2

the environmental control standards applicable in the State of Illinois” (415 ILCS 5/5(b) (2000))

and to “grant . . . an adjusted standard for persons who can justify such an adjustment” (415

ILCS 5/28.1(a) (2000)).

 

For the reasons discussed below, the Board will grant the City of Belleville an adjusted

standard subject to certain conditions.

 

STATUTORY AND REGULATORY BACKGROUND

 

Belleville seeks an adjusted standard from the Board’s CSO disinfection requirements at

35 Ill. Adm. Code 306.305(b). Specifically, Section 306.305(b) provides:

 

All combined sewer overflows and treatment plant bypasses shall be given

sufficient treatment to prevent pollution, or the violation of applicable water

quality standards unless an exception has been granted by the Board pursuant to

Subpart D. Sufficient treatment shall consist of the following:

 

* * *

 

b) 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.

 

The general procedures that govern an adjusted standard proceeding are found at Section

28.1 of the Act (415 ILCS 5/28.1 (2000)) and the Board’s procedural rules at 35 Ill. Adm. Code

104.Subpart D. Section 28.1 of the Act requires that the adjusted standard procedure be

consistent with Section 27(a). Under Section 27(a) of the Act, the Board is required to take the

following factors into consideration: the existing physical conditions, the character of the area

involved, including the character of the surrounding land uses, zoning classifications, the nature

of the receiving body of water, and the technical reasonability and economic reasonableness of

measuring or reducing a particular type of pollution. 415 ILCS 5/27(a) (2000).

 

Since the Board’s CSO disinfection requirements at Section 306.305(b) do not specify a

level of justification from an adjusted standard, the petitioner must justify the adjusted standard

in accordance with the requirements of Section 28.1(c)(1) through (c)(4) of the Act, (415 ILCS

5/28.1(c) (2000)). Section 28.1(c)(1) through (c)(4) provide:

 

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 that petitioner;

 

2. the existence of those factors justifies 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

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3

 

4. the adjusted standard is consistent with any applicable federal law.

 

ADJUSTED STANDARD PETITION

 

Belleville is requesting an adjusted standard for its CSOs at the 88th Street Lift Station

that discharges to an unnamed tributary of Powdermill Creek, which Belleville characterizes as a

dry ditch. Powdermill Creek is a small stream with a drainage basin of approximately five miles

that flows into the Harding Ditch, then into Prairie du Pont Creek and finally the Mississippi

River. Ag. Rec. at 2.

 

Currently, Belleville is in the process of replacing the original 88th Street Lift Station,

which serves an estimated population of 3,400 in western Belleville. Pet. at 7. As a part of the

replacement, in January 1999 Belleville completed construction of a swill concentrator for

primary treatment of wet weather flows. Pet. at 3-4. The requested relief would allow Belleville

to forego disinfection of the discharge from the 88th Street Lift Station swill concentrator during

excessive wet weather conditions. Pet. at 1. While Belleville has completed the construction of

the concentrator, it has decided not to begin operation until the Board rules on its adjusted

standard request. Pet. at 4.

 

Belleville maintains that the swill concentrator will not be put on line until the Board

rules on this adjusted standard petition because of language in the Agency construction permit

for the swill concentrator. Pet. at 6. Specifically, Belleville cites special condition 4 of the

existing Agency construction permit which states:

 

The permittee to construct and own shall submit an acceptable petition to the

Pollution Control Board for relief from disinfection or submit plans and

specifications along with a request for a supplemental permit to include a

disinfection system to the Agency within 90 days of the date of this permit.

Should the Board deny the permittee’s petition for relief, the permittee shall

submit an application for a permit to construct disinfection equipment within 90

days of relief denial, and the permittee shall begin construction within 90 days of

permit approval. Pet at 6-7.

 

At present, Belleville discharges untreated effluent from the 88th Street Lift Station to an

unnamed tributary to Powdermill Creek during wet weather flows. Belleville’s petition

identifies Powdermill Creek as a usually dry ditch less than one foot in depth during average

flow. Pet. at 26. Powdermill Creek traverses through a residential neighborhood, more than 400

feet from the nearest house. Belleville describes the area along the creek as sparsely populated,

heavily wooded, and not easily accessible. Pet. at 28. Appendix A and Exhibit C of Belleville’s

August 27, 1999 amended petition include partial maps and annotated photos of the outfall and

nearby Powdermill Creek.

 

Based on a recreational assessment survey conducted on the receiving stream for the 88th

Street Lift Station effluent discharge, Belleville states that the receiving stream does not support

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4

and does not have the potential to support primary full body or recreational contact activities.

Pet. at 26-28. Belleville notes that in the first adjusted standard petition filed

 

July 20, 1998, Belleville reported a citizen complaint about the outfall. In the summer of

1997, Mr. Gompers, a property owner who resides adjacent to the 88th Street Lift Station site,

complained to both the Agency and the United States Environmental Protection Agency about

potential health hazards to his children from the CSO outfall discharge. Mr. Gompers claimed

that his children play in the ditch where the CSO discharges during wet weather (Or. Pet. at 3).

 

Belleville has investigated two types of disinfection. The first, ultraviolet disinfection,

was not viable because the effluent from the swill concentrator would be too turbid to allow for

proper light penetration, according to Belleville. Pet. at 17. Secondly, Belleville examined

chlorine disinfection and two types of chlorine were considered. The first alternative was

chlorine gas stored on site in one-ton cylinders. This option was considered not viable by

Belleville because the area is zoned for single family residences and might be considered a

potential safety hazard. The second option utilized sodium hypochlorite which was considered

safer to use. The estimated cost for constructing a sodium hypochlorite disinfection system is

$293,437 with an annual estimated cost for operation and maintenance of $7,000. Pet. at 17-18.

 

Belleville argues that the cost of disinfection is not justified based on the negligible

benefit it would provide to the surrounding area. Pet. at 29. Belleville further claims that the

economic and technical hardship of installing a disinfection system, in addition to the swill

concentrator, outweighs any benefit to the environment given the limited use and accessibility of

the receiving waters.

 

In summary, Belleville argues that three factors weigh in favor of granting an adjusted

standard. First, the receiving stream does not have potential for primary contact activities.

Second, designing, constructing and operating a fully automated chlorine disinfection system at

an unmanned location is technically difficult. Third, the high costs of building, operation and

maintaining the disinfection facilities to achieve the disinfection requirements do not justify the

benefit of following the disinfection requirement. Pet. at 32.

 

Belleville proposes that the Board adopt the following language for the adjusted standard:

 

Either: the City of Belleville, Illinois, is granted an adjustment to the Disinfection

Requirements of 35 Ill. Admin. Code 306.305 (b). This adjustment allows the

City of Belleville to discharge combined sewer overflow during wet-weather

conditions at it’s 88th Street Lift Station, which will be given primary treatment

via a swill concentrator, without disinfecting such flows; or,

 

the City of Belleville is granted a temporary adjustment to the Disinfection

Requirements of 35 Ill. Admin. Code 306.305(b). This adjustment allows the

City to put the swill concentrator into operation for a period of 12-months without

disinfecting the discharge yet gather BOD, Suspended Solids, E-Coli, Fecal

Coliform, Total Bacteria and Dissolved Oxygen Concentrations during wet-

weather events. Pet. at 23.

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5

AGENCY RECOMMENDATION

 

 

The Agency recommends that the Board grant the requested relief subject to certain

conditions. Ag. Rec. at 4. These conditions include limiting the adjusted standard to a five-year

period, and requiring Belleville to submit to the Agency a long-term CSO control plan to achieve

compliance with applicable standards at the expiration of the temporary adjusted standard. Ag.

Rec. at 7. In addition, the Agency suggests that the Board require Belleville to create a barrier

along the receiving stream to limit public access and to educate nearby residents on the hazards

associated with the CSO.

Id

.

 

 

Regarding the five-year limitation, the Agency states that Belleville is required to comply

with the generally applicable CSO regulations under the national CSO Policy promulgated by the

United States Environmental Protection Agency (USEPA). Ag. Rec. at 12-13. The CSO Policy

establishes a consistent national approach for controlling discharges from CSOs through the

National Pollution Discharge Elimination System (NPDES) permit program to meet the health

and environmental objectives of the Clean Water Act (CWA).

Id

. The CSO Policy states that

permittees should submit their long-term CSO control plan generally within two years of the

inclusion of the NPDES permit provision pertaining to the National CSO Policy.

2

However, the

policy allows NPDES authorities to establish longer timetables when site-specific factors

complicate the planning process, such as in this case where the Agency has allowed Belleville a

five-year period. Further, the CSO Policy allows the permittees and permit authorities to

consider innovative and alternative approaches and technologies to ultimately achieve

compliance with the applicable standards.

Id

.

 

 

In addition, the Agency believes that creation of barriers to limit public access to the

receiving stream, and education of local residents on risks associated with CSOs are necessary to

minimize human risks associated with disinfection exemptions in residential areas. Ag. Rec. at

8-9. In this regard, the Agency notes that the recreational assessment survey conducted by

Belleville documents that two out of five respondents have indicated that they use the receiving

stream for some type of recreational activity. Ag. Rec. at 8. Belleville responded to the

conditions recommended by the Agency at hearing.

 

The Agency proposes that the Board adopt the following language for the requested

adjusted standard:

 

The City of Belleville is granted temporary adjustment to the disinfection

requirement of 35 Ill. Admin. Code 306.305(b). This adjustment allows the City

of Belleville to discharge combined sewer overflows during wet weather

conditions from its 88th Street Lift Station in excess of the first flush without

disinfecting such flows for the next five years. The City of Belleville shall submit

 

2

Special condition 11 of the Belleville’s NPDES permit (IL0021873) requires the permittee to

comply with the nine minimum controls contained in the USEPA’s National CSO Policy. One

of the objectives of this policy is to bring all wet weather CSO discharge points into compliance

with the CWA, including compliance with water quality standards and protection of designated

uses.

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6

a long-term control plan to the Illinois EPA that will achieve compliance at the

expiration of this temporary period of five years with the applicable water quality

standards. The City of Belleville may use innovative and alternative approaches

and technologies to achieve this compliance. Ag. Rec. at 7.

DECEMBER 21, 2000 ORDER

 

On December 21, 2000, the Board found that Belleville had not provided sufficient

information to demonstrate that the requested adjusted standard would not result in

environmental or health effects more adverse than the effects considered by the Board in

adopting the rule of general applicability. 415 ILCS 5/28.1(c)(3) (2000). In addition, the Board

had questions that relate to Section 28.1(c)(4) which requires consistency with federal law. For

these reasons, the Board sent the matter to hearing.

HEARING

 

At hearing, Belleville and the Agency provided additional information. In general,

Belleville supplemented the record regarding water quality impacts, provided additional

recreational assessment, and amended the description of the affected area. The Agency and

Belleville also clarified the consistency with federal law. The following discussion will

summarize the information that was in the record prior to the hearing and indicate how the record

has been supplemented at hearing.

 

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 (Section 28.1(c)(3))

 

The first area of discussion will involve the concerns regarding potential health and

environmental effects of the adjusted standard. The following is a summary of the information

provided by Belleville and the Agency.

 

Water Quality Impacts

 

Prior to hearing, Belleville did not provide any scientific data on the water quality

impacts of the CSO discharge on the receiving streams. Belleville did provide estimated

improvements in water quality parameters, such as suspended solids, based on the design of the

swirl concentrators. Pet. at 4-5. Belleville supplied some effluent data prior to hearing, (Pet. at

5), however, there was no data from the unnamed tributary, the five to six mile stretch of

Powdermill Creek or other downstream areas. The pictures in Appendix A and Exhibit C of the

petition clearly show pools of water that remain after portions of the channel are dry.

 

On May 15-16, 2001, Belleville conducted another more extensive stream survey for a

five-mile distance from the CSO outfall down the drainage ditch, Powdermill Creek and Canal

No. 1. Hearing Exh.1 at 1. Several photographs with corresponding maps and written

descriptions were provided along the survey route. Exh. C and E of Hearing Exh. 1. The survey

indicated that the stream characteristics are such that the CSO initially discharges into the

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7

unnamed tributary of Powdermill Creek. This is “[m]ore or less a ditch. During dry weather

there is very little water in it.” Tr. at 19. At the time of the 5-mile photographic survey, “it had

not rained for about eight or nine days.” Tr. at 44. The average depth of the creek was six

inches. There were pools that were up to a foot deep. This first deep hole over two-feet deep is

about two miles from the CSO outfall and about a half mile from any house. Tr. at 16, 36; Exh.

C, D and E of Hearing Exh. 1.

 

Royce Carlisle, Systems Coordinator at the Belleville Wastewater Treatment Plant,

walked the five-mile stretch for the photographic survey. He noted, “We noticed no odors, no

sanitary sewage indicators at all. There were no paper products, rubber products, anything of

that sort, other than right at the discharge itself on the [riprap].

3

But anything in the ditch less

than 100 foot down from the discharge itself, there was no indication. And we walked in the

center of the creek and we stirred it up as we went and we never noticed any odor of any sort.”

Tr. at 17.

 

Belleville’s CSO operator runs a dry inspection of each CSO once a week as well as after

each rain event. Tr. at 13. The CSO operator inspects the stream from the CSO outfall to

approximately 1000 feet downstream. He looks for pools, odors, decomposed materials, sewage

sludge, floatable sanitary debris, and other signs of pollution. Tr. at 23; Exh. F of Hearing Exh.

1. An example CSO Stream Inspection report from June 19, 2001, was provided as Exh. F of

Hearing Exh. 1. The June 2001 report indicates there was no evidence of odors or colors

indicative of sewage although sanitary and paper products were found. Exh. F of Hearing Exh.

1. Past the first 100 feet down the drainage ditch, no indications of sanitary sewage overflow

(floating debris or sludge) were noticed during either the June 2001 CSO or May 2001

photographic inspections. Hearing Exh. 1 at 2. “Access to the first 100 feet of the drainage ditch

has very limited access and is on city property.” Hearing Exh. 1 at 2.

 

The Board also had additional concerns about the effluent characteristics and at hearing

Belleville provided additional information regarding the lift station improvements. Specifically,

Belleville indicated that prior to 1996, there were two 300 gpm pumps operating at the lift

station. In October 1996, Phase I of the upgrades to the lift station began construction and the

pumps were replaced with two 500 gpm pumps and one 200 gpm pump by the end of the year.

Hearing Exh. 1 at 1; Tr. at 12. “This has reduced the frequency of discharges [from the CSO].”

Hearing Exh. 1 at 1.

 

Then on July 2, 1999, Belleville put into service a swill concentrator at the lift station.

Tr. at 24. “The swill concentrator further reduced the frequency of discharge as well as reduced

effects of the discharges.” Hearing Exh. 1 at 1; Tr. at 25. Previously, Belleville’s petition stated

that the swill concentrator would not be placed on line until the Board granted the adjusted

standard. Pet. at 6. To demonstrate the reduction in frequency of discharges from the CSO,

Belleville provided a record log of alarms at its South 88th Street Lift Station where the CSO is

located. Exh. A of Hearing Exh. 1. The record log covers events from fall 1987 to summer

3

“The CSO discharges into a drainage ditch that has approximately 100 feet of [riprap].” Tr. at

14. Riprap is “a loose assemblage of broken stones erected in water or on soft ground as a

foundation.”

The American Heritage Dictionary

, 1982.

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8

2001. Belleville also provided a record of overflow events and their duration from October 1997

to December 2001. Exh. B of Hearing Exh. 1. The records show how the frequency of

discharges decreased once the new larger pumps were brought on line during the end of 1996.

Tr. at 12. After the swill concentrator was put into service in July 1999, it “further reduced the

frequency of discharge as well as reduced effects of the discharges.” Hearing Exh. 1 at 1.

 

Based on the swill concentrator design data, Belleville expected reductions in the CSO

effluent of 30% in Biochemical Oxygen Demand (BOD), 40% in Suspended Solids (SS), and

45% in Volatile Suspended Solids (VSS). Pet. at 4-5. At hearing, Belleville presented all the

Discharge Monitoring Reports (DMR) for the CSO effluent from July 1999 to December 2001.

Hearing Exh. 2. According to Randy Smith, Belleville’s Superintendent of the Sewer Division,

the impact the CSO effluent has on the receiving stream has been lessened in terms of BOD and

suspended solids since the swill concentrator was installed. Tr. at 25.

 

Since fecal coliform is used as an indicator for the suitability of a water for human

exposure in primary contact activities under the general use water quality standards 35 Ill. Adm.

Code 302.209, the Board questioned the effect of the swill concentrator in removing fecal

coliform. December 21, 2000 at 6. Mr. Smith testified that the fecal coliform still passes

through. Fecal coliform results are reported on the DMR as “too numerous to count.” Tr. at 25.

 

The petition suggested that operation of the swill concentrator be limited to 12-months

without disinfection of the discharge. Pet. at 23. Mr. Smith testified that the 12-month time

limit was initially proposed because Belleville did not have any performance data from the swill

concentrator to indicate how well it would work. Since then, Belleville has accumulated two and

a half years worth of discharge data which was submitted to the Agency. With this discharge

data available, the proposed 12-month limit on operation of the swill concentrator can be

eliminated from the petition. Tr. at 28-29.

 

Belleville is continuing to modify the swill concentrator to make it more effective. Mr.

Smith described, “On the swill concentrator we have installed a makeshift screen to try to

capture any floatable, objectionable material that could discharge. In doing so, we have reduced

that factor. Since then we have purchased an auger that will actually extract the floatable

material that enters into the swill concentrator, not only during wet weather but also during dry

weather. That material will be dumped into a dumpster and then landfilled properly.” Tr. at 29.

With the added features of the screen and auger, floatable material would not be allowed to pass

through except in the event of a mechanical failure. If this did happen, the alarm would notify

the Sewer Division. Tr. at 29.

 

Public Recreational Assessment

 

In the December 21, 2000 order, the Board further noted that it appeared that the public

recreational assessment survey was only mailed to a limited number of residents near the CSO.

AS 99-1, Dec. 21, 2000 at 6. Belleville’s attorney Robert Sprague responded at hearing,

“ . . . the access was so bad [to those other houses from the creek] that they didn’t feel it was

necessary to survey those particular streets.” Tr. at 26. Robert Garegnani of KBR Engineering

followed up by stating that Belleville conducted the public recreational assessment survey within

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9

the City limits, within the vicinity of the people closest to the actual overflow and where there

would be the most effect on children. Tr. at 31. The City does not plan to conduct further

surveys to include these residents. Mr. Sprague commented at hearing, “We don’t have any

current demands to do any more surveys, but if we are told to do so, we will be happy to do so.”

Tr. at 26.

 

Additionally, the Board’s December 2000 Order noted that the survey questions appeared

vague and misleading. In part, the survey stated, “the creek could be used only to handle

stormwater

overflows” [emphasis added] rather than acknowledging in the wording that there is

a

sanitary

component from the combined sewer overflow. The Board felt that neglecting this

information could have elicited fewer responses to the survey since residents would have been

unaware of the importance of the hazards and their responses to the survey. Only five responses

were received out of the 23 surveys mailed. Mr. Sprague stated at hearing, “. . . we don’t know

why we used that language in the survey.” Tr. at 26. Mr. Garegnani added that “maybe it was

just a bad choice of words . . .”. Tr. at 30.

 

In May 2001, following up on the 1999 public recreational assessment survey, Belleville

looked for signs of recreational activity during the five-mile photographic survey. The

photographic survey did not reveal any evidence of recreational activities. Belleville believes

that not until Powdermill Creek crosses Route 13 is the creek deep enough for recreational

activities. Tr. at 17. The Route 13 crossing is approximately two and a half miles downstream

from the CSO. Exh. D of Hearing Exh. 1.

 

Belleville further described the proximity of the creek to nearby homes. The area in the

vicinity of the CSO 88th Street Lift Station is residential. Pet. at 26. Approximately 32 homes

abut the drainage system, of which, about 23 are located within the first half mile of the CSO

drainage ditch and Powdermill Creek. Hearing Exh. 1 at 1. The first place where the creek or

ditch gets close to a home is where it runs under County Highway 42 where there is a group of

houses. Less than an inch of water was present in the ditch at the time of the five-mile

photographic survey. Tr. at 19. Descriptions of the photographs noted the creek runs through a

culvert under the lawn of a residence at #18 Powdermill Dr. and under the driveways of #22,

#26, #30 Powdermill Dr. Exh. C of Hearing Exh. 1; Pet. Appendix A. The nearest house is over

400 feet from the receiving stream. Ag. Rec. at 8. In addition, the closest school is estimated to

be about one and a half to two miles away from the CSO. Tr. at 26.

 

Based on the photographic survey, Belleville concluded, “Access to the drainage ditch

and most of Powdermill Creek is difficult due to the terrain and vegetation, however, there are

access points available. With the exception of Canal No. 1, heavy foliage and woods flank the

majority of the drainage ditch and Powdermill Creek. The banks range from steep to moderate.”

Hearing Exh. 1 at 2. During the photographic survey, “At a point two and a half miles

downstream it got to where you couldn’t walk in the creek anymore because it got extremely

muddy . . . And the banks were getting too high so that we couldn’t crawl up

it . . .”. Tr. at 15.

 

Belleville concluded that based on a public recreational assessment survey, “the receiving

stream ([the unnamed tributary and] Powdermill Creek) cannot now, or in the future, support

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10

human primary contact activities.” Pet. at 29-30. Based on the more recent five-mile

photographic survey, Belleville concluded that access to the ditch and most of Powdermill Creek

is difficult, that there was no evidence of recreational activity, and that there are no indications of

sanitary sewage overflow past the first 100 feet which is located on City property. Hearing Exh.

1 at 1-2. Therefore, Belleville feels the technical difficulty and cost to construct a new

disinfection system is not justified based on the negligible benefit it would provide to the

surrounding area. Pet. at 29-30; Tr. at 8.

 

Correction to Affected Area at Hearing

 

Previously in the Amended Petition, Belleville described the affected area as the

unnamed tributary draining into Powdermill Creek leading to Harding Ditch then flowing into

Prairie du Pont Creek then into the Mississippi River. The Amended Petition stated that

Powdermill Creek runs for a distance of 3.5 miles before its confluence with Harding Ditch. Pet.

at 26. At hearing, Belleville indicated that Powdermill Creek actually does not discharge into

Harding Ditch but rather discharges into Canal No. 1. Tr. at 14, 22. Belleville indicated that:

 

The discharge from our 88th Street Lift Station C.S.O. 035 (D-13), enters a

drainage ditch that flows into Powdermill Creek. Powdermill Creek flows into

Canal No. 1. Canal No. 1 enters Prairie du Pont Creek at a point approximately

six and a half miles downstream of our 88th Street Lift Station. [Prairie] du Pont

Creek flows another six miles from there until reaching the Mississippi River.

Hearing Report Addendum, 2-5-02. Canal No. 1 does not enter Harding Ditch. It

combines with Prairie du Pont Creek and then on to the Mississippi River.

Hearing Report Addendum, 2-5-02.

 

With regards to the downstream impacts of the CSO/swill concentrator effluent, Randy

Smith testified, “The only impact that discharge could have would be [on] the Powder Mill

Creek.” Tr. at 27. Belleville presented Exh. D of Hearing Exh. 1 which is a topographical map

showing the tributaries that run into the creek before it converges into Canal No. 1. Tr. at 18.

“There is quite a few tributaries from the surrounding drainage emptying into it, so it starts

picking up some flow. But mainly it is very shallow.” Tr. at 16.

 

Agency Recommendation and Belleville’s Response

 

The Agency recommends that the adjusted standard should be conditioned on Belleville

minimizing the possibility of human exposure to the CSO during wet weather conditions. Ag.

Rec. at 8-9; Tr. at 10. To this end, the Agency suggested that Belleville could provide “public

education to homeowners along the receiving stream, or post warning signs along the receiving

stream regarding the conditions that could exist during the wet weather conditions, or erect

barriers to preclude public access to the receiving stream.” Tr. at 10. The Agency later added,

“The precautionary measures enumerated in the Agency’s response are only examples of the

measures that the City of Belleville could adopt. In no manner were these measures exhaustive.”

Tr. at 43-44.

 

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11

Belleville’s Randy Smith testified about the efforts to post signs and educate the public.

“We have looked at where we could put posting, and with the majority of this being on private

property there is only one area parallel on Foley Drive where we feel that we could put posting.

Putting in any type of barrier would hamper the possibility of any traffic, also. So we would

probably put signage on the public right-of-way there.” Tr. at 27. Where the creek runs through

private residential areas, Belleville feels that they can send a letter directly to the residents. The

letter would inform homeowners that during a rainfall event, there could be discharge from the

swill concentrator that contains untreated sanitary wastewater. Belleville is considering doing

this once a year as a reminder to the residents on Powdermill Creek within a reasonable distance.

Tr. at 28. Belleville indicated that they could accomplish the public education and sign posting

in three months time. Tr. at 28.

 

Belleville testified that a long-term CSO Control Plan is currently being developed that

would achieve compliance with the applicable water quality standards at the end of the

temporary adjustment period of five years. Belleville maintains that with the plan development

underway, a chlorination facility would be expensive to build and operate at this time since

Belleville believes it would be unnecessary in five years. Tr. at 8, 10.

 

Consistency With Federal Law (Section 28.1(c)(4))

 

The Board had questions that relate to Section 28.1(c)(4) which requires consistency with

federal law. Both Belleville and the Agency indicated that they intend to seek a change in water

use designation from the USEPA if the Board grants the requested relief. However, neither

Belleville nor the Agency had provided any information as to why it is necessary to seek a

change of water use designation, and whether USEPA’s approval of such a change is predicated

on the petitioner obtaining an adjusted standard from the CSO disinfection requirement.

 

Scott Twait of the Agency provided additional information. Mr. Twait indicated that “A

change in water use designation would not be necessary for the relief requested. However, a

change in the water use designation would be necessary if a long-term control plan indicates that

the fecal coliform water quality standards, 35 IAC 302.209, would be violated and [Belleville]

requested relief of the water quality standards. The U.S. EPA reviews all changes to the water

quality standards.” Tr. at 42. Once Belleville develops its long-term CSO Control Plan, “In the

future if the fecal coliform water quality standards are not met, the use designation [of the creek]

would be changed to indicate that human health is not protected.” Tr. at 43. All general use

water quality standards would still apply except for fecal coliform. Tr. at 43. However, Mr.

Twait added, “regardless of the stream designation, Belleville must meet the 306.305(b)

requirements for disinfection of the discharge.” Tr. at 43.

 

DISCUSSION

 

For the Board to grant an adjusted standard, the petitioner must demonstrate that pursuant

to Section 28.1(c) of the Act as well as 35 Ill. Adm. Code 104.Subpart D, an adjusted standard is

warranted. Section 28.1(c) contains four factors which must be examined to determine if

Belleville has demonstrated that an adjusted standard is warranted. The Board will examine each

of those factors in the discussion that follows.

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12

 

Factors Relating to the Petitioner are Substantially and Significantly Different from the

Factors Relied Upon by the Board in Adopting the General Regulation Applicable to that

Petitioner

 

The Board finds that the factors relating to Belleville are substantially and significantly

different from the factors relied upon by the Board in adopting the CSO regulations. The

Agency points out that the CSO regulations were developed to be “sufficiently protective of

aquatic life and public water supplies.” Ag. Rec. at 11. The receiving stream at issue in this

proceeding is not used as a source of drinking water.

Id

.

 

Belleville investigated compliance options including ultraviolet disinfection and chlorine

disinfection. Ultraviolet disinfection will not work due to the turbidity of the discharge. The

Agency agrees with Belleville that chlorine disinfection is technically difficult to install and

operate. Furthermore, the cost of the system would substantially increase annual capital,

operational, and maintenance costs and the Agency believes this too is a fundamentally different

factor. Ag. Rec. at 11.

 

In addition to the feasibility of alternatives, the record indicates that the contact with the

stream where the discharge takes place is minimal and Belleville has committed to taking steps

to notify persons who may come into contact of the potential problems. There has been a

declining trend in the amount and frequency of discharges; however, fecal coliform may

continue to be a health issue. The conditions proposed by the Agency would help to address this

health concern until the long-term CSO Control Plan is implemented.

 

The Existence of Those Factors Justifies an Adjusted Standard

 

The Board finds that the existence of the above factors justifies the adjusted standard with

conditions as recommended by the Agency.

 

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

 

The Board finds that the requested standard will not result in environmental or health

effects substantially and significantly more adverse than those considered by the Board in

adopting the CSO regulations. The record, as supplemented at hearing, demonstrates that the

number and frequency of overflow events have been decreasing. Furthermore, the survey of the

stream indicates minimal human contact and Belleville has agreed to take additional steps to

minimize the risk.

 

The Adjusted Standard is Consistent with any Applicable Federal Law

 

Based on the clarification given by the Agency at hearing, the Board finds that the

adjusted standard will be consistent with federal law.

 

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CONCLUSION

 

The Board believes that the record is sufficient at this time to grant an adjusted standard

from 35 Ill. Adm. Code 306.305(b). Therefore, the Board grants the adjusted standard with the

conditions suggested by the Agency in the recommendation and at hearing.

 

ORDER

 

The Board hereby grants City of Belleville adjusted standard to the disinfection

requirement of 35 Ill. Adm. Code 306.305(b) by allowing the City of Belleville to discharge

combined sewer overflows during wet weather conditions from its 88th Street Lift Station in

excess of the first flush without disinfecting such flows subject to the following conditions:

 

1)

The adjusted standard will expire on March 21, 2007.

 

2)

The City of Belleville shall submit a long-term control plan to the Illinois

Environmental Protection Agency that will achieve compliance with the

applicable water quality standards by March 21, 2007. The City of Belleville may

use innovative and alternative approaches and technologies to achieve this

compliance.

 

3)

During the period of this adjusted standard, the City of Belleville shall mitigate

the possibility of human exposure to the discharge. The City of Belleville shall

take steps including public education, and postings along the stream. In the

future, Belleville shall create barriers which would preclude public access to the

receiving stream if parks or playgrounds are created along the stream.

 

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may be

appealed directly to the Appellate Court within 35 days after the Board serves the order. 415

ILCS 5/41(a) (2000);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706. Illinois

Supreme Court Rule 335 establishes filing requirements that apply when the Illinois Appellate

Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The Board’s

procedural rules provide that motions for the Board to reconsider or modify its final orders may

be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code 101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on March 21, 2002, by a vote of 7-0.

 

 

Dorothy M. Gunn, Clerk

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Illinois Pollution Control Board