implements‘to restore, maintain and enhance the purity of the
necessary to prevent pollution, or without being made
The Data Problem

ILLINOIS POLLUTION CONTROL BOARD

April

1,

1982

IN THE MATTER OF:

REVIEW

 OF EXISTING REGULATIONS,

)

 R81-17

RULE 602 OF CHAPTER 3:

 WATER POLLUTION

)

COMBINED SEWER OVERFLOW

PROPOSED RULE.

 FIRST NOTICE.

INITIAL OPINION OF THE BOARD

 (by J.

 Anderson):

On April

 17, 1982

the

 Illinois Institute of Natural

Resources,

 now The Department of Energy and Natural Resources

(ENR),

 submitted to the Board

 its study of the “Economic Impact

of Combined Sewer Overflow Regulation

 Rule

602

 in...

Illinois

IINR Doc. No.

 81/18

 (EcIS).

 This EcIS concerns existing rule

Rule 602 of Chapter

3:

 Water Pollution,

 which in part addresses

Combined Sewer Overflows

 (CSO).

 It was the first undertaken,

pursuant

to

 Ill.

 Rev.

 Stat., Ch.

 96½,

§7404(a),

 which requires

the ENR through

 its Economic Technical Advisory Committee

 (ETAC)

to review Board rules which were

 in existence prior to the time

economic impact studies were first required in 1975 as part of

the regulatory process.

Pursuant to the statute and Board Procedural Rule 215, the

 Board conducted inquiry hearings

 in 1981 on July

 14 in Peoria, on

July 16

 in Alton, on July 29 and

 30 in Chicago,

 and on July 31 in

Decatur.

 Numerous individuals,

 associations, and municipalities

participated

 in these hearings.

 During the course of the twice-

extended comment period,

 the Board received several comments.

In this initial Opinion in this rulemaking,

 pursuant to

Ch.

 96½, §7404(c), the Board must

consider whether, based on

this record,

 Rule 602 should be modified, eliminated

or remain

unchanged.

 The Board has concluded that it

 is necessary that

Rule 602 be modified.

 Following discussion

 of the Board’s

findings and conclusions, this Opinion explains and details the

new criteria and

procedural modifications to Rule 602 which

it

is today proposing.

 Hearings shall

 be held concerning this

proposal

 as required by Ch,

 96½, §7404(c), and by Title VII of

the Environmental Protection Act.

46—63

2

THE ECIS

While the EcIS refers to Rule 602*,

 generally,

 the primary

focus of the EcIS was on the combined sewer overflows portion of

Rule 602,

 in particular the treatment requirement of Rule

602(c)(1) and

(2)

 (EcIS p.

1).

Rule 602 provides in its entirety

602

 Combined Sewers and Treatment Plant Bypasses

(a)

 The expansion of existing or establishment of new

combined sewer service areas

 is prohibited,

 except

where the Agency has determined from the permit

application the following:

1.

 The combined sewer service area has adequate

treatment or retention capacity to ensure that

the effluent limitations of Part IV of this

Chapter and the provisions of

 the Act are not

violated;

2.

 Any anticipated increased flow will not overload

connecting segments of the combined sewer system;

3.

 Increased flow shall not aggravate combined sewer

overflow problems; including,

 but not limited to,

combined sewer surcharges, basement back-ups and

street flow;

4.

 The new combined sewer service area will he

tributary

 to an existing combined sewer system.

(b)

 Excess infiltration into sewers

 shall he eliminated,

and the maximum practicable

 flow shall

 be conveyed to

treatment facilities.

 Overflows from

sanitary sewers

are expressly prohibited.

(c)

 All combined sewer overflows and treatment plant

bypasses shall be given

 sufficient treatment to prevent

pollution or the violation of applicable water quality

standards.

 Sufficient treatment shall consiste of the

following:

1.

 All dry weather flows,

 and the first flush of storm

flows as determined by the Agency,

 shall meet the

applicable effluent standards;

2.

 Additional

 flows,

 as determined by the Agency but

not less than ten times

 the average dry weather

flow for the design year,

 shall receive a minimum

of primary treatment and disinfection with adequate

retention time;

46—64

3

Footnote from page

 2 continued

3.

 To the extent necessary to prevent accumulations

of sludge deposits or depression of oxygen levels,

flows

 in excess of those described under paragraph

(c)(2)

 above shall be treated by retention and

return to the treatment works or otherwise.

 When

the Agency finds

 it necessary,

 part or all of

 such

excess flows shall be treated to substantially

remove floating debris and solids.

Cd)

 Compliance with paragraph

Cc)

 of this Rule 602 shall he

achieved on or before

 the following dates:

1.

 All treatment plant bypasses, by the applicable

date for improvement

of treatment works under

Part IV of this Chapter;

2.

 All combined sewer overflows within the

Metropolitan Sanitary District

 of Greater Chicago,

by December 31,

 1977;

3.

 All other combined sewer overflows,

 by December 31,

1975.

4.

 The compliance dates set by (d)(2) and

 (d)(3) shall

be met unless:

(aa) The discharger’s combined sewer overflow is

eligible for a construction grant under

Section 201(g)

 of the FWPCA;

 and,

(bb) The discharger has filed an application for

a construction grant on or before March

1,

1977;

 and,

(cc) The discharger has timely taken all

appropriate pre—grant and post—grant actions

necessary to abate pollution of waters

 of the

State,

 when the Board has found,

 as the result

of an enforcement or variance case initiated

under Titles

 8 or 9

 of the Act,

 that the

discharger

 is causing a violation of the Act

or regulations.

6.

 Deleted.

7.

 The exemption provided by (d)(4)

 above shall

terminate upon completion of construction under the

grant provided and compliance with the provisions

of this Rule shall

 thereafter be required.

46—65

4

In general, Rule 602(c) requires treatment of CSO sufficient

 to prevent water quality violations.

 It specifically requires,

as a minimum,

 storage and secondary treatment of the first flush

(i.e.

 capacity to hold and treat BOD or suspended solids concen—

trations in excess of the normal dry weather level)

 plus retention

for primary treatment and disinfection of ten times normal dry

weather flow.

In its prefatory Opinion to the EcIS, ENR’s Economic and

Technical Advisory Committee

 (ETAC) notes the belief of the

report author Linda

L.

 Huff of Huff and Huff,

 Inc. that “until

site specific evaluations provide sufficient data, there exists

no water quality information upon which to evaluate the importance

of

CSO

control”

(p.

v),

 leading Huff to the conclusion that

“without

 an accurate assessment of environmental conditions,

the benefits of Rule 602 cannot be properly addressed”

(p.

 141).

ETAC found

 “no economic justification for the continued

existence of Rule 602, even with the caveats regarding the

benefits of

 Rule 602 on water quality”

 (p. v.).

 Given the

inflexible Rule 602 requirements that “all communities must meet

the same treatment standards,

 regardless

 of stream size, water

quality impacts or economic hardship”,

 ETAC concluded that “there

is no economic, environmental or other substantive evidence that

would support the treatment requirement under Rule 602 in its

 present form”.

In the study itself,

 the need for CSO treatment was

identified in the study for 132 municipalities,

 serving 1.2

million people or 22

 of the state’s population outside Cook

County.*

 However, Huff expressly acknowledged that:

*The study did not include Cook County, part of which

includes the TARP

 (Tunnel and Reservoir Plan) area within Cook

County.

 This area, based on population,

 is approximately twice

as large as the population of the CSO communities outside of Cook

County.

 The Metropolitan Sanitary District of Greater Chicago’s

(MSD)

 service area (encompassing most of Cook County).

 TARP

includes over 600 overflow points from sewers owned by 33 com-

munities

 (a few of the CSO communities are not part of the TARP),

as well as the overflows from

 interceptors owned by the

Metropolitan Sanitary District of Greater Chicago.

 This omission

in the EcIS was challenged at the hearings in Chicago.

The

omission was explained as being based on several factors:

 a) The

level of justification and analysis of TARP by the Federal

and

State Governments has been intensive,

b)

 MSD is unique in the

concentration of industrial and residential

 activities,

 c) MSD

activities have an impact on Lake Michigan,

d)

 control of the

CSO’s are a primary factor in controlling the water quality

 violations of the Illinois River,

e)

 any modification of Rule 602

would not affect TARP,

f)

 TARP should not obscure the situation

in other Illinois communities where the level of environmental

protection is often unknown and the economic impact can be severe,

and g)

 there was no intent to exclude Cook County communities

from the funding issue

(R.

 507—511,

 530,

 531,

 541,

 EcIS).

46—66

5

“The evaluation of treatment costs and

environmental effects of combined sewer overflow control

is dependent upon the data base and accuracy of estimating

methodologies.

 The factors representing the major

limitations to the analysis are lack of data regarding

sewer system characteristics, general cost estimating

procedures,

 methods for determining annual and event

CSO loadings and specific water quality impact

assessments

 (EcIS p.

 139)”.

Review of Illinois Environmental Protection Agency

 (Agency)

and United States Environmental Protection Agency

 (USEPA)

information made the lack of an adequate data base apparent, with

the result that “even the 132 municipalities

 herell

 specified...

probably do not represent the entire data base”.

 Compliance costs

from engineering reports were available for only

 55 of these

 communities.

 Detailed field CSO water quality evaluations were

available for none of the dischargers, and general ones for less

than half

 (ECIS

p.

 140—41).

Huff stated that:

“The estimation of pollutant loadings contributed

by combined sewer overflows represents the area of

greatest inaccuracy.

 Two methods are utilized to

calculate annual CSO loadings.

 The variation in values

provided by these methods

 is two-fold range for suspended

solids and three-fold range for BOD5.

 This variation is

an indication of the uncertainty regarding the magnitude

of CSO loadings.

 Depending upon the land use character-

istics,

 interval between storm events,

 size of the

drainage area and the intensity of the rainstorms,

the

runoff characteristics will vary.

 The USEPA conducted

detailed site studies of CSO characteristics and the

results of these studies also indicated a range in dis-

charge characteristics for different sized communities.

The CSO loading of any individual community cannot be

accurately described without

 specific knowledge of the

system; however, the general aggregated loadings

represent an indication of the problem.

 The importance

of BOO5 and suspended solids loadings attributed to CSO

cannot be fully evaluated when such a range

 is possible

(EcIS p. 140)”.

In short,

 as Huff pointed out at hearing,

 the impact of

CSO’s varies with the “size of the receiving stream,

 sewer system

characteristics,

 such as drainage area,

 percent combined, and

sewer capacity;

 the rainstorm intensity and duration; runoff rate~

and the number of days between storm events”

CR.

 39),

 and accurate

data concerning many of these factors

 is yet to be gathered.

The study nonetheless found CSO’s to be

 a significant factor

in Illinois.

 Well over half of the population in Illinois

(including TARP)

 is served by combined sewers, which can cause

both stream pollution and basement backup.

 The loading problem

is severe:

46—67

6

“The annual BOO

 loading attributed to untreated

CSO’s

 is comparable ~o that of wastewater plants.

The

annual

 suspended solids contribution of untreated CSO’s

is

 7 to 13 times greater than that discharged from

the wastewater treatment plants.

 This proportion is

considered representative of the overflow contribution

for all 132 plants”

 (EcIS 7).

The cost outside of Cook County

 is estimated to be $476

million.

31

 of this total relates to projects with priority

numbers below 806,

 a category with questionable access to federal

or state

 funds beyond Step

 I planning

 (EcIS

p.

 13).

Statewide,

 the EcIS estimates indicate a significantly

higher cost per pound BOD and suspended solids removed than for

typical sewage treatment plant costs

 (EcIS,

p.

 12),

 and a 16—fold

variation among communities tEdS,

p.

 14).

 The local share for

capital CSO outlay can,

at

 a minimum,

 represent one year’s

typical outlay for all annual costs.

 For about

47

 of the

communities studied, the annual

 increase for operating costs

is

less than $20/person,

 for a third, the costs rise to $10 to

$40/person,

 and for the remaining one—fifth, between $41 and

$300/person

 (EcIS p.

 17).

The study attempted to establish,

 admittedly without

success,

 alternatives to Rule 602 based on a range of treatment

requirements,

 and, thus,

 discharger categories or classes.

The

categories

 included requiring less than 10 times dry weather flow,

elimination of disinfection, exemption for discharges to major

streams,

 exemption for communities served of fewer than 3,000

population,

 use of Best Management Practices

 (BMP)

 such as sewer

flushing for towns with priority numbers above

 806, and elimination

of Rule 602

 (EcIS p.

2).

As

 a general statement,

 the study concluded that categories

or classes by Rule is unworkable because the factors affecting

CSO’s are so numerous.

 Huff recommended that,

 since each

discharger should be assessed on a case-by—case basis, and that

the focus of the hearings should be not upon the issue of CSO

pollutant loadings but rather finding

 a method to assess CSO

treatment goals

(R.

 41).

HEARING AND COMMENTS

The hearings and subsequent comments elicited a thoughtful

assessment of the scope,

 the complexity,

 and the “uniqueness” of

the problems for each community.*

 It was apparent however that

the stumbling block was how to establish procedures to resolve the

problems

 in a cost-effective, timely manner and,

 at the same time,

how not to undermine the overall pollution abatement commitment

and the public participation

 in each process.

*As these were inquiry hearings, participants were encouraged

to make informal “off the cuff” suggestions.

 Record citations are

made only where formal statements are specifically referenced.

46—68

7

The Agency noted that CSO events are not part of their

monitoring or intensive survey activities

(R.

 208).

 The hearing

participants noted,

 in agreement with the EcIS,

 that it was

difficult even to get a sure count on the number of communities

 with combined sewer overflows,

 Indeed,

 a number of participants

noted that the data on which the EcIS relied for the percent of

combined sewers

 in their particular town was incorrect.

It was also pointed out that many communities,

 as they expand,

have continued to attach new separate sanitary sewers to an

existing combined sewer for delivery to the treatment plant,

 thus

creating

 a “moving target” for data analyses.

 Data estimating

the discharge problem can be incorrect if a community does not

properly dam the overflow outlets to assure maximum delivery

to

the treatment plant, especially where there would be

 a risk of

basement backups.

Participants concurred with ETAC’s statements concerning lack

of water quality information upon which to evaluate the importance

of CSO control.

 The Agency, however, believes that “what little

there

 is points undeniably to the conclusion that such overflows

are a constant threat to the health of the streams of this state”

(Agency comments,

 11/2/81,

p.

2).

Finally,

 some information was presented concerning the USEPA

grant fund process.

 It was noted that the USEPA addresses grants

on a case—by—case basis.

 USEPA

 a) funds only construction

projects,

 b) computes on the basis

 of pounds of pollutant removed

rather than water quality effects,

 and c)

 applies unrealistically

 low interest rates

 for all treatment strategies, thus placing BMP

strategies at a disadvantage

 (Huff comment 11/2/81).

 According

to USEPA policy the marginal costs of CSO must not be substantial

compared to the marginal benefits.

 The hearings did not elicit

testimony from anyone who had been rejected by the USEPA because

of the application of Rule 602,

 although,

 as the EcIS pointed out,

“only a few municipalities have applied for construction funds”

(EcIS,

p.

 34).

With the exception of MSD and its constituent communities,

almost

 all who participated

 in the proceedings agreed that Rule

602 was unacceptably rigid,

 even with the relief available

through the Board’s existing variance and site specific rulemaking

proceedings.

 However, there was great disagreement as to how the

Rule should be changed, especially when its substantive provisions

were addressed.

 Suggestions were made

to:

1.

 Abolish Rule 602,

 and then on a case-by—case basis,

control CSO only in those instances where

 it is shown

 it is

needed after all other treatment stragegies

 fail to accomplish

pollution abatement.

 Alternatively, rely on the USEPA approach.

2.

 Phrase the rule in general terms,

 focusing solely on a

water quality and/or stream use criteria “goal”.

46—69

8

3.

 Retain the requirement for full treatment of “first

flush”,

 eliminate the absolute requirement

 for retention of

10

times dry weather flow,

 and require further controls

 in those

instances where water quality and/or stream use so justifies.

4.

 Allow more time for compliance

 (10—12 years).

 This

would be preferable when CSO’s can be eliminated by being made

part of

 a community’s redevelopment program, using best management

practices where applicable,

 or where,

 for example, partial com-

pliance at

 5 year intervals would spread out the economic burden.

5.

 Modify Rule 602,

 but only after studying broad scale

(or basin—wide) benefits of various levels of control.

 Then

determine treatment strategies

 (CSO,

 advanced waste treatment,

agricultural runoff,

 etc.).

6.

 Retain existing Rule 602 as it

is,

 since any change

from the “retention

 for treatment’0 strategy will result

 in a

retreat from the pollution abatement commitment.

 This would be

similar to a retreat from the commitment

 to capture and treat

normal

 flows at the treatment plants.

 Use only the traditional

site specific approach

 if there are cost effective methods unique

to the community for achieving the same results,

 after

 a study of

the whole stream segment.

Understandably,

 the discussions reflected an underlying

concern that either a)

 the loss or lessening of

 federal grant

funding will place an impossible economic burden on the community

or b)

 the priorities placed on grant funding will inevitably

 leave

many communities out in the cold.

 There was also some concern

that abandoning Rule 602 might lessen the amount of federal grant

funds allocated to CSO projects.

Much of

 the discussion focused on ways of tailoring the rules

to the “unique” circumstances for individual communities and new

procedural methods that might be used to deal with this.

The

reasons ran the full gamut

 from objections based on lack of

affordability, especially as regards the absolute requirement of

retention of

 10 times dry weather flow to perceived existence of

better methods to achieve equivalent CSO pollutant discharge

controls,

 to the belief that the nature of some stream segments

is such that CSO control would make no, or only marginal, water

quality differences, even where the water quality impact was

great.

 However, regardless of the reasons,

 the participants—-as

did the EcIS——concluded that classification was not the answer.

Even the case—by—case approach,

 rio matter what the “goal”

 (i.e.

water quality,

 stream use, etc),

 was thought

 to present formidable

 problems.

9

THE

BOARD’S DELIBERATIONS

In considering the courses of action available to

it,

the

Board

need

mindful

the

purposes

the

Act

which

implements

‘to

restore,

maintain

and

enhance

the

purity

the

waters

this

state

order

 to protect health, welfare,

property,

and

the

quality

life,

and

assure

that

contaminants

are

discharged

into

the

waters

the

state,

•

.without being given the degree of treatment or control

necessary to prevent pollution,

 or without being made

subject to such conditions as are required to achieve

and

maintain compliance with state and federal law;

...‘

The Board’s water pollution regulations represent a

multi-faceted

approach

complex

pollution

 control

problem.

In evaluating the problems presented and tentative conclusions

reached by ETAC, the Agency,

and

all other participants in this

proceeding, the Board has observed that frustration with existing

Rule 602 makes it easy to lose sight of the fact that CSO control

is

but

one

 ‘brick’

 in this total water pollution control strategy

‘wall’, a ‘brick’ which

cannot

be reduced in size or displaced

without consideration of the effects on the whole.

 Bearing this

in mind, the Board will comment on the various problems and

possible solutions.

The Data Problem

The

dearth

data

measuring

and

against

which

measure

CSO

effects

acknowledged

the

EcIS

not

problem

new

to the

Board.

Ten

years ago, when Rule 602 was adopted (R70—8, R71-l4,

R71—20 (consolidated),

3

PCB

755, March 7, 1972,

 one Board Member

explicitly

addressed

just

this

problem.

‘The water quality standards recently adopted do

the best job that can be done when one is faced with

the burden of adopting statewide regulations..

 (But

as we were told time and

time

again

 the only real

‘way to go’ is by looking at the pollution problem on a

stream by stream basis-—that is, basin study and planning

Basin study and planning gives regulators the oppor-

tunity to look at

how

pollution can be stopped in the

‘real world’, because the stream is monitored for flow

rate contamination of the water, contamination of

bottom

sediments, discharges to the stream, etc.

 With this

specific information on hand, we

will

know

what

must

be,

need

not be

done to protect the waters of the stream

for the designated use’

 (Sep.

 Opinion H. Kissel, R71—14,

4

PCB

3,4, April

 4, 1972).

reference

adoption

Rule

 602, the

Board

whole

determined

not

require

treatment

~Jj

CSO

flows

meet

effluent standards.

 In so doing,

noted

that

46—71

“both the degre~’of tr~eatneutand the percentage of

flow that should be

 t eated are ‘natters that we cannot

determine on the present

 ecord without regard to the

needs of individual streams,

 and therefore we have

modified the proposal”

 (3 PCB 774~775)

There

 is still not full agre~m ~t on the criteria, type of

events,

 and stream reach to be used.

 This is in part because

the existing Rule 602 addresses degree of treatment,

 not water

quality,

 so there has been no incentive to do so.

 Also,

as

the

EcIS noted, gathering water quality and CSO discharge data can

be expensive, time consuming and difficult to quantify.

 Even a

modeling approach requires d fficult—to—get data

if

it

 is to be

useful.

Stream use in~or’n~tior,while theoretically easier to gather,

requires,

 like water quality effects

 a system~widefocus.

But

even with a

 local

 strean uee fcas,

 CSO can be

 a special problem.

For example,

 it was pointed out that, while a treatment plant

discharge is often located on the edge of town and discharges

treated effluent,

 ‘~‘SO utlets commonly discharge raw~sewage—

 contaminated storm water at a number of locations in the

residential,

 commercial and recreational areas of the discharging

town,

 so that even its short

 terra effects on water quality and

stream use can be most unpleasanL,

Factoring in rainfall events~frequency, intensity,

location, duration,

 and pollution load——is complex.

 For example,

a light rain may dump a greater and more concentrated pollution

load than a heavy rain,

 expecially when it does not scour the

sewers before they start to overflow,

The ~

Any facet of an in~e:~~ependc~it

 multifaceted strategy to

reach a broad goal

 (i.e

 cleaning

 r.p our streams) can be isolated

and further segmented to allow

 a conclusion to be drawn that a

non—cost~effectivere~iltFas beer

 reached.

 It should be no

surprise that

 for irte~mitent overflows that do not reach the

treatment plant

 separate

r

 nary treatment plant facilities

usually are a less ccst~-eff”tivc component when compared to

treating normal and fir~tfi

s1

 t ows that reach the existing

secondary treatment plant

 in the first place.

In the same raar.ne~ ~ne

~0ii~t~

 separate out, or trade—off most

any discharge control ~secordary tre~tment,nutrier

 removal,

sewer rehabilitatior ~tc find a cimini”hing “payback” when compared

with something elae,

 Tfi~ in espe~naly so when only the dis-

charger’s cost effectw~ress i

 considered.

In

 fact,

 it was noted

that, when benefits are rot factored

 in, the most “cost—effective”

solution for a discharger is to do nothing~particularlyif

complaints frow those dowr’~reamcan be and are ignored.

Especially in an urban setting, even a small percent decrease

resulting from

 a par~ic’lar control segment, when combined with

similar efforts

 off other dischargers on the same stream,

can

produce signifi ~

 cc1le~ive resLlts,

1.

The Flexibility_Problem

This

 is closely related to the data problem, discussed

earlier.

 For example, why not create classes such as those in

Rule 404, which addresses deoxygenating wastes and where the

effluent standards fluctuate according to discharger

 size,

 size

of receiving stream, and level

 of treatment, thus “tied into”

water quality impacts?

 Unfortunately, CSO does not accommodate

itself to such an approach.

one

has

been

able

determine

how

 to formulate such a

flexible rule for CSO.

 Varying

CSO

impacts

are

found

for

all

sizes of dischargers on all sizes of receiving streams, and no

 other unifying grouping “pattern” was found.

Even if classification were possible, what should the Rule

instruct

each

class,

the

Agency,

 to do differently than Rule

602

 without water quality or stream use data on the whole stream

segment?

 What would be substituted,

 even

 if subclasses were

established?

Classification

 much more easily addressed when dealing

with a single waste type,

 in a known setting

 (i.e.

 a treatment

plant

known

design),

where

the

 discharge

 is easily monitored,

and where

 the solution can be “packaged”

 (i.e.

 adjust effluent

standards).

 CSO’s do not follow this pattern.

 The location of

two similar overflow sewers in the same town, but one discharging

near a childrens playground and the other near a barge dock,

can

require different remedies.

 Should the classification address

outfalls rather than the discharger?

Should the reduction of BOD and suspended solids only from

~he sanitary waste portion be considered, or should the effect of

the volume of the rainwater be included, especially if

 it causes

floodlng?

 Those directly affected by flooding from combined sewer

overflows

are

much

likely

focus

the

flooding

factor.

They

not

necessarily

“appreciate”

the

wisdom

 of ignoring the

fact that both sewage

 and storm water are coming out of the same

pipe.

The site Specific Rulemaking Problem

The Board’s site specific rulemaking procedure

is,

of

course,

an option that has and will continue to be used to achieve the

long term relief which a variance cannot lawfully provide.

(Variances additionally anticipate ultimate compliance with

existing rules).

 As hearing participants who have availed

themselves of this procedure have pointed out, the substantive

and procedural rulemaking requirements established by the Act

and by the Administrative Procedures Act require a substantial

expenditure

 in time,

 effort, and expense on the part of the

proponent of

 a site specific rule.

46—73

12

In the usual case,

 a consultant

 is hired to prepare a report

to include data concerning the environmental impact,

 technical

feasibility and often economic reasonableness of compliance,

and

to develop a concrete proposal

 for rulemaking.

attorney

hired to prepare and submit a petition for rulemaking to the Board,

 and to present the proponent’s case at the hearings required by the

Act.

the

initial

technical

hearings,

even

assuming

that

the

Agency

not

only

 does not challenge

 a discharger’s site specific

proposal but also helps

“up

 front”

in

developing

data,

each

site

specific proponent bears the responsibility of presenting and

proving at public hearing the extensive justifications for partial

or total non-compliance with Rule 602

 (as it exists or as modified).

The process is then usually suspended pending the Board’s receipt

of ENR’s site specific economic impact study, after which

an

economic

impact

hearing

must

participated

in.

If the Board at some point accepts the proposal

as

 its own

after review of the record,

 it must write a proposed opinion and

order,

 publish the proposal

 in the Illinois Register

 (first

notice), after at least

 a 45—day comment period submit the

proposed opinion and order to the Legislative Joint Committee on

Administrative Rules,

 (second notice), wait up to 45 days for a

reply and then file final rules with the Secretary of State

 (and

then repeat the process

 as each new rule

 is added as a modi-

fication of Rule 602).

 Only then can a rule change recipient’s

grant process proceed,

 if the modification

 is grant eligible.

Using the site specific approach for CSO problems

is

 a time

consuming,

 expensive, and cumbersome process, especially for

smaller communities.

 In addition,

a

 site specific approach,

 which

focuses on a single facility,

 is not particularly suited to issues

that can involve whole stream or multi—stream segments or drainage

basins,

 as well

 as other dischargers.

 Even if there were some way

to consolidate

 into groups

all

 individual dischargers who have

determined to request relief,

 none could probably go the full

distance until all did.

It

 is a fair guess that the grant process

will not wait for this.

 Indeed, whole facility grants could be

held up for those proposed modifications that affect the design of

any particular treatment plant or its interceptors.

Abolishing Rule 602, or changing its goals

to,

 say,

 to a

water quality or stream use standard, would likely still

 require

use of the site specific rulemaking procedure,

 assuming that the

Board does not abandon its strategy for CSO control as

 a high

priority.

The “Delegate to the Agency”

 Problem

Even if the Board could lawfully delegate

 to the Agency

the major discretionary responsibility of providing relief through

the permit process,

 for instance,

 there are problems with having

the Agency do

so.

 Most important,

 the affected public

 is denied

46—74

13

participation and certainly rights of appeal.

 For example, permit

conditions that include an ongoing municipal sewer flushing

program as an alternate to a “structural solution” in a permit

granted to an overlying sanitary district whose service area is

greater than the municipality should he subject to public review,

This

is

 so because the former option commits a small population

to expensive ongoing maintenance from operating funds,

 while the

latter option spreads the costs of a bond issue over a larger popu-

lation, and the subsequent maintenance costs are less.

 This can

he an especially “dicey”

 issue if the citizens of the municipality

had,

 at an earlier time, paid most of the cost of the existing

treatment plant before their unincorporated brethern had even built

their homes.

 Such issues involve not only the “who pays”

 issue

hut also the cost effectiveness issue.

Even where the permit “package” is thought to be

non—controversial by the Agency and the discharger,

 the Board

knows

 from experience in its permit appeal hearings

 that public

scrutiny of permit decisions can produce surprises.

 However,

even

 if public hearings were held at the Agency

 level,

 they are

not a substitute for those held within a regulatory

 framework.

Finally,

 apart from the public hearing issue, the discharger

would have to submit to the Agency at least

 as much justification

as would be required through a site specific mechanism.

THE PROPOSAL FOR MODIFICATION

In considering the CSO problem, the Board finds itself

in

a classic

 “which comes

 first, the chicken or the egg”

 situation.

Because Rule 602 has been in existence and accepted for the last

10 years,

 little data has been gathered concerning the environ-

mental and economic effects of CSO and its control.

 Because

little data has been gathered,

 the rule’s existence is challengable

on economic grounds because its benefits cannot be quantified.

Because there

 is no economic support for application of Rule 602

to all dischargers, the rule arguably should be modified.

 Because

there is

 little data,

 no concrete proposals for modification can

be made.

The record before the Board amply butresses the EcIS’

recommendation that

 “a

 case—by—case—analysis provides the only

mechanism for CSO control in a cost—effective manner with the

necessary improvement

 in water quality”

 (ECIS p.

 19).

The

current

economic climate renders

 it imperative that the “fine—tuning” of

Rule 602 envisioned in 1972 he done.

 However,

 the record before

the Board does not justify the elimination of Rule 602 while the

data gathering necessary for such “fine—tuning”

 is accomplished.

It could well prove to be false economy to provide hasty,

quantifiable economic relief to all dischargers, only to allow

for the later,

 leisurely measurement of the adverse economic impact

of lack of CSO control on those downstream of such discharges.

The right to protection of water quality should not be made

dependent

community’s

relative

position

 stream.

14

The Board therefore proposes to amend Rule 602 by adding an

“exception” procedure.

 As outlined in detail below,

 the essential

element of this procedure is to attempt to establish a partnership

between the discharger seeking relief and the Agency.

In

cooperation, the two are to develop the necessary data concerning

a) what level of CSO control

 is environmentally necessary,

 and b)

what control strategies,

 including but not

 limited to retention

and treatment,

 are economically and technically feasible.

 If the

Agency and the discharger are in agreement on these points,

a

jointly proposed “stipulated” control package shall then be

submitted to the Board, public hearings held, and the resulting

record reviewed by the Board.

 If agreement is not reached, the

discharger may singly file a petition containing its proposed

control package,

 and present justification for it at public

hearing for subsequent Board review.

The new exception procedure

 at the very least ameliorates

the flexibility, expense, and time problems of the site specific

rulemaking, while preserving

 the essential elements of public

participation and environmental protection.

 And, equally

important,

 it permits the level of data required to be gathered

to vary,

 depending on the relative complexity of the situation.

In some cases,

 a “quick reading”

 is all that may be needed to

determine whether,

 at what level, and what kinds of CSO controls

are needed, within what time frame.

 Those communities

 that,

as

a result,

 obviously need to comply with Rule 602 need not use

the exception procedure,

 and can proceed with their programs.

This exception procedure does not forclose other existing

procedural

avenues,

such

the

site

specific

rule

approach.

instead

additional

method

for

allowing

greater

flexibility

statewide

rule

when

and

only

when

the

gathering

rule—

required

data

justifies

such

 flexibility, when the public has had

an opportunity to participate,

 and when the Board approves the

exception

proposed.

The question can and doubtless shall

 be asked:

 Is the

proposed

rule

legal

under

both

the

Environmental

Protection

Act

and

the

Administrative

Procedures

Act?

Can

 a substantive rule,

using stated criteria,

 include its own procedures for future

modification without specific legislative authorization?

The

Board believes the answer to both questions is “yes”.

The

Board

feels

that

the

proposed

exception

procedure

does

not

offend

the

system

embodied

the

statutes,

protects

the

due

 process rights of

 the affected public and the discharger

the

same

time

it

eliminates

procedural

complexities.

The

proposed

rule

establishing

the

procedure

 itself will

 go through

the

Board’s

formal

rulemaking

processes

for

public

hearings

and

comments.

Once

the

rule

adopted,

any

exception

petition

will

itself

 be subject to comment at public hearings, prior to the

Board’s review of the proposal in a formal Opinion.

 In short,

the

Board

thinks

that

this

proposed

procedure

appropriate

46—76

15

and proper exercise of the Board’s statutory authority, one which

allows the Agency to exercise its best technical judgment but

avoids the problem of over—delegation to the Agency of ultimate

decisionmaking responsibility.

Nevertheless,

the

Board,

during

its

first

notice

hearings,

requests comments on the legality question,

 recognizing that the

exception procedure is a novel

 approach to an old problem.

THE PROPOSAL AND RULE NUMBERING

The Board has recently codified Chapter

3:

 Water Pollution

Control

Regulations,

which

changed

the

numbering

the

rules

which

underlie

this

regulatory

 proceeding.

 Therefore,

the

remainder

this

Initial

Opinion

and

the

accompanying

Order

will

refer to Chapter

 3 rules using their codified numbers rather than

their old numbers.

 The following table is provided to aid

in

referencing old Board rule numbers to section numbers pursuant to

codification:

Chapter

Water

Ill.

Admin.

Rule

Name

Pollution Rule Number

 Code Number

602(a)

306.302

Expansion

Combined

Sewers

602(b)

 306.303 and

 Excess Infiltration

306.304

 Overflows

602(c)

 306.305

 Treatment of Overflows

and

Bypasses

602(d)

 306.306

 Compliance Dates

Some provisions of the proposed amendments to Rule 602

deserve individual explanation.

306.305

 Opening paragraph.

 This language has been

included

 in order to authorize,

 through the exception procedure,

a

modification of the otherwise applicable water quality standards.

Permitting any relaxation, however,

 requires

 a high level of

justification

 (see 306.361).

306.305(c)

 There

 is no intent to change the current

meaning of this rule.

 It has been rephrased because the language

as

 it presently exists is somewhat confusing.

 The first sentence

does not say who determines what

 is “to the extent necessary”,

while the second sentence says that the Agency makes the

determination.

 Also a problem,

 the phrase

 “shall be treated by

retention and return to the treatment work or otherwise”.

The

“or otherwise”

 language renders the retention and return language

advisory only.

306.305(d)

 This provision makes clear that 306.305(a—c)

shall

 be complied with unless an exception has been granted

authorizing a different “package”.

46—77

16

306.306(4)

 This frees the discharger from the compliance

dates set by 306,305 for an additional reason, namely,

 that an

exception

has

been

 granted,

 is pending,

the

discharger

waiting for an Agency answer,

 This keeps the discharger from

being in violation of the compliance dates during this process.

 Note, however that 306,306(5)

 still applies.

Subpart D

 Exception Procedure.

306.350

 First, this makes clear that economic

considerations will be included and that the interests of both

the discharger and those affected by the discharge are taken into

consideration by the Board,

 (The Agency already considers costs

in the facility grant review,)

 Second,

 this makes explicit that

exceptions can be made to the water quality standards,

 the suf-

ficient treatment provisions and the compliance provisions.

The

water quality standards inclusion will provide more flexibility,

but will have to be carefully justified

 (see 306,361).

306.351

 The categories and evaluation requirements

enunciated in 306.351 and 306.361 are drawn from the Agency’s

comments,

 as well as comments of various other participants.

The

Agency

 is required to establish categories “early on” in order

to apply consistent degrees of justification for public and Board

consideration, and to determine as quickly as possible those

entities that the Agency feels should comply with 306.305 and

306.306 without exception.

 The Board anticipates that the

discharger and the Agency will work together during this

classification process,

 and will engage in any informal contacts

necessary for information gathering,

 evaluation,

 etc., prior to

the

Agency’s

 formal determination required by this rule.

306,352

 First sentence.

 This assumes that,

 by the

time the Agency makes a proposal with conditions that define the

limits of any adjustment of the general rules,

 the Agency and the

discharger have worked together,

 and that the proposal

 is justi-

fied pursuant to 306.361.

 The second sentence requires the Agency

to give any discharger a negative answer promptly,

 so that the

discharger can plan to comply with the statewide rule or proceed

to singly petition for an exception or for a site specific rule.

306.360

 This allows the Agency or the discharger to

initiate the exception procedure.

 Participation by the Agency is

discretionary with the Agency and participation by the discharger

is discretionary with the discharger.

 A joint approach “up front”

can save both time and money.

 However,

 if both do not participate,

the exception procedure

 is usable by the discharger alone.

306,361(a)

 This assures,

 even where there

 is minimal

discharge impact,

 that certain essential information will be made

available to the public at hearing and to the Board for

determination as to whether the proposal

 is sufficiently justified.

46—78

17

306.361(b)

 It is intended that, where the impact is not

 minimal or where the otherwise applicable water quality standards

are recommended for change, the level of justification available

for the public

 at hearing and to the Board for deliberation shall

be substantially increased.

306.361(c)

 This provision attempts to provide some

assurance that any mathematical models used will be based upon

enough

information

that

 the model will bear as close a resem-

blance

 as possible

 to actual conditions.

 The Agency itself,

in

its comments, warned of the dangers of over—reliance on modeling.

301.362

 Obviously,

 a discharger proceeding singly

must provide the higher level

 of justification information.

301.363(a—c)

 These provisions are, hopefully,

 self—

explanatory.

306.364

This

also

appears

self

explanatory.

306.371

This

language

reflects

the

“stipulation”

approach.

The

last

sentence

attempt

assure

that

significant revisions in which the public may have an interest

escape their scrutiny.

306.370 and 306.372

 This language regarding transcripts

is

 a restatement of existing Board practice policy.

306.373

 The purpose of this deadline is essentially

two—fold.

 First, there must be

 a “fish or cut bait” deadline to

prevent a destablizing “rollover effect”.

 Secondly, while the

Agency

may

motivated

push

ahead

order

take

advantange

of,

its

estimate,

maximum

five

 years of

 grant availability,

the

dischargers

could

tempted

use

this

procedure

indefinitely postpone compliance.

 On the other hand,

the

discharger

and

 the Agency have

 less time to make up their minds,

since the process before the Board will consume some of the

available time.

306.374

 The first sentence clarifies that this

procedure is an addition to, but does not replace, other existing

remedies.

 The Agency’s decision not to recommend an exception

proposal or join in the filing of

 an exception petition has been

rendered non—appealable for practical reasons of administrative

economy.

 Board review of these determinations would only involve

the Board in consideration of environmental

 issues which would be

more appropriately addressed

 in the context of a discharger’s

 single petition for exception.

This Initial Opinion constitutes the Board’s initial

compliance with Chapter 96½, §7404,

 and Procedural Rule

 215.

Hearings on this proposed modification of former Rule 602 will be

expeditiously scheduled and held,

 in recognition of the urgency of

this matter.

46—79

18

I, Christan L.

 Moffett, Clerk of the Illinois Pollution

Control Board,

 hereby certify that the above Opinion was adopted

on the

)

~‘

 day of

_______________,

 1982 by a vote of

Christan

 L. Mof~’~,Clerk

Illinois Pollution Control Board

46—80