ILLINOIS POLLUTION CONTROL BOARD
May 1,
1980
AMENDMENTS
TO THE WATER POLLUTION
REGULATIONS
OF THE
ILLINOIS
)
R80--6
POLLUTION CONTROL BOARD
PROPOSED OPINION
AND
ORDER
(by Dr. Satchel?):
On April
7,
1980 the Environmental Protection Agency proposed
to amend Rule 951 of Chapter
3:
Water Pollution and to add two
definitions.
The Board proposes to adopt the Agency!s proposal
and,
in addition,
to make other technical amendments
to Chapter
3
which will not require hearings or environmental impact statements.
These technical amendments seek to clarify the difference between
variances and permit appeals.
104
Definitions
Definitions
of “publicly owned” and “publicly regulated”
have been added to Rule 104,
These are used in connection
with
the proposed amendments to Rule
951.
604
Critical Review and Restricted Status
Rule 604
is now titled:
“Critical Review and Restricted
Status.”
Rule 605 now covers
“wew
Connections.”
Rule 604(a)
through
(d)
are unchanged.
Rule 604(e)
is now Rule 606(a).
Rule 604(f), the effective date,
has been stricken since this
is no longer necessary.
605
New Connections
Rule 605(a)
and
(b)
are new rules which make no sub-
stantive change in Chapter
3.
Presently when a sewage system
has been placed on restricted status pursuant to Rule 604(b)
the
Agency can
no
longer issue permits for construction or
operation of facilities
involving additional sewage connec-
tions because the standard for permit issuance under Rule 962
is not met.
Since the sanitary district
is a permitted
facility,
the restricted status
is viewed
as a condition of
its permit forbidding
it to authorize additional connections
to its system.
Rule 605 has been added to Chapter
3 to state
this explicitly
in Part VI next to the provisions
for re-
stricted status.
This should make Chapter
3 more understand-
able to the affected public.
606
Appeal
Rule 606(a)
has been adopted verbatim from Rule 604(e).
Rule 606(h)
is a new Procedural
Rule.
While Rule 606(a)
pro-
2—
vides for appeal by a sanitary district whenever it
is
placed on restricted status, there
is presently no way for
a discharger
to the sewage system to appeal the restricted
~3tatus itself.
Rule 606(b) provides that such
a discharger
may
at any time request that the Agency review the restricted
S
~atus.
Rule 606(c) provides that
if the Agency refuses
to re-
move the restricted status, the refusal
is
a permit denial
entitling the discharger to appeal to the Board pursuant to
Part V of the Procedural
Rules.
The rule provides that the
sanitary district must he joined as
a respondent in this
permit apoeal,
along with the Environmental Protection Agency
as provided by Procedural Rule
502.
Presently persons other than the sanitary district who
seek to challenge the propriety of the restricted status
have no procedural mechanism other than
a variance petition.
Evidence that the restricted classification
is wrong is more
appropriate in the context of a permit appeal and does not
fit well into
a variance proceeding where the issue
is ar-
bitrary or unreasonable hardship.
Rule
606(b)
and
(c) pro-
vide a method for appeal
for a discharger into the sewage
system.
607
Variance from Restricted Status
Rule 607 provides that if a discharger to a sewer system
has been denied a permit because of restricted status he may
petition the Board for a variance from Rule 605 to allow
sewer connection in spite of the restricted status on
a show-
ing of arbitrary or unreasonable hardship.
Such proceeding
is governed by Part IV of the Procedural
Rules.
The sanitary
district must be joined either as a respondent
or as
a peti-
tioner.
Presently dischargers who seek to obtain
a variance
from restricted status must petition for a variance from Rule
962(a),
the standard
for permit issuance.
This
is undesir-
able since it tends
to blur the distinction between a permit
appeal and a variance.
It is theoretically possible to appeal
any permit by a variance from the standard
for permit
issuance.
Rules
606 and 607 have been placed together next to the
rule on restricted status so that they will provide guidance
for municipal dischargers who are unfamiliar with the Board’s
Procedural Rules.
If a discharger seeks
to challenge the
restricted status,
he should file a permit appeal.
If he
seeks to admit that the restricted status
is correct, but
seeks
to show hardship,
he should follow Rule 607.
—3—
914
Permit Modification Pursuant to Variance
Rule 914
is presently titled,
“Variances from NPDES
Limitations, Standards and Requirements” which tends
to
lead one
to the conclusion that he may obtain a variance
from
a condition of a permit.
The Board has usually held
that variances are available only from the underlying reg-
ulations which have been incorporated
in the permit.
The
new title will more clearly state the intent of Rule
914.
Rule 914 presently states that the Board may grant
variances
from standards,
limitations and requirements “im-
posed by these NPDES regulations.”
This has been changed to
“imposed by the Act,
the FWPCA and Board regulations adopted
pursuant thereto.”
Rule 910 provides that the Agency must
incorporate permit conditions mandated by the Act, Board
Regulations, the FWPCA and federal effluent guidelines.
The
rest of subpart
(a)
of Part IX of Chapter
3 involves applica-
tion procedures before the Agency.
It is doubtful whether
a variance from application procedures would he useful or
meaningful.
Therefore Rule 914 has been modified to state
expressly what the variance
is
from.
This wording will
further avoid the interpretation that Rule 914 authorizes
‘variances” from permit conditions which should be obtained
by
way of
a supplemental permit application directed to the
Agency.
If modification
is within the authority of the
Agency,
there is no necessity for a Board variance.
A vari-
ance is required only in a situation where some regulation
mandates the inclusion of the permit condition.
A variance
may be obtained from the regulation.
Rule 914 orovides that
the Board may order modification of the NPDES permit in the
variance proceeding without
a separate permit appeal or ao—
olication.
951
Construction Permits
The Environmental Protection Agency has proposed modifi-
cation of Rule 951(b) (2)
to reverse the
result
of the Third
District Appellate Court in
the case of Paul Starcevich et al.
v.
EPA,
78 Ill App.
3rd 700,
397 N.E.
2d
870.
This Opinion
appears
to authorize tap-ons to sewer tap-ons without a con-
struction permit.
In this manner an entire subdivision could
conceivably be hooked into a sewer system without a con-
struction permit by successively
tapping onto each neighbor’s
tap-on.
This is obviously
not the intent of Rule
951.
The
proposed amendments will provide that the exemption from the
construction permit will he limited to wastewater sources
which discharge less than ~00
gallons per day and discharge
directly into a publicly owned or publicly regulated sanitary
or combined sewer.
—4—
962
Standards
~or Issuance
Rule 962(a)
has been modified to delete the reference
to variances and Rule 974 has been added to cover permit
modification pursuant to variance.
Once a person has a vari-
ance from
a rule he may obtain a permit which would be denied
except for the variance.
This is the intent of Title IX of
the Act.
The specific reference
to variances in Rule 962(a)
adds nothing and invites petitions for variances from the
standard for permit issuance.
This tends to confuse the dis-
tinction between
a permit appeal and a variance.
Rule 962(b)
has been reworded to track the language of
the Proposed Order in R77-lO
(December
13,
1979).
Rule 962(b)
presently provides that the wastewater source must either
conform to the criteria or “be based on such other criteria
which the applicant proves will produce consistently satis-
factory results.”
In permit issuance the Agency has con-
sistently ignored this alternative and insisted that permit
applicants who cannot comply with design criteria obtain a
variance from the Agency’s criteria.
Section 35 of the Act
does not mention Agency criteria or policies
as subjects of
Board variances,
The preferred view is that the Agency poli--
des
and criteria can be modified by the Agency without resort
to the Board.
Where
a discharger cannot comply with the
criteria but can achieve the same results
in another manner,
he should be issued
a permit.
Review of the alternative design
should be by way of permit appeal where the issue
is whether
the facility will be constructed, modified or operated so as
not
to cause
a violation of the Act or of this Chapter,
as
provided in Rule 962(a).
Since this frequently produces con-
fusion,
Rule 962(b)
has been reworded to emphasize this.
The
Board intends Rule 962(b)
to be merely a rewording of the ex-
isting Rule 962 (b).
It does not amount to a substantive
change affecting the duties of a discharger.
Rule 962(c)
has been deleted.
Pending before the Board
is a Proposed Order affecting Rule 902(i)
in R79-l3
(December
13, 1979)
.
Rule 962(c)
is being deleted for substantially
the same reasons
as
902(i) (1) (i)
.
Rule 962(c)
appears to
impose
an absolute requirement that dischargers comply with
all conditions of a construction permit before an operating
permit can be issued.
This potentially could lead to a situa-
tion where a facility has been constructed so that it meets
the standard for permit issuance under Rule 962(a)
hut cannot
be permitted because of some violation of conditions of a con-
struction oermit which did not result in a facility which is
—5—
any less desirable from an environmental point of view.
Deletion of Rule 962(c)
will ensure that such
a facility
would be permitted under the general rule of 962(a).
Breach
of condition of
a construction permit may be the subject of
an enforcement action in
an appropriate case but should not
prevent permitting a facility if the general standard is met.
967
Design, Operation and Maintenance Criteria
Rule 967(a)
has been modified to strike references
to
Agency procedures.
These have been moved to Rule 967(b)
Confusion has resulted from a rule which speaks both of crite-
ria and procedures,
Rule 971 has been deleted and Rule 967(b)
added to provide for Agency procedures.
Rule 967(c)
has been added to provide that both the cri-
teria and the procedures are subject to the applicable provi-
sions of the Illinois Administrative Procedure Act,
The re-
ference to the Administrative Procedure Act in Rule 971
is
incorrect.
Rule 967(d)
has been added to define the function of the
criteria.
The criteria are not rules
in the sense that a dis-
charger must comply with them,
They represent a model permit.
If a discharger designs his facility to meet the criteria,
then he is assured that the permit will be promptly issued.
This language is taken from the Proposed Order in R77-lO
(December 13,
1979)
971
Procedures
Rule 971 has been deleted and moved to Rule 967(b)
and
(c)
974
Permit Modification Pursuant to Variance
Rule 974 has been added to Chapter
3.
This parallels
Rule 914 which applies only to NPDES permits.
This restates
the permittee’s right to petition the Board for variance
purauant to Section
35 of the Act and Part IV of the Procedural
Rules.
The last sentence of Rule 974 provides that the Board may
order modification pursuant to a variance.
This is a new rule
which
is procedural in nature,
This
is added to avoid the
interpretation that a person who seeks
a variance in order
to
obtain a permit must also file a permit appeal and maintain
the permit appeal while awaiting the outcome of the variance.
—6—
In actual practice this
is unnecessary since the discharger
could always obtain permit modification subsequent to issu-
ance of a variance by way of an application to the Agency.
however, addition of this as
a specific rule should provide
guidance to dischargers unfamiliar with the Board’s procedures.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board proposes
to adopt the following amendments to
Chapter
3:
Water Pollution.
104
Definitions
“Publicly Owned” means ownership by a municipality, sanitary
district, county,
or state or federal agency.
“Publicly Regulated”
refers to those otherwise private compa-ET?1 w?132 437 m?573 437 l?S?BT?
nies which are regulated as public utilities h~the Illinois
Commerce Commission pursuant to an Act Concerning Public
Utilities,
Ill.
Rev.
Stat.
1977,
ch. 111 2/3,
par.
1 et
seq.
604
New-6~nnect+on~Critical Review and Restricted Status
(a)
Publication of Lists.
The Agency shall publish and
make available
to the public at intervals of not more
than three months
a comprehensive and up—to-date list
of sanitary districts and other wastewater treatment
or transportation authorities then subject to restricted
status on further sewer connections,
as well as
a list of
those which are then under critical review by the Agency.
Such lists shall include estimates of treatment plant and
sewer capacity, and the amount of population equivalent
added since publication of the previous list.
(b)
Restricted Status.
Restricted status shall be defined
as the Agency determination,
~
~
that a sewer has
reached hydraulic capacity or that a sewage treatment
plant has reached design capacity,
such that additional
sewer connection permits may no longer be issued without
causing a violation of the Act or regulations.
(c)
Critical Review,
Critical review shall be defined as
the Agency determination,
~
~
that a sewer is
approaching hydraulic capacity or that a sewage treat-
ment plant
is approaching design capacity, such that
~Lijtj~jiH
;cwer
C
ii
oct:
011
)~‘r1l1i
~iinL
i~:i!
ions
Wi
I
reonire
cio~cscrut ~
to det~‘r~iinewhether issuanco
~ou1d result in
a
violation
o
F
the
Act
or
requlations.
(d)
sotiFication
of
Individuals
Pecuesting
Connections.
5initary
districts,
or
other
wastewater
treatment
or
traris’~orLation
authorities
responsible
for
authorizing
ao~
sewer
connections
,
which
have
been
placed
on
re—
;tr:i
cted
status
or
cr1 Lical
revi ow
by
the
Aqency
shall
notify
alt
individuals
recuesting
connections
of
such
Aoenc~
tersiiuation.
-~e3
~
~
~t~a~t
~
ee~te~t~
~f3-
~
r:
~
Counec~
imn
(~)
~°°:
;*)1
I
n~
is,;U’
r~s~
under
earL
TX
oF
?‘hht~~r3Lo
a
O\i
coiisLruct
~on
or
oncration
~~
mci
1—
1 05
inVolVing
additional sewer
connections
to a se:er
~J~P:7~qe_treatment:
ulant
which
is
on
restricted
status.
(b)
Canitarv
districts
or
other
wastewater
treatment
or
transportation
authorities
res?onsihle for authorizing
new
sewer
connections
shall
not
issue
additional
Sewer
~onnection
oersiits
for
sewers
or
sewage
treatment
plants
~ihich
are
on
restricted
status.
~
0
~~:~pc
i
1
(a)
~
s an:i Ln:rv hisLrict or otHer wastewater treatment
or
transportation
authori
Lv
resnonsible
for
authorizing
new
sewer
connections
may
petition,
pursuant
to
Title
19 of the
Act
and
Part
V
of
the
Board
Procedural
Rules,
for a hearinc before the Board to contest the decision
oF the Agency to place it
on restricted status.
(h)
/\m~po’:son
who
receives
notification
of
restricted
status
nursuant
to
Rule
604(d)
may
request
that
the
J\qency
review
the
restricted
status.
Such
request
dhall
include
a
statement
of
facts
and
reasons
sup—
porff~
removal
of
restricted
status.
(c)
Refusal
to
remove
the
restricted
status
shall
he
a
aermit
denial
entitling
the
person
to
petition,
pur-ET?1 w?157 590 m?532 590 l?S?BT?
suant
to
Title
10
of
the
Act
and
Part
V
of
the
Board
Procedural
Rules,
for
a
hearing
before
the
Board to
contd~t
the
Agency’s
refusal
to
remove
the
restricted
status.
The
sanitary
district
or
other
wastewater
treatment
or
transportation
authority
which
is
re—
soonsib1~
for
authorizing
new
sewer
connections
shall
be_joined
as
a
respondent.
607
Variances
from
Restricted
Status
Any
person
who
receives
notification
of
restricted
statu~pursuant
to
Rule
604(d)
or
who
has
been
denfbd
an
Aqency~ob~~~rrestricted
status
may
petition
U~~oard
for
a
varianc~TFrom
Rule
605
to allow
the
sewer
connection
in
site
of
the
restricted
status
upon
a
showing
of
arbitrary
or
unreasonable hardshio.
Such proceeding
shall
be
governed
by
Part
TV
of
the
Board’s
Procedural
Rules.
The
sanitary
district
or
other
wastewater
treatment
or
transportation
authority
which
is
responsible
for
author~—
izing
new
sewer
connections
may
join
in
the
petition,
but
if
it
hoes
not
it
shall
be
joined
as
a
resoondent,
in
which
case
it
must
receive
notice
and
service
as
orovided
by
Part
III
of
the
Procedural
Rules.
914
~
Permit
Nodification
Pursuant
to
Variance
To
the
extent
authorized
by
the
FWPCA
and
t~e
~ct,
the
hoard
may
grant
variances
from
standards,
limitations,
and
reeuirements
~meosed
~
e~e—~PDF
~
by
the
Act,
the
FyPCA
and
regulations
adopted
pursuant
thereto
unon
a
showing
that
comoliance~wou1d
imnose
an
arbitrary
and
Un—
reasonable
hardship
on
the
applicant
or
oermittee.
Any
re—
-~ucsL for
such
relief
shall
be
coimrenced
in
accordance
with
Rule
LiOl
oF
the Procedural
Rules and
Part
IV
of
the
Procedural
Rules
shall
qovorn
the
proceeding.
If such
a variance
is
qrante~~
the
Pea
rP
shall
order the
7\eency
to
i ssue
or
mor.i
fv
in
lP!t~S t~~ui I
c:oiis~stout
WjLX
Fan hoard hrder,
the
FF~PC~,
I
:4PPR.X
heciuleti
one
and
t~1C
Pet
-
—9—
951
Construction Permits
Except for treatment works
or wastewater sources which
have or will have discharges
for which NPDES Permits
are
required,
and for which NPDES Permits have been issued by
the
Agency,
(a)
No
person
shall
cause
or
allow
the
construction
of
any
new
treatment
works,
sewer,
or
was tewater
source
or
cause
or
allow
the
modification
of
any
existing
treatment
works,
sewer,
or
wastewater
source
without
a
Construction
Permit
issued
by
the
Agency, except
as
provided
in
Paragraph
(b),
(b)
Construction
Permits
shall
not
he
required
for
the
following;
(1)
Storm
sewers
that
transport
only
land
runoff;
or
(2)
Any
treatment
works,
sewer,
or
wastewater
source
designed
and
intended
to
serve
a
single
building
and
eventually
treat
or
discharge
less
than
an
average
of
1500
gallons
per
day
of
domestic
sewage
and
which
will
di
argedirectl
to
a
publicly
owned
or
publicly
regulated
sanitary
or
combindd
sewer
or
(3)
Any
sewer
required
by
statute
to
secure
a
permit
pursuant
to
Ch.
111
1/2
Ill.
Rev.
Stat.,
Sec.
713,
et seq.; or
(4)
Any treatment works, pretreatment works,
sewer, or
wastewater
source
that,
on
the
effective
date
of
this
Subpart
B,
is
being
constructed
or
will
be
constructed
under
the
authorization
of
a
Permit
already issued by
the
Agency or its predecessors;
provided however, that all construction must be
completed within four years from the effective
date of this Subpart B;
or
(5)
Privately owned sewers tributary to industrial
treatment works owned by the same person if the
additional waste load does not exceed the permitted
design capacity of the industrial treatment works.
(c)
No person shall cause or allow the construction of any
pretreatment works or cause or allow the modification
of any existing pretreatment works
if such pretreatment
works, after construction of modification, will:
(1)
~ischa
qe toxic pollutants,
as defined in Section
51h
13,
of tne
FT7PCA,
or pollutants which may
inerfeie wita the treatment process into the
rece~vrnutreatment works; or
(2)
iscLarqe 15
or more of the total hydraulic
1
e
~sceived by the treatment works;
or
(3)
~s
arj~ ta~~r note of the total biological
~ond ~q receivei by the treatment works
as
rea~,urcdby the 5-day biochemical oxygen demand;
without a Corstruot~r
Persit issued by the Agency
962
Standards
oi s~uarce
(a)
The Ageny
slia
I
not grant any oermit required by this
Suboart b
cept
an Experimental Permit under Rule
955,
unless
-~-‘-e ap Theant ‘ubmits adequate proof that the
treatreat won
s
pvetreatment works,
sewer, or waste—
water
s
~
~ha* ~±T1 will be constructed, modified,
or umera~ec
o as not to cause a violation of the
Act
or of
this
F. ~iotcr,, er-~has-beeft—a~ite~-a—vafia~ee
undet--r
-?c~
f-tiwe-ACtT-and
~?b3- Either—c rfor ~s-to-tega-er±ter-~rm~et~d-by
the
gene~y—urther-Rule 9&T7-——bed—eu-eueh—~ther
eu~terrere-t-te-
eant—)~~ueve~5—w-r+l-~reduee-eeu—
~teutiy-eatfaeteuy-ree-~-auA
(b)
If
the A~er~~
criteria with reaard to any part or condition of a
permiE7the~~6rpurposes of permit issuance proof
of
—
-~
—
-
conformity with ~
eviderce of
cc
viclation.
However, non-conf2rmit
with the
ci i
~
denial if the c)ndition of subsection
(a)
of this
rule
is met
-(-ca-
eonf,ri.e to all
~ond±t
ne-acute
e~n—the—6otet~en
Peumi~7-where—appl±eaJ~leT
967
Design, Operatior
and Maintenance Criteria
(a)
The
Agency may adopt ~reeeduree-whieh—eet-?euth
criteria
for the design,
operation,
and maintenance of
treatment
works
pretreatment
works,
sewers,
and
wastewater
sources.
These prc~eduueecriteria shall be revised from time to
time to reflect c~
tengineering
judgment and ad-
vances
in the state
of
the
art
-11—
(b)
~
e~a~es ~
-fl*
*2*
~
EtrLeJ.
*3*
~
The Agency shall adopt such procedures
as are necessary
for permit issuance under this Subpart B of Part IX.
(c)
In adopting new or revised criteria or procedures,
the
Agency shall comply with the requirements of the Illinois
AdminisFrative
Procedure
Act,
Tl1.
Rev.
Stat.
1977,
ch.
l27,~ll)01.
ct
seq.
(d)
To the extent the Agency adopts such criteria,
they
will represent a formal Agency interpretation of what
is consistent with the Act and Chapter
3 and necessary
to accomplish the purposes of the Act.
9~± Proced~ires
~
~
~
—d—fe~ps4~e~
~de~—th~s
~
—a—fe
±~±e~e—tI’tefete7
~
~
~
Deleted
974
Permit Modification Pursuant to Variance
If a permit is denied or granted with objectionable
conditions required by Board Regulations the permittee may
petition the Board for a variance from the regulations.
The
-12-
proceeding will be governed by Part IV of the Procedural
Rules.
If requested the Board may order permit modification
pursuant to variance.
The record will be held open for public comment for
forty-five
days
after
publication
of
the
first
notice
in
the
Illinois
Register.
IT
IS SO
ORDERED.
Mr. Werner abstained.
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, hereby certify the above Proposed Opinion and Order
were adopted on the
~
day of
1980 by a vote of_____
Illinois Polluti
ontrol
Board