ILLINOIS POLLUTION CONTROL BOARD
December 1, 1994
CITY OF MORRIS,
)
Petitioner,
v.
)
PCB 86-4
(Combined Sewer
ILLINOIS ENVIRONMENTAL
)
Overflow Exception)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter now comes before the Board upon filing by the
City of Morris (Morris) on October 21, 1992 of an amended
petition (Amended Pet.) for exception from the Board’s combined
sewer overflow (CSO) regulations.
Morris currently holds a temporary exception from the CSO
regulations’. In the instant petition Morris seeks to make the
exception permanent.
The Board’s responsibility in this matter arises from the
Illinois Environmental Protection Act (Act) 415 ILCS 5/1 et
seq.
(1992). The Board is charged under the Act to “determine,
define and implement the environmental control standards
applicable in the State of Illinois” 415 ILCS 5/5(b). As
pertains to the instant matter, the Board has developed
environmental control standards for CSOs and procedures by which
exception may be granted. Morris asks the Board to grant it an
exception under the CSO exception procedures.
More generally, the Board’s responsibilities are based on
the system of checks and balances integral to Illinois
environmental governance: the Board is responsible for the
rulemaking and principal adjudicatory functions, whereas the
Illinois Environmental Protection Agency (Agency) is responsible
for carrying out the principal administrative duties. The latter
includes administering any revised CSO provisions that stem from
today’s action.
Based upon the record before the Board, the Board finds that
Morris has made the showings necessary for grant of the requested
permanent CSO exception, subject to certain conditions. The
1
The temporary exception was granted based on a petition
filed in 1986. The Board has retained jurisdiction during the
pendency of the temporary exception, which accounts for the
continued use of the original docket number.
—2—
Board will accordingly grant the CSO exception subject to these
conditions.
CSO REGULATORY FRAMEWORK
The Board’s CSO
regulations are set forth at
35 Ill. Adm.
306.305.
This section provides as follows:
All combined sewer overflows and treatment plant
bypasses shall be given sufficient treatment to prevent
pollution, or the violation of applicable water
standards unless an exception has been granted by the
Board pursuant to Subpart D.
Sufficient treatment shall consist of the following:
a) All dry weather flows, and the first flush of
storm flows as determined by the Agency, shall
meet the applicable effluent standards; and
b) Additional flows, as determined by the Agency but
not less than 10 times the average dry weather
flow for the design year, shall receive a minimum
of primary treatment and disinfection with
adequate retention time; and
c) Flows in excess of those described in subsection
(b) shall be treated, in whole or in part, to the
extent necessary to prevent accumulations of
sludge deposits, floating debris and solids in
accordance with 35 Ill. Adm. Code 302.203, and to
prevent depression of oxygen levels; or
d) Compliance with a treatment program authorized by
the Board in an exception granted pursuant to
Subpart D.
The Board’s rules also provide for exception from the
applicability of part or all of Section 306.305. The exception
procedure is found at 35 Ill. Adm. Code 306.Subpart D (Sections
306.350 et
seq.).
It establishes that exceptions shall be
granted “based upon water quality effects, actual and potential
stream uses, and economic considerations including those of the
discharger and those affected by the discharge”. (35 Ill. Adm.
Code Section 306.350.) The exception procedure additionally
provides that an exception may be justified based on showing of
minimal discharge impact. (35 Ill. Adm. Code 306.361.) In the
instant case, Morris contends, and the Agency agrees, that the
remaining Morris CSO5 produce a minimal discharge impact.
—3—
Grant of the relief that Morris requests would allow
discharge of first flush of storm flows (306.305 (a)) plus flows
larger than first flush (306.305(b)) without treatment.
PROCEDURAL HISTORY
Morris initially sought exception from the Board’s CSO
regulations via a petition filed singly on January 3, 1986.
Following a public hearing and various supplementary pleadings
filed by Morris and the Agency, the Board on April 7, 19882
declined to grant a full exception. However, the Board did grant
a conditional temporary exception. Among the conditions imposed
upon the temporary grant was that Morris file an amended petition
on or before November 1, 1991 wherein it would present
justification for a permanent exception.
On December 2, 1991 Morris filed a motion3 to extend the
November 1, 1991 deadline to November 1, 1992. Among other
matters, Morris contended that due to insufficient rainfall
during 1991, it had been unable to fully characterize overflow
events, and had thus been prevented from collecting data
necessary to complete its amended petition. By order of January
23, 1992 the Board granted the motion extending Morris’ filing
deadline to November 1, 1992.
Morris filed the amended petition on October 21, 1992. The
amended petition is accompanied by two documents of particular
pertinence: Post—NCP Construction Phase II
—
Preliminary Stream
Inspection, September 1992 (Stream Inspec.); and Post-MCP
Construction CSO Study, October 1992 (CSO Study).
In January 1993 the Board began inquiries as to whether the
Agency intended to comment on Morris’ October 1992 amended
petition. On June 3, 1993 the Board issued an order directing
the Agency to reply to the amended petition before July 1, 1993,
or to justify its continued delay.
The Agency filed a response on July 2, 1993. The Agency
observed that, because of a continuing deficiency of information,
it could not yet recommend that the Board grant Morris a
2 The original order was adopted with accompanying opinion
on April 7, 1988 (City of Morris v. Illinois Environmental
Protection Agency, PCB 86-4, 88 PCB 5). Because the April 7,
1988 order contained an error in one of the completion dates, the
Board in response to an Agency motion reissued the order in
correct form on May 19, 1988 at 89 PCB 229.
~Morris had by Board order of November 7, 1991 been granted
an extension of time to file the motion on or before December 2,
1991.
—4—
permanent exception. Morris subsequently filed a motion for
long—term extension of time to respond to the Agency’s response,
citing the need to gather the necessary additional information.
The Board granted the extension.
On July 13, 1994 Morris supplemented the record with a
response to the Agency’s July 2, 1993 filing. On October 31,
1994 the Agency filed a reply to Morris’ response (Oct. 31
Resp.)4. The Agency states that it now believes that Morris has
provided the information necessary to support a permanent cso
exception.
With Morris’ filing of July 13, 1994 and the Agency’s filing
of October 31, 1994, the Board believes that this matter is
finally fully framed and that Morris’ petition for permanent
exception is now ready for determination on its merits.
BACKGROUND
Morris, which had a population of 10,270 in the 1990 census,
is the county seat of Grundy County. Morris is located on the
Illinois River, which forms the southern boundary of the city.
Two other waterbodies of interest are Nettle Creek, which flows
through the western portion of the city prior to discharging into
the Illinois River, and an unnamed strip mine pond located near
the northeast portion of Morris.
Morris historically has had a combined sanitary/storm sewer
system. During high sewer discharges, typically caused by large
precipitation events, the capacity of the Morris sewage treatment
plant has been insufficient to treat the full combined discharge
and accordingly some of the discharge has had to be bypassed with
no or less than full treatment.
In recent years, Morris has sought to reduce the frequency
and improve the character of CSO discharges by a combined
construction and management program. A major portion of this
effort has been initiated as part of Morris’ Municipal Compliance
Plan (MCP) project, construction of which culminated in 1987-90.
Under the MCP Morris undertook modifications of its sewage
treatment plant and changed its sewerage collection system.
Morris contends that all MCP improvements have been completed
timely with respect to the Board’s previous orders in this
~ The response was accompanied by a motion for leave to
file. That motion was granted by Board order of November 3,
1994.
—5—
matter5. More recently Morris has undertaken additional systems
modifications, including increasing secondary capacity at the
treatment plant and construction of storm sewers. (Amended Pet.
at ¶4—5.)
The goal of Morris’ MCP project has been to lessen the
impact of the CSOs on the receiving waters to the point that any
remaining impact would be an acceptable alternative to more
costly full compliance. Morris contends that studies undertaken
in the post-MCP construction period6 demonstrate that this goal
has been achieved.
Morris has also undertaken several initiatives in the post—
MCP period. Among these are improvements in the sewage treatment
plant that increase the capacity for treating average daily flows
from 1.34 MGD to 1.82 MGD, a 36 increase; similarly, the
improvements increase the capacity to treat maximum flows from
3.18 MGD to 4.36 NGD. (CSO Study at p. 4.) The significance of
these improvements is that they allow Morris to pump additional
combined sewage from the system through the treatment plant,
thereby reducing the amount that would exit as overflow from the
sewers. (Id.)
In progress is the construction of new sewers in the
southern portion of Morris’ business district. These sewers will
divert storm waters that presently contribute to CSO5. (CSO
Study at p. 5; Oct. 31 response at Attachment 1.)
ENVIRONMENTAL IMPACT
The Illinois River at Morris is a major navigational stream,
with a high volume of flow; average stream width is 500—600 feet
and ten-year low flow is 3188 cfs (Stream Inspec. at p. 8). The
land along the Morris side of the river is primarily industrial,
with the exception of Stratton Park, a state-owned park at which
boat—access to the river is provided. Land along the south side
of the river is primarily agricultural. Two of the Morris CSOs,
CSO-5 and CSO—6, discharge to the Illinois River.
~ The principal construction programs and schedules for
their completion have been set forth in the Board’s opinion and
order of April 7, 1988 at 88 PCB 5 and of May 19, 1988 at 89 PCB
229.
6 These studies were originally scheduled for 1991 in
compliance with conditions #4 and #6 of the Board’s order of May
19, 1988 (89 PCB 230-1). However, due to limited rainfall during
1991, the studies had to be extended into 1992, as recognized in
the Board’s order of January 23, 1992 (129 PCB 255).
—6—
Nettle Creek through Morris has an average width of 20 feet;
its ten—year low flow is zero. (Stream Inspec. at p. 7.) Land
use adjacent to the creek ranges from residential to wooded. In
the latter case, the creek passes through Gebhard Woods State
Park, which is located at the southwest side of Morris. Nettle
Creek is the discharge point of five of Morris’ original CSOs,
SSO—17, SSO—3, SSO-4, CSO—3, and CSO—4.
The unnamed strip mine pond is located in an area of
residences and reclaimed strip—mined land. One of Morris’
original SSOs, SSO-2, discharges to the pond.
Morris has provided information regarding the nature of the
areas around each of the CSOs. This includes a description of
the stream at each of the overflow points (Stream Inspec. at p.
3—7), stream hydraulic and morphologic factors at and adjacent to
the overflow points
(~.
at p. 7-10), and descriptions of the
streamside property, including topography, land cover, and land
use (Id. at p. 10—12).
Morris further observed CSO events from late 1991 through
July 1992 involving rainfall episodes of 0.38, 0.41, 1.07, 1.09,
1.11, 1.63, 2.00, and 2.08 total inches and ranging in rate from
0.12 inches per hour to 1.60 inches per hour. (Stream Inspec. at
Exh. B). This record was further augmented by observations
associated with several large rainfalls in August and September
1992, including a 3.34 inch rainfall on September 10, 1992. (CSO
Study at p. 11-12.)
Based on this record Morris concludes that as of 1992 only
two of its original nine CSOs any longer experience overflows in
response to a “once—in—a—year rainfall”; these are the two CSOs
that discharge to the Illinois River, CSO-5 and CSO—6. (CSO
Study at p. 9.) Observations on the water and its environs are
consistent with this decrease frequency of overflow events.
(Stream Inspec. at p. 3—7.)
As regards CSO-5 and CSO-6, Morris observes that they are
tributary to the Illinois River, which has a large discharge even
under low—flow conditions. Morris also observes that additional
sewer construction currently in progress will further reduce any
impact that CSO-5 and CSO-6 may have. The Agency observes that
it “agrees with Morris that this construction will alleviate
the discharges from CSO’s 5 and 6” and that Morris is “committed
to constructing an additional section of storm sewer
. . .
should
the ongoing construction provide insufficient relief”. (Oct. 31
response at ¶20 and Attachment 1.)
‘~
Sanitary Sewer Overflow. Morris contends that some of its
SSOS actually function as CSOs, and accordingly has addressed
them in the instant pleading in the same manner as the CSOs.
(Pet. Resp. at 2-3.)
—7—
CONDITIONS ATTACHED TO THE GRANT OF EXCEPTION
Today’s CSO exception is granted subject to several
conditions. Among these are requirements that Morris undertake
several tasks to further improve its sewerage system (see
conditions 1—4 of today’s order). These conditions are generally
as recommended by the Agency (Oct. 31 response, p. 6-7) based
upon commitments made by Morris (Amend. Pet. and Oct. 31
response, Attachment 1).
In each of these conditions, the Board has reviewed the
additional tasks required of Morris and finds that they are
necessary to attain minimal discharge impact, and hence to
justify grant of the permanent exception. The grant of exception
will accordingly be made conditional upon Morris’ completion of
each of these tasks.
CONCLUSION
The Board finds that a permanent CSO exception for the City
of Morris is justified based on the achievement of minimal
discharge impact.
This opinion constitutes the Board’s final findings of fact
and conclusions of law in this matter.
ORDER
The City of Morris (Morris), Grundy County, is hereby
granted an exception from the requirements of 35 Ill. Adm. Code
306.305(a) regarding first flush of storm flows and from 35 Ill.
Adm. Code 306.305(b), subject to the following:
1. Morris shall complete the construction of the section
of storm sewer in the area bounded on the north by
Douglas Street, on the south by the Illinois & Michigan
Canal, on the west by Price Street, and on the east by
East Street by December 31, 1995.
2. Morris shall implement by October 1, 1995
the following
program to identify residences that contribute footing
drain water to the sewer system and shall require that
those residences disconnect the
drains from the system:
A) Combination sewers in problem neighborhoods
shall be smoke tested;
B) After the smoke testing is
complete, Morris
shall conduct house—to—house plumbing
inspections and homeowner interviews; and
—8—
C) If the above steps do not provide sufficient
information to determine whether footing
drains are connected to the combination
sewers, Morris shall inject dyed water
alongside the foundation through a modified
route feeder to ascertain whether footing
tiles are connected to the sewer.
3. Upon completion of the storm sewer improvements in
conditions
(1) and (2), Morris shall conduct a flow
monitoring study of the combined sewer system and
assess changes in overflow frequencies, duration, and
strengths. Morris shall submit this report to the
Agency within 90 days of the completion of monitoring.
4. Morris shall conduct such further investigation as is
necessary to locate and remove all remaining sanitary
sewage sources contributing to the replaced trunk sewer
that terminates as CSO—2. Once these removals are
completed Morris shall disconnect this
sewer from the
sanitary sewer and operate it as a storm sewer. Morris
shall send written verification
of the completion of
this project to the Agency within 30 days of the
disconnection from the sanitary sewer.
5.
The grant of
this exception does not preclude the
Agency from requiring as a permit condition a CSO
monitoring program sufficient to assess compliance with
this exception and any other Board regulations and
other controls, as needed, for compliance with water
quality standards.
6. The grant of this exception is not to be construed as
affecting the enforceability of any provisions of this
exception, other Board regulations, the Environmental
Protection Act, 415 ILCS 5/1 et
seq.,
the Clean Water
Act, or any other applicable
federal regulation.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415
ILCS
5/41 (1992)) 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”.)
—9--
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
~
,
1994, by
a vote of
_____________
/7
Dorothy !~,/Gunn, Clerk
Illinois(’,Pollution Control Board
‘I