ILLINOIS POLLUTION CONTROL BOARD
November
29,
1990
CITY OF OGLESBY,
Petitioner,
v.
)
PCB 86—3
(CSO Exception)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
SUPPLEMENTAL OPINION AND ORDER OF THE BOARD
(by J. Anderson):
On February
5,
1987,
the Board granted the City of Oglesby
(“Oglesby”)
a
temporary exception from 35
Ill. Adm. Code
306.305(a) and
(b)
of the Board’s combined sewer overflow
(“CSO”)
regulations.
Condition
2 of the February
5,
1987 Order specified
that the temporary exception would terminate on March
1,
1990,
if
Oglesby did not submit an amended petition for permanent
exception on or before that date.
On June 7,
1990,
the Board
relinquished its jurisdiction
in the matter and closed the docket
because Oglesby did not submit an amended petition by the March
1,
1990 deadline.
In response to the Board’s June
7,
1990 Opinion and Order,
Oglesby filed
a Motion for Reconsideration and an Amended
Petition on June 29,
1990.
On July
6,
1990,
the Illinois
Environmental Protection Agency
(“Agency”)
filed a “Motion to
Extend Time to File a Response
to the City’s Motion
for
Reconsideration”.
On July
19,
1990,
the Board issued an order
giving the Agency until July
20,
1990,
to file its response to
the Motion for Reconsideration.
On July 26,
1990,
the Agency
filed
a Motion
to File
Instanter and
a Request for Time
to Review
Petitioner’s Amended Petition.
On August
9,
1990,
the Board
issued an order giving the Agency until August
23,
1990,
to
respond
to Oglesby’s Amended Petition.
The Agency filed its
response
to Oglesby’s Motion for Reconsideration and Amended
Petition on September
6,
1990.
On September
13,
1990,
the Board
directed Oglesby to file a reply to the Agency’s response on or
before October
4,
1990.
On October
3,
1990,
Oglesby filed its
Reply to Agency’s Response and a Motion for Leave
to File Exhibit
B in Reply
to Agency’s Response with Original Reply Only.
In the Motion
for Reconsideration and accompanying Amended
Petition, Oglesby requests
the Board to reconsider
its June
7,
1990 Order,
enter an order
retaining jurisdiction, and extend
its
temporary exception from
35 Il1.Adm. Code 306.305(a)
and
(b)
for
nine months
(i.e.
until March
1,
1991),
so that it can complete
its inspections and monitoring and file a second amended petition
116—205
—2—
for a permanent CSO exception pursuant to Condition
2 of the
Board’s February
5,
1987 Order.
(Motion pp.
4—5; Am.
Pet.
p.
4).
In support of
its request, Oglesby asserts that denial of
the request would create a substantial undue hardship and that it
has made a good faith effort
to be
in compliance with the
February
5,
1987 Order.
(Motion par.
4).
Specifically, Oglesby
states that it has complied with all of the provisions of the
Board’s February 5,
1987 Order with the exception that
it failed
to file its Amended Petition on or before March
1,
1990,
has not
complied with the provisions of
35
Ill.
Adrn.
Code 306.361(b) and
(c)*
(see condition 3(a)
of the Board’s February 5,
1987 Order),
and has not inspected the ravines and areas below the outfalls
pursuant to the time frames specified in condition 3(c) and
(e)
of the Order.
(Motion par.
7; Am.
Pet. par.
1).
Oglesby adds, however,
that there has been no expansion of
its service area tributary to the combined sewers
for
residential
hook—ups exceeding
15 population equivalents without prior Board
authorization (see condition 3(b)
of
the February
5,
1987 Order),
that
it has maintained its present street
sweeping program as
part of its program of reducing infiltration and inflow (see
condition 3(d)
of
the February
5,
1987 Order), and that
it
has
continued to inspect diversion chambers, separated sanitary and
storm sewers when economically feasible, and constructed a new
storm sewer.
(Am.
Pet.
pars.
1,
2).
Oglesby also notes
that,
although its inspections
of the outfalls and ravines have not
been documented or specifically conducted as specified in the
Board’s February
5,
1987 Order,
its employees have inspected its
ravines and outfalls on several occasions.
(Id. par.
7).
In terms of economics, Oglesby has spent approximately 1.8
million dollars on improvements
to
its combined sewer system and
wastewater treatment plant.
(Motion par.
11; Am. Pet. par.
3).
The purpose of such improvements was
to reduce the amount of
sewerage
in the combined sewer system,
improve the quality of th~
combined sewer overflow, and provide improved primary and
secondary treatment for flows directed to its wastewater
treatment plant.
(Motion par.
9,
10).
Construction on such
improvements began on May
13,
1988, and was substantially
completed in January 1990.
(Am. Pet. par.
5).
Oglesby also
spent $180,000.00
to construct a force main to convey sanitary
sewerage that
is generated west of an existing sewage pumping
station directly to its wastewater treatment plant.
(Id.).
Although the purpose of the force main was
to promote future
*
These sections require, among other
items,
an evaluation of
receiving stream ratios,
known stream uses, accessibility to
stream and side land use activities,
the frequency and extent of
overflow events, unnatural bottom deposits, odors,
unnatural
floating material or color,
stream morphology,
stream sediment
analyses, biological surveys, and thorough stream chemical
analyses.
116—206
—3—
economic growth and to avoid violations of the Board’s February
5,
1987 Order which limited expansion of the service area
tributaries
to the combined sewers, Oglesby notes that
it has
also removed a substantial amount of sanitary sewage deposits
from the combined sewer
system.
(Id. par.
4).
Finally, Oglesby also states that it has consulted with the
Agency, and that
it has prepared a monitoring program that will
result in compliance with the provisions of the February
5,
1987
Order and provide the data necessary
to present an amended
petition for a permanent exception
to the Board’s CSO
regulations.
(Id. pars.
8,
12).
The monitoring program will be
completed on or
before September
1,
1990.
(Id.
10).
Although the Agency makes no recommendation regarding
whether the Board should grant Oglesby’s Motion for
Reconsideration and Amended Petition,
it makes several comments
regarding Oglesby’s assertions.
First,
the Agency states that
it
has no evidence that Oglesby has complied with conditions
3(b),
(C),
and
(e)
of the February
5,
1987 Order.
(Response par.
1).
Second,
the Agency questions why Oglesby did not collect any data
during the inspections
of the ravines and outfalls.
(Id.
par.
8).
Third,
the Agency states that
it
is unaware of any
negotiations with Oglesby that resulted
in the development of the
monitoring program.
(Id.
pars.
4,
5).
Fourth,
the Agency states
that it does not know whether the monitoring program will result
in compliance with the provisions of the February
5,
1987 Order,
or whether Oglesby will have the necessary data after completion
of the monitoring program to request a permanent exception to
35
Ill. Mm. Code 306.305(a) and
(b).
(Id.
par.
6,
7).
In its reply, Oglesby states that there has been only one
expansion of its combined sewer
tributaries and that the Board
allowed the expansion after Oglesby petitioned the Board, on
October
14,
1987,
to modify
its February
5,
1987 Order.
(Reply
par. 1).
With regard
to inspections of the
ravines and
outfalls,
Oglesby states that,
as part
of
its sewerage
improvement project,
it erected bar screens and diversion
structures at nine locations,
and that construction of the
screens and diversion structures was completed in September of
1988.
(Id. par.
2; Amended Pet. par.
6).
Because the purpose of
the structures was
to collect debris flowing from the four
combined sewer outfalls, Oglesby argues that there would have
been little value in conducting the inspections until
the
construction had been completed.
(Id.).
Oglesby adds,
however,
that its superintendent of the waste water treatment plant,
Mr.
James Camenisch,
inspected the screens, diversion structures,
outfalls, and ravines on three successive occasions, and after
significant
rains, during the fall of 1988 and spring of
1989.
(Id.).
He determined that no debris had passed through the
screens and diversion structures and that there was no further
need to continue with his inspections.
(Id.).
Before
the first
significant rain in July of 1990, however,
Mr. Dale Johnson, an
engineer from James Giordano and Associates,
inspected the
116—207
—4—
outfalls and installed rain gauges.
(Id.).
From July through
August of
1990,
Mr. Camenisch inspected the outfalls after each
significant rainfall
(eleven times), and documented his findings
in regard to ponding, bottom deposits, odors,
floating material,
color, and stream morphology.
(Id.
par.
2,
Exhibit B).
Such
results
indicate that,
on balance,
there was no ponding or
unnatural deposits,
odors,
floating material,
color,
or
stream
morphology.
(Id.).
With regard to its contact with the Agency, Oglesby states
that several city officials talked with Mr. Steve Ewart and Ms.
Margaret Howard of the Agency on June
26, 1990.
(Id. par.
3).
Oglesby states that
it was directed to contact Mr.
Toby Frevert
in the Agency’s Program Development and Monitoring Division to
develop a testing and monitoring plan that would be suitable and
acceptable with the Agency
to acquire the results sought
in
Conditions
3(c) and
(e)
of the Board’s February
5,
1987 Order.
(Id.).
On June
27, 1990,
Oglesby states that Mr. Johnson
contacted Mr.
Frevert,
and that they composed a monitoring
program during their
conversation.
(Id.).
Oglesby adds that Mr.
Frevert stated that the Agency would cooperate with the city with
respect
to the monitoring plan but would require its review of
the data before expressing any opinion with respect
to the
program’s findings or
conclusions.
(Id.).
As proof
of the above
assertion, Oglesby attached its June telephone bill which listed
the calls
(Id. Exhibit
F).
Accordingly, Oglesby asks the Board to allow
its temporary
exception to be extended
for 120 days
(i.e. until February
3,
1991).
(Id. p.
7).
During such time,
it will discuss
its
findings in the data compiled from July
1 through September
1990, with the Agency.
(Id.).
It will then prepare a second
amended petition
to request that the temporary exception granted
in the Board’s February
5,
1987 Order be made permanent.
(Id.).
Finally,
in its Motion for Leave to File Exhibit
B
in Reply
to Agency’s Response with Original Reply Only, Oglesby requests
the Board to grant
leave to allow
it
to file
a single copy of the
exhibit which is entitled “City of Oglesby,
Illinois Report of
Monitoring Program to Comply with Illinois Pollution Control
Board Order
No.
86—3 February 5th,
1987”.
(Motion
p.
2).
In
support of the motion, Oglesby states that the exhibit
is
a
100
page document comprised of
a substantial number of photographs as
well
as
the testing and monitoring data collected during July and
August
of
1990.
(Id. pars.
2,
4).
Oglesby adds that
a copy of
the exhibit has been tendered to the Agency and that
it intends
to make
the document
a part of its second Amended Petition.
(Id.
par.
3).
At the outset,
in light of the length of Exhibit
B,
the
Board grants Oglesby’s motion to file only one copy of the
exhibit.
With regard to the Motion for Reconsideration,
there
is
no question that Oglesby has not complied with certain aspects of
the Board’s February
5,
1987 Order.
Moreover, Oglesby must
116—208
—5—
understand that the Board does not find acceptable
its attempts
to redress its violation of our February
5,
1987 Order at
this
point
in time.
Rather, Oglesby should have previously notified
the Board of
its problems.
On
the other hand,
we recognize that Oglesby has complied
with much of the February
5,
1987 Order.
Namely,
it has not
expanded its service area tributary
in violation of condition
3(b)
of the Order,
it has continued its street sweeping program,
it has completed,
and expended a substantial sum of money on,
improvements
to its wastewater treatment plant and combined sewer
system, and it has conducted several inspections
(albeit not
in
accordance with the Board’s Order) and gathered a considerable
amount of monitoring data.
These actions indicate that Oglesby
has made a good faith effort
to comply with the Board’s February
5,
1987 Order and that,
as Oglesby states,
its noncompliance was
simply due to administrative oversight.
Moreover, we note that
it would create an undue hardship on
Oglesby and serve little,
if
any, environmental purpose
if we
were to deny Oglesby’s motion.
Oglesby’s wastewater treatment
plant and combined sewer upgrades have already been installed,
and the data thus far indicates that the upgrades are having the
desired effect.
A denial
of Oglesby’s request would only result
in Oglesby having
to pursue another compliance program
(i.e.
another design approach)
in order
to comply with
35
Ill. Adm.
Code 306.305
(a)
and
(b).
Finally, we wish to note that,
in all practicality, Oglesby
needs an extension of time
in which to file its amended petition.
The reason that the Board gave a limited exception
in the first
place was because we had difficulty
in interpreting Oglesby’s
data regarding the effects of
its proposed compliance plan.
Accordingly, although
it
is not apparent
in our February
5,
1987
Order,
the accompanying opinion indicates that we allotted
Oglesby 20 months after the point of
“Full Plant Operation and
Meeting NPDES Limits”
(July
1,
1988 to March
1,
1990)
to gather
such data.
It
is clear that Oglesby could not file its amended
petition on March
1,
1990,
because construction was completed
in
January of 1990 rather than on July
1,
1988, and
it did not have
its
20 months of monitoring data as
a result
of such delay and
its lack of administrative oversight.
Thus, although we emphasize that we do not excuse Oglesby’s
failure
to petition the Board
for relief
from those conditions
that
it could not comply with, we will give Oglesby the benefit
of the doubt
in this instance.
Accordingly, we vacate our June
7,
1990 Order
in which we relinquished jurisdiction in this
matter,
and grant Oglesby’s Motion for Reconsideration and the
relief requested therein.
In making this ruling we wish
to make
two final notations.
First,
our decision assumes that the Agency
agreed to Oglesby’s monitoring program and that the Agency will
be
reviewing Oglesby’s data during
the extension.
We ask the
Agency to notify us within
30 days, via a Motion for
116—209
—6—
Reconsideration,
if this understanding
is incorrect.
If, on the
other hand,
the Agency did agree to the monitoring program, we
ask that
it notify us
if the date by which it will complete its
review of the data
is not compatible with this order.
Second,
we
note that our decision
is subject to certain conditions.
We will
not tolerate any deviance from strict compliance with such
conditions unless Oglesby petitions the Board for
relief.
This Supplemental Opinion constitutes the Board’s findings
of fact and conclusions of law in this matter.
ORDER
1.
Except as provided
in paragraph
2 of this Order,
the City of
Oglesby is granted a temporary exception,
until February
3,
1991, from 35
Ill.
Adm. Code 306.305(a)
regarding first
flush
of storm flows and from 35
Ill. Adm. Code 306.305(b).
2.
If, on or
before February
3,
1991,
the City of Oglesby fails
to submit an amended petition for permanent exception,
this
temporary exception will terminate on February
3,
1991.
3.
During this temporary exception period the City of Oglesby,
in consultation with the Agency,
shall,
at a minimum:
a)
Comply with the provisions of
35
Ill. Adm. Code
306.361(b) and
(c) unless, pursuant
to subsection
(d)
the City of Oglesby includes a justification
in its
amended petition for the inapplicability of the required
evaluations,
or
the Agency as
a joint petitioner agrees
that there
is
a minimal discharge impact.
b)
Unless authorized by the Board upon
a petition for
modification of this order,
there
shall be no expansion
of the service area tributary to the combined sewers
except for residential hookups that do not exceed 15
population equivalents as defined in
35
Ill. Mm. Code
301.345.
c)
The City of Oglesby shall inspect the ravines below all
outfalls for ponding at least
once. before the expiration
of this temporary extension and, except
for the present
ponding below CSO 4,
shall either timely eliminate all
ponding or
justify
in the amended petition that
elimination is technically infeasible or economically
unreasonable.
d)
The City of Oglesby shall continue its present street
sweeping program and its proposed program of
reducing
infiltration and inflow,
inspection of diversion
chambers, and construction of storm sewers.
e)
Pursuant
to 35
Ill.
Adm. Code 306.361(a),
the City of
Oglesby shall
inspect below the outfalls at least once
13.6—210
—7—
before the expiration of this temporary extension for
unnatural bottom deposits,
odors, unnatural floating
material
or color,
stream morphology, and results of
limited stream chemical analysis;
the City also shall
measure and test overflow events at CSO
1,
2, and
3
sufficient
to determine
their frequency, extent,
and
quality.
4.
The Board will
retain jurisdiction in this matter.
Section
41 of
the Environmental Protection Act,
Ill. Rev.
Stat.
1989,
ch. lll~par.
1041, provides for appeal of final
Orders
of the Board within
35
days.
The Rules of the Supreme
Court of
Illinois establish filing requirements.
IT
IS SO ORDERED.
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
~
1990,
by a vote
/~—
Dorothy
M. ~9’nn,Clerk
Illinois Pd~AutionControl Board
116—211