (Tr.

3/22/00,

PCB 00-073, pp. 13-16).

The State also admits that it used combined sewer overflow requirements to address the

overflow issue

at Outfall 007. tResp. Br. at

~8).

The State also agrees that after completion of

the improvements described by Rock Island in its initial brief, there will be no additional

overflows

from Outfall 007. (Id.; see also Tr.

3/22/00,

00-0

3, pp. 13-16). Thus, there is no

basis for continuing to refer to Outfall 007 as a sanitary sewer overflow, and this should be

corrected in the pemlit.

CONCLUSION

The permit condition requiring treatment of 16 MOD prior to use of the CSO bypass

should

be eliminated because it is not required by either State or federal law. Outfall 007 should

be redesignated as a CSO because it meets the regulatory defi.nition of a CSO. and because the

State has treated it as a CSO in working with Rock Island to eliminate overflows. For the

reasons stated herein and

its initial Brief, Rock Island requests that the Board enter an order as

requested in its initial brief.

Roy M. Harsch

Roberta M.

SaielIi

GARDNER, CARTON

DOUGLAS

321 N. Clark Street

Suite 3400

Chicago, Illinois 60610-4795

(312) 644-3000

CH01112082089.1

Respectfully Submitted,

CITY OF ROCK ISLAND,

~~~~=[d=·~L

-.s ____________

~~~

. .

CERTIFICATE OF SERVICE

The undersigned, an attomey, certifies that she caused to be served a copy of the Post

Hearing Reply Brief of the City of Rock Island on the following:

John

C. Knittle, Esq.

Illinois Pollution Control Board

100 W. Randolph Street

Suite 11-500

Chicago, IL 60601

Richard C. Warrington

Associate Counsel

Illinois Environmental

Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfi~ld,

Illinois 62794-92

by U.S. Mail delivery on this 16

day of June, 2000.

J1~&$~'

Roberta M. Saielli

CH01/12082088.1