ILLINOIS POLLUTION CONTROL BOARD
June
7,
1990
IN THE
MATTER OF:
PETITION OF THE CITY OF PANA FOR SITE
)
R84-44
SPECIFIC RELIEF FROM PHOSPHORUS
)
(Rulemaking)
REGULATIONS
PROPOSED RULE.
FIRST NOTICE.
OPINION AND ORDER OF THE BOARD
(by J. Marlin):
This matter comes before
the
Board on an amended petition
for site sDecific regulatory
relief filed
by
the City of
Pana
(“Pana”) on February
1,
1985.
Pana’s original petition,
filed December
7,
1984 requested
the Board to adopt
a site—specific rule
to provide Pana an
“exclusion
from the phosphorus di~charge limitation
as set forth
in Section 203(c),
402 and 407(c)~in Chapter 31 of the Illinois
Pollution Control Board Rules and Regulations.”
As shown through
testing, Pana’s discharge does not meet
the applicable effluent
limitation
of 1.0 mg/l of phosphorus as P as established
in
Section 304.123.
Section 304.105 prohibits
the discharge of
effluents which would
“cause
a violation of any applicable water
quality standard.”
35
Ill.
Adm.
Code 304.105.
PROCEDURAL HISTORY
On April
9,
1985,
a public hearing
was
held in Pana,
Illinois which was attended by members
of the public and by
representatives
of the Illinois Environmental Protection Agency
(“Agency”),
the Department of Energy and Natural Resources
(“DENR”),
Pana,
and Pana’s consultant,
the Architectural and
Engineering Service Corporation.
After witnesses
for Pana had
testified,
the witness
for
the Agency stated that
the Agency was
committed
to reevaluating the phosphorus effluent limitations
contained in Board regulations.
In
that
regard the Agency
recommended that any ruling or decision
in this case
be delayed
1
(Presently the effective phosphorus~standardsare set forth
in
35
Ill. Adm.
Code 304.105 and 304.123.)
References
to the hearing of April
9,
1985 are referred
to
as 1TR.;
those
of March
25,
1988
as
2TR.
.
The exhibits
from those hearings bear the designation
lExh.
and 2Exh.
_;
respectively.
112—65
2
at least
until
it had an opportunity to address these issues
in
more detail and provide more information for the record,
either
in this proceeding or
a separate proceeding
(1TR 100—104).
The witness further testified that the Agency’s position was
that this proceeding essentially be put on hold until
the Agency
had a firm recommendation.
In the alternative,
the Agency
recommended dismissal until such time as
the regulation could be
assessed on a state—wide basis
(Id.).
On August
1,
1985,
Pana filed a Motion to Stay Proceedings
requesting the Board
not
to make a decision until
the Agency
“determines what
its regulations will
be regarding phosphorus
discharge limitations”.
On August
11,
1985,
the Agency
filed its
response wherein
it did not object
to Pana’s motion.
On September
20,
1985,
the Board denied Pana’s motion
stating:
1)
alternate
relief exists
in the form of
a variance;
2)
the Agency had made
no firm commitment
to filing
a proposal
for regulatory change and
3)
even
if
a proposal were filed,
such
proceeding
could take one to two years
for completion.
On October
18,
1985, Pana advised the Board of its intention
to dismiss this petition for
site specific relief and file
a
variance proceeding.
However, on December
2,
1985,
Pana filed a
motion to have the Board proceed.
Subsequently,
in a letter dated December
31,
1985,
DENR
informed the Board
that
it had evaluated
the record and decided
to attempt an Economic Impact Study
(EcIS)
based on the model
developed
in the R83—23 Tuscola site-specific rulemaking.
The
letter stated:
An
EcIS
of
a
generic
nature
is
currently
being
contracted
for
R83—23
Tuscola
Site—
Specific
which
will
result
in
a
broad
evaluation
model
to
examine
waste
water
treatment
alternatives
and
their
corelative
(sic)
cost/benefits for small municipalities.
Pana
has
similar
demographic
characteristics
and involves
the same issues.
Therefore,
the
Department
will
attempt
an
Economic
Impact
Study
which
encompasses
R84—44
Pana
Site
Specific based
on
the model
developed by the
R83—23 EcIS.
A letter dated December
22,
1986 from
trie Agency
to Pana,
however,
expressed
the belief
that DENR was awaiting the outcome
of
the Agency statewide
review before rendering
a decision on the
economic aspects of Pana’s proposal.
This letter also stated
that the Agency’s review of the phosphorus standards had been
completed
in August and that
the Agency was waiting for USEPA
comments before finalizing
the Agency position.
112—66
3
On January
20,
1987 DENR sent a letter to the Board stating
that DENR had evaluated
the record, had decided
to do an EcIS,
had approved the scope of work,
and would mail requests for
proposals
to potential contractors
in the near future.
On March 20,
1987 the Agency filed proposed amendments
to
35
Ill.
Adm.
Code 304.123,
(R87—6)
the phosphorus rules of general
state—wide applicability.
On January
6,
1988,
DENR filed an EcIS
prepared by Blaser,
Zeni
&
Co.
On March
25,
1988 the Board
conducted an EcIS hearing. The only member
of the public present
was also a member
of
the press.
Representatives of
DENR,
Pana,
the Agency, and Blaser,
Zeni attended.
The Agency pointed out to
the participants
in
this matter that
the phosphorus regulations
were being revised in
a separate rulemaking,
R87-6.
The Agency
urged
the Board
to provide relief
to the City of
Pana,
but
suggested
that
it might be better
to act on the Agency’s
phosphorus proposal first
(2TR.
27).
At the Agency’s suggestion,
this was the course chosen by
the Board.
The new state—wide phosphorus regulations were adopted over
a period of
3
years after
five opportunities for public input,
three merit hearings and two public hearings to consider the
economic reasonableness and technical feasibility of the
proposal.
The Board proceeded
to Final Notice of the Rule on
April
12,
1990 and the rule was published
in the Illinois
Register, May
4,
1990
(14
Ill.
Reg.
6777).
Because of
the changed standard, the Hearing Officer alerted
Pana to the newly adopted state-wide phosphorus
rule.
On April
27,
1990 the Hearing Officer advised Pana of the Board’s
intention
to proceed to
a decision
in the matter and requested
that Pana advise the Hearing Officer whether
it wished
to amend
its pleadings
to request an adjusted standard or, alternatively,
desired
a decision on
its pending request for site—specific
relief.
On May 18,
1990, Pana advised
the Board
that
it wished
a
decision on its pending
request.
APPLICABLE LAW
The goals
of water pollution control
in
the State of
Illinois are set out
in Title
III
of the Illinois Environmental
Protection Act
(“Act”;
Ill.
Rev.
Stat.
1987,
ch.
111 1/2).
It
is
there prescribed
that:
It
is the purpose of
this Title
to restore,
maintain and enhance
the purity of the waters
of this State
in order protect health,
welfare, property, and the quality of life,
and to assure that
no contaminants are
discharged
into the waters of
the state,
as
defined herein,
including, but not limited
to, waters
to any sewage works,
or
into any
112—67
4
well,
or from any source within the State of
Illinois,
without being given
the degree of
treatment of control necessary
to prevent
pollution,
or without
being made subject
to
such conditions
as are required to achieve
and maintain compliance with State and
federal
law.
Id.
at par.lOll(b)
Section
13(a)
of Title
III further
specifies that:
The Board,
pursuant
to procedures prescribed
in Title VII of
this Act, may adopt
regulations
to promote
the purposes and
provisions
of
this Title.
Without limiting
the generality of this authority,
such
regulations may among other
things prescribe:
1.
Water quality standards specifying among
other
things,
the maximum short—term and
long-term concentrations
of various
contaminants in
the waters,
the maximum
permissible concentrations of dissolved
oxygen and other desirable matter
in the
waters, and the temperature of such
waters;
2.
Effluent standards specifying the
maximum amounts of concentrations,
and
the physical,
chemical, thermal,
biological and radioactive nature of
contaminants that may be discharged into
the waters of the State,
as defined
herein,
including,
but not limited
to,
waters to any sewage works,
or into any
well,
or from any source within the
State.
Id.
at par.
1013(a)
Proposals
for site—specific regulations are governed by the
provisions
of Title VII of the Act, specifically Section
27
(Ill.
Rev.
Stat.
1987 ch.
111—1/2,
par.
1027).
Subsection
(a),
in
relevant part,
states as follows:
a.
The Board may adopt substantive
regulations as described
in this Act.
Any such regulations may make different
provisions as required by circumstances
for different contaminant sources and
for different geographical areas...and
may
include regulations specific
to
individual persons or sites.
In
promulgating regulations under
this Act,
the Board shall
take
into account
the
112—68
5
existing physical conditions,
the
character of
the area invoLved.
.
.
the
nature of
the.
.
.
receiving body of
water.. .and the technical feasibility
and economic reasonableness of measuring
or reducing the particular
type of
pollution.
While Pana’a petition specifically requests site—specific
relief
it must be noted
that this request originated before
legislative creation of the “adjusted standard” mechanism.
That
mechanism
is governed by Section
28.1
of the Act.
Ill. Rev.
Stat.
1989 ch.
111 1/2,
par.
1028.1.
The general effluent limitations standard
for phosphorus as
revised
is set forth below:
SUBPART A:
GENERAL EFFLUENT STANDARDS
Section 304.123
Phosphorus
(STOP.ET number
00665)
a.
No effluent discharge within
the Lake
Michigan Basin shall contain more than
1.0 mg/l of phosphorus as P.
b.
No effluent from any source which
discharges
to a lake or reservoir with
a
surface area of 8.1 hectares
(20 acres)
or more,
or
to any tributary of such a
lake or
reservoir whose untreated waste
load
is
2500 or more population
equivalents,
and which does not utilize
a third-stage lagoon treatment system as
specified
in Section 304.120(a) and
(c),
shall exceed
1.0 mg/i of phosphorus
as
P;
however,
this subsection shall
not
apply where
the lake or reservoir,
including any side channel reservoir or
other portion thereof, on an annual
basis exhibits a mean hydraulic
retention
time of
0.05 years
(18 days)
or
less.
DISCUSSION
Pana operates a wastewater treatment plant
(WWTP).
Pana
contends that the expenditures
it makes
to reduce phosphorus
levels
in its effluent exceed the resulting benefits.
It
therefore,
has petitioned
the Board
to relieve
it from applicable
phosphorus
regulations
or, alternatively,
to raise
the allowable
effluent limitation
from 1.0 mg/i
to 2.8 mg/i
of phosphorus
as
P.
Pana also requests protection and relief
from applicable
water quality standards and “such other and further
relief
as the
Board deems equitable and just”.
(Amended Pet.,
p.8).
i1269
6
Pana has the equipment
required to meet
the
1 mg/l
phosphorus
limit
(2TR.
8).
However, Pana contends that
(a)
the
downstream benefits are not worth the expenditures;
(b)
the
phosphorus loadings of Lake Cariyie are four
times
the critical
eutrophic
limit,
(c) all point sources combined contribute only
3.0
of the phosphorus loadings of Lake Carlyle, and
(d) Pana’s
compliance with the 1.0 mg/i standard would reduce Lake Carlyle
loadings by only 0.94.
(Pet.
pp.
2—4,
6,
7)
At the public
hearing of May
31,
1985 Pana altered
this last contention to
approximately 2
of loadings but
no more
than
5
(1TR.
23).
Pana
currently contributes 14.8
of the point source loading
to Lake
Carlyie;
if relief were granted
it would contribute
33
(2TR.
60,63).
The princi~albenefits of granting
the petition would be a
reduction
in expenditures
by the City
for operating
its
phosphorus-removal program.
Pana contends that the principal
cost of granting the petition would be
the effect on the
receiving water
including,
but not limited
to,
Lake Carlyle.
Pana identified
the affected water bodies as Coal Creek, Opossum
Creek, Beck Creek,
the Kaskaskia River and the Carlyle Reservoir
(2TR.
8).
ENVIRONMENTAL IMPACT
luent
Quality
The Pana
WWTP
is an advanced treatment plant
employing
chemical precipitation for phosphorus removal
by the addition of
lime
(2TR.
10).
It has
a design average flow capacity of
i.i7
MCD and a design maximum flow capacity of 3.3 MGD.
Grab sample
tests by IEPA during periods of non-phosphorus
removal and by
Pana during periods while phosphorus was being
removed, from
1985—1987,
yielded effluent test results.
From these results
estimated phosphorus loadings were calculated
(2TR.
10—il).
Based upon these
results,
the estimated phosphorus concentrations
and loading
to receiving waters would be:
Petition
Petition
Denied
Granted
Difference
Concentration
1.0
rngi’i
2.98 mg/i
1.98 mg/i
Loadings
(per
day)
4.082
Kg
12.166 Kg
8.084
Kg
Loadings
(per
year)
1,487
Kg
4,440
Kg
2,953 Kg
(Id.)
Pana would contribute
1,487 kg/year
of total phosphorus to
the receiving water
if
the petition
is denied;
4,440
kg,/year
if
the petition
is granted.
The concentrations of
total phosphorus
in the Carlyle Reservoir would increase 0.0045 mg/I
if
the
petition
is granted.
The present total concentration
in Lake
Cariyle
is 0.25 mg/i
(2TR.
12).
I 12—70
7
Receiving Stream Character
The effluent from the Pana WWTP
is discharged
54 miles
upstream from Lake Cariyie.
This discharge flows
through Coal
Creek, Opossum Creek,
Beck Creek and the Kaskaskia River before
entering the lake.
All three creeks experience natural 7—day,
10—year zero low flows.
Each of
the streams yielded
fish, mostly
small—sized, during 1983 fish surveys conducted
by the Illinois
Department of Conservation
(2Exh.l,
p..4).
The samples also
yielded good diversity
(2TR.
54—55).
These samples were taken
when Pana’s phosphorus controls were not operational and are
assumed
to be representative
of the effect
upon the receiving
streams
if Pana’s petition were
to be granted.
Phosphorus Loading
The form of the total
phosphorus changes from that
at point
of discharge as
it travel downstream.
At discharge
the
percentage o~dissolved phosphorus
to total phosphorus
is on
the
order of 65—85 percent.
As
it proceeds downstream
the percentage
falls
to 30—45 percent.
Dissolved phosphorus
is more readily
available
for biological uptake
(1TR.
77).
Pana presented testimony
that the numerical impact
of
phosphorus reduction from the WWTP
is shown by a USEPA 1975
National Eutrophication Study
(NES) which estimates that 97
of
the phosphorus entering the reservoir
is from non—point sources
combined
(Petition, Attachment
13.
This condition
is not
expected to improve.
At hearing Pana quoted from a Soil
Conservation Service report
that
“a significant
reduction of
annual cropiand soil loss and phosphorus
loading
is not
anticipated in the foreseeable future, based upon current farming
and erosion control technology”
(1TR.
48).
Pana asserts
that the
current
farming practices do not indicate the
large percentages
of cropiand under conservation tillages as was attested to
in the
R83—l2 Shelbyville site—specific relief proceeding
(1TR.
85).
The representative
•of Blaser and Zeni
testified that whether
the
non—point source loadings are actually higher or not
is largely
irrelevant.
Lake Cariyle
is
so large that Pana’s contributions
are still slight
(TR.
30—35).
Effects
upon Carlyle Reservior
Testimony
revealed that
the Carlyle Reservoir can be
characterized as nutrient—enriched.
By depth—transparency
measures and phosphorus concentration,
it
is considered eutrophic
(2TR.
12—13).
Biological manifestations such as heavy algae
blooms as measured by chlorophyll
a are not present, however.
Phosphorus does not appear to be the limiting nutrient;
the
critical factors are nit:cgen—phoschorus
ratios and turbidity.
Id.
Because phosphorus
is
not
the limiting factor controlling
primary plant production
in Lake Carlyle, granting the petition
woud
not affect aquatic bioio~yor aquatic recreational
expenditures
(2TR.
17).
112—71
8
Pana also presented testimony that nitrogen and phosphorus
are generally considered the two main nutrients
in the
eutrophication process, although not the only nutrients required
for algae growth
(1TR.
75,
2TR. 45—48).
A five percent reduction
in these nutrient levels will not have an effect on the algae
growth
in the lake where nutrient levels three
to four times
“higher than excessive”
exist
(1TR.
75).
However,
if light—
limiting factors are removed and in—lake concentrations of
nitrogen increase, a possibility arises of increasing primary
production under
these circumstances.
Testimony did not
reveal
whether Lake Carlyle’s nutrient levels were considered three
to
four
times “higher than excessive.”
(2TR.
51).
TECHNICAL FEASIBILITY AND ECONOMIC REASONABLENESS
Pana’s phosphorus removal system became operational
in mid—
1985 and
is successfully treating
the wastewater
to achieve
compliance.
Pana did not argue,
therefore,
that phosphorus
removal was not technically feasible.
Pana,
however, contends
that
requiring
it
to comply with the
phosphorus limitations will have a “terrible” impact on its
finances
(1TR.
7).
A little better than
25 percent of the
population
is on fixed
income and the City recently suffered the
loss of several industries
(1TR.
8).
Past increases
in water
rates
led
to many complaints from people who were
then unable
to
pay their bill
(1TR.
10,
12).
In its petition,
Pana estimated the cost savings
from relief
at $29,570.
The 1988 EcIS report, however, estimated savings
in
annual operations and maintenance costs at $40,636.
Any capital
expenditures have already occurred and can not be considered.
Pana also submitted a cost analysis and operational
impact
report for its wastewater. treatment plant with
its petition.
This report demonstrated
the increased average monthly use charge
from equipment installation
for phosphorus
removal
totalled $1.45
per month per user or connection.
The average water
bill
is
$30.00 bi—monthly
(iTS.
91).
Pana did not,
however, estimate what operation and
maintenance costs would be
if there were no phosphorus effluent
limit whatsoever
imposed upon the Pana facility nor
for any
alternatives
to the removal method chosen
(1TR.
58).
Pana
dismissed as prohibitively expensive any phosphorus control
alternatives other
than the lime—addition treatment chosen
(1TR.
61).
AGENCY
RECOMNENDATION
112-72
9
As stated previously,
at
the hearing of April
9,
1985,
the
Agency recommended
that
the decision on this case be delayed
because of
its pending phosphorus proposal
(1TR.
103).
The
Agency stated
it would however, support any variance requests for
those municipalities which did not have phosphorus hardware
in
place which resulted from any delay.
For those cities which did,
the Agency representative testified
they would
“have
that heard
and would delay
that variance until the further measure of point
source phosphorus controls are known”
(iTS.
104).
As recounted
in the discussion of procedural history,
the Agency urged the
Board to provide
relief
to the City of
Pana,
but suggested
that
it might
be better
to act
on the Agency’s phosphorus proposal
first
(2TR.
27).
At
the Agency’s suggestion,
this was the course
chosen by the Board.
CONCLUSION
The Board
is persuaded
that Pans’s discharge meets the
requirements necessary to gain relief from the
1 mg/i phosphours
standard.
Pana’s discharge does
not significantly contribute
to
eutrophication of the receiving waters.
•Therefore
the Board
decides today
to grant
Pana
relief consistent with
its Amended
Petition and elects
to set the applicable effluent limitation
standard
for Pana’s WWTP discharge at
2.8 mg/i of phosphorus as
P.
This site—specific relief
is proposed
for First Notice
publication as contained in today’s Order.
The decision
in this case cannot be made without
distinguishing our prior decision in Shelbyville.
(In the Matter
of Site Specific Phosphorus Limitation
for the City of
Shelbyville,
62 PCE 31, 583—12
(December
20,
1984)
.
There, too,
a city discharging
to the Lake Carlyle
reservoir had requested
relief from the phosphorus
water quality standard and related
effluent limitations due
to economic considerations.
Shelbyville
had contended
that upgrading its wastewater treatment plant
to
adequately control phosphorus imposed hardship upon the city and
would have
no significant effect upon the reservoir.
(62 PCB
32)
Despite testimony that the City was under
financial strain,
the estimated cost of
the WWTP upgrading totalled $4.7 million
and the phosphorus
loadings to Lake Carlyle from the City were
1.8
of the total,
the Board declined
to grant
relief.
The Board
found
that despite
the low total percentages,
the phosphorus
from
point sources such as Sheibvville’s were
an important contributor
to eutrophication
in
the
Cariyie
Reservcir
and
that
granting
Shelbyvilie site—specific relief would both add
to the problem
and set poor precedent
for similarly situated communities
(62 PCB
36—7).
Since our decision
in Shelbyville,
however,
the Board has
acted on the Agency’s recuest
to modif~’the state—wide
rules of
general applicability for ~hos~horus,
R87—6.
These finalized
rules provide
for
an adjusted standard procedure, whereby
a
petitioner may
be granted an exception to the general phosphorus
rule upon
a specific showing.
The adjusted srandard proceeding
was intended to allow
for a streamlined consideration
of
a
112—73
10
permanent,
site-specific petition to utilize
this mechanism for
relief,
it chose to proceed with
its pending request.
Although
Pana could have readily converted its petition to utilize
this
mechanism for relief,
it chose to proceed with
its pending
request.
However, the Board will look
to the following factors
set forth
in Section
304.123
of its rules
for guidance
in
reaching its determination.
Section 304.123 provides that
“..
.the applicant prove
that
the effluent resulting from grant of
the adjusted standard will not contribute
to cultural
eutrophication, unnatural plant or algal growth or dissolved
oxygen deficiencies
in the receiving
lake of reservoir.
Such
effluent
is deemed
to contribute
to such conditions
if phosphorus
is
the limiting nutrient
for biological growth
in the lake
or
reservoir,
taking
into account the lake
or reservoir limnology,
morphological, physical and chemical characteristics,
and
sediment transport.
However,
if the effluent discharge enters a
tributary at least
40.25 kilometers
(25 miles) upstream of the
point at which the tributary enters the lake or reservoir at
normal pool level,
such effluent
is not deemed
to contribute
to
such conditions
if the receiving lake or
reservoir
is eutrophic
and phosphorus
from internal regeneration
is not
a limiting
nutrient.”
35
Ill.
Adm.
Code 304.123(c)
The record demonstrates that Pans’s discharge
is
more than
25 miles upstream of Lake Carlyle.
Because of existing
conditions
in Lake Carlyle the increased phosphorus loadings
caused by granting Pans site-specific relief do not significantly
contribute to cultural eutrophication or algae growth.
Growth
in
the lake appears
to be limited either by the amount of nitrogen
or
by the low levels of light available
for plant growth.
Therefore, granting Pans relief
is consistent with the new
phosphorus
rules.
In both its Petition and Amended Petition,
Pans requests
an
exemption from
35
Ill.
Adm. Code 304.105,
the prohibition against
contributing
to or causing
a violation of
a water quality
standard.
Pana did not propose language which wouJ,d accomplish
this.
No record was developed concerning this
request which
would assist the Board
in making any determination with respect
to this issue.
Therefore
the Board takes no action on the issue.
As a final matter,
it should be
noted that our decision
today should
in no way
be considered an abrogation
of our
position regarding site-specific relief set forth
in Greater
Peoria Sanitary District.
(In the Matter of:
Site—Specific
Exception
to Effluent Standards for
the Greater Peoria Sanitary
and Sewage Disposal District,
93 PCB
79, R87—2l
(October
6,
1988).
In Greater
Peoria,
the Board determined that the
applicant’s proof regarding economic reasonableness had failed.
The intervention of
the new ohosphorus
rules and,
particularly,
the specific showing
to be made
in an adjusted standard
proceeding thereunder,
serves to further distinguish
the two.
112—74
11
ORDER
The following site—specific rule
is hereby proposed.
The
Clerk of the Board
is directed to submit this rule to the
Secretary of State for First Notice publication
in
the Illinois
Register.
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE C:
WATER POLLUTION
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 304
EFFLUENT STANDARDS
SUBPART
B:
SITE-SPECIFIC RULES AND
EXCEPTIONS NOT OF GENERAL APPLICABILITY
304.218
City of Pans Phosphorus
Discharge
The general effluent standard for phosphorus
as
P contained
in
Section 304.123 shall not apply
to discharges
from the City
of
Pana wastewater treatment plant.
Instead
these discharges
shall
comply with an effluent limitation
of
2.8 mg/i phosphorus
as
P
as
measured at
the point of discharge.
IT
IS
SO ORDERED.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby ce~~y that the
ye Opinion and Order was
adopted on the /~
day of
____________,
1990,
by a vote
of
7-0
.
~
~.
Dorothy M.,~unn,Clerk
Illinois P”oilution Control Board
112—75
