ILLINOIS POLLUTION CONTROL BOARD
December
2,
1982
IN THE MATTER OF:
REVIEW OF EXISTING REGULATIONS,
)
R81-17
35 ILL. ADM. CODE 306.103
RULE
602
)
OF CHAPTER
3:
WATER POLLUTION
(COMBINED SEWER OVERFLOW)
)
Proposed Rule.
Second Notice.
PROPOSED OPINION OF THE BOARD
(by J.
Anderson):
This proposed opinion accompanies
the proposed second notice
rules adopted on this date, December
2,
1982,
by the Board.
This regulatory proceeding was the first initiated by the
Department of Energy and Natural Resources
(ENR)
under a statutory
provision which requires the ENR, through its Economic Technical
Advisory Committee (ETAC), to prepare an economic impact review of
Board rules in existence prior to the time economic impact studies
were first required
(Ill.
Rev. Stat.,
ch.
96½, §7404(a)).
The
Board held five inquiry hearings, which focused on the economic
impact study submitted to the Board on April
17,
1981, titled
“Economic Impact of Combined Sewer Overflow Regulation
Rule
6021
in
...
Illinois IINR Doc.
No.
81/18
(EcIS).
On April
1,
1982,
the Board adopted a First Notice Proposed
Rule and an Initial Opinion of the Board.
This action was taken
pursuant to Ill. Rev.
Stat.,
Ch. 96½,
§7404(c).
The
18 page Initial Opinion discussed the Board’s findings
and conclusions and explained the proposed “exception procedure”,
containing new criteria and procedural modifications of Rule 602
(Ill.
Adm. Code Subtitle C:
Ch.
I).
The facts as outlined
in the Initial Opinion are complex.
Generally,
there was agreement that Rule 602 was too inflexible,
the factors affecting CSO’s, which are uncontrolled and unpre—
dictible events, defied classification, the data needed to
determine acceptable alternatives generally is not available,
The Board appreciates the efforts of administrative
assistant Kathleen Crowley, who acted as hearing officer during
these extensive proceedings and provided invaluable assistance
in developing these rules.
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2
and the Board’s “site—specific” approach was too cumbersome,
costly, and time taking.
As the Initial Opinion pointed out,
“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.”
(Initial Opinion p.
6)
The novel Exception Procedure was proposed by the Board as
a
mechanism for resolving the dilemmas outlined in the Initial
Opinion and referred to above.
First Notice of the proposed rules was published in Ill.
Reg.
5742,
May 7,
1982.
Five more hearings were held in 1982:
On May 24 and August 13 in Chicago,
on June
4 in Alton,
on ~3uly27
in Peoria; and on July 29
in Decatur.
In contrast to the earlier
inquiry hearings, there were few hearing participants and few
written public comments submitted.
The Environmental Protection
Agency (Agency) attended and participated in all hearings.
This Second Notice Opinion incorporates the First Notice
Initial Opinion and explains the changes in the Proposed Rule
resulting from testimony gathered at the five hearings and
separate public comments following First Notice.
The following proposed changes are primarily in response to
a
few Agency administrative concerns.
Additionally, an inadver-
tent codification oversight has been corrected by the creation
of subparts within Part
306, and the related renumbering of the
affected sections; these changes are self-evident in the body of
the proposed rule, second notice.
Grammatical and other
non—substantive changes will not be discussed.
CHANGES SINCE FIRST NOTICE
Section 306.350
Preamble
The words “evaluation and justification of and” are deleted
solely for clarity.
On further review, the Board feels that the
words “petitions
for exceptions” clearly reflect a process,
and
does not require any preamble enunciation of the various steps in
the process.
Section 306.351
Notification and Submittals by Discharger
This section, at first notice titled Categories of
Dischargers, had originally been proposed to require the Agency,
by a date certain, to establish various preliminary categories
of dischargers based on certain basic stream and side land use
information.
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3
As the Board stated in its initial opinion,
it wished to have
established as quickly as possible an Agency mechanism to assure
all concerned of consistency of approach in the justification
process,
and early notification to those dischargers who the
Agency feels should not get an exception
(Board Initial Opinion,
p.
16).
The Board’s obvious concerns were a) that a statewide
program to implement a CSO pollution control strategy “get off
the ground” finally and promptly and b) that there be a way to
avoid the potential problem that dischargers would not be able
to begin the exception process without information but did not
have the information to begin the process
(see Initial Opinion,
generally).
The Agency, while generally strongly supporting the
environmental emphasis as well as the form and direction embodied
in the development of exception petitions, equally strongly recom-
mended that the 306.351 categorization requirements be deleted.
The Agency stated that a)
it had insufficient information on local
conditions
to devise such categories,
b)
it could not make
a
meaningful decision within a year, and c) quick and insufficiently
informed decisions could prejudice the entire process, thus
thwarting the Board’s goal of administrative fairness.
The Agency submitted a draft technical paper outlining its
intended phased approach
(Ex.
3).
The Agency stated several times
that it intended to initiate a notification to the dischargers of
the exception procedure, to encourage them to submit preliminary
information,
to assist in defining scope, to offer technical
expertise in information development and,
in general, to provide
a leadership role.
It felt that the categorization requirement
would hinder rather than help in this process.
All of these
issues were extensively discussed in proceedings (see for example
Agency Ex.
2 and
3,
final Agency comments, p.
3—5,
R.
692—695,
718—726, 744—758,
827—836, 872,
881—901,
926—963).
Regarding the difficulties of “up—front” categorization, the
Agency’s arguments were convincing.
However, the Board remains
concerned that the process begin expeditiously and that the
problem of consistency of review be kept in focus, especially
since by Agency estimate, they may be communicating with 175-180
dischargers
(R. 738, 764).
Therefore,
Section 306.301 has been rewritten to delete the
classification requirement and deadline date.
It now requires
dischargers to indicate to the Agency their interest in initiating
an exception procedure.
It places a time limit first on a
discharger’s notification of interest, and then on submittal to
the Agency of relevant information in its possession.
In addition,
the stream use parameters originally listed in Section 306.351
have been deleted, but have been included in Section 306.361(a).
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4
Section 306.352
Notification by Agency
A sentence has been added to Section 306.352 expressing the
need for consistency of review.
Section 306.361
Justification of Joint Petition
The transfer of stream use parameters to Section 306.361(a)
from Section 306.301 was made in order to have all technical
information parameters included in the same section.
The Agency was concerned that the rule as proposed could be
construed as requiring in every case an evaluation of all the
parameters listed in this section.
It
felt that evaluation for
all parameters should not be required when circumstances were
such that some were inapplicable,
as being unnecessary, or would
result in expenditure of time and expense unreasonable in relation
to the value of the data gathered
(IEPA Ex.
2).
Subsection
(d)
was added to allow for such situations, but at the same time
requires that the reasons for the inapplicability be given.
Section 306.362
Justification of Single Petition
This section has been changed to add reference
to Section
306.361(d).
Section 306.373
Final Date for Petitions
The Board is proposing extending the deadline only for 12
months, to January 1,
1986.
The Agency suggested that the date
be extended 18 to 24 months because of its workload, feeling
that all dischargers would be motivated to act expeditiously
because of the changing aspects of the grant program.
The Agency
considers the grant program as it affects CSO’s to be still
viable, and intends to keep CSO in the state priority system
(Ex.
4,
R.
914—921).
While it shares the Board’s concern that
the CSO program be stabilized as quickly as possible, the Agency
feels that there are communities that,
apart from the grant
program, would not be able to make the deadline
(R.
921,
922).
The Board feels that some easing of
the deadline, combined
with its ability to grant variances from it (see also Section
306.351), will balance the need for timely formulation of these
programs with some flexibility for hardship cases.
Of course,
in the event that the deadline proves to be too tight for a
large number of dischargers,
the deadline can be extended
in a
subsequent rulemaking.
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5
Section 306.374
Other Proceedings
The reference to Section 306,351 in the last sentence has
been deleted because that section no longer includes Agency
determinations.
OTHER
CONCERNS
Section 301.255
Combined Sewer
The Agency recommended that the definition of Sanitary Sewer
(Section 301.375) be amended to allow sanitary sewers to be
classified as combined sewers in those limited number of systems
where deterioration has progressed to the point where “storm and
groundwater access points are so prolific that separation would
dictate an entirely new system, both public and private (non—grant
eligible) portions”
(R.
682,
Agency Ex.
2).
The Agency did not
propose specific wording~ Unfortunately, the Board will have to
address the “irretrievably deteriorated” problem in another
proceeding,
(possibly by amending the definition of combined sewer
instead,
i.e.
Section 301,255), since no definitional changes were
proposed at first notice.
The Agency expressed concern particularly about Sections
306.352 and 306.361 insofar as the language might imply that the
exception procedure requires the Agency to design treatment or
to write exemption language for the discharger.
There was
extensive discussion concerning the Agency’s expected and intended
role
(Ex.
2,
3
R.
717—726, 829,
896—900,
957—963, Agency final
comments).
The Board recognizes that the nature of the “back and forth”
communications between the Agency and the discharger will, and
should, be informal during many steps
in the process.
The
exception procedure, and indeed the Agency’s draft technical
policy statement, anticipates
a voluntary process.
The exception procedure language nowhere requires the Agency
to provide technical services ~
se to the discharger.
However,
in Section 306,352, the Board expects the Agency ultimately to
formally notify the discharger a)
of its determination to accept
an exception “package”,
including specific conditions and
modification language or
b)
that it will not join the discharger
in a joint petition.
The Board, as well as the Agency,
recognizes that there
might. be prior formal communications during critical turning
points in the informational development and negotiation process.
The exception procedure language, except in Section 306.351,
intentionally does not specify who is to be the source of or who
is to gather the information upon which the Agency and the
discharger ultimately rely,
or who in a joint filing “takes
the
lead” at hearing.
The Board anticipates that the Agency will,
50.97
6
as it stated at hearing, initially notify the dischargers
of the
availability of the exception process.
The Board requires that,
ultimately,
the discharger will commence the exception proceeding
(see Section 306.360) since,
obviously,
it is the discharger who
needs the exception.
Finally, Section 306.361 does appear to “track” the phased
approach that the Agency intends to use (see Ex.
3,
R.
957—963).
However, the purpose of Sections 306.361 and 306.363 is to assure
the submission of sufficient information for public review and
Board determination, not to dictate the nature of the Agency’s
and the discharger’s interaction.
There were some concerns and comments made by others that
are summarized below.
The City of Peoria, while approving of the new, more flexible
approach that will accommodate river studies and allow a non—
adversarial
format,
still doesn’t like Rule 602 itself and felt
the process was still too cumbersome,
noting that even the new
procedure can take two years.
Peoria also feels that non—point
source remedies should be better addressed.
Additionally, the
City cautioned that,
if grant funding stops,
other states that
have hardly begun
to address CSO problems should not be permitted
to gain economic advantage by ignoring the problem
(R.
784-796).
For reasons expressed in this and the Initial Opinion,
the Board
declines to delete Rule 602 or to truncate the participatory
process.
The Great Lakes Chapter of the Sierra Club expressed great
concern that the procedure was too flexible, the criteria too
vague, and that the procedure might turn out to be an easy way
to cut costs at the expense of the environment.
It was pointed
out that the water quality standards are the bedrock of the
state’s water pollution regulations.
However,
the Sierra Club
recognized that the present site-specific approach has no
environmental criteria, that there can be legitimate reasons
for relief from Rule 602,
(Sierra Club Ex.
1,
R.
800—824)
and
had no better suggestions.
Mr.
A.
Karaca expressed the concerns of the City of
Belleville.
He felt the Board should do more than just propose
the rule change.
In particular,
he requested that the Board
spearhead an effort to congregate the Agency personnel,
project
engineers and community representatives
in a technical seminar.
The attendees should share information and experiences, and start
a preliminary classification process.
He stated that Illinois
has the most combined sewers
in the country, that there are many
community records to be exchanged,
and that,
while specific
problems are related to the locale, the implementation of the
rule should start
(R.
770—773).
The Board shares
Mr. Karaca’s
concern about the “starting point” for implementing the rule,
but will defer to the Agency’s intent to exercise the leadership
initiative.
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7
Finally,
the
Board
notes
that,
although
comments
were
requested
(see
Initial
Opinion
p.
14—15),
there
appears
to
be
tacit
acceptance
of
its
analysis
of
its
legal
authority
to
promulgate
its
proposed
“living
rule”.
CONCLUSION
The hearing participants generally,
and in some cases
enthusiastically, perceived the possibilities of using the
exception
procedure
approach
to
solve
many
of
the
problems
of
dealing
with
combined
sewer
overflows.
They
agreed
that,
apart
from
providing
a
less
cumbersome,
less
costly,
and
less
adversarial
procedure,
it
establishes
a
framework
for
gathering
and
using
environmental
data
for
determining
CSO
treatment
programs,
rather
than
being
solely
restricted
to
a
basic
treatment
requirement
for
what
is
“coming
out
of
pipes”.
What
was
not
as
often
addressed,
but
is
essential
from
the
Board’s
view,
is
that
the
process
takes
great
care to insure that
all
affected
by
CSO’s
have
access
to
the
proceedings and can be
heard.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Bo~rd,
hereb)~.certify
that
the
above
Opinion
was
adopted
on
the
~‘~“
day
of
~
,
1982
by
a
vote
of
~
/
Christan L. Moff~t~/
Clerk
Illinois Pollution Control Board
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