ILLINOIS POLLUTION CONTROL BOARD
May 10,
1990
IN THE MATTER OF:
)
THE PETITION OF THE CITY OF
)
R88-25
HAVANA FOR A SITE-SPECIFIC
)
(Site-Specific Rulemaking)
RULE CHANGE TO THE COMBINED
)
SEWER OVERFLOW REGULATIONS
)
ADOPTED RULE.
FINAL ORDER.
OPINION AND ORDER OF THE BOARD
(by M.
Nardulli):
This matter comes before the Board upon the September
1,
1988
petition for site-specific rule change filed by the City of Havana
(“Havana”).
Havana
seeks
relief
for
two
locations
from
the
requirements of 35
Ill. Adm. Code 306.305(a)
and 35 Ill. Adm.
Code
306.306(c)
governing combined sewer overflow systems.
On July 27,
1989,
the Board adopted a
proposed rule
in this
matter for first notice.
The proposed rule was published
at
13
Ill.
Req.
13173
on August
18,
1989.
On February
22,
1990,
the
Board
adopted the proposed
rule for second notice.
On April
3,
1990, the Joint Committee on Administrative Rules
(JCAR) issued its
certification
of no
objection
to the proposed
rule.
The Board
today adopts the proposed rule for final notice.
PROCEDURAL HISTORY
Hearing
was held
in
this
matter
on
November
30,
1988
in
Havana,
Illinois,
Mason
County.
At hearing
two witnesses
were
called
and were
examined by
Havana,
the
Illinois Department
of
Energy and Natural Resources
(DENR) and the Illinois Environmental
Protection Agency (Agency).
No members of the public were present
at the hearing.
On December
5,
1988,
Havana notified the Board
that it would not file post-hearing comments.
On January 19, 1989,
the
Agency
filed
its post-hearing
comments.
The
Agency
noted
several alleged deficiencies
in Havanats petition ‘and stated that
Havana had not explored alternative options.
The
Board
wishes
to
express
its
appreciation
to
attorney
assistant
Karen Rosenwinkel
and former attorney assistant
David
O’Neill
for their contributions to the drafting of this rule and
supporting opinions.
111—25”)
2
On
December
27,
1988,
DENR
filed
a
negative
declaration
stating
its
determination
that
the preparation
of
an
economic
impact
statement
was
not
necessary
in
this
proceeding.
This
determination was based
on
DENR’s finding that the net economic
impact of the proposed rule was favorable and that the costs were
minimal
and
to
be
borne
by the proponent
of
the
rule.
After
consideration of DENR’s determination, the Board entered an order
on March
2,
1989,
stating that an economic impact statement was not
necessary.
On March
14,
1989, Havana filed its response to the Agency’s
post—hearing
comments.
(PC
#
2.)
This response consisted of a
study prepared by Havana’s engineers which directly addressed each
concern raised by the Agency.
On July 27, 1989, the Board adopted
the proposed rule for first notice.
The Board received two Public Comments since First
Notice
publication.
PC
~3 was filed by the Administrative Code Unit
of
the
Secretary
of
State’s
Office
and
addressed
nonsubstantive
changes to the proposed rule to conform to the Joint Committee on
Administrative Rules
(JCAR) requirements.
Havana filed PC #4 which
is
an
updated
schedule
of
“Phase
1”
of
Havana’s
proposal
for
improving
its
sewer
system.
The
Board
did
not
receive
any
responses during the First Notice comment period to its inquiries
as
to
whether
evidence
of
a
detrimental
environmental
impact
resulting from the combined sewer overflows exists,
whether more
economically reasonable methods of compliance could be employed by
Havana and whether
conditions
should be
imposed
in granting the
site—specific relief.
On February 22, 1990, the Board adopted the
proposed rule for second notice.
BACKGROUND
Havana is located on the
Illinois River and has a population
of approximately 4,300 persons.
The majority of Havana
is served
by
a
combined
sewer
system.
Havana
operates
one
wastewater
treatment
facility.
In
addition
to
the
main
discharge
at
the
treatment plant, there are four combined sewer overflow points in
the collection system located at Tremont,
Market, Washington and
Illinois
Streets.
Havana
has made
improvements
to
the Tremont
Street
system
sufficient
to eliminate this
outfall
and proposes
converting
the
Market
Street
outfall
into
a
storm
sewer.
Consequently,
the relief requested relates to the two remaining
outfalls at Illinois and Washington Streets.
In its petition, Havana proposed a two-phase project.
Phase
1 proposed the sealing of the Tremont Street overflow, removing the
existing
sanitary
flow
from
Market
Street
by
installing
approximately
250
feet
of
sanitary
sewer
and
new
service
connections
so that this overflow would become strictly
a storm
sewer
and
submitting
a
request
for
site—specific
ru)e
change.
Phase
2
would
include any improvements directed by the Board
in
111—260
3
granting site-specific relief.
TECHNICAL FEASIBILITY
AND
ECONOMIC REASONABLENESS
In reviewing a request for site—specific rule change the Board
must
determine
whether
compliance
with
the
general
rule
is
technically feasible or economically
reasonable.
(Ill.Rev.Stat.
1987,
ch.
111
1/2,
par.
1027(a);
Central
Illinois
Light
Co.
v.
IPCB,
159 Ill.App.3d
389,
511 N.E.2d
269,
272
(3d Dist.
1987).)
Here, Havana does not claim that compliance with the general rule
is
not technically
feasible.
Rather,
Havana
asserts that
it
is
entitled
to
site—specific
relief
because
compliance
with
the
general rule
is economically unreasonable.
Havana retained Randolph and Associates to prepare a Municipal
Compliance Plan to investigate means by which Havana could achieve
compliance with the combined sewer overflow regulations.
Although
several
alternative
methods
of
achieving
compliance
were
considered, Randolph and Associates
asserted that the most cost-
effective
approach
for
achieving
full
compliance
is
to
provide
storage at each overflow location.
(Rep.
of Proc.
11/30/88 at 13.)
This
plan
would
require
the
construction
of
off—line
storage
facilities at Washington and Illinois Streets.
(~~.)
The total
capital cost for this project would be
$
5.6 million.
(~.
at 14.)
Grant
funding
of
approximately
$
225,000
would be
available
to
Havana.
(Agency Post-Hearing Comment at par.
4..)
According to Havana,
full compliance would result in a total
user charge of approximately
$
41.45 per month.
(Ex.
1 at par.
XI.)
The median annual
income per household
in Havana
is
$
14,
561.
(Petition
at
par.
1.1.)
Havana
cites
an
Illinois
Environmental Protection Agency
(“Agency”) user-fee affordabLJty
range of
$
18 to
$
24 per month for households with similar income
levels.
(Id.)
In addition to arguing that compliance with the regulations
in
question
is
economically
unreasonable,
Havana also maintains
that
the
detrimental
environmental
impact
resulting
from
the
discharge
is
minimal.
In
support
of
this
assertion,
Havana
submitted an engineering study analyzing the volume and content of
the discharge from the various outfall points and a study conducted
by the Illinois State Water Survey Division of the Department of
Energy and Natural Resources analyzing the
Illinois River bottom
sediments
in the vicinity
of the combined sewer overflows.
(Ex.
2.)
The
results
of
these
studies
support
Havana’s
position
regarding
environmental
impact
and
have
not
been
seriously
challenged
by the Agency.
CONCLUSION
Although the Board posed inquiries
into whether evidence of
a significant environmental impact from Havana’s discharge exists
11 1—261
4
and whether more economically reasonable methods of full or partial
compliance are available to Havana were posed at First Notice,
no
such
evidence
was
submitted.
Before
the
Board
will
make
a
determination on the economic reasonableness
of
a proposed rule
change,
it
must
be
convinced
that
other
alternative
compliance
plans have been evaluated and that the proposed rule
is the most
viable
and
environmentally
sound mode
of
compliance.
(In the
Matter
of:
Proposed
Site-Specific
Rule
Change
for
the
City
of
Mendota, R88-6 at 6 (April 6, 1989).)
While the Agency, during the
First Notice comment period,
raised concerns of Havana’s failure
to
consider
alternative
methods
of
partial
compliance,
Havana
adequately responded to these concerns.
(See,
Ex.
2 at par.
3.4.)
Havana considered partial separation, peak storage at the plant and
full
compliance
alternatives.
(Ex.
2.)
The
Board
remains
convinced
that Havana has
sufficiently
investigated
alternative
compliance plans..
The
Board
finds
that
requiring
Havana
to
comply
with
the
combined sewer overflow regulations
is economically unreasonable.
The
evidence
introduced
by
Havana
concerning
the
cost
of
compliance,
the effect of this cost on the citizens of Havana and
the lack of a significant detrimental environmental effect from the
overflows
remains
uncontradicted
and
supports
the
Board’s
determination to adopt the proposed rule.
Lastly,
the Board
notes
that
it
requested
comments
on
its
proposal that the rule contain language stating that the grant of
site-specific relief does not prohibit the Agency from exercising
its authority
to impose monitoring requirements upon Havana as
a
permit condition and that the site-specific rule does not affect
the enforceability
of any other
rule,
regulation
or provision of
the Act.
No comments were received in response to this
inquiry.
The Board concludes that it would be inappropriate to include such
language in the text of the rule itself; however,
the Board notes
that the grant of site-specific rule change does not preclude the
application of such action by the Agency, nor does it preclude the
applicability of other rules, regulations or provisions of the Act.
A grant of site-specific rule change must be read
in conjunction
with these other regulatory and statutory provisions. Accordingly,
the Board proceeds to final adoption of the proposed rule.
ORDER
The
Board
directs
the
Clerk
of
the
Board
to
submit
the
following adopted rule to the Secretary of State for final notice.
Section 306.503
Havana Site-Specific Discharges
The two discharges
from the combined sewer system of the City of
Havana,
as described below, shall not be sublect to the treatment
requirements
of
Section
306.305(a)
nor
the
~
Section 306.306(c).
The.Washington Street discharge is located at
111—262
5
the foot of Washington Street in the Northwest Quarter, Section 1.
Township 21 North, Range 9 West of the Third Principal Meridian and
can further be defined
as being located at West 90~, 4 minutes
0
seconds longitude and North 40w,
17 minutes
55 seconds latitude.
The Illinois Street discharge
is located at the foot of Illinois
Street
in the Southwest
Quarter,
Section
1.
Township
21 North,
Range
West
of the Third
Principal
Meridian
and
can further
be
defined
as
being
located
at
North 40~, 17
minutes
35
seconds
latitude and West 90.,
4 minutes
5 seconds longitude.
IT IS SO
ORDERED.
Section 41 of the Illinois Environmental Protection Act (Ill.
Rev.
Stat.
1987,
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 requirements.
I,’ Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was adopted
on the
/C’Z-?-
day of
a_.—~
,
1990 by a vote
of
7-~.
2~___
Dorothy M.j13unn, Clerk
Illinois P’ollution Control Board
111—263