ILLINOIS POLLUTION CONTROL BOARD
May 24, 1990
CITIZENS UTILITIES COMPANY
OF ILLINOIS,
Petitioner,
v.
ILLINOIS ENVIRON~MENTAL
)
PCB 85—95
PROTECTION AGENCY,
)
(Variance)
Respondent,
and
VILLAGE OF BOLINGBROOK,
)
Intervenor.
MR. DANIEL J. KUCEP1~OF CHAPMAN AND CUTLER APPEARED FOR
PETITIONER; AND
MR. WAYNE WIEMERSLAGE,
STAFF ATTORNEY, APPEARED FOR RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter is before the Board on remand from the Third
District Appellate Court
(“Appellate Court”).
The Appellate
Court issued its opinion in this matter on February
5,
1987.1
Citizens Utilities Company of Illinois
v.
Illinois Pollution
Control
Board,
152 Ill App.
3d
122,
504 N.E.2d 224
(3rd Dist.
1987).
That opinion vacated the Board’s April
10,
1986 Opinion
and Order
in PCB 85-95, denying an extension of
a variance that
was previously granted
in PCB 78-313.
The Appellate Court
remanded the case to the Board with instructions to grant
Citizens Utilities Company of Illinois
(“Citizens”)
a variance
consistent with the views expressed in its opinion.
Although the underlying
facts are not disputed, the
procedural history of this case
is convoluted and the factual
background of the case
is closely intertwined with related issues
‘Although the Appellate Court issued
its opinion on February
5,
1987,
the
Board learned
of
it when
it
received a copy
of
the
Court order from the hearing officer in this matter on January
3,
1990.
During
the
drafting
of
this
opinion,
however,
certain
correspondence
that
referenced
the
Appellate
Court’s
order
was
discovered
in the file.
The Board received the correspondence
on
June
4,
1987.
The Board regrets the delay
in this matter.
1 I-3(Y
2
in R81-l9.
The Board,
therefore, will present a procedural
history before it addresses the issues on remand.
Citizens owns and operates a wastewater treatment plant,
known as west suburban wastewater treatment plant No.
1
(“WSB
Plant No.
1”),
located in Bolingbrook,
Will County,
Illinois.
The plant discharges
into Lily Cache Creek, which
is a tributary
to the DuPage River.
On March
5,
1981,
in PCB 78-313, the Board
granted Citizens a variance from the general use water quality
standard for ammonia nitrogen as well as the effluent standards
for five-day biochemical oxygen demand
(“BOD5), total suspended
solids
(“TSS”)
,
and ammonia nitrogen.
The Board granted the
variance until July
2,
1985,
so that the company could seek
certain site-specific rule changes in those standards.
41 PCB
11.
After the variance was granted, environmental studies were
conducted to determine whether less stringent standards would be
permissible.
Citizens filed a petition for site-specific regulatory
relief on June
12,
1981.
The petition was docketed as R81-19.
The results of the above—mentioned studies were presented to the
Board at a May
5,
1983 hearing held on Citizens’ petition.
At
the conclusion of the hearing,
however, the Board dismissed the
proceeding for lack of information to support the less
restrictive standards.
52 PCB 169.
Citizens appealed the
Board’s determination
to. the Appellate Court.
Citizens Utilities
~ompany
of Illinois v.
Illinois Pollution Control Board, No.
3-
83-0498.
After docketing that appeal,
Citizens discovered that
the Illinois Environmental Protection Agency
(“Agency”)
had
commenced
a joint study of the DuPage River Basin with the United
States Geological Survey for the purpose of developing site-
specific standards
for discharges into waterways.
Believing that the study would result in less stringent
standards, Citizens filed a petition for variance with the Board
on August
31,
1983,
seeking an extension of the variance granted
in PCB 78-313.
This variance petition was docketed as PCB 83-
124.
On April
19,
1984, the Board denied Citizens’ request for
the variance extension.
53 PCB 61.
Citizens appealed the ruling
to the Appellate Court.
Citizens Utilities Company of Illinois
V.
Illinois Pollution Control Board,
No. 3-84—0412.
The
Appellate Court consolidated the P81-19 and the PCB 83—124
appeals and,
on June 17,
1985,
issued its decision on both
matters.
Citizens Utilities Company of Illinois v.
Illinois
Pollution Control Board,
134 Ill. App.
3d
111,
479 N.E.2d 1213
(3rd Dist.
1985).
The Appellate Court upheld the Board’s refusal
to extend the variance but remanded the site—specific proceeding
to the Board for further proceedings because it concluded that
the Board failed to analyze the economic impact of the proposed
111—366
3
site-specific rule.2
On July
1,
1985,
Citizens filed another petition for
variance with the Board.
This variance petition was docketed as
PCB 85-95.
Citizens,
in this petition,
sought the following
relief:
1.
an extension of the variance granted in PCB 78—313 that
would take effect on July
1,
1985,
and remain in effect
until the Board granted site—specific rule relief
in R8l-19
on remand or,
if the Board denied the relief,
for a period
of three years after final adjudication of P81—19,
2.
an extension of the compliance schedule provided for in the
PCB 78-313 variance,
in the event the Board denied site-
specific relief on remand,
so that the deadlines for permit
application, commencement
of work,
and compliance with
applicable effluent limitations would be six months,
one
year, and three years after final adjudication of P81—19,
respectively,
3.
a modification of the variance in PCB 78—313 as to the
ammonia-nitrogen water quality standard contained therein so
that,
instead of the general use water quality standard for
ammonia nitrogen contained
in 35 Ill.
Adm.
Code 304.105,
Lily Cache Creek,
for a distance of eight miles downstream
of the point of discharge of WSB Plant No.
1,
meets a water
quality standard for ammonia nitrogen of no greater than
15
milligrams per liter
(“rng/l”)
4.
a variance,
for the period of time specified in number
1
above,
from the general use water quality standard for
dissolved oxygen so that instead of the general use standard
for dissolved oxygen contained in 35
Ill. Adm.
Code 302.206,
Lily Cache Creek,
for a distance of eight miles downstream
of the point of discharge of WSB Plant No.
1,
meets
a water
quality standard for dissolved oxygen of no less than
4
mg/ 1,
5.
an exemption from the ammonia nitrogen and dissolved oxygen
water quality standards when creek flow is less than 4.9
2AS
stated
above,
the
Appellate
Court
remanded
the
site-
specific regulatory proceeding
(R81-l9)
on June
17,
1985.
As of
the
date
of
this
opinion,
the
Board
has
not
made
a
final
determination
in
the
matter.
The
Board
expects
to
make
a
determination in the matter in the near future.
Although the Board
regrets any unnecessary delay,
it notes that a portion of the delay
can be attributed to the numerous motions, responses and objections
to
motions, and other documents
filed
by the parties
during the
course of the proceeding on remand.
ii
1-3~7
4
million liters per day or
2 cubic feet per second
(“cfs”),
and
6.
a requirement that the Agency modify its NPDES permit
consistent with the above requests.
The Agency filed its variance recommendation on August
8,
1985,
recommending a denial of variance.
Citizens filed an
amended petition on August
13,
1985,
requesting the Board to set
the matter for hearing and alleging that
it and its Bolingbrook
customers would suffer an arbitrary and unreasonable hardship if
the requested variance extension were not granted.
On April
10,
1986,
the Board denied the relief requested.
69 PCB 34.
Citizens appealed the Board’s ruling to the Appellate Court.
Citizens Utilities Company of Illinois
V.
Illinois Pollution
Control
Board,
152 Ill. App.
3d,
504 N.E.2d 224
(3rd Dist.
1987).
It is the Appellate Court’s opinion in that case that
is the
subject of this Opinion and Order.
As previously stated at the beginning of this opinion,
the
Appellate Court vacated the Board’s April
10,
1986 Opinion and
Order in PCB 85-95 denying Citizens an extension of the variance
granted in PCB 78-313.
The Appellate Court then remanded the
case with instructions to grant Citizens a variance consistent
with the views expressed in the opinion.
Specifically, the
Appellate Court stated:
Consequently,
an extension of the variance
involved is necessitated until such time as
either the current, more stringent standards
are deemed applicable or until the results of
of the present study become final and applicable.
152
Ill. App.
3d at
122,
504 N.E.2d at 224
The Board notes that the Appellate Court misstated
its prior
holdings when it summarized the procedural history of the case.
Specifically, the Appellate Court stated that it upheld the
Board’s refusal to grant site—specific relief in P81—19 and that
it had remanded the Board’s denial of Citizens’ request
for
variance extension
in PCB 83-124.
This,
in fact,
was the exact
opposite of what the Appellate Court actually did.
Because the
Appellate Court stated that
it remanded PCB 83-124,
one can
construe the Appellate Court’s mandate as an order to the Board
to extend the variance
in PCB 83—124.
Because there was no
variance granted in PCB 83-124, however,
the Board must interpret
the Appellate Court’s order to mean that
it should extend the
variance granted in PCB 78-313.
The Board recognizes that it must grant a variance
extension.
The Appellate Court, however, did not provide the
111—368
5
Board with any guidance with regard to the variance extension
other than that mentioned above.
As
a result,
the Board has
determined that it should strictly construe the Appellate Court’s
mandate.
There are several
issues,
however, that must be
resolved before the Board can determine the scope of the relief
that it will grant.
Citizens,
in its variance petition in PCB 85-95,
requested
more than just an extension of the variance granted
in PCB 78—
313.
The Board will analyze Citizens’
request for relief,
in the
order
in which
it was presented on page
3 of this Opinion,
in
order to determine the actual scope of the relief that it should
now grant.
1.
Although the Board will grant Citizens’
request for
extension
of the variance
in PCB 78—313,
it must determine when
the relief will become effective, when it will terminate,
and
what variance conditions will be imposed.
Citizens filed its petition for variance in PCB 85-95 on
July
1,
1985,
requesting the Board to grant a variance extension
beginning on July
1,
1985.
The Board notes that this petition
was filed the day before the expiration date of the PCB 78—313
variance.
Ordinarily,
the Board expects
a petition for variance
extension to be filed at least 120 days
(the Board’s decision
time clock)
before the prior variance terminates.3
This case
is
unusual, however,
in that the Appellate Court has ordered the
Board
to grant Citizens’ request
for a variance extension.
Thus,
the Board will specify that the requested relief should commence
on July
2,
1985,
the date that the previous variance in PCB 78-
313 expired.
With regard to the issue of the termination date,
the Board
will not grant Citizens’
request that the extension remain in
effect until three years after final adjudication of P81—19,
in
the event that site-specific relief
is denied.
The Appellate
Court ordered the Board to grant the variance extension until
such time as either the current, more stringent standards
are deemed applicable or until the results of the present study
become final and applicable.”
In other words,
the Appellate
Court ordered the Board to grant the variance until either:
a)
the Board denies site—specific relief
in P81—19,
or
b)
if the
Board grants such relief,
the date when the site-specific rule
becomes final and applicable
(the date when the rule
is filed
with the Office of Secretary of State).
Even if the Board grants the variance extension until the
time specified
by the Appellate Court,
it could be granting
31n
1985,
the
Board
had
90
days
to
make
its
decision
in
variance cases.
6
relief that would extend beyond the Environmental Protection
Act’s
(“Act”)
five year time limit
for variances.
(See Section
36(b)
of the Act.)
Because the Board
is a creature of statute,
it can act only in accordance with the Act.
Therefore,
the Board
can grant the variance extension only for a maximum period of
five years.
Thus,
the Board will specify that the variance
extension will terminate on either July
2,
1990,
or on one of the
dates specified by the Appellate Court, whichever occurs first.
The Board recognizes that the variance extension could
terminate before the time specified by the Appellate Court and
that this would be inconsistent with the Appellate Court’s
mandate.
In light of the unusual circumstances of this case and
the Appellate Court’s mandate, the Board, concurrently with its
order in this matter and upon its own motion, will extend this
variance if the Board does not make a decision
in P81-19 by June
21,
1990
(see variance condition
2 of the accompanying order)
If the Board did not grant another variance extension at this
time,
Citizens would then have less than two weeks to file
another petition for variance extension.
This extension will
become effective on July
2,
1990,
and will terminate on either
one of the dates specified by the Appellate Court or on July
2,
1995, whichever occurs first.
All other variance conditions will
remain the same.
The Appellate Court did not state what conditions,
if any,
the Board was to impose on the variance extension.
Because the
Appellate Court ordered the Board to grant Citizens’ request
for
a variance extension,
the Board will impose, wherever possible,
variance conditions similar to those imposed
in PCB 78-3l3.~ The
Board,
however, must modify or delete some of the PCB 78—313
variance conditions.
We have already discussed the time
parameters of the variance extension earlier
in
this opinion.
Variance condition
1
in PCB 78-313 has been amended to reflect
the new time parameters
(see variance conditions
1 and 2
of this
order).
The Board has determined that
it must delete variance
conditions
4,
5,
6, and 7
in PCB 78-313 because
it cannot impose
a retroactive compliance schedule upon Citizens.
If the Board
incorporated such a schedule as
a condition to the grant of this
variance extension,
Citizens would have already violated the
order in this matter.
The Board will amend variance condition
8
in PCB 78—313 to include ammonia nitrogen because the condition
requires Citizens to act in a manner that is consistent with
applicable variance effluent limitations,
ammonia nitrogen being
one such limitation.
The Board will update the Agency’s address
that
is contained in variance condition 11
in PCB 78—313.
Finally,
the Board will
cite the current Board rules,
as
codified,
rather than the old rules that are contained
in the PCB
4me
Board
has
appended
its
order
in
PCB
78—313
to
this
Opinion and Order for comparison purposes.
111—370
7
78-313 order.
2.
The Board will not grant Citizens’
request to extend the
deadlines for permit application,
commencement of work,
and
compliance to six months,
one year,
and three years after final
adjudication of P81-19,
in the event that it denies site-specific
relief,
because the dates go beyond the Appellate Court’s mandate
and could even extend beyond the Act’s five year time limit
for
variances.
3.
Citizens next requested a modification of the variance
granted
in PCB 78-313
from the general use water quality standard
for ammonia nitrogen.
Specifically,
Citizens requested that the
Board specify that Lily Cache Creek,
for a distance of eight
miles downstream of the point of discharge of WSB Plant No.
1,
meet a water quality standard for ammonia nitrogen of no greater
than
15 mg/I.
The Board notes that, when it granted variance in
PCB 78—313,
it gave Citizens
a variance from Rule 402 of the
Board’s rules as it applied to the ammonia nitrogen water quality
standard of Rule 203(f).5
Rule 402 prohibited violations of
water quality standards, and Rule 203(f)
set the maximum
allowable water quality standard for ammonia nitrogen at 1.5
mg/l.
After the Board issued its decision in PCB 78-313,
however,
it deleted the ammonia nitrogen water quality standard
from Rule 203(f)
and placed a revised ammonia nitrogen water
quality standard in
35 Ill Adm. Code 302.212
(see P81—23).
Section 302.212 sets forth a range of concentration limits for
ammonia nitrogen.
The limits vary according to certain
combinations of water pH and temperature.
Many of the limits are
less than
15 mg/l but,
in no case,
do they exceed 15 mg/i.
The
Board recognizes that Citizens, pursuant to
35 Ill.
Adrn.
Code
302.212, may now be subject to
a maximum allowable concentration
that is equal
to or lower than the 15 mg/i limit.
The Board,
however, will give a complete variance from the ammonia nitrogen
water quality standard because it did so in PCB 78-313.
4.
The
Board
will
not
grant
Citizens’
request
for
a
variance
from
the
general
use
water
quality
standard
for
dissolved
oxygen
because
it
did
not
give
a
variance
from
the
standard
in
PCB
78-
313.
5.
The
Board
also
will
not
grant
Citizens’
request
for
a
complete exemption from the ammonia nitrogen and dissolved oxygen
water quality standards when creek flow
is less than 4.9 million
liters per day or
2 cfs.
Again,
the Board did not provide for
such relief
in PCB 78-313 and does not believe the Appellate
Court’s mandate requires the consideration of new relief.
5Rule
402 and
203(f)
are now codified
at
35
Iii.
Adm.
Code
304.105
and
302.208,
respectively.
111-37
1
8
6.
Finally, the Board will grant Citizens’
request that
it
order the Agency to modify Citizens’ NPDES permit consistent with
the relief granted herein because it granted similar relief in
PCB 78—313.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner Citizens Utilities Company of Illinois is granted
a variance from 35 Ill.
Adm. Code 304.120(c),
304.301, and
304.105, only as it applies to the ammonia nitrogen water quality
standard of 35
Ill. Adm.
Code 302.212,
subject to the following
conditions:
1.
This variance will become effective on July
2,
1985.
2.
This variance will expire on one of the following dates:
a)
on July
2,
1990,
or
b)
on the date that the Board denies site-specific
relief
in R8l—19 on remand,
or
c)
if the Board grants site—specific relief
in R81—19
on remand,
on the date that the site—specific rule
becomes final and applicable
(the date that the
rule
is filed with the Office of Secretary of
State),
whichever occurs first.
In the event that the Board does not make a decision in
R8l-l9 by June 21,
1990,
the Board hereby grants another
variance extension.
The variance extension will be subject
to the same condition set forth in this order except that
variance conditions
1 and 2 will be modified to read as
follows:
1.
This variance will become effective on July
2,
1990.
2.
This variance will expire on one of the following dates:
a)
on July 2,
1995,
b)
the date that the Board denies site-specific
relief
in P81—19 on remand,
or,
c)
if the Board grants site—specific relief
in P81—19
on remand,
the date that the site-specific rule
becomes final and applicable
(the date that the
111—372
9
rule is filed with the Office of Secretary of
State),
whichever occurs first.
3.
This variance applies to effluent discharges from
Petitioner’s West Suburban Wastewater Treatment Plant No.
1
(WSB Plant No.
1)
located at the intersection
of Glengary
Drive and Briarcliff Road in the Village of Bolingbrook.
4.
Petitioner shall meet the following interim effluent
limitations for five day biochemical oxygen demand
(BOD5),
total suspended solids
(TSS), and ammonia nitrogen measured
as
N.
Flow-weighted
Daily Composite
Monthly Average
(Maximum)
BaD5
20 mg/l
40 mg/i
TSS
25 mg/l
50 mg/l
Ammonia Nitrogen
15 mg/l
30 mg/l
5.
Petitioner shall operate WSB Plant No.
1 in such a
manner as to minimize the total quantities of
BOD5,
TSS, and
ammonia nitrogen discharged, consistent with applicable
NPDES permit and variance effluent limitations.
6.
Petitioner shall on a continuous basis monitor the flow
that
is diverted from WSB Plant No.
1 to the polishing pond
and the flow diverted to
WSB
Plant No.
2.
Petitioner
shall
keep
in operating condition flow meters necessary to perform
this monitoring.
Records
of these flows shall be maintained
for the period of this variance.
Flow results shall be
submitted to the Agency on a monthly basis at the same time
as and together with the discharge monitoring reports
required by its NPDES permit.
7.
The Agency, pursuant to 35 Ill Adm.
Code 309.184, shall
modify NPDES permit 1L0032727 consistent with the conditions
set forth in this Order.
8.
Within forty-five days of the date of this Order,
Petitioner shall execute and forward to the Illinois
Environmental Protection Agency,
Compliance Assurance
Section, Division of Water Pollution Control,
2200 Churchill
Road,
Springfield,
Illinois 62794—9276,
a Certificate of
Acceptance and Agreement to be bound to all terms and
conditions
of this variance.
This forty—five day period
shall be held
in abeyance for any period this matter
is
being appealed.
The form of the Certificate shall be
as
follows:
111-373
10
CERTIFICATION
I,
(We), _____________________________,
having read
and fully understanding the Order
in PCB 85-95 on remand,
hereby accept that Order and agree to be bound by all of its
terms and conditions.
SIGNED
TITLE
DATE
IT IS SO ORDERED.
Board Member R.
Flemel abstained.
Board Member
B.
Forcade concurred.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
.
/~‘
day of
____________________,
1990,
by a
vote of
.“
.
..
Dorothy M. Gunn,
Clerk
Illinois Pollution Control Board
111—374
PCB 78—313
—1—
ORDER
Petitioner Citizens Utilities Company of Illinois
is granted
a variance from Rules 404(c),
402.1(b)
and 402
as
it aDplies to
the ammonia nitrogen standard of Rule 203(f)
of Chapter
3, sub-
ject to the following conditions:
1.
This variance will expire on July 2,
1985.
2.
This variance applies
to effluent discharges from Peti-
tioner’s nest Suburban 1~astewaterTreatment Plant No.
1
(WSB Plant
No.
1)
located
at the intersection
of Glenqary Drive and Briar-
cliff
Road in
the
Village of Bolingbrook.
3.
Petitioner shall meet the following interim effluent
limitations
for five day biochemical oxygen demand
(BOD)
,
total
suspended solids
(TSS)
and
ammonia
nitrogen measured as N.
Monthly Average
Flow-weighted
Daily Composite
BOD5
20 mg/l
40 mg/l
TSS
25 mg/l
50 mg/i
Ammonia Nitrogen
15 mg/l
30 mg/i
4.
On or before January
2,
1983 Petitioner shall submit to
the lilinois Environmental Protection Agency
a permit appiication
including plans
and specifications for upgrading WSB Plant No.
1
to meet Chapter
3 limitations.
5.
On or before July
1,
1983 Petitioner shall commence such
design, engineering,
procurement of major equipment items, con-
tract letting and construction
as may be necessary for WSB Plant
No.
1
to be in compliance with then applicable effluent limita-
tions before July
2,
1985.
6.
On or before July
2,
1985 Petitioner shall be
in compli-
ance with applicable effluent limitations for five day biochemical
oxygen demand,
total suspended solids and ammonia nitrogen.
Com-
pliance with this condition before July
2,
1985 shall be excused
by delays arising from acts of God
or causes not within control
of the Petitioner.
7.
Within ninety days of the date of this Order, Petitioner
shall execute and
forward
to the Illinois Environmental Protection
Agency
a performance bond in
a form acceptable to the Agency con-
ditioned upon compliance with paragraph
6 above.
11 1—375
8.
Petitioner shall operate WSB Plant No.
1
in such
a manner
as to minimize the total quantities of DOD5
and TSS discharged,
consistent with applicable NPDES permit and variance effluent
limitations.
9.
Petitioner shall on a continuous basis monitor the flow
which
is diverted from plant No.
1
to the polishing pond and the
flow diverted
to WSE Plant No.
2.
Petitioner shall keep in oper-
ating condition flow meters necessary to perform this monitoring.
Records
of these
flows
shall be maintained
for the period of this
variance.
Flow results shall be submitted to the Agency on
a
monthly basis
at the same time
as and together with the discharge
monitoring reports required
by
its NPDES permit.
10.
The Agency, pursuant
to Rule 914
of Chapter
3:
Water
Pollution,
shall modify NPDES permit 1L0032727 consistent with
the conditions
set forth in this Order.
11.
Within
forty—five days of
the date
of this Order, Peti-
tioner shall execute and forward
to the Illinois Environmental
Protection Agency,
Variance Section,
2200 Churchill
Road, Spring-
field, Illinois 62706, a Certificate of Acceptance and Agreement
to be bound to all terms and conditions of this variance.
This
forty-five
day
period
shall
be
held
in abeyance for any period
this
matter
is
beinq
appealed.
The
form
of
the
Certificate
shall
be
as follows:
CERTIFICATION
I,
(We)
_______________________________
,
having read and
fully understandinc the Order in PCB 78—313, hereby accept that
Order
and agree to be bound by all of its terms
and conditions.
SIGNED ____________________________
TITLE
___________________________
DATE
______________________________
IT IS SO ORDERED.
Mr. Jacob
D. Dumelle concurs.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board hereby certify that the above Opinion and Order
were
adopted
on
the
~
‘~
day
of
_____________
,
1981 by
a vote
of
_______.
Christan L. Noffe~,~lerk
Illinois Pollution ‘Cb1~itro1Board
1 H—376
