ILLINOIS POLLUTION CONTROL BOARD
October 24,
1991
CITIZENS UTILITIES COMPANY
OF ILLINOIS,
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PCB 85-95
PROTECTION AGENCY,
(Variance)
Respondent,
and
VILLAGE OF BOLINGBROOK,
)
Intervenor.
MR. DANIEL J. KUCERA OF CHAPMAN AND CUTLER APPEARED FOR
PETITIONER; AND
MR. WAYNE WIEMERSLAGE, STAFF ATTORNEY, APPEARED FOR RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by J.
Anderson):
This matter is before the Board on remand from the Third
District Appellate Court
(“Appellate Court”).
The Appellate
Court issued its opinion in this matter on May 13,
1991.
Citizens Utilities Company of Illinois v. Illinois Pollution
Control Board,
No. 3-90-0585
(3rd Dist.
1991).
That opinion
vacated the Board’s May 24,
1990 Opinion and Order in PCB 85—95,
which granted an extension of a variance that was previously
granted in PCB 78-313.
The Appellate Court remanded the case to
the Board with instructions to grant Citizens Utilities Company
of Illinois
(“Citizens”)
a variance consistent with the views
expressed in its opinion.
Although the underlying facts are not disputed, the
procedural history of this case is convoluted and the factual
background of the case is closely intertwined with related issues
in R81—19.
The Board,
therefore, will present a procedural
history before it addresses the issues on remand.
Citizens owns and operates a wastewater treatment plant,
known as west suburban wastewater treatment plant No.
1
(“WSB
Plant No. 1”),
located in Bolingbrook, Will County,
Illinois.
The plant discharges into Lily Cache Creek, which is a tributary
to the DuPage River.
On March
5,
1981,
in PCB 78-313, the Board
granted Citizens a variance from the general use water quality
standard for ammonia nitrogen as well as the effluent standards
126—573
2
for five-day biochemical oxygen demand
(“BOD5),
total suspended
solids
(“Tss”), and ammonia nitrogen.
The Board granted the
variance until July 2,
1985,
so that the company could seek
certain site-specific rule changes in those standards.
41 PCB
11.
After the variance was granted, environmental studies were
conducted to determine whether less stringent standards would be
permissible.
Citizens filed a petition for site-specific regulatory
relief on June
12,
1981.
The petition was docketed as R81-19.
The results of the above—mentioned studies were presented to the
Board at a May 5,
1983 hearing held on Citizens’ petition.
At
the conclusion of the hearing, however, the Board dismissed the
proceeding for lack of information to support the less
restrictive standards.
52 PCB 169.
Citizens appealed the
Board’s determination to the Appellate Court.
Citizens Utilities
Company of Illinois
v.
Illinois Pollution Control Board,
No.
3-
83-0498.
After docketing that appeal, Citizens discovered that
the Illinois Environmental Protection Agency (“Agency”) had
commenced a joint study of the DuPage River Basin with the United
States Geological Survey for the purpose of developing site-
specific standards for discharges into waterways.
Believing that the study would result in less stringent
standards,
Citizens filed a petition for variance with the Board
on August 31,
1983,
seeking an extension of the variance granted
in PCB 78—313.
This variance petition was docketed as PCB 83-
124.
On April
19,
1984, the Board denied Citizens’ request for
the variance extension.
53 PCB 61.
Citizens appealed the ruling
to the Appellate Court.
Citizens Utilities Company of Illinois
v. Illinois Pollution Control Board,
No.
3—84—0412.
The
Appellate Court consolidated the R81-19 and the PCB 83-124
appeals and, on June
17,
1985, issued its decision on both
matters.
Citizens Utilities Company of Illinois v. Illinois
Pollution Control Board,
134 Ill.
App.
3d 111,
479 N.E.2d 1213
(3rd Dist.
1985).
The Appellate Court upheld the Board’s refusal
to extend the variance but remanded the site—specific proceeding
to the Board for further proceedings because it concluded that
the Board failed to analyze the economic impact of the proposed
site—specific rule.1
1As previously stated, the Appellate Court remanded the site-
specific regulatory proceeding (R81-19) on June 17,
1985.
On July
3,
1990,
the Board
issued an Opinion and Order
in the matter,
denying
Citizen’s
request
for
site-specific
relief.
Citizens
appealed
the
Board’s
decision
and
on
September
9,
1991,
the
Appellate
Court
vacated the
Board’s July
3,
1990
decision and
remanded the matter
to the Board
for further proceedings.
The
Board
has
filed
a
petition
for
leave
to
appeal
the Appellate
Court’s decision with the Illinois Supreme Court.
126—574
3
On July
1,
1985, Citizens filed another petition for
variance with the Board.
This variance petition was docketed as
PCB 85—95.
Citizens,
in this petition, sought the following
relief:
1.
an extension of the variance granted in PCB 78—313 that
would take effect on July 1,
1985,
and remain in effect
until the Board granted site—specific rule relief in R81-19
on remand or,
if the Board denied the relief,
for a period
of three years after final adjudication of R81—19,
2.
an extension of the compliance schedule provided for in the
PCB 78-313 variance,
in the event the Board denied site-
specific relief on remand, so that the deadlines for permit
application, commencement of work,
and compliance with
applicable effluent limitations would be six months, one
year,
and three years after final adjudication of R81—19,
respectively,
3.
a modification of the variance in PCB 78-313 as to the
ammonia-nitrogen water quality standard contained therein so
that,
instead of the general use water quality standard for
ammonia nitrogen contained in 35
Ill. Adm. Code 304.105,
Lily Cache Creek, for a distance of eight miles downstream
of the point of discharge of WSB Plant No.
1, meets a water
quality standard for ammonia nitrogen of no greater than 15
milligrams per liter
(“mgfL”),
4.
a variance, for the period of time specified in number
1
above,
from the general use water quality standard for
dissolved oxygen so that instead of the general use standard
for dissolved oxygen contained in 35
Ill. Adm. Code 302.206,
Lily Cache Creek,
for a distance of eight miles downstream
of the point of discharge of WSB Plant No.
1, meets a water
quality standard for dissolved oxygen of no less than 4
mg/L,
5.
an exemption from the ammonia nitrogen and dissolved oxygen
water quality standards when creek flow is less than 4.9
million liters per day or 2 cubic feet per second (“cfs”),
and
6.
a requirement that the Agency modify its NPDES permit
consistent with the above requests.
The Agency filed its variance recommendation on August 8,
1985,
recommending a denial of variance.
Citizens filed an
amended petition on August 13,
1985, requesting the Board to set
the matter for hearing and alleging that it and its Bolingbrook
customers would suffer an arbitrary and unreasonable hardship if
the requested variance extension was not granted.
On April 10,
126—575
4
1986,
the Board denied the relief requested.
69 PCB 34.
Citizens appealed the Board’s ruling tc~the Appellate Court
and the Appellate Court issued its opinion on February
5,
1987.
Citizens Utilities Company of Illinois v. Illinois Pollution
Control Board,
152 Ill App. 3d 122,
504 N.E.2d 224 (3rd Dist.
1987).
That opinion vacated the Board’s April
10,
1986 Opinion
and Order in PCB 85-95 and remanded the case to the Board with
instructions to grant Citizens Utilities Company of Illinois
(“Citizens”)
a variance consistent with the views expressed in
its opihion.
Specifically, the Appellate Court stated:
Consequently, an extension of the variance
involved is necessitated until such time as
either the current, more stringent standards
are deemed applicable or until the results of
of the present study become final and applicable.
152 Ill. App.
3d at 122,
504 N.E.2d at 224
The Board recognized that it had to grant a variance
extension.
The Appellate Court, however, did not provide the
Board with any guidance with regard to the variance extension
other than that mentioned above.
As a result, the Board decided
to strictly construe the Appellate Court’s mandate.
Accordingly,
on May 24,
1990,
the Board issued an Opinion and Order extending
the variance granted in PCB 78-313.
Citizens appealed the Board’s May 24,
1990 ruling.
On May
13,
1991, the Appellate Court vacat~dthe Board’s May 24,
1990
Order and directed the Board to abide by the dictates of its
February 5,
1987 Opinion.
In light of the Appellate Court’s May
13,
1991 Opinion,
it appears that the Court intended that the
Board grant Citizens the relief that they requested in PCB 85-95
rather than an extension of the PCB 78—313 variance.
Accordingly, the Board hereby grants Citizens’ request for
variance with two caveats.
With regard to the issue of the termination date, the Board
notes that Citizens requested that the variance extension remain
in effect until three years after final adjudication of R81—19,
in the event that site-specific relief is denied.
The Appellate
Court, however, ordered the Board to grant the variance extension
until
“...
such time as either the current, more stringent
standards are deemed applicable or until the results of the
present study become final and applicable.”
In its May 24, 1990
Opinion and Order,
the Board interpreted the above language to
mean that it was to grant the variance until either:
a) the Board
denied site-specific relief
in R81-19, or b)
if the Board grants
such relief, the date when the site—specific rule becomes final
and applicable
(the date when the rule is filed with the Office
126—576
5
of Secretary of State).
Based upon the Appellate Court’s most
recent mandate,
it appears that we should have granted variance
until either
a)
until the current, more stringent standards are
deemed applicable
(i.e. when Citizens or the Board have exhausted
their appeal rights,
in the event that the Board denies site—
specific relief in R81-l9),
or
b)
if the Board grants such
relief, the date when the site—specific rule becomes final and
applicable
(the date when the rule is filed with the Office of
Secretary of State).
The Board notes that if it grants the requested relief until
the time specified by the Appellate Court,
it would be granting
relief that would extend beyond the Environmental Protection
Act’s
(“Act”)
five year time limit for variances.
(See Section
36(b)
of the Act.)
Because the Board is a creature of statute,
it can act only in accordance with the Act.
Therefore, the Board
can grant the variance extension only for a maximum period of
five years.
We realize that this initial variance extension terminated
on July 2,
1990, and thus,
before the time specified by the
Appellate Court (because the Board did not issue its ruling in
R81-19 until July 3,
1990).
In order to comply with the
Appellate Court’s mandate, however, the Board, concurrently with
its order in this matter and upon its own motion, will extend the
initial variance.
The Board will specify that this extension
became effective on July 2,
1990,
and will terminate on either
one of the dates specified by the Appellate Court or on July 2,
1995, whichever occurs first.
In the event that this matter is
not resolved as of July 2,
1995, the Board will ~rant another
variance at such time.
Second,
the Board cannot grant Citizens’ request to extend
the deadlines for permit application, commencement of work,
and
compliance to six months, one year,
and three years after final
adjudication of R81-l9,
in the event that it denies site-specific
relief, because it would risk going beyond the Appellate Court’s
February 5,
1987 mandate to grant the requested relief until
“such time as either the current, more stringent standards are
deemed applicable or until the results of the present study
become final and applicable”.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner Citizens Utilities Company of Illinois is granted
a variance from 35
Ill. Adm. Code 302.206,
304.120(c),
304.301,
and 304.105, only as
it applies to the ammonia nitrogen water
quality standard of 35
Ill. Adm. Code 302.212,
subject to the
following conditions:
126—577
6
1.
The initial phase of this variance became effective on
July 2,
1985 and expired on July 2, 1990.
2.
The Board hereby grants another variance extension.
The
variance extension will be subject to the same condition set
forth in this order except that:
a.
This variance will become effective on July 3,
1990.
b.
This variance will expire on one of the following dates:
1)
on July 2,
1995,
2)
pursuant to the Appellate Court’s February 5,
1987
Opinion, the date on which “the current, more
stringent standards are deemed applicable”, or
3)
if the Board grants site—specific relief in R81-l9
on remand, the date that the site—specific rule
becomes final and applicable (the date that the
rule is filed with the Office of Secretary of
State),
whichever occurs first.
3.
This variance applies to effluent discharges from
Petitioner’s West Suburban Wastewater Treatment Plant No.
1
(WSB Plant No.
1)
located at the intersection of Glengary
Drive and Briarcliff Road in the Village of Bolingbrook.
4.
Petitioner shall meet the following interim effluent
limitations for five day biochemical oxygen demand
(BOD5),
total suspended solids
(TSS),
and ammonia nitrogen measured
asN.
Flow-weighted
Daily Composite
Monthly Average
(Maximum)
BOD5
20 mg/i
40 mg/i
TSS
25 mg/I
50 mg/I
Ammonia Nitrogen
15 mg/i
30 mg/l
5.
Petitioner shall assure that Lily Cache Creek,
for a
distance of eight miles downstream of the point of discharge
of WSB Plant No.
1, meets a water quality standard for
ammonia nitrogen of no greater than 15 milligrams per liter
(“mg/L”)
6.
Petitioner shall assure that Lily Cache Creek,
for
126—578
7
a distance of eight miles downstream of the point of
discharge of WSB Plant No.
1, shall meet a water
quality standard for dissolved oxygen of no less than 4
mg/L.
7.
Petitioner shall be exempt from the ammonia nitrogen
and dissolved
oxygen water quality standards when creek
flow is less than 4.9 million liters per day or
2 cubic feet
per second
(“cfs”).
8.
Petitioner shall operate WSB Plant No.
1 in such a
manner as to minimize the total quantities of BOD~,TSS, and
ammonia nitrogen discharged, consistent with applicable
NPDES permit and variance effluent limitations.
9.
Petitioner shall on
a continuous basis monitor the flow
that is diverted from WSB Plant No.
1 to the polishing pond
and the flow diverted to WSB Plant No.
2.
Petitioner shall
keep in operating condition flow meters necessary to perform
this monitoring.
Records of these flows shall be maintained
for the period of this variance.
Flow results shall
•be
submitted to the Agency on a monthly basis at the same time
as and together with the discharge monitoring reports
required by its NPDES permit.
10.
The Agency,
pursuant to 35 Ill Adm. Code 309.184, shall
modify NPDES permit 1L0032727 consistent with, the conditions
set forth in this Order.
11.
Within forty-five days of the date of this Order,
Petitioner shall execute and forward to the Illinois
Environmental Protection Agency, Compliance Assurance
Section, Division of Water Pollution Control,
2200 Churchill
Road,
Springfield, Illinois 62794—9276,
a Certificate of
Acceptance and Agreement to be bound to all terms and
conditions
of this variance.
This forty-five day period
shall be held in abeyance for any period this matter is
being appealed.
The form of the Certificate shall be as
follows:
CERTIFICATION
I,
(We),
,
having read
and fully understanding the Order in PCB 85—95 on remand,
hereby accept that Order and agree to be bound by all of its
terms and conditions.
126—579
8
SIGNED
TITLE
DATE
IT IS SO ORDERED.
Board Member
B. Forcade concurred.
Board Member R.
Flemal abstained.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certif
that the above~Op~3,ion
and Order was
adopted on the
~
day of
___________________,
1991, by a
vote of
~-O
I
A_.$~
Control Board
126—580