ILLINOIS POLLUTION CONTROL BOARD

May 1,

1980

AMENDMENTS

TO THE WATER POLLUTION

REGULATIONS

OF THE

ILLINOIS

)

R80--6

POLLUTION CONTROL BOARD

PROPOSED OPINION

AND

ORDER

(by Dr. Satchel?):

On April

7,

1980 the Environmental Protection Agency proposed

to amend Rule 951 of Chapter

3:

Water Pollution and to add two

definitions.

The Board proposes to adopt the Agency!s proposal

and,

in addition,

to make other technical amendments

to Chapter

3

which will not require hearings or environmental impact statements.

These technical amendments seek to clarify the difference between

variances and permit appeals.

104

Definitions

Definitions

of “publicly owned” and “publicly regulated”

have been added to Rule 104,

These are used in connection

with

the proposed amendments to Rule

951.

604

Critical Review and Restricted Status

Rule 604

is now titled:

“Critical Review and Restricted

Status.”

Rule 605 now covers

“wew

Connections.”

Rule 604(a)

through

(d)

are unchanged.

Rule 604(e)

is now Rule 606(a).

Rule 604(f), the effective date,

has been stricken since this

is no longer necessary.

605

New Connections

Rule 605(a)

and

(b)

are new rules which make no sub-

stantive change in Chapter

3.

Presently when a sewage system

has been placed on restricted status pursuant to Rule 604(b)

the

Agency can

no

longer issue permits for construction or

operation of facilities

involving additional sewage connec-

tions because the standard for permit issuance under Rule 962

is not met.

Since the sanitary district

is a permitted

facility,

the restricted status

is viewed

as a condition of

its permit forbidding

it to authorize additional connections

to its system.

Rule 605 has been added to Chapter

3 to state

this explicitly

in Part VI next to the provisions

for re-

stricted status.

This should make Chapter

3 more understand-

able to the affected public.

606

Appeal

Rule 606(a)

has been adopted verbatim from Rule 604(e).

Rule 606(h)

is a new Procedural

Rule.

While Rule 606(a)

pro-

---

2—

vides for appeal by a sanitary district whenever it

is

placed on restricted status, there

is presently no way for

a discharger

to the sewage system to appeal the restricted

~3tatus itself.

Rule 606(b) provides that such

a discharger

may

at any time request that the Agency review the restricted

S

~atus.

Rule 606(c) provides that

if the Agency refuses

to re-

move the restricted status, the refusal

is

a permit denial

entitling the discharger to appeal to the Board pursuant to

Part V of the Procedural

Rules.

The rule provides that the

sanitary district must he joined as

a respondent in this

permit apoeal,

along with the Environmental Protection Agency

as provided by Procedural Rule

502.

Presently persons other than the sanitary district who

seek to challenge the propriety of the restricted status

have no procedural mechanism other than

a variance petition.

Evidence that the restricted classification

is wrong is more

appropriate in the context of a permit appeal and does not

fit well into

a variance proceeding where the issue

is ar-

bitrary or unreasonable hardship.

Rule

606(b)

and

(c) pro-

vide a method for appeal

for a discharger into the sewage

system.

607

Variance from Restricted Status

Rule 607 provides that if a discharger to a sewer system

has been denied a permit because of restricted status he may

petition the Board for a variance from Rule 605 to allow

sewer connection in spite of the restricted status on

a show-

ing of arbitrary or unreasonable hardship.

Such proceeding

is governed by Part IV of the Procedural

Rules.

The sanitary

district must be joined either as a respondent

or as

a peti-

tioner.

Presently dischargers who seek to obtain

a variance

from restricted status must petition for a variance from Rule

962(a),

the standard

for permit issuance.

This

is undesir-

able since it tends

to blur the distinction between a permit

appeal and a variance.

It is theoretically possible to appeal

any permit by a variance from the standard

for permit

issuance.

Rules

606 and 607 have been placed together next to the

rule on restricted status so that they will provide guidance

for municipal dischargers who are unfamiliar with the Board’s

Procedural Rules.

If a discharger seeks

to challenge the

restricted status,

he should file a permit appeal.

If he

seeks to admit that the restricted status

is correct, but

seeks

to show hardship,

he should follow Rule 607.

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—3—

914

Permit Modification Pursuant to Variance

Rule 914

is presently titled,

“Variances from NPDES

Limitations, Standards and Requirements” which tends

to

lead one

to the conclusion that he may obtain a variance

from

a condition of a permit.

The Board has usually held

that variances are available only from the underlying reg-

ulations which have been incorporated

in the permit.

The

new title will more clearly state the intent of Rule

914.

Rule 914 presently states that the Board may grant

variances

from standards,

limitations and requirements “im-

posed by these NPDES regulations.”

This has been changed to

“imposed by the Act,

the FWPCA and Board regulations adopted

pursuant thereto.”

Rule 910 provides that the Agency must

incorporate permit conditions mandated by the Act, Board

Regulations, the FWPCA and federal effluent guidelines.

The

rest of subpart

(a)

of Part IX of Chapter

3 involves applica-

tion procedures before the Agency.

It is doubtful whether

a variance from application procedures would he useful or

meaningful.

Therefore Rule 914 has been modified to state

expressly what the variance

is

from.

This wording will

further avoid the interpretation that Rule 914 authorizes

‘variances” from permit conditions which should be obtained

by

way of

a supplemental permit application directed to the

Agency.

If modification

is within the authority of the

Agency,

there is no necessity for a Board variance.

A vari-

ance is required only in a situation where some regulation

mandates the inclusion of the permit condition.

A variance

may be obtained from the regulation.

Rule 914 orovides that

the Board may order modification of the NPDES permit in the

variance proceeding without

a separate permit appeal or ao—

olication.

951

Construction Permits

The Environmental Protection Agency has proposed modifi-

cation of Rule 951(b) (2)

to reverse the

result

of the Third

District Appellate Court in

the case of Paul Starcevich et al.

v.

EPA,

78 Ill App.

3rd 700,

397 N.E.

2d

870.

This Opinion

appears

to authorize tap-ons to sewer tap-ons without a con-

struction permit.

In this manner an entire subdivision could

conceivably be hooked into a sewer system without a con-

struction permit by successively

tapping onto each neighbor’s

tap-on.

This is obviously

not the intent of Rule

951.

The

proposed amendments will provide that the exemption from the

construction permit will he limited to wastewater sources

which discharge less than ~00

gallons per day and discharge

directly into a publicly owned or publicly regulated sanitary

or combined sewer.

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—4—

962

Standards

~or Issuance

Rule 962(a)

has been modified to delete the reference

to variances and Rule 974 has been added to cover permit

modification pursuant to variance.

Once a person has a vari-

ance from

a rule he may obtain a permit which would be denied

except for the variance.

This is the intent of Title IX of

the Act.

The specific reference

to variances in Rule 962(a)

adds nothing and invites petitions for variances from the

standard for permit issuance.

This tends to confuse the dis-

tinction between

a permit appeal and a variance.

Rule 962(b)

has been reworded to track the language of

the Proposed Order in R77-lO

(December

13,

1979).

Rule 962(b)

presently provides that the wastewater source must either

conform to the criteria or “be based on such other criteria

which the applicant proves will produce consistently satis-

factory results.”

In permit issuance the Agency has con-

sistently ignored this alternative and insisted that permit

applicants who cannot comply with design criteria obtain a

variance from the Agency’s criteria.

Section 35 of the Act

does not mention Agency criteria or policies

as subjects of

Board variances,

The preferred view is that the Agency poli--

des

and criteria can be modified by the Agency without resort

to the Board.

Where

a discharger cannot comply with the

criteria but can achieve the same results

in another manner,

he should be issued

a permit.

Review of the alternative design

should be by way of permit appeal where the issue

is whether

the facility will be constructed, modified or operated so as

not

to cause

a violation of the Act or of this Chapter,

as

provided in Rule 962(a).

Since this frequently produces con-

fusion,

Rule 962(b)

has been reworded to emphasize this.

The

Board intends Rule 962(b)

to be merely a rewording of the ex-

isting Rule 962 (b).

It does not amount to a substantive

change affecting the duties of a discharger.

Rule 962(c)

has been deleted.

Pending before the Board

is a Proposed Order affecting Rule 902(i)

in R79-l3

(December

13, 1979)

.

Rule 962(c)

is being deleted for substantially

the same reasons

as

902(i) (1) (i)

.

Rule 962(c)

appears to

impose

an absolute requirement that dischargers comply with

all conditions of a construction permit before an operating

permit can be issued.

This potentially could lead to a situa-

tion where a facility has been constructed so that it meets

the standard for permit issuance under Rule 962(a)

hut cannot

be permitted because of some violation of conditions of a con-

struction oermit which did not result in a facility which is

---

—5—

any less desirable from an environmental point of view.

Deletion of Rule 962(c)

will ensure that such

a facility

would be permitted under the general rule of 962(a).

Breach

of condition of

a construction permit may be the subject of

an enforcement action in

an appropriate case but should not

prevent permitting a facility if the general standard is met.

967

Design, Operation and Maintenance Criteria

Rule 967(a)

has been modified to strike references

to

Agency procedures.

These have been moved to Rule 967(b)

Confusion has resulted from a rule which speaks both of crite-

ria and procedures,

Rule 971 has been deleted and Rule 967(b)

added to provide for Agency procedures.

Rule 967(c)

has been added to provide that both the cri-

teria and the procedures are subject to the applicable provi-

sions of the Illinois Administrative Procedure Act,

The re-

ference to the Administrative Procedure Act in Rule 971

is

incorrect.

Rule 967(d)

has been added to define the function of the

criteria.

The criteria are not rules

in the sense that a dis-

charger must comply with them,

They represent a model permit.

If a discharger designs his facility to meet the criteria,

then he is assured that the permit will be promptly issued.

This language is taken from the Proposed Order in R77-lO

(December 13,

1979)

971

Procedures

Rule 971 has been deleted and moved to Rule 967(b)

and

(c)

974

Permit Modification Pursuant to Variance

Rule 974 has been added to Chapter

3.

This parallels

Rule 914 which applies only to NPDES permits.

This restates

the permittee’s right to petition the Board for variance

purauant to Section

35 of the Act and Part IV of the Procedural

Rules.

The last sentence of Rule 974 provides that the Board may

order modification pursuant to a variance.

This is a new rule

which

is procedural in nature,

This

is added to avoid the

interpretation that a person who seeks

a variance in order

to

obtain a permit must also file a permit appeal and maintain

the permit appeal while awaiting the outcome of the variance.

---

—6—

In actual practice this

is unnecessary since the discharger

could always obtain permit modification subsequent to issu-

ance of a variance by way of an application to the Agency.

however, addition of this as

a specific rule should provide

guidance to dischargers unfamiliar with the Board’s procedures.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

The Board proposes

to adopt the following amendments to

Chapter

3:

Water Pollution.

104

Definitions

“Publicly Owned” means ownership by a municipality, sanitary

district, county,

or state or federal agency.

“Publicly Regulated”

refers to those otherwise private compa-ET?1 w?132 437 m?573 437 l?S?BT?

nies which are regulated as public utilities h~the Illinois

Commerce Commission pursuant to an Act Concerning Public

Utilities,

Ill.

Rev.

Stat.

1977,

ch. 111 2/3,

par.

1 et

seq.

604

New-6~nnect+on~Critical Review and Restricted Status

(a)

Publication of Lists.

The Agency shall publish and

make available

to the public at intervals of not more

than three months

a comprehensive and up—to-date list

of sanitary districts and other wastewater treatment

or transportation authorities then subject to restricted

status on further sewer connections,

as well as

a list of

those which are then under critical review by the Agency.

Such lists shall include estimates of treatment plant and

sewer capacity, and the amount of population equivalent

added since publication of the previous list.

(b)

Restricted Status.

Restricted status shall be defined

as the Agency determination,

~

~

that a sewer has

reached hydraulic capacity or that a sewage treatment

plant has reached design capacity,

such that additional

sewer connection permits may no longer be issued without

causing a violation of the Act or regulations.

(c)

Critical Review,

Critical review shall be defined as

the Agency determination,

~

~

that a sewer is

approaching hydraulic capacity or that a sewage treat-

ment plant

is approaching design capacity, such that

---

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;cwer

C

ii

oct:

011

)~‘r1l1i

~iinL

i~:i!

ions

Wi

I

reonire

cio~cscrut ~

to det~‘r~iinewhether issuanco

~ou1d result in

a

violation

o

F

the

Act

or

requlations.

(d)

sotiFication

of

Individuals

Pecuesting

Connections.

5initary

districts,

or

other

wastewater

treatment

or

traris’~orLation

authorities

responsible

for

authorizing

ao~

sewer

connections

,

which

have

been

placed

on

re—

;tr:i

cted

status

or

cr1 Lical

revi ow

by

the

Aqency

shall

notify

alt

individuals

recuesting

connections

of

such

Aoenc~

tersiiuation.

-~e3

~

~

~t~a~t

~

ee~te~t~

~f3-

~

r:

~

Counec~

imn

(~)

~°°:

;*)1

I

n~

is,;U’

r~s~

under

earL

TX

oF

?‘hht~~r3Lo

a

O\i

coiisLruct

~on

or

oncration

~~

mci

1—

1 05

inVolVing

additional sewer

connections

to a se:er

~J~P:7~qe_treatment:

ulant

which

is

on

restricted

status.

(b)

Canitarv

districts

or

other

wastewater

treatment

or

transportation

authorities

res?onsihle for authorizing

new

sewer

connections

shall

not

issue

additional

Sewer

~onnection

oersiits

for

sewers

or

sewage

treatment

plants

~ihich

are

on

restricted

status.

~

0

~~:~pc

i

1

(a)

~

s an:i Ln:rv hisLrict or otHer wastewater treatment

or

transportation

authori

Lv

resnonsible

for

authorizing

new

sewer

connections

may

petition,

pursuant

to

Title

19 of the

Act

and

Part

V

of

the

Board

Procedural

Rules,

for a hearinc before the Board to contest the decision

oF the Agency to place it

on restricted status.

---

(h)

/\m~po’:son

who

receives

notification

of

restricted

status

nursuant

to

Rule

604(d)

may

request

that

the

J\qency

review

the

restricted

status.

Such

request

dhall

include

a

statement

of

facts

and

reasons

sup—

porff~

removal

of

restricted

status.

(c)

Refusal

to

remove

the

restricted

status

shall

he

a

aermit

denial

entitling

the

person

to

petition,

pur-ET?1 w?157 590 m?532 590 l?S?BT?

suant

to

Title

10

of

the

Act

and

Part

V

of

the

Board

Procedural

Rules,

for

a

hearing

before

the

Board to

contd~t

the

Agency’s

refusal

to

remove

the

restricted

status.

The

sanitary

district

or

other

wastewater

treatment

or

transportation

authority

which

is

re—

soonsib1~

for

authorizing

new

sewer

connections

shall

be_joined

as

a

respondent.

607

Variances

from

Restricted

Status

Any

person

who

receives

notification

of

restricted

statu~pursuant

to

Rule

604(d)

or

who

has

been

denfbd

an

Aqency~ob~~~rrestricted

status

may

petition

U~~oard

for

a

varianc~TFrom

Rule

605

to allow

the

sewer

connection

in

site

of

the

restricted

status

upon

a

showing

of

arbitrary

or

unreasonable hardshio.

Such proceeding

shall

be

governed

by

Part

TV

of

the

Board’s

Procedural

Rules.

The

sanitary

district

or

other

wastewater

treatment

or

transportation

authority

which

is

responsible

for

author~—

izing

new

sewer

connections

may

join

in

the

petition,

but

if

it

hoes

not

it

shall

be

joined

as

a

resoondent,

in

which

case

it

must

receive

notice

and

service

as

orovided

by

Part

III

of

the

Procedural

Rules.

914

~

Permit

Nodification

Pursuant

to

Variance

To

the

extent

authorized

by

the

FWPCA

and

t~e

~ct,

the

hoard

may

grant

variances

from

standards,

limitations,

and

reeuirements

~meosed

~

e~e—~PDF

~

by

the

Act,

the

FyPCA

and

regulations

adopted

pursuant

thereto

unon

a

showing

that

comoliance~wou1d

imnose

an

arbitrary

and

Un—

reasonable

hardship

on

the

applicant

or

oermittee.

Any

re—

-~ucsL for

such

relief

shall

be

coimrenced

in

accordance

with

Rule

LiOl

oF

the Procedural

Rules and

Part

IV

of

the

Procedural

Rules

shall

qovorn

the

proceeding.

If such

a variance

is

qrante~~

the

Pea

rP

shall

order the

7\eency

to

i ssue

or

mor.i

fv

in

lP!t~S t~~ui I

c:oiis~stout

WjLX

Fan hoard hrder,

the

FF~PC~,

I

:4PPR.X

heciuleti

one

and

t~1C

Pet

-

---

—9—

951

Construction Permits

Except for treatment works

or wastewater sources which

have or will have discharges

for which NPDES Permits

are

required,

and for which NPDES Permits have been issued by

the

Agency,

(a)

No

person

shall

cause

or

allow

the

construction

of

any

new

treatment

works,

sewer,

or

was tewater

source

or

cause

or

allow

the

modification

of

any

existing

treatment

works,

sewer,

or

wastewater

source

without

a

Construction

Permit

issued

by

the

Agency, except

as

provided

in

Paragraph

(b),

(b)

Construction

Permits

shall

not

he

required

for

the

following;

(1)

Storm

sewers

that

transport

only

land

runoff;

or

(2)

Any

treatment

works,

sewer,

or

wastewater

source

designed

and

intended

to

serve

a

single

building

and

eventually

treat

or

discharge

less

than

an

average

of

1500

gallons

per

day

of

domestic

sewage

and

which

will

di

argedirectl

to

a

publicly

owned

or

publicly

regulated

sanitary

or

combindd

sewer

or

(3)

Any

sewer

required

by

statute

to

secure

a

permit

pursuant

to

Ch.

111

1/2

Ill.

Rev.

Stat.,

Sec.

713,

et seq.; or

(4)

Any treatment works, pretreatment works,

sewer, or

wastewater

source

that,

on

the

effective

date

of

this

Subpart

B,

is

being

constructed

or

will

be

constructed

under

the

authorization

of

a

Permit

already issued by

the

Agency or its predecessors;

provided however, that all construction must be

completed within four years from the effective

date of this Subpart B;

or

(5)

Privately owned sewers tributary to industrial

treatment works owned by the same person if the

additional waste load does not exceed the permitted

design capacity of the industrial treatment works.

(c)

No person shall cause or allow the construction of any

pretreatment works or cause or allow the modification

of any existing pretreatment works

if such pretreatment

works, after construction of modification, will:

---

(1)

~ischa

qe toxic pollutants,

as defined in Section

51h

13,

of tne

FT7PCA,

or pollutants which may

inerfeie wita the treatment process into the

rece~vrnutreatment works; or

(2)

iscLarqe 15

or more of the total hydraulic

1

e

~sceived by the treatment works;

or

(3)

~s

arj~ ta~~r note of the total biological

~ond ~q receivei by the treatment works

as

rea~,urcdby the 5-day biochemical oxygen demand;

without a Corstruot~r

Persit issued by the Agency

962

Standards

oi s~uarce

(a)

The Ageny

slia

I

not grant any oermit required by this

Suboart b

cept

an Experimental Permit under Rule

955,

unless

-~-‘-e ap Theant ‘ubmits adequate proof that the

treatreat won

s

pvetreatment works,

sewer, or waste—

water

s

~

~ha* ~±T1 will be constructed, modified,

or umera~ec

o as not to cause a violation of the

Act

or of

this

F. ~iotcr,, er-~has-beeft—a~ite~-a—vafia~ee

undet--r

-?c~

f-tiwe-ACtT-and

~?b3- Either—c rfor ~s-to-tega-er±ter-~rm~et~d-by

the

gene~y—urther-Rule 9&T7-——bed—eu-eueh—~ther

eu~terrere-t-te-

eant—)~~ueve~5—w-r+l-~reduee-eeu—

~teutiy-eatfaeteuy-ree-~-auA

(b)

If

the A~er~~

criteria with reaard to any part or condition of a

permiE7the~~6rpurposes of permit issuance proof

of

—

-~

—

-

conformity with ~

eviderce of

cc

viclation.

However, non-conf2rmit

with the

ci i

~

denial if the c)ndition of subsection

(a)

of this

rule

is met

-(-ca-

eonf,ri.e to all

~ond±t

ne-acute

e~n—the—6otet~en

Peumi~7-where—appl±eaJ~leT

967

Design, Operatior

and Maintenance Criteria

(a)

The

Agency may adopt ~reeeduree-whieh—eet-?euth

criteria

for the design,

operation,

and maintenance of

treatment

works

pretreatment

works,

sewers,

and

wastewater

sources.

These prc~eduueecriteria shall be revised from time to

time to reflect c~

tengineering

judgment and ad-

vances

in the state

of

the

art

---

-11—

(b)

~

e~a~es ~

-fl*

*2*

~

EtrLeJ.

*3*

~

The Agency shall adopt such procedures

as are necessary

for permit issuance under this Subpart B of Part IX.

(c)

In adopting new or revised criteria or procedures,

the

Agency shall comply with the requirements of the Illinois

AdminisFrative

Procedure

Act,

Tl1.

Rev.

Stat.

1977,

ch.

l27,~ll)01.

ct

seq.

(d)

To the extent the Agency adopts such criteria,

they

will represent a formal Agency interpretation of what

is consistent with the Act and Chapter

3 and necessary

to accomplish the purposes of the Act.

9~± Proced~ires

~

~

~

—d—fe~ps4~e~

~de~—th~s

~

—a—fe

±~±e~e—tI’tefete7

~

~

~

Deleted

974

Permit Modification Pursuant to Variance

If a permit is denied or granted with objectionable

conditions required by Board Regulations the permittee may

petition the Board for a variance from the regulations.

The

---

-12-

proceeding will be governed by Part IV of the Procedural

Rules.

If requested the Board may order permit modification

pursuant to variance.

The record will be held open for public comment for

forty-five

days

after

publication

of

the

first

notice

in

the

Illinois

Register.

IT

IS SO

ORDERED.

Mr. Werner abstained.

I, Christan L. Moffett,

Clerk of the Illinois Pollution

Control Board, hereby certify the above Proposed Opinion and Order

were adopted on the

~

day of

1980 by a vote of_____

Illinois Polluti

ontrol

Board