ILLINOIS POLLUTION CONTROL BOARD

December 17, 1992

v.

(Variance)

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

Respondent.

OPINION AND

ORDER

OP THE BOARD (by Zr.

C.

Marlin):

This matter

comes before

the Board on an amended

petition

for. variance filed on August 19, 1992, by tha North

Shore

Sanitary

District (NSSD).

The a*sndsd petition

uests

a

variance

from the

construction complstjonidate

~

35~111.

*4*.

Code

304

•

219(c), a site—specific rule S~p1icab1.

to

~SSD’s

Waukegan

Treatment

Plant in

Lake County. ~&$apt~ber

22,41S92,

the Illinois

Environmental

Protection

~qsncy ‘(*qanCy) ~eco~Med

that the variance

be

granted. MUD

waived bearing, taM none was

held. The complex

procedural

history is d~saussed

in greater

detail

below.

Section 35(a) of

the Ewironaental Protsatlon Act ‘(Act)

(Ill. Rev.

Stat.

1991, ch. 111 1/2, par. 1035(a))authoris.s

the

Board

to

grant

individual

variances whsnsver4t fI**s that

Rcoapliance

with

any

rule, r.gulation,

~~u1z~snt~r-Øtd.r

of

the Board would

impose an arbitrary

or

wr.asom*blS*ardship”.

The

procedural

rules in

35 Ill.

Ada.

Code

te4~qov.rn variance

actions.

FACILITY DESCRIPTIOM

NSSD is a municipal

corporation which

providis .anitary

sewer service in

Lake

County.

It aperates

several

sewage

treatment plants

(STPs),

including the ilaukegan

SIP. .~hedetails

in the. amended petition and

recommendation are ~ketchy.~1Iowever,

based on the

Board’s

Opinion in *86-3,

which is discussed below,.

the Waukegan STP

is an

activated

sludge

plant,

with

a ~4*s~gn~

capacity of 19

•

8 million gallons per

day (NED) end am ~

weather

flow

of 14

•

1 IIGD. Although

the SIP is located ~.ar

take

Michigan, its normal discharge

is pumped

about

five

miles to the

Des Plaines River.

The

STP

also has a

combined sewer overflow

(CSO) which discharges to

Lake

Michigan, and

which

iS

the

subject

of this variance. (R86-3, p. 3.)

The STP

is not

capable

of

providing full treatment during vet weather conditions, resulting

in

CSO

by-passes to

Lake

Michigan of partially

treated

sewage.

(R86-3, p. 4.) These discharges violate

the

Lake

Michigan

0138-0085

---

2

1.0 mg/L (as P). These discharges have been associated with

eutrophication in the

Lake

in the vicinity of the outfall. (R86-

3, p. 16.)

The

plant is being expanded to a

maximum peak—flow

capacity of at least 44 NGD. (Am.

pet. p.

2)

BACKGROUND

Section 304.123(a) sets a

phosphorus

standard

of

3.0 ag/L

(as

P)

for discharges to

Lake

Michigan.1

~SSD

filed

a

petition

for

a

site specific

rule

in R86—3, In

the matter

of

the

ietition

of the North Shore Sanitary

District to amend regulations.

On

November

3, 1988, the

Board entered a final opinion and

order

adopting Section 304.219, which governs the Waukagan SIP in lieu

of Section 304.123(a) (93

PCB 333).

Although th.

sits specific

allows NSSD to occasionally discharge phosphorus in excess of

the

generally applicable

standard,

it also rSquires facilities

upgrading which will greatly reduce

the

frequency

and duration of

overflow,

and

by-passing

events

•

The upgr dim’ 11

‘~

result ~ina

much lower mass discharge of

phosphorus ~tó~thelAke :than could be

accomplished by treating

the overflows to

ocuply wih tb!

,;qeneral

standard. (R86—3, p.

5—9, 22, 24,

.27.)

~Ssctiox~~O4.~t9(c)

requires NSSD to increase

the maximum peak ‘trsatment~flow

capacity’ of the

Waukegan SIP

to at

least 44 JSGD

before

January 3,

1992. The upgrading would qualify NSSD to

be-regulated under the

site-specific requirements established in R86-3.

The site-specific

rule

was adopted on November

3,

1988.

NSSD received bids on

the

project in

February,

‘1991,

aces

26

•months

later. (Rec., par

•

.4.)

Although

the Agency WiSvs’this

as

a reasonable time (Rec., par. 4), NSSD

apparently then’*failed

to

prdceed for some

period

of time pending the ‘loan

commitment

and

legislative approval of matching

funds (Rec., par. 3). On

‘April

3., 1991,

the

Agency approved a

$22.5

million

loan

for ‘expansion

of the STP. (Am.

pet.,

p.

2.) The loan included

a

construction

schedule leading to completion by Kay 33.,

1993,

nearly 3.7 months

after the date required by

the Board order

•

The loan included a

‘condition that, by May 1, 1991, NSSD tile ~an aa*nded,petitionw

with the Board for a change in

the construction

completion date.

•Final resolution ‘of the request was to be by December 31, 1991.

(kin.’ pet., p. 2

and Ex. A.)

On April

22,

1991, NSSD tiled an Pamended petitions

captioned under R86-3, the closed site—specific

Docket.

On April

25,

1991, the

Board

entered an rder stat ‘ug that

it vould not

1Section 304.123 was amended on April 12, 1990, in R87—6, at

14 Ill. Reg. 6777, effective April 24, 1990.

The

amendments

0138~008.6’

---

3

accept the petition. The Board

indicated that NSSD should

file

a

variance petition pursuant to 35 Ill. Ada. Code 104.2

NSSD states that it never received a

copy

,of’

the

Board’s

April 25, 1991, Order in R86—3. NSSD claims

that

it first

learned of the order on June 9, 1992, when the

Agency

called to

inquire about compliance. (Am.

pet., p.

3)

VARIANCE PETITION

NSSD filed its original petition for

Variance

on

June 3.9,

1992. The Board entered a more information order on July 9,

1992, noting numerous deficiencies in the

petition, including the

following: failure to request or

waive a hearing, or to provide

an affidavit with any waiver (Section

104.124); and,

failure to

provide information required

under

Sections 3.04.121(b), (d), (g),

(j), (k) and 104.122(b), including a statement as to why

petitioner believes it would suffer an arbitrary or

unreasonable

hardship.

NSSD responded to the more information

order with a letter

dated August 13, 1992, and the amended

petition

of

August

19,

1992. The amended petition was followed by

two lengthy

engineering reports

under

a cover letter dated

August

19, 1992-

The amended petition stated

that NSSD ~vaiv.d ‘hearing on the

Petition if the Board feels. that• the

enclosed aatmrial and other

material heretofore filed is adequateN. OnBept.aber

3,

‘1992,

the Board entered an order noting

that USD

kid still failed to

provide a clear ‘request for hearing or

waiver ~f bearing, ‘*5

riquired by 35 Ill. Ada. Code 104.124, and

the

Board’s

July 9,

1992, order. The Board

accepted

NSSD’s *~~flt~as

a

waiver of

hearing, but made, no determination

as to

~ d.quacy of the

material filed. ‘The

Board

also noted

that

the amended petition

restarted the time

clock

for

the

decision deadline

(Section

38(a)

of

the

Act)

‘2Docket R86-3 was closed

following

adoption of

Section

304

•

219. Therefore, a regulatory

petition to amend that Section

would have to be a new petition in a new

Docket. ~ovsver,

it

would have been difficult, if not iapossibl.,’to have’

accomplished

the

procedural

steps

needed

to amend

the

rule before

December

31, 1991. In

particular,

NSSD would have

bad

to have

requested and received a negative economic impact study

determination prior to

June

25, 1991. (Section 27(a) of

the Act,

prior to P.A. 87-860.) On

the other hand, if a variance petition

had been filed on May 1, the Board could have completed a

variance before September 1, 1991, the statutory deadline, under

Section 38 of the Act.

0138~0087

---

4

AGENCY RECONMENDATION

The Agency filed

its recommendation, pursuant to Sectio

104.180, on September 22, 1992.

The Agency,

noting that the

delay was caused by NSSD’a

board’s failure to commit to funding

the

project

because Nthe

legislature

had not approved matching

funds”,

stated that it believed

that unavailability

of

State

loan

funding by itself was

insufficient to

cause an arbitrary

or

unreasonable hardship.

(Rec., par. 3) However, the

Agency

stated that, in’ this

particular

case, it believed

that NSSD had

proceeded with its project in a timely fashion, despite the

delay

in loan funding. (Rec., par. 4)

The

Agency also

recommended that the Board grant a variance

retroactive to

January 1,

1992. The Agency notes

that the Board

has granted retroactive

variances

in certain

situations. (Till

V

IEPA,

PCB 90-227, 128

PCB

241, 246, December 19, 1991.) The

Agency believes that the late’

filing’was not

eddy the

fault

of

NSSD, and that a retroactive

variance

is

appropriate. (RCI.,

DISCUSSION

NSSD has couched

its variance r.ques~

*.

a

variance

from

the

Board’ s order in R8 6-3, in which.

the BOard* adopted Section

304

•

219(c), the site specific

rule which .$t$bUsh.d the

construction schedule for

the Waukegan SIP.

“~

-Sowev.r,

the more

appropriate relief, is a

variance

from the rule ‘itaslf. The

Board

therefore construes

the

petition

as a ‘request ‘br a :

variance

from

Section 304.219(c).

The confused procedural

history in ‘this, aattsr aekes it

difficult for the Board to ascertain all of

‘thó’facts. .liovever,

it

appears that

the original

construction a~a.dU1ó‘In

p86-3

may

have been overly

.

optimistic.

This, coupled’

vith the delay ‘in

processing the loan application, has

forced the petitioner

into a

compliance schedule

extending beyond that specified in

Section

304.219. ‘Denial of

the

variance would

jeopardize

ISSD’s

loan,

and could result in further delays in this auch needed project.

The Board finds that

the

loss of

the loan, and the continuing

nvirOnmental damage from

further

delays would

impose an

arbitrary

or

unreasonable

hardship. ‘The Board will

grant the

variance from Section 304.219(c), through Kay 31,, 4993,

subject

to conditions simi ~.rto those r.coended by

the Agency.

The

oard

will, not

take the extraordinary

step

of

making

t.e

variance retroactive, which would shield KSSD from prosecution

based

on past failure to comply with the regulations.

Although

retroactive variances

may be

justified

where

a petitioner has

filed a timely variance petition,

they

are

not granted where the

delay was through some •fault of the petitioner. (DM1

V.

IEPA,

PCB 90-227, 128 PCB 241, 246,

December 19,

3991.)

0138-0088

---

5

procedural confusion surrounding the -April 22,

1991, filing with

the Board might arguably justify a

three—month.

retroactive

extension3, there was still plenty of time to ‘file a timely

variance petition, which could have been

granted.

before

January

1, 1992. Moreover, this three-month delay is offset by the

unexplained delay in awarding contracts

after

February,

1991.

The Board cannot say that the petitioner

was

ewithout fault in

these delays. In addition, the confused pleading. in

this

Docket, and lack of complete information

about what transpired at

earlier stages, leave the Board with inadequate

information to

déte~mineto which time periods a

retroactive

variance might

justifiably

apply.

This Opinion constitutes the Board’s,

findings

of fact aed

conclusions of law in

this matter.

ORDER

Petitioner, North Shore

Sanitary District IWSSD), is grted

a variance from 35 Ill. Adm. Code 304.219(c) with

respect’to its

Waukegan

sewage treatment plant (SIP),

subject

to

the

following

conditions:

1. This variance will begin on the date of this order and

will terminate upon completion of

.the construction ~

the STP, or on

May

33.,

,

1993, whichever comes

first.

2.

NSSD shall comply with all ‘other aspects of the

R86—3

order dated November 3, 1988,

including

all

sampling

criteria related to determining the impacts of’ combined

sever overflow events.

3.

NSSD shall comply with all

aspects

of ~PDES Permit Ho.

IL 0030244.

4. NSSD shall

apply to

the Agency

for

any

required permits

in a timely manner

•

NSSD

shall not begin construction

before

receiving all

required permits.

5. Within 45 days after

the date

of this

order, petitiomer

shall execute and forward to:

3That is, up to the time

the negative EcIS determination

had

to be made, plus one month to prepare the petition, as explained

in footnote 2 above.

0138-0089

---

6

Mr. Charles Feinen

Division of Legal Counsel

2200 Churchill

Road

Springfield, IL 62794—9276

a certificate of acceptance and agreement

to be

bound

by all terms

and conditions of this variance.

The

45-

day

period

will be held in

abeyance

during

any period

that this matter is being appealed. Failure to ,xecnte

or forward

this certificate within 45 days will render

the variance null

and

void.

The

form of the

certificate is as follows:

CERTIFICATION

I (We),

hereby accept and agree to be bound

by all

terms and conditions

of’

the

Pollution Control Board’s

December17,

1992

order in PCB

92—92.

Petitioner: __________________________

Date: ______________________________

IT IS SO ORDERED.

B. Forcade concurred.

SectIon 41 of the Environmental Protection Act, Ill. Rev.

Stat. 1991, ch. 111 1/2, par. 1041, provides for

appeal

of final

orders of the Board within 35 days. The

Rules

of

the

Supreme

Court of Illinois establish filing r.quireaents~’ (But

see

also

35 Ill. Adm. Code 101.246, Motions for Reconsideration,

and

Castenada

V.

Illinois

Human

Riubte Commission (1989), 132 Ill.2d

304, 547 N.E.2d 437.)

‘

0138_0090:

---

7

I, Dorothy ?~1. Gunn, Clerk of the Illinois Pollution control

Board, hereby certify that the above Opinion

and

Order was

adopted on the

____________

day of

—.

1992 by a vote of

7—~’

‘1~orothyM.~bufln, Clerk

Illinois Pollution Control Board