ILLINOIS POLLUTION CONTROL BOARD

July

 22, 1976

CITY OF DECATUR

AND

SANITARY DISTRICT

OF DECATUR,

Petitioners,

v.

)

 PCB 76-2

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Mr.

 Gus Greanias, of Greanias

 & Burton,

 appeared on behalf of

the City of Decatur

Mr.

 Joseph Svoboda appeared on behalf of the Environmental Protection

Agency

OPINION

AND

ORDER

THE

BOARD

(by

Mr.

Goodman)

This

matter

comes

before

the

Pollution

Control

Board

(Board)

upon the Petition filed by the City of Decatur

 (City)

 and the

Sanitary District of Decatur

 (District)

 on January

5,

 1976,

 appealing

from a permit denial or,

 in the alternative, requesting a variance.

The Agency filed its Answer to Permit Appeal and Recommendation on

March

8,

 1976.

 A hearing was held in this matter on April

29,

1976

in Decatur,

 Illinois.

On March 20,

 1975, Decatur filed an application with the Environ-

mental Protection Agency

 (Agency)

 for a permit to construct

 a pro-

posed McKinley Avenue Diversion Control Facility.

 On April

17,

 1975,

the Agency denied the permit on the basis that the proposed facility

would not comply with Sections 12 and 39 of the Environmental Pro-

tection Act

 (Act).

 Specifically,

 the Agency found that the proposal

would violate Rule 602(c) (2) of the Board’s Water Pollution Regu-

lations

 (Chapter 2).

 Decatur requested review of its submittal, and

on May 19, 1975, -the application was redenied.

 In its May

19,

 1975,

letter, the Agency based its redenial upon Rule 602(c) (2)

 as well as

upon Rule 602 (a), which prohibits the installation of new combined

sewers except where sufficient retention or treatment is provided.

—

127

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The City has jurisdiction over the combined,

 lateral and storm

water sewers,

 and the District has jurisdiction over the interceptor

sewers and treatment plant serving the Decatur community.

 Petitioners’

facilities include a 42-inch North Side Interceptor which serves

an

interceptor chamber receiving flow from the 72-inch McKinley Avenue

combined sewer.

 A 48-inch Stevens Creek Interceptor receives flow

from the North Side Interceptor as well as from a

 30-inch North

Stevens Creek Interceptor.

In 1974, the Agency informed the City that

 it had received coin-

plaints of basement sewer back-ups from occupants of five homes

connected to the Stevens Creek Interceptor.

 Investigation revealed

that all five homes had basement floors which were built below or

only a few inches above the crown of the interceptor.

 Furthermore,

the Agency informed the District that the Stevens Creek Interceptor,

which serves 1/3 of the Decatur community, was being placed on

Critical Review Status.

Engineers engaged by the Petitioners agreed that one cause

of

the basement back—ups was the surcharging of the Interceptor serv-

ing the homes.

 According to Petitioners,

 this surcharging was the

result of an existing diversion structure permitting excess

 flow

from the 72-inch combined sewer into the 42-inch North Side Inter-

ceptor during exceptionally high storm periods.

 In order to allevi-

ate the problem, Petitioners proposed to construct

 a new diversion

facility upstream from the existing diversion structure which would

limit the flow into the North Side Interceptor to

 3 1/2 times dry

weather

 flow.

 The new diversion structure would be constructed up-

stream in order to obtain a gravity flow condition where the sewer

is not surcharged so that the flow may be measured through a Parshall

flume

 (R.22).

 One of the Agency’s witnesses testified that the pro-

posed diversion facility would consist of a new concrete structure on

the existing combined sewer,

 including twenty feet of new sewers and

a new control structure with approximately eighty feet of sewer tribu-

tary to the Parshall flume

 (R.ll2).

 Any excess

 flow over

 3 1/2 times

the dry weather flow would overflow into Spring Creek, which is

tributary to Stevens Creek and eventually to the Sangamon River.

The

discharge to Spring Creek,

 therefore, would be diluted sewage from a

combined sewer.

Permit Appeal

The issues raised by Petitioners on appeal are:

1)

 Is the

proposed facility a new combined sewer and, therefore, subject to

Rule 602(a),

and

 2) Did the Agency have the authority to deny the

permit application based upon Rule 602(c) (2) when compliance with

that Rule was not required, pursuant to Rule 602(d)

 until

7

1/2

months after the permit denial?

23

—

128

—3—

Rule 602(a)

 provides that:

“the installation of new combined sewers

is prohibited,

 except where sufficient re-

tention or treatment capacity is provided

to ensure that no violation of the effluent

standards

 in Part IV of this Chapter occurs.”

Rule 602(c) (2)

 provides:

(c)

 All combined sewer overflows and treatment

plant bypasses shall be given sufficient

treatment to prevent pollution or the vio-

 lation of applicable water quality standards.

Sufficient treatment shall consist of the

following:

(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;

Rule 602(d)

 states that compliance with Rule

602(c)

is

 to be achieved by December

31,

 1975.

As

 to the first issue,

 Petitioners argue that the proposed

diversion facility would not involve construction of new combined

sewers because no additional flow would be introduced into the

system, no new sewer was

 involved,

 and no new diversions were being

made into Stevens Creek by the diversion.

 Petitioners contend that

the proposal would merely be the modification of an existing diver-

sion structure rather than the construction of

 a new combined sewer.

The Agency, on the other hand, points out that the proposal

will involve construction of

 a new stretch of connecting sewer which

is to receive combined sewage from the McKinley Avenue combined sewer.

Therefore,

 the new stretch of sewer is, according to the Agency,

necessarily

 a new combined sewer.

The

Board

agrees

with

the

Agency’s

contention.

Rule

104

the Water Regulations defines combined sewer as

 “a sewer receiving

both wastewater and land run—off.”

 The new sewer which would be

a

part of the proposed diversion facilities

 is specifically intended

to receive wastewater and land run-off from the McKinley Avenue

combined sewer and is,

 therefore,

 a new combined sewer.

 Because

—

129

—4—

Petitioners’ proposal did not provide for sufficient retention and

treatment capacity to ensure that no violation of the effluent

standards would occur,

 as required by Rule 602(a),

 the Agency was

correct in denying the permit on the basis of that Rule.

We next consider Petitioners’

 contention that the Agency lacked

authority to deny the permit on the basis of Rule 602(c) (2)

 because

compliance with that regulation was not required until a date seven

months in the future.

 We reject this argument.

 Petitioners sub-

mitted no plan for treating 10 times the dry weather flow for the

combined sewer overflow from this diversion structure.

 Without a

program to

implemented

reasonable

amount

time,

treat-

ment could possibly have been provided for this diversion’s combined

 sewer overflow.

 The Agency was correct in denying a permit for con-

struction of facilities which inevitably would result in a violation

of the Board’s Regulations.

The only issues relevant on appeal from denial of a permit are

those related to whether the Agency correctly interpreted and admini-

stered the regulations when it denied Petitioners’ permit application.

Because the proposed facilities would have violated Rules

 602(a)

and 602(c) (2), the Agency was prohibited by Sections

 12 and

 39 of

the Act from granting the requested permit.

 The Board finds that

the Agency did correctly administer and interpret the Regulations

and, therefore, upholds the permit denial.

Variance

The Board next considers Petitioners’ request for variance

in

order to permit issuance of the requested permit.

 Petitioners are

faced with a Critical Review Status for an interceptor serving 1/3

of their community and with basement sewer back—ups.

 They have

proposed a plan which they feel will help alleviate the immediate

problem and have expended engineering costs

 in arriving at their

proposal.

Furthermore,

 the City has commenced a fifty—four million dollar

storm water improvement and the District is

 in the final stages of

an eleven million dollar plant improvement.

 Petitioners are also

in the process of preparing an Area Facilities Plan jointly with

two neighboring villages, which will be completed in December,

 1976.

Petitioners’

 Reply Brief indicates that the Area Facilities Plan

will include an Infiltration and Inflow Study and recommendations

for treatment of all diversion outlets in the area.

 Petitioners

state that they are committed to full compliance with the Act at

the earliest possible date their financial ability will permit.

23— 130

—5—

The Agency has recognized the fact that many municipalities

and sanitary districts throughout the State have not met and cannot

presently meet the December

 31, 1975 compliance date.

 On December

22,

 1975, the Agency filed an Amended Petition for Regulatory Change

(R75—l5) with the Board specifically requesting that the date for

complying with Rule 602(d) (3)

 be extended until July

1,

 1977, pro-

vided a grant application had been filed before December 31,

 1975.

The Board has not yet taken final action on this proposal, although

it has published a proposed final draft adopting the substance

of the Agency’s proposal.

The Board finds that denial of the variance

 in the present case

would impose an arbitrary and unreasonable hardship upon Petitioners.

Therefore, Petitioners are granted variance from Rules

 602(a)

and

602(d) (3), the compliance date for Rule 602(c) (2)

 for the proposed

McKinley Avenue diversion facilities.

 The Board finds no need

 to grant

 a variance from the permit requirement itself because

Rule 962(a)

 of the Water Regulations provides for the granting of a

permit to applicants who have received a variance from the Board.

This Opinion constitutes the findings of fact and conclusions

of law of the Board in this matter.

ORDER

It ~s the Order of the Pollution Control Board that:

1.

 The denial by the Agency of the application submitted

by the City of Decatur and the Sanitary District of Decatur

for a permit to construct a McKinley Avenue Diversion Control

facility is affirmed.

2.

 The Sanitary District of Decatur and the City of Decatur

are granted variance from Rule 602(a) and from the compliance date

for Rule 602(c) (2) (combined sewer overflows)

 as established

by Rule 602(d) (3)

 of Chapter

 3 for the proposed McKinley

Avenue diversion facilities.

 Such variance

 is granted until

July 1,

 1977, or until the Board adopts

 an amendment to the

Regulations in consideration of the Agency’s Regulatory

Proposal

 (R75-15), whichever is sooner.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, he~ebycertif

th

 above Opinion and Order were adopted on

the

‘~‘~

 day of

 1976 by a vote of_____________

Illinois Pollution C~i~/olBoard

23—131