ILLINOIS POLLUTION CONTROL BOARD
June 6, 1996
IN MATTER OF:
THE JOINT PETITION OF THE CITY OF
METROPOLIS AND THE ILLINOIS
ENVIRONMENTAL PROTECTION
AGENCY FOR AN ADJUSTED
STANDARD FROM 35 ILL. ADM, CODE
PART 304 FOR 5-DAY BIOLOGICAL
OXYGEN DEMAND (BOD-5),
SUSPENDED SOLIDS AND AMMONIA
NITROGEN
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AS 95-3
(Adjusted Standard - Water)
JOSEPH J. NEELY APPEARED ON BEHALF OF PETITIONER
LISA MORENO APPEARED ON BEHALF OF ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
OPINION AND ORDER OF THE BOARD (by J. Yi):
This matter comes before the Illinois Pollution Control Board (Board) upon a Petition
for Adjusted Standard filed jointly by the City of Metropolis (City) and the Illinois
Environmental Protection Agency (Agency) on March 23, 1995.
1
The joint petition requests, pursuant to Section 28.1 of the Environmental Protection
Act (Act) (415 ILCS 5/28.1) and 35 Ill. Adm. Code Part 106, Subpart G, an adjusted standard
for 5-day Biological Oxygen Demand (BOD
5
), Suspended Solids (SS) and Ammonia Nitrogen
(N) for discharge from the City’s wastewater treatment plant (WWTP).
The Board’s responsibility in this matter arises from the Environmental Protection Act.
The Board is charged therein to “determine, define and implement the environmental control
standards applicable in the State of Illinois” (415 15 ILCS 5/5(b)), and to “grant an adjusted
standard for persons who can justify such an adjustment” (415 ILCS 5/28.1(a)). More
generally, the Board’s responsibility in this matter is based on the system of checks and
balances integral to Illinois environmental governance: the Board is charged with the
rulemaking and principal adjudicatory functions, and the Agency is responsible for carrying
out the principal administrative duties.
1
The joint petition will be referenced to as “Joint Pet. at .” and the City and the Agency will be referred to
as “Petitioners” when discussing both entities.
2
Based upon the record before us and upon review of all the factors involved in the
consideration of adjusted standards, the Board finds that the Petitioners have demonstrated that
grant of an adjusted standard in the instant matter is warranted. The adjusted standard
accordingly will be granted.
PROCEDURAL HISTORY
Initially, the matter was filed on November 21, 1994, and docketed as AS 94-17. The
Petitioners, however, neglected to follow the publication requirements of Section 28.1(d)(1) of
the Act and the action was dismissed on January 11, 1995. The City and the Agency filed a
second petition, on February 1, 1995, docketed as AS 92-2. On February 24, 1995, a
Certification of Publication of the statutory notice of filing related to the second petition was
filed. The Board issued an order, on March 16, 1995, in which it determined that the notice
was defective and consequently dismissed the second joint petition.
On March 23, 1995, the City and the Agency filed a third petition that in all respects
was identical to the petition initially filed as AS 94-17. The Petitioners moved the Board, on
March 23, 1995, to incorporate into the present proceeding, AS 95-3, exhibits A through V
filed by the Petitioner in AS 94-17; they further moved, because of the voluminous nature of
the material requested to be incorporated, that the Board waive the filing requirements of 35
Ill. Adm. Code Section 101.106.
Notice of the petition was published in the Metropolis Planet on March 29, 1995. On
April 13, 1995 the Board granted the Petitioners’ motion to incorporate Exhibits A through V,
from AS 94-17 to the instant petition, waived the filing requirements, and further, accepted the
petition for hearing.
The hearing was held in the Metropolis City Hall, in the City Council Chambers, on
December 5, 1995. In closing, the hearing officer stated that the Petitioners would file a post-
hearing motion to withdraw certain relief from the Petition, and that no post-hearing briefs
would be filed.
PRELIMINARY MATTERS
The Petitioners at hearing withdrew the requested relief for ammonia nitrogen. (Tr. at
4-5.)
2
The Petitioners stated that since January 1995 the City has been sampling on a regular
basis and that based on those results the Petitioners believe that adjusted standard relief at this
time is unnecessary for ammonia nitrogen. (Tr. at 5.) Therefore, Petitioners are only seeking
relief from 35 Ill. Adm. Code 304.120 for the City’s BOD
5
and SS discharges.
2
The transcript for the hearing in this mater will be referenced to as “Tr. at .”.
3
ADJUSTED STANDARD PROCEDURE
Section 28.1 of the Act provides that a petitioner may request, and the Board may
impose, an environmental standard applicable solely to the petitioner that is different from the
standard that would otherwise apply to the petitioner as the consequence of the operation of a
rule of general applicability. Such a standard is called an adjusted standard. The general
procedures that govern an adjusted standard proceeding are found at Section 28.1 of the Act
and within the Board’s procedural rules at 35 Ill. Adm. Code Part 106.
The effluent standard for deoxygenating waste is given in the Board’s General Effluent
Standards found at 35 Ill. Adm. Code 304.120. The general effluent standard for
deoxygenating waste, as contained in Section 304.120 (c), is “[n]o effluent whose dilution
ratio is less than five to one shall exceed 10 mg/L of BOD
5
or 12 mg/L of suspended solids.”
Because 35 Ill. Adm. Code 304.120 does not specify a level of justification or other
requirement for an adjusted standard for this matter, Sections 28.1(c)(1) through (c)(4) of the
Act are relevant in this proceeding. Consequently, petitioner has the burden of proving the
following for an adjusted standard from a rule of general applicability:
1.
factors relating to that petitioner are substantially and significantly different
from the factors relied upon by the Board in adopting the general regulation
applicable to the petitioner;
2.
the existence of those factors justified an adjusted standard;
3.
the requested standard will not result in environmental or health effects
substantially and significantly more adverse than the effects considered by the
Board in adopting the rule of general applicability; and
4.
the adjusted standard is consistent with any applicable federal law.
FACILITY AND PROCESS DESCRIPTION
Facility History
The City’s wastewater treatment plant was built in 1960. It was originally designed for
primary treatment only and consisted of a barminutor, two manually operated barscreens, an
aerated grit chamber, two primary clarifiers operated in parallel, and two sludge holding tanks.
(Joint Pet. at 7.) No disinfection was provided. The plant was designed for a Daily Average
Flow (DAF) of 1.5 Million Gallons per Day (MGD) and a Daily Maximum Flow (DMF) of
3.8 MGD. (Joint Pet. at 7.)
4
The City received its first NPDES permit from USEPA Region V on November 15,
1974. That permit stated that it was being issued for a discharge from the facility directly to
the Ohio River. It included interim effluent limitations from BOD
5
and SS of 75 mg/L and
100 mg/L, respectively, and specified final effluent limitations for BOD
5
and SS of 20 mg/L
and 25 mg/L, respectively, the limitations applicable to sources discharging to the Ohio River
as set out in Rule 404(b)(i) of Chapter 3 of the Board’s Regulations [present 35 Ill. Adm.
Code 304.120(b)]. (Joint Pet. at 7-8.)
The 1974 initial NPDES permit was modified by USEPA in 1976 and was renewed by
USEPA in 1977. It was modified again, by Agency, in 1980. The receiving stream
designation and the corresponding effluent limitations remained the same throughout. (Joint
Pet. at 7.)
At the time the City WWTP first became subject to the NPDES permit requirements,
its effluent did not meet the standards of Rule 404. In June, 1984, USEPA issued the City
Administrative Order No.V-W-84-AO-142 in which it directed the City to develop and submit
to USEPA and Agency a Municipal Compliance Plan (MCP) describing the steps to be taken
to achieve compliance with the NPDES permit by July, 1988, consistent with Section 301 (c)
of the Clean Water Act. (Joint Pet. at 8-9.)
In 1984, the City submitted to the USEPA and Agency, for approval, the MCP and a
timetable that called for completion of the project by July, 1988. The MCP and the timetable
were accepted by USEPA and Agency and were incorporated into the renewed NPDES permit
issued to the City in March, 1985. (Joint Pet. at 9.)
During the Agency’s January, 1990 review of the NPDES permit renewal application,
it was determined that the City WWTP did not discharge directly to the Ohio River, as had
been assumed since the early 1970’s, but rather to a small tributary, named Kidd Creek. Kidd
Creek has a seven-day, ten-year (7Q10) low flow of zero cubic feet per second (cfs) as
compared to the 53,820 cfs flow for the Ohio River at Metropolis. (Joint Pet. at 11.)
In light of this, the present NPDES permit for the City provides for final limitations for
BOD
5
and SS of 10 mg/L and 12 mg/L respectively, the standard applicable to low-flow
streams set out in 36 Ill. Adm. Code 304.120(c). These limitations became effective on
October 25, 1994, unless the City was granted an adjusted standard by the Board.
Facility Description
The City of Metropolis, located in Massac County at the southern tip of Illinois on the
north bank of the Ohio River, operates a secondary wastewater treatment plant. The plant
consists of a single 30” gravity inlet sewer which enters an influent pump station equipped
with four submersible pumps, a mechanical bar screen, an aerated grit chamber designed for 6-
minute retention at maximum flow, the primary clarifiers operating in parallel, two packed
towers operated in parallel designed to treat 1,252 pounds of organics per day using synthetic
media, two secondary clarifiers operated in parallel, disinfection (chlorination) provided by
5
one-ton cylinders and two contact tanks operated in parallel, three aerobic sludge digesters,
two sludge vacuum drying beds, and a concrete sludge storage pad. (Joint Pet. at 5-6.) The
plant, as upgraded, was designed for a daily average flow (DAF) of 2.05 MGD and a daily
maximum flow (DMF) of 4.25 MGD and was designed to treat 1565 1bs/day each of BOD
5
and SS. (Joint Pet. at 6.)
The plant discharges from a single outfall through a 1320-foot (0.25 mile) buried
outfall pipe to a 200-foot long effluent ditch and then to Kidd Creek and then to the Ohio
River. Kidd Creek then flows approximately 1250 feet to the Ohio River. (Joint Pat. at 6.)
The treatment plant serves the City with a 1990 population of 6,734, and the
Woodhaven subdivision with an estimated population of 75. (Joint Pet. at 6.)
Discharge Characteristics
The quality of the deoxygenating waste effluent from the City treatment plant has
consistently improved since the completion of the plant upgrade, as indicated by the following
data (expressed as an average of monthly averages):
Year
BOD
5
- mg/L
SS - mg/L
1985
33.17
31.58
1986
44.33
34.58
1987
30.75
32.25
1988
33.50
24.83
1989
23.75
13.00
1990
13.65
15.51
1991
8.25
12.58
1992
7.08
9.37
1993
4.83
5.17
PROPOSED ADJUSTED STANDARD
Standard from which relief is sought
As earlier stated, the instant Petition seeks an adjusted standard from 35 Ill. Adm.
Code Section 304.120(c) as it applies to the deoxygenating waste effluent discharged from the
outfall of the City to Kidd Creek.
Nature of regulation of general applicability
6
In accordance to the requirements of 35 Ill. Adm. Code Section 106.705(b), it is noted
that Section 304.120(b), the standard generally applicable to secondary treatment plants with
the capacity of the Metropolis plant, provides in pertinent part:
No effluent from any source whose untreated waste load is 10,000 population
equivalents or more ... shall exceed 20 mg/L of BOD
5
or 25 mg/L of SS.
Wastewater treatment plants that discharge into low-flow streams, the situation in the
instant Petition, are subject to the limitations contained in Section 304.120(c) which provides
in pertinent part:
No effluent whose dilution ratio is less than 5 to 1 shall exceed 10 mg/L of
BOD
5
or 12 mg/L of SS.
Proposed adjusted standard language.
The City and the Agency propose the following adjusted standard language:
Instead of the general effluent standards for deoxygenating waste of Sections
304.120(c), the following limits shall apply:
BOD
5
:
20 mg/L
Suspended Solids:
25 mg/L
IMPACT ON THE ENVIRONMENT
The City and the Agency believe that the granting of this adjusted standard would not
have an adverse impact on the environment. (Joint Pet. at 16.)
On June 21, 1991, the Agency’s Bureau of Water Monitoring Section conducted a
Facility-related Stream Survey to assess the impacts of the wastewater treatment plant
discharge on Kidd Creek downstream from its confluence with the plant effluent ditch to the
Ohio River. Aquatic macroinvertebrate and water quality samples were collected at three
points, plant effluent ditch (E-1), 0.08 stream miles from the plant outfall (C-1), and 0.354
miles from the plant outfall and 100 yards from the confluence of Kidd Creek with the Ohio
River (C-2), with the following results:
E-1
C-1
C-2
7
mg/L
mg/L
mg/L
BOD Total
9
9
8
Suspended Solids
20
17
17
(Joint Pet. at 14-15.)
In its conclusions, it was the opinion of the Monitoring Section that “since the City
treatment plant effluence comprises all of the flow in Kidd Creek downstream of the plant,
except during periods of significant rainfall and when the Ohio River backs up, that Kidd
Creek probably would not be capable of supporting and maintaining a diverse community of
organisms in the absence of the treatment plant flow.” (Joint Pet. at 16.) The Monitoring
Section also noted that analysis of the microinvertebrate population samples in Kidd Creek
indicated severe degradation at the sampling sites C-1 and C-2. (Joint Pet. at 15.) However,
the Monitoring Section attributed “the degraded condition of the stream to high residual
chlorine concentrations in the treatment plant effluent, leading to the absence of aquatic life
except for highly tolerant species, historic hydraulic loading problems at the plant due to
inflow to the collection system, explaining the organic enrichment and sludge deposits and
sewage mold; and the fact that at high stream stages, the Ohio River backs up into Kidd Creek
for extended periods of time.” (Joint Pet. at 16.)
Petitioners note “[i]n light of the fact that there is no evidence that BOD
5
, Suspended
Solids or Ammonia Nitrogen are having any adverse impacts on Kidd Creek and the further
likelihood that Kidd Creek would not support a biological community were the treatment plant
effluent withdrawn, the City and the Agency believe that the proposed adjusted standard would
have no adverse effect on Kidd Creek.” (Joint Pet. at 16.)
CONSISTENCY WITH FEDERAL LAW
Petitioners assert that “the granting of an adjusted standard for deoxygenating wastes
would not be inconsistent with federal law; the BOD
5
and SS standards from which an adjusted
standard is sought are effluent limitations, the establishment of which is, under the Clean
Water Act, within the province of the states.” (Joint Pet. at 18.)
COMPLIANCE ALTERNATIVES AND COST OF COMPLIANCE
Petitioners state that the City has two alternatives to comply with the applicable general
standards. One alternative is to build a tertiary wastewater treatment plant to enable it to meet
the general standards applicable to discharges to small streams, and the other alternative is to
extend the current outfall pipe from the end of the industrial ditch (the current discharge point)
to the Ohio River. (Joint Pet. at 12-13.)
8
The City estimates that the first alternative - tertiary treatment - would cost $4.5
million dollars. (Joint Pet. at 12.) This amount would be in addition to the $3 million
expended in 1989 to meet the standards which were specified by USEPA and Agency.
Under the second alternative, an outfall would be built from the industrial ditch (the
current outfall point) to the Ohio River, a distance of 1250 feet, at an estimated cost of
$150,000. (Joint Pet. at 13.) The extended outfall pipe would traverse wooded bottom land
that is under water at least twenty five percent of the year due to backup of the Ohio River.
(Joint Pet. at 13.)
JUSTIFICATION
As stated previously, Section 28.1(c) of the Act requires that a petitioner for an
adjusted standard must prove that :
1.
factors relating to that petitioner are substantially and significantly different
from the factors relied upon by the Board in adopting the general regulation
applicable to the petitioner;
2.
the existence of those factors justified an adjusted standard;
3.
the requested standard will not result in environmental or health effects
substantially and significantly more adverse than the effects considered by the
Board in adopting the rule of general applicability; and
4.
the adjusted standard is consistent with any applicable federal law.
Factors relating to petitioner are substantially and significantly different and justify an adjusted
standard.
The Petitioners state that from the onset, the City plant was designed and constructed to
meet standards that were substantially and significantly different from the regulations of
general applicability and were approved by the USEPA and the Agency as specified in the
plant’s discharge permits over several revisions and renewals.
3
(Joint Pet. at 17 and 19-20.)
Petitioners argue that the City’s situation is the same as the City of Alton’s in In the Matter of:
Petition for Site-Specific Relief by the City of Alton, (May 19, 1988), R82-7, (filed before the
adjusted standard relief was available) where the Board granted site-specific relief from BOD
5
and total suspended solids. (Joint Pet. at 17-18.) Petitioner argues that the City’s situation
justifies an adjusted standard.
3
The Petitioners are referring to the standards of 20 mg/l for BOD
5
and 25 35 mg/l for SS. Those are the
standards that would apply to the City if it was discharging to the Ohio River and are the standards contained in
the previous permits since 1970 based on the belief that the City has been discharging to the Ohio River.
9
The requested standard will not result in environmental or health effects substantially and
significantly more adverse.
The Petitioners assert that the grant of the requested adjusted standard will not result in
adverse environmental impact. (Joint Pet. at 20.) The Petitioners state that “[t]he quality of
the effluent from the treatment plant has consistently improved since the plant upgrade, and
“[w]hile Kidd Creek is degraded below the treatment plant discharge, this condition is not
caused by any of the constituents for which the adjusted standard is sought and is exacerbated
by regular flooding by the Ohio River.” (Joint Pet. at 20.)
The adjusted standard is consistent with any applicable federal law.
The Petitioners state that the Board can adopt an adjusted standard for BOD
5
and SS
consistent with the Clean Water Act and the regulations adopted pursuant thereto inasmuch as
there are no comparable federal effluent limitations and the establishment of the adjusted
standard is within the province of the states. (Joint Pet. at 20.)
DISCUSSION
The Board finds, based on the record, that the factors relating to the City’s discharge
are substantially and significantly different from the factors relied upon by the Board in
adopting the general regulation applicable to the petitioner and that the existence of those
factors justified an adjusted standard. In adopting the general rule of applicability in the
consolidated rulemaking entitled In the Matter of Effluent Criteria, R70-8, In the Matter of
Water Quality Standard Revisions, R71-14, and In the Matter of Water Quality Standards
Revisions for Interstate Waters (SWB-14), R71-20, (March 7, 1972) the Board stated that the
establishment of the current standard was the result of the balancing of environmental benefit
with economical reasonableness in that, based on the record, the standard was achievable by
most treatment facilities employing secondary treatment without significant increase in costs.
(Id. at 13-16.) In addition, while discussing the standard the Board was concerned with the
affects of BOD
5
downstream of the outfall and the oxygen demand that ammonia nitrogen
places on the stream. (Id. at 14-15.)
In this case, the City’s outfall pipe is to Kidd Creek and its flow consists almost
entirely of the City’s effluent, and is only a short distance to the Ohio River. The City
currently meets the general standards applicable to discharges to the Ohio River. Given the
City’s recent expenditures to achieve compliance with the Ohio River standards, requiring it to
now achieve the standards generally applicable to discharges to the Kidd Creek would not be
reasonable as a result of the environment not being significantly improved. Thus, we find that
the factors relating to the City are substantially and significantly different than those
considered when the rule of general applicability was promulgated, and that the adjusted
standard is therefore justified. This is especially true since the Board in adopting the rule of
general applicability considered the economics of the standards.
10
Furthermore, the only significant use of Kidd Creek is as a conduit for discharges from
the plant and the runoff during precipitation events, and the quality of the effluent from the
plant has consistently improved since the earlier plant upgrade. Additionally, the Ohio River
floods the area up to the outfall 25 percent of the time. We find that the impact of the adjusted
standard will not result in environmental or health effects substantially and significantly more
adverse. Finally, we agree with the Petitioners that we can adopt the requested adjusted
standard consistent with the Clean Water Act and the regulations adopted pursuant thereto
inasmuch as there are no comparable federal effluent limitations.
CONCLUSION
The purpose of this proposed adjusted standard is to allow the City wastewater
treatment plant, constructed in 1970 and upgraded in 1989, to continue to operate and
discharge according to the standards for which it was designed, all in accordance with
agreements reached between the USEPA, the Agency and the City. The quality of the effluent
from the plant more than meets the standards necessary, for the condition at the site, and for
which the plant was designed and constructed. Based upon its consideration of the record
presented in this action, the Board finds that the Petitioners have provided the justification
necessary for an adjusted standard to be granted.
This opinion constitutes the Board’s findings of fact and conclusions of law in this
matter.
ORDER
The City of Metropolis is hereby granted an adjusted standard from 35 Ill. Adm. Code
304.120 (c) as it applies to the effluent discharged from its wastewater treatment plant, located
at 400 West John Street, City of Metropolis, County of Massac, State of Illinois. Instead of
the effluent standards for deoxygenating waste of Section 304.120(c) the following limits shall
apply:
BOD
5
:
20 mg/L
Suspended Solids:
25 mg/L
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for
the appeal of final Board orders within 35 days of the date of service of this order. The Rules
of the Supreme Court of Illinois establish filing requirements. (See also 35 Ill. Adm. Code
101.246 "Motions for Reconsideration.")
11
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the _____ day of ___________, 1996, by a vote
of ______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board