ILLINOIS POLLUTION CONTROL BOARD
May 19,
1994
IN THE MATTER OF:
)
)
PETITION OF THE CITY OF EAST
)
AS 91—9
MOLINE
AND
THE ILLINOIS ENVIRON-
)
(Adjusted Standard)
MENTAL
PROTECTION AGENCY FOR
)
ADJUSTED
STANDARD FROM 35 ILLINOIS
)
ADMINISTRATIVE CODE 304
)
LEE
R.
CUNNINGHAM,
of
GARDNER,
CARTON
&
DOUGLAS,
APPEARED
ON
BEHALF
OF
THE
CITY
OF
EAST
MOLINE;
BRUCE
L.
CARLSON
APPEARED
ON
BEHALF
OF
THE
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY.
OPINION
AND
ORDER OF THE BOARD
(by R.C.
Flemal):
This matter comes before the Board upon a petition for
adjusted standard filed jointly by the City of East Moline (East
Moline) and the Illinois Environmental Protection Agency
(Agency).
The joint petitioners request an adjusted standard
from the Board effluent regulations at 35 Ill. Adm. Code 304 as
applied to the wastewater discharges from East Moline’s water
treatment plant.
The petition is brought pursuant to the special
provisions regarding discharge of solids
to the Mississippi or
Ohio Rivers found at Section 28.3 of the Environmental Protection
Act
(Act)
(415 ILCS 5/ 1 et seq.).
The Board’s responsibility in this matter arises from the
Act.
The Board is charged therein to “determine, define and
implement the environmental control standards applicable in the
State of Illinois”
(415 ILCS 5/5(b)) and to “grant
~
an
adjusted standard for persons who can justify such an adjustment”
(415 ILCS 5/28.1(a)).
More generally, the Board’s responsibility
in this matter is based on the system of checks and balances
integral to Illinois environmental governance: the Board is
charged with the rulemaking and principal adjudicatory functions,
and the Agency is responsible for carrying out the principal
administrative duties.
Based upon the record before it and upon review of the
factors involved in the consideration of adjusted standards,
the
Board finds that East Noline has demonstrated that grant of an
adjusted standard in the instant matter is warranted.
The
adjusted standard accordingly will be granted.
—2—
PROCEDURAL
HISTORY
The instant petition was filed on December 27,
1991.
Pursuant to 415 ILCS 5/28.3(d) (4) the cutoff date for filing
Section 28.3 petitions was January 1,
1992.
The instant petition
accordingly was timely filed.
Hearing, which is mandatory in a Section 28.3 proceeding
(415 ILCS 5/28.3(e), was originally scheduled for March 10,
1992.
However, by letter dated February 27,
19921 the Fish and Wildlife
Service of the U.S. Department of the Interior
(FWS)
raised
concerns regarding the affects that sediment from the proposed
discharge might have on the benthos of the receiving Mississippi
River waters.
Subsequent to meetings with the FWS, Illinois Department of
Conservation, Illinois Natural History Survey, and the Office of
the Attorney General of Illinois (Amended Petition at p.
1), East
Moline embarked on a series of surveys and studies intended to
address the concerns regarding benthic organisms, with particular
focus on mussels.
On December 29,
1993 joint petitioners filed an amended
joint petition.
The amended petition updates and supplements the
original petition, principally as regards the mussel studies.
The amended petition also revises the requested relief in light
of the mussel studies.
Hearing was held in East Moline on March 25,
1994 before
Hearing Officer Allen E.
Shoenberger.
No members of the general
public attended the hearing.
(Tr. at p.
17.)
No briefs have been filed.
STATUTORY AND REGULATORY FRAMEWORK
Section 28.3 of the Act, which was signed into law on
September 7,
1990,
establishes provisions whereby certain
petitioners may request of the Board an adjustment of the
standards otherwise applicable to direct discharge of waste
solids to the Mississippi or Ohio Rivers.
Among particulars of
these provisions are that the primary petitioner must be a public
water supply2, that the raw water source be either the
Mississippi or Ohio River, that the solids consist of clarifier
sludge and filter backwash generated in the water purification
1
The letter was not received and docketed by the Board until
March 19, 1992.
2
Section 28.3(b) provides that the water supply may be joined
by the Agency as joint petitioner, as is the case here.
—3—
process, and that the purification process not utilize lime
softening.
The particular standards from which the petitioners seek an
adjustment are the Board’s effluent standards relating to five—
day biochemical oxygen demand
(BOD5)
found at 35 Ill. Adm. Code
304.120 and to copper,
iron, manganese,
and total dissolved
solids
(TSS)
found at 35
Ill. Adm. Code 304.124.
The proposed
adjustment to these standards is that the standards not apply to
the discharge in question provided that East Moline comply with a
series of fourteen conditions (see following) proposed by the
joint petitioners.
East Moline is not seeking an adjustment of any water
aualitv standards.
All water quality standards would remain
applicable to the receiving water body,
and East Moline would,
through the operation of
35 Ill. Code 304.105, continue to be
prohibited from causing or allowing the violation of all water
quality standards.
The joint petitioners apparently believe all
quality standards can be met3 even though the effluent standards
would be modified as the result of the adjusted standard.
In determining whether an adjusted standard is to be granted
under Section 28.3, the Board is to base its decision “upon water
quality effects,
actual and potential stream uses, and economic
considerations,
including those of the discharger and those
affected by the discharge”.
(415 ILCS 5/28.3(a).)
Moreover, the
Board is to “take into account the factors contained in
subsection
(a)
of Section 27 of the Act”
(415 ILCS 5/28.3(f)).
These factors include “the existing physical conditions,
the
character of surrounding land uses,
zoning classifications, the
nature of the
.
.
.
receiving body of water,
.
.
.
and the
technical feasibility and economic reasonableness of measuring or
reducing the particular type of pollution”.
(415 ILCS 5/27(a).)
The roles assigned to the Agency in the Section 28.3 process
include that of proposal reviewer and, where the Agency so deems,
joint petitioner.
The Agency has compiled a guidance document
specifying its conditions of review
(See Petition Attachment A).
~ Joint petitioners allow that attainment of compliance
might entail invoking allowed mixing, pursuant to 35 Ill. Adm.
Code 302.102, and perhaps the necessity of defining a mixing zone
as part of East Moline’s NPDES permit.
(Petition,
p.
4.)
Joint
petitioners indicate that they do not anticipate problem with
East Moline obtaining a mixing zone or a zone of inital dilution.
(u.)
—4—
DISCUSSION
Current Operations/Existing Physical Conditions
East Moline operates a water treatment plant located at 901
12th Avenue in East Moline.
(Petition at p.
14.)
The plant
provides clarified,
filtered, disinfected water to approximately
6,500 residences
(22,000 people) and approximately 100 businesses
in East Moline.
(~.
at p.
15.)
The plant has a capacity of
10
million gallons per day, but the average pumping rate is 4.0 MGD
The raw water source for the treatment plant is the
Mississippi River.
The raw water is delivered to the water
treatment plant via a pumping station located at 7th Street and
1st Avenue in East Moline.
(Petition at p.
15.)
The raw water is subject to various treatments,
including
the addition of powdered activated carbon for removal of taste
and odors,
copper sulfate to reduce algal growth,
lime and alum
for flocculation and pH adjustment,
chlorine and ammonia for
disinfection, and fluoride.
(Petition at p.
15,
16.)
Sediment is removed from the raw water at two principal
points, within sedimentation basins and in sand filtration units.
(Petition at
p.
16.)
The discharges at issue are generated from
these two sources,
as a result of dragging of the sedimentation
basins and during backwashing of the filters.
The sediment wastestreams are currently discharged through
two outfalls.
Discharge from the sediment basins is through
outfall 001; discharge from the filter backwash operations is
through outfall 002.
Both outfalls are on an unnamed tributary
of the Mississippi River.
Flow thereafter follows the unnamed
tributary for approximately 1000 feet before entering a storm
sewer and thence discharging into the Mississippi River.
Currently the sediment discharges are on an intermittent
basis.
Cleaning of both sediment basins and filters are
performed as needed, with filter backwashing typically occurring
for 20 minute periods four times daily and dragging of the
sedimentation basins typically occurring for 1½ to two hour
periods once every 36 hours.
(Petition at p. 8-9.)
Character of the Mississippi River/Discharge Area
The Mississippi River in the vicinity of East Moline is a
multi—use waterway.
It is a major navigational waterway.
It is
used for sport fishing and boating.
In addition to East Moline,
it is also utilized as a source of drinking water by Rock Island.
It is also a discharge point for wastewater treatment facilities
and for stormwater runoff from both rural and urban areas.
—5—
Water quality of the Mississippi River in the vicinity of
the discharge is generally good.
(Petition at p.
9.)
A
biological survey conducted in 1987 also indicated that the
biological integrity of the river, as measured by biological
index, number of organisms,
and total number of taxa found, was
similar upstream and downstream of the existing East Moline
outfall.
(~.
at p.
10.)
Joint petitioners contend that the
discharge system as proposed herein would actually cause a net
decrease in the sediment loadings to the Mississippi River, and
accordingly should tend to improve water quality.
(Petition at
p.
40.)
Character of Surrounding Land Uses
Joint petitioners described the surrounding land use as
follows:
Side stream property is predominately industrial,
except for a small residential area around the proposed
discharge point.
This property is separated from the
Mississippi River by a road and flood levee.
Between
the bicycle path and the river is steeply graded riprap
which drops off approximately 18 feet to the shore,
thereby greatly limiting access to the river from the
adjacent property.
(Petition at
p.
8.)
Proposed Modifications and New Discharcre System
Joint petitioners propose as a condition of the adjusted
standard that the present discharge configuration be replaced by
a direct discharge to the Mississippi River.
The new direct
discharge would take place though a 3-inch pipe extending from
the water plant to approximately 70 feet
(22
in)
beyond the shore
of the Mississippi River.
Moreover, as additional conditions of the adjusted standard,
East Noline proposes to replace the intermittent discharges with
continuous discharges.
The filter backwash and sedimentation
basin discharges would be directed to a mixing tank that has a
continuous discharge of approximately 100 gallons per minute.
Joint petitioners declare that “this will avoid any impact from
intermittent loadings and reduce the area of the mixing zone,
thereby minimizing any adverse impact on the River”
(Petition at
p.
9)
Among the principal concerns raised during the course of
this matter has been whether the proposed sediment discharges
would have a negative impact on benthic organisms in the
receiving water,
and particularly whether the discharge would
adversely impact either mussel beds or endangered or threaten
mussel species.
This concern has occasioned a delay of more than
two years in the conduct of the hearing in this proceeding
(see
—6—
above) and has been the impetus for most of the issues raised in
the amended petition.
Both the design and location of the proposed discharge point
have been modified as the result of the mussel studies.
The
design has been reconfigured to add a diffuser that would project
the discharge upward at a 30-degree angle.
Model studies
indicate that this diffuser would produce a maximum increase in
the suspended solids concentration of 22 mg/i (71:1 dilution
ratio)
on the river bed,
a level that joint petitioners consider
to have no adverse impact on mussels.
(Amended Petition at p.
5
and attachment FF.)
Initially the new discharge point was proposed to be located
approximately 1400 feet upstream of the present storm sewer
outfall.
(Petition at p.
5-6.)
However, based on the mussel
studies,
joint petitioners now recommend that the discharge occur
immediately offshore of the present storm sewer discharge.
This
site, known as “Dive Area #2” in the various mussel studies
(see
Amended Petition attachments), was selected based on the absence
of mussels in a transect from the shore to the proposed discharge
point
(Amended Petition attachment LL at p.
3.)
and a sparse
mussel population (absence of mussel beds)
in the projected plume
of the discharge
(~.
at p.
4).
At the point of proposed
discharge the bottom of the Mississippi River is sediment.
(~.
at p.
10.)
As regards the matter of endangered or threaten mussel
species, the Illinois Department of Conservation on February 25,
1994 issued a biological opinion pursuant to 17
Ill.
Adm. Code
1075.40(e).
The opinion concludes
that the discharge of water treatment solids to
the Mississippi River by the City of East Moline is not
likely to have significant adverse effects on
endangered or threatened species of freshwater mussels
that may be present in the vicinity of the discharge.
This conclusion has been reached with understanding
that the discharge will be installed in
accordance
with the conditions specified in the amended petition.
(Co-Petitioner’s Hearing Exhibit #1 at p.
1.)
Net Sediment Reduction
A singular facet of the conditions proposed by the joint
petitioners is the provision that East Noline obtain land that is
presently being farmed and to hold the land as fallow land.
The
purpose is to “more than offset the net amount of solids added to
the Mississippi River from the discharge of its mixing tank as
compared to the amount of solids which result from the raw water
used”
(Petition at p.
29-30).
The joint petitioners further note
that:
—7—
To do so East Moline will first calculate its
annual solids loading to the Mississippi River.
It
will then calculate the annual solids loading in the
raw water and subtract that value from its annual
loading to determine its net annual loading to the
Mississippi.
East Moline, with the assistance of the
local Soil and Water Conservation District, will next
identify available land parcels, and for each parcel it
will calculate,
using the Universal Soil Loss Equation,
the annual solids loading which will be expected from
land which is actively farmed.
It will then subtract
from that value the annual loading calculated from the
same land as fallow land, thereby determining the net
annual reduction in loading.
Finally,
it will obtain
sufficient land to result in a total net annual
reduction in solids loading to the Mississippi River of
double its net annual loading due to discharges from
its water plant.
(Petition at
p.
30.)
Technological and Economic Considerations
East Moline has undertaken various efforts to maximize
operational procedures and to minimize chemical use, so as to
improve the quality of the discharged water and reduce the impact
of the discharge on the river.
(Petition at p.
16—23.)
Several
of the procedures are now in place, and others, such as designing
the discharge system to maximize diffusion and to direct the
discharge plume away from the bed of the river,
are proposed as
part of the agreed—upon conditions to the grant of the instant
adjusted standard.
The Agency would exercise oversight of the
conditions,
among other matters, through the construction,
operating,
and NPDES permits that are required for the
implementing the adjusted standard.
East Moline has also investigated compliance options that
would not require an adjusted standard.
(Petition at p.
26.)
Among these, the most economical option would be to pass the
sediment wastestreams though standard treatment operations.
Consultants for East Moline estimate that capital cost and annual
costs of this operation would be $581,000 and $396,000,
respectively.
As compared to East Moline’s proposal, which has a
capital cost of $460,400 and annual costs of $93,000~,the most
economical compliance option accordingly would cost an additional
$120,000
in capital and $197,000 per year in operating expenses.
(Petition at p.
37.)
Over a twenty-year period the proposed
~ The Board notes that these figures are for the discharge
configuration proposed in the original petition.
Since the joint
petitioners have not updated these figures, the Board assumes
that the costs for the discharge configuration proposed in the
amended petition do not significantly differ from those of the
original petition.
—8—
adjusted standard would thus save East Moline approximately $20
million.
(u.)
Joint petitioners summarize the economic considerations by
observing:
The economic impact upon those affected by the
discharge is
...
positive since there will be no
impairment of actual or potential uses and many of
those affected are customers of the water plant.
Since
East Moline’s proposal
is a lower cost alternative,
water bills will not increase as much as they would if
East Moline were required to comply with generally
applicable standards.
(Petition at p.
37.)
CONCLUSION
Based upon its consideration of the record presented in this
action, the Board finds that the joint petitioners have provided
justification necessary for an adjusted standard to be granted
with conditions.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The City of East Moline
(East Moline)
is hereby granted an
adjusted standard applicable to the discharge of wastewater from
a water treatment plant located at 901 12th Avenue in East
Moline,
Illinois, which as of the date of this order discharges
wastewater from its sedimentation basin through outfall 001 to an
unnamed tributary of the Mississippi River at 41°31’
08” north
latitude and 90°26’ 32” west longitude and wastewater from its
filter backwash which discharges to the same tributary through
outfall 002 at 41°31’
09” north latitude and 90°26’
30” west
longitude.
Pursuant to this adjusted standard, the effluent
standards for BOD5,
total suspended solids,
iron, manganese, and
copper set forth at 35 Ill.
Adm. Code 304.120 and 304.124 do not
apply to these discharges.
This grant of adjusted standard is
contingent upon East Moline complying with each of the following:
1.
Within ninety
(90) days of this order East Moline shall
apply for all construction and operation permits,
including NPDES permit revisions,
necessary to comply
with the conditions of this adjusted standard.
East
Moline shall promptly provide any supplemental
information needed for those applications,
if any such
information is identified by the Agency.
—9—
2.
Within two years of the date of obtaining the necessary
construction permits the water plant shall cease
discharging to the unnamed tributary of the Mississippi
River and shall commence discharging directly to the
Mississippi River.
3.
The discharge to the Mississippi River shall be through
a pipe which extends approximately 22 meters into the
Mississippi River from the shore from a point near the
present stormwater outfall to the Mississippi River
approximately 1600 feet west of 7th street.
4.
Until at least January 1,
1996,
East Moline shall
maintain as fallow land approximately 33.7 acres which
are part of Farm #2116, Tax Parcel 350 and 351 in Coe
Township and after that date shall either continue to
maintain that land as fallow land or shall obtain,
through lease or purchase, other agricultural land
which at the time of acquisition is not fallow land and
which is calculated through the use of the Universal
Soil Loss Equation to contribute a net suspended solids
loading to the Mississippi River
(as compared to the
calculated loading for fallow land)
of least an average
of 500 tons per year of the term of the lease or
ownership or the water plant shall implement some other
plan approved by the Agency for offsetting the water
plant’s net contribution of suspended solids to the
Mississippi River.
5.
Within two years of the date of obtaining the necessary
construction permits East Moline shall construct a
surge tank with a capacity of at least 100,000 gallons
to hold its filter backwash wastewater prior to
discharge.
6.
As much of the wastewaters from the surge tank
described in Paragraph 5, above, as can reasonably be
returned to the headworks of the water plant for
retreatment, consistent with reliable and lawful
operation of the water plant,
shall be so returned.
7.
Within two years of the date of obtaining the necessary
construction permits East Moline shall construct and
place into operation a mixing tank of not less than
50,000 gallons capacity to hold the wastewater from the
water plant’s sedimentation basins prior to discharge
to the Mississippi River.
8.
The wastewaters from the surge tank described in
Paragraph 5,
above, which are not returned to the
headworks of the water plant pursuant to Paragraph 6,
above,
shall be mixed with wastewaters from the
—10—
sedimentation basins,
if any, prior to discharge to the
Mississippi River.
9.
Any
overflows from the surge tank described in
Paragraph 5,
above, which are not handled pursuant to
paragraphs
6 or 8, above,
shall be directed to East
Noline’s wastewater treatment plant for treatment.
10.
All mussels found at the time of construction which
would be anticipated to be directly impacted by the
construction activities shall be relocated to a
suitable area outside of the area of direct impact.
11.
Each year for a period of five
(5) years after the
commencement of the discharge East Moline shall perform
a mussel survey to evaluate the impact of the discharge
upon the mussels, and shall sample sediment copper
concentrations, weather conditions reasonably
permitting.
12.
Within one year after the commencement of the
discharge,
East Moline shall perform a study to verify
the accuracy of the modeling conducted by Mr. James
Huff as described in Attachment FF of the Amended Joint
Petition, including sampling of water quality
downstream of the discharge point for total suspended
solids, hardness
(as CaCO3), total copper and soluble
copper to verify the effectiveness of the high velocity
port discharge.
13.
The activities required by Conditions 10 through 12,
above,
shall be carried out in accordance with the
Scope-of-Work set forth at Attachment JJ of the Joint
Amended Petition in this matter regarding the
performance of various mussel surveys before and after
the commencement of the water plant’s discharge to the
Mississippi River, the verification of field conditions
after operation begins, and sampling for copper and
hardness.
14.
The granting of this adjusted standard is not to be
construed as affecting the enforceability of any
provisions of this adjusted standard, other Board
regulations, the Act, the Clean Water Act,
or any
federal regulation.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992)) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(See
also 35 Ill.Adm.Code 101.246 “Motions for Reconsideration”.)
—11—
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby Certi~ythat the above opinion and order was
adopted on the
/‘~‘—
day
of
avoteof
__________
1994, by
I
Control Board
