ILLINOIS POLLUTION CONTROL BOARD
March
8,
1990
IN THE MATTER OF:
PROPOSED SITE SPECIFIC RULE CHANGE
)
R87-35
FOR THE CITY OF EAST MOLINE’S
)
(Site-Specific
PUBLIC
WATER
SUPPLY TREATMENT
)
(Rulemaking)
PLANT DISCHARGE:
35 ILL.
ADM.
CODE 304.218
FINAL OPINION AND ORDER OF THE BOARD
(by J. Anderson):*
This matter
is before the Board on a petition for site—
specific rulemaking
filed by the City of East Moline
(East
Moline).
In
its original petition,
filed October
9,
1987, East
Moline requested the Board
to adopt a rule which would “allow the
discharge of solids from East Moline’s public water
supply
treatment plant located
in Rock Island County,
East Moline,
Illinois
to the Mississippi”
(Exh.
1,
p.
1).
That discharge does
not meet the requirements of
35 Iii. Adm.
Code Sections 304.106
and 304.124(a)
for iron, manganese or
total suspended solids
(TSS).
The Section 304.124(a)
standards for
these contaminants
are 2.0 milligrams per liter
(mg/l)
for iron,
1.0 mg/l for
manganese,
and 15 mg/i
for TSS.
Section 304.106 prohibits
effluent which contains “settleable solids,
floating debris,
visible oil,
grease, scum or sludge solids” and states that
“dolor,
odor and turbidity must be reduced
to below obvious
levels.”
East Moline Proposal
As an alternative
to the general standards,
East Moline
urges
the Board to adopt
the following as
a new rule addition to
Subpart
B:
Site Specific Rules And Exceptions Not Of General
Applicability,
of the Board’s water pollution rules
(35 Ill. Adm.
Code Title
35, Subtitle C,
Chapter
I):
East Molirie Water Treatment Plant discharges
This
Section
applies
to
the
existing
water
treatment
plant
known
as
the
East
Moline
Public Water
Supply Treatment
Plant,
owned
by
the City of East Moline,
which discharges
into
the
Mississippi River.
Such discharges
shall
not be subject
to
the effluent standards
for
*
We express our great appreciation
to Mr. Phillip Van Ness,
who
acted as Hearing Officer
in this proceeding,
and for his
contributions to the drafting
of this Final Opinion and Order.
We also thank Mr.
David O’Neill
for conducting the February
9,
1989 hearing.
109-323
—2—
total
suspended
solids,
iron and manganese
of
35 Ill.
Adm. Code 304.124.
At
the outset,
it
is important
to note that the relief
actually requested by East Moline varied somewhat from that
characterized
in the proposed rule.
As East Moline subsequently
made clear at hearing and
in
its closing comments,
East Moline
actually requested that it
be enabled
to “continue
to discharge
the solids generated at its water treatment plant either to an
unnamed tributary that flows
to the Mississippi river or
to a
discharge pipe that flows directly
to the Mississippi”
(e.g., see
PC #8,
p.
1;
emphasis added).
Procedural History
On November
12,
1987,
the Environmental Protection Agency
(Agency)
filed
a motion to consolidate the instant proceeding
with Board proceeding R87—34 which regards
a
similar petition for
a site—specific rule on behalf
of East Moline’s sister city,
the
City of Rock Island; East Moline opposed
the motion.
On December
12,
1987,
the Board denied the motion.
Pursuant
to Board Resolution
88—1
(i.e., without
consideration of the merits
of the proposal),
the Board on April
21, 1988, adopted
the East Moline proposal for First Notice
publication
in the Illinois Register.
The proposal appeared
in
the Illinois Register for May 27,
1988
(12 Ill.
Reg.
8822).
An
economic impact analysis was filed on June
30,
1988 by the Small
Business Office of the Department
of Commerce and Community
Affairs
(DCCA;
PC #1), indicating
that there would
be “no effect”
on small businesses.
In response to the Hearing Officer’s Order
and following an extension of
time granted by the Hearing
Officer, East Moline pre—filed testimony and exhibits on October
17,
1988.
In addition, both the Agency and the Department of
Energy and Natural Resources
(DENR) pre-filed comments and
questions
for hearing.
On December
7,
1988,
the Hearing Officer
issued a revised Order
regarding pre—hearing submission
of
testimony and exhibits,
and set hearing
in this matter for
February
9,
1989.
On January 24,
1989,
the Hearing Officer
ordered participants
to file comments regarding
the necessity for
an economic impact study
(EdIS).
Although East Moline indicated
an EdIS was necessary
(PC #4),
neither the Agency
(PC #3)
nor the
DENR
(PC
#2) agreed;
on February
23.
1989,
two weeks
following
the hearing
in this matter,
the Board entered an order finding
that
no EcIS was necessary.
Upon petition from East Moline,
the
Hearing Officer granted an extension of the deadline
for filing
of final post—hearing comments.
Post-hearing comments were
timely filed by Mayor Emmendorfer
of East Moline
(PC #5), State
Representative DeJaegher
(PC #6),
the Agency
(PC #7),
East Moline
(~PC
#~,
and State Senator Jacobs
(PC #9).
On June
9,
1989, pursuant
to Section 5.01(d)
of the
Administrative Procedure Act,
Ill. Rev.
Stat.
ch.
127, par.
l0u~.Ui(d), the Board refiled the original proposal for First
~r)q~3~4
—3—
Notice publication
in the Illinois Register
this appeared
in the
Illinois Register for June 30,
1989
(13 Ill.
Reg.
9656).
During
the following First Notice comment period,
comments of a
technical nature were received from the Administrative Code
Division of the Office of
the Secretary of State
(PC #11)
together with substantive comments from the Illinois-American
Water Company
(PC #10).
DCCA filed another Impact Analysis,
identical
in all essentials
to the original
(PC #1),
on August
8,
1989
(PC #12).
On February
1,
1990, citing deadlines
looming
in the appeal
of the related variance case,
East Moline
filed a Motion
for an
Expedited Decision,
requesting
that the Board establish
a planned
schedule for decision.
That motion was granted by order
of
the
Board dated February
8,
1990.
No discussion of the procedural history of
this case would
be complete without mention of the several proceedings previously
or currently before the Board regarding
the East Moline
facility.
These proceedings are identified by East Moline
in its
Motion for Leave To File Site Specific Rule Change Petition
without Supporting Signature Petition1
which accompanied the
original petition,
as well
as
in the testimony provided
by East
Moline
(Tr. 46-47).
These proceedings include
a permit appeal
(PCB 86—218) which at the time of filing of
the instant petition
was before the Appellate Court
for
the Third District on appeal
from
a decision of the Board affirming the Agency’s denial
of
East Moline’s application for a National Pollution Discharge
Elimination System (NPDES) permit.*
Also included
ar.e
two
variance proceedings, one which relates
to
the Board’s effluent
limitations for trihalomethanes
(PCB B7_128)** and the other
which seeks variance relief for
the same purposes as the instant
site specific rule request
(PCB 87_l27).***
In its Petition as
well as
in testimony
(Tr.
33), East Moline has referred the Board
to the “companion” Petition for Variance
in the latter case for
further information concerning the reasons
for seeking the rule
change at issue
in this proceeding
(see Exh.
1,
p.
2
footnote).
*
No.
3—88—0788;
the opinion of
the Appellate Court was entered
on August
31,
1989, and the mandate returned to the Board
on
October
25,
1989.
The decision of
the Board was affirmed.
**
The Board granted East Moline’s variance request by order
of
January
21,
1988.
~
The Board’s November
15,
1989,
decision denying variance
relief has been appealed
to the Appellate Court
for
the Third
District and
is currently pending
(No.
3—89—0804);
this
proceeding was cited by East Moline as the impetus
for
its
February
1,
1990, Motion
for Expedited Decision
in the instant
case.
109—3 25
—4—
Background
The effluent in question emanates
from East Moline’s public
water treatment plant located in East Moline
(Tr.
35).
The
plant, which was built
in the mid—l950’s,
provides clarified,
filtered and disinfected water
to approximately 22,000 residences
and
100 businesses
in theCity
(Tr.
37).
Industries use more
than 50
of the water supplied
(Tr.
188).
East Moline’s source of raw water
is the Mississippi
River.
A pumping stationat 7th Street and First Avenue pumps
the raw water through a 30—inch diameter
intake line.
Treatment
of the water begins at the pumping station where powdered
activated carbon is added
to the raw water.
The
raw water
containing
the activated carbon
is then pumped through two pipes
to two separate rapid-mix units, where lime and alum are added.
Subsequently the water passes through separate but identical
paddle—wheel flocculation basins followed by rectangular settling
basins, and is treated with chlorine.
Water
from the settling
basins
is combined and directed through
rapid sand filtration
units.
After filtering,
the water
is placed
in storage
in
a
“clearwell” before being pumped
to the distribution system
(Tr.
35—37).
Wastes from the water
treatment process consist of backwash
water from the filters and sludge from the settling tanks and
drain
lines
(Tr.
37).
The filters are backwashed daily;
average
daily flow is 268,600 gallons.
The settling basins are dragged
approximately every other day
to remove sludge; average daily
flow of
these sludges
is 26,900 gallons.
The proportion of
suspended solids
in the settling basin sludge
is much higher than
in
the filter backwash water
5,687
mg/i TSS
vs.
84 mg/l TSS
(Tr. 38—39).
It is undisputed that 75
of
the solids in East
Moline’s discharge originates from the Mississippi River;
the
balance
is added
in the course of treatment
(Tr.
96; l39_l41).*
The “added” solids
(expressed as percentage of the whole)
consist
of 19.7
304
lbs/day
aluminum hydroxide and 5.6
87
lbs/day
powdered activated carbon
(Tr.
96).
The poundage of solids
discharged has fallen by 79
in the last
15 years,
to 1,544
pounds per day; East Moline asserts that this
is due to process
changes
(elimination of lime softening)
and better control over
chemical addition (Ibid).
The six month averagedischarge
concentrations of
iron and manganese for the settling basin
discharge were 8.1 mg/l and 8.27
mg/l
respectively;
the iron and
manganese concentrations for the filter backwash discharge were
1.46 mg/i and 0.42 mg/l respectively
(Tr.
136—137).
The average
daily flow rate for the combined discharges was approximately
11,000 gallons
(Tr.
39).
*
The original petition
(Exh. U
at page
4 indicated a
significantly different percentage contribution of
river
solids;
t~iiswas attributed to East Moline’s reliance upon dated
information.
i(YJ-~26
—5—
The record indicates that East Moline was first advised by
the Agency on November
5,
1971,
that it could
no longer continue
to discharge its sediment and backwash water
to the Mississippi
in an untreated condition
(Exh.
1,
p.
2).
Since that time,
save
for the aforementioned reductions
in sediment poundage primarily
associated with operational changes, East Moline has evidently
made no effort
to actually construct facilities to treat and
dispose of
its
solids
(Tr.
200—201);
it has, however,
commissioned a number of studies of
its treatment and disposal
options over the years,
including a study reported in 1974 by
Consoer, Townsend and Associates
(Exh.
7),
an update of the 1974
report performed
in 1979 by Warner Van Pragg
Inc.
(Tr.
42),
a
further update performed in 1987 by O.L. Broemmer, Consulting
Engineers
(Ibid), a study performed by Water Engineering
Technologies
(WET)
in 1987—1988
(Tr.
43—46;
55—56;
202—207),
a
study performed
in 1985 by Huff
& Huff,
Inc. regarding
the impact
of
the East Moline discharge on the receiving stream and on the
Mississippi
River
(Tr.94—l13;
Exhs.
2 and
17 and attachments),
and
a 1989 study by Greeley and Hansen Engineers (preliminarily
reported on April
4,
1989 Exhibit
B of
PC #8).
Applicable Law
Proposals
for site—specific regulations are governed by the
provisions of Title VII
of the Act, specifically Section
27
(Ill.
Rev.
Stat.
ch. lll~,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
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.
The East Moline plant’s physical condition has been
described at length
(Tr.
35—37;
95—98).
Nothing
in the record
indicates that the plant’s physical condition, per
se, poses any
particular impediment
to compliance with the general rule,
although East Moline has provided extensive testimony regarding
the evident
need for
a number of maintenance and improvement
projects
(Tr.
46—49;
62—72;
154—155).
The character of the
surrounding area has also not been at issue here, although East
Moline has provided considerable testimony and exhibits
characterizing the area
in terms
of its significant economic
downturn since
the late 1970s,
including the loss of numerous
109—327
—6—
businesses
(Tr.
78—83;
219—220;
item
2 of
Exh. A of PC #8);
we
will address economic matters below,
in the context of East
Moline’s contentions regarding economic reasonableness.
Finally,
East Moiine does not contend that compliance with the existing
regulation is not technically feasible
(Tr.
16—17; PC
#8, pp.
11—
13).
Rather,
East Moline argues that compliance with the general
standard iseconomically unreasonable;
by extension,
East Moline
suggests that the economic reasonableness of compliance
is
related
to the nature of the receiving body of water.
Nature of the Receiving Body of Water
As noted previously,
East Moline’s effluent discharges
directly into the channelized portion of an unnamed creek
or
ditch.
The combined length of the entire drainage system
is
16,000
feet.
The bottom 12,000 feet of the drainage system is
channelized;
the final 1,000 feet is downstream of East Moline’s
discharge and
is in turn tributary to an enclosed storm sewer
which flows
to the Mississippi River.
The upper reaches of
the
system, which
is above the channelized portion,
follows
a natural
drainage pattern,
coursing through or alongside
a golf course,
residential areas and
a city park
(Tr.
41;
97;
122—124).
East
Moline has queried whether
the ditch can properly be found not to
be a water of the State
(Tr. 119—121; PC
#8,
p.
5).
The Mississippi River,
into which the storm sewer eventually
discharges,
is extremely large; East Moline indicates the mean
average flow of the river
is 52,200 cubic
feet per minute
(Exh.
1, p.6—7).
The average suspended solids concentration of the
river’s water
is
57 mg/i
(PC #8,
pp.
10—11;
Exh.
1,
pp.
6—7),
which exceeds the standard
(15 mg/l)
set by 35
Ill. Adm. Code
304.124(a); average total
iron concentration of the river has
been measured at Clinton,
Iowa
(which
is upstream of
East. Moline)
at 1.675 mg/i, with
a maximum recorded concentration of 2.7 mg/i,
and thus may also presently exceed the standard
(2 mg/i).
The
City of Moline’s public water supply intake
is located
some
15,000 feet downstream of the East Moline storm sewer discharge
(Tr.
107).
Fish are plentiful
in the East Moline area of the
river,
with the variety changing with the bottom conditions
(Exh.
1,
including Exhibits Cl and C2
thereof).
Impact
on the Receiving Body Of Water
Mr. James Huff testified on behalf of East Moline
regarding
the effects of East Moline’s discharge on water quality and other
features
of the ditch.
His analysis focused on the benthic
macroinvertebrate population and on stream sediments.
The
macroinvertebrate biotic index
(MBI)
was calculated as a means of
measuring impacts of East Moline’s discharge on water quality.
H~concluded that while the MDI values
of waters below the East
Moline discharge poin~.were somewhat better
(lower)
than that
of
waters above
(7.6
vs.
8.3),
the benthic invertebrate population
below the discharge point was less than one—tenth of
that
above.
He concluded chat
the uenthic invertebrate population of
I09—328
—7—
the ditch
is being adversely impacted by the East Moline
filtration plant
(Tr.
98—101;
see also Exh.
17, Attachment
3).
He further observed that sludge worms were dominant at
the
nearest downstream site
(below the East Moiine discharge point),
although they were not found at any other downstream site
(Tr.
100).
Mr. Huff further testified regarding the stream
sediments.
He noted that bottom sediments
in the channelized
portion of the ditch upstream of the East Moline discharge
averaged two inches in depth
(the average depth of sediment
in
the unchannelized portion of the ditch averaged less than one
inch); however,
the depth of bottom sediments downstream of the
East Moline discharge
ranged from 18
to more than
24 inches.
He
concluded that the primary source of this sediment was the East
Moline water treatment plant discharges
(Tr. 102—103).
However,
he opined that
if one applied the mixing zone allowed by Board
regulations
to the ditch,
the allowable
26 acres would encompass
the entire length of the ditch downstream of the East Moline
discharge point up to the storm sewer entrance
(Tr. 117—118).
Mr. Huff also testified regarding the effect of East
Moline’s discharge on the Mississippi River.
He testified that
bottom sediments were collected from the river both upstream and
downstream of
the storm sewer outfall.
He indicated that
volatile solids were elevated immediately offshore from the
outfall point during both sample periods
(June and August,
1985).
Sediment samples within
200 feet of
the outfall had
calcium levels which were elevated some two
to three
times that
of
the upstream samples
in June,
but not
in August.
Aluminum
levels
in this same area were also elevated, but only during the
month of August,
1985.
MDI values upstream and downstream of the
outfall were similar.
However, both the June and August sampling
indicated fewer taxa and fewer organisms in the area nearest the
outfall
(within 200 feet downstream and
50 feet offshore).
Mr.
Huff concluded that the impact,
if any,
on the Mississippi River
is confined
to so small
an area
(50
X
200 feet) as
to suggest no
measurable impact on downstream users
(Tr.
103-107).
As
to
turbidity,
Mr. Huff stated that observable effects on the river
were limited
to an area within five feet of the storm sewer
outfall
(Tr.
117).
Finally, Mr.
Huff opined that all forms of
impact on the river would dissipate within the mixing zone
allowed by the Board’s
regulations
(Tr.
117).
The Agency raises two arguments against East Moline’s
assertions regarding impact.
First,
the Agency
restates the
position taken by the Board
in its Final Order and Opinion
in the
first Illinois—American Water Company site—specific case, R85—ll,
109—329
—8—
dated September
25,
1986.*
The Agency notes
that in that case
the Board made clear that the assimilative capacity of the
Mississippi River could not suffice as a reason to abandon the
State’s technology-based effluent standards
(PC #7, pp.
6—7).
Second,
the Agency asserts that East Moline has misunderstood the
intent of the mixing zone concept,
citing the proposed amendments
to
35
Iii. Adm. Code 302.102
in Board proceeding R88—2l
(Water
Toxics)
as properly articulating “the Agency’s intent
to prevent
mixing zones from being used as a zone for unnatural
sedimentation”
(Ibid.,
p.
7).
The Agency further asserts that
regardless of mixing zone policy,
the fact that East Moline’s
sludge deposits are in time diluted does not
negate the fact
that
they are there and may be deposited somewhere else (Id.).
Consequently,
the Agency asserts,
“the absence of an adverse
environmental impact has not been sufficiently documented”
(Id.).
Economic Reasonableness
Although East Moline has asked the Board to allow
it
to
continue discharging to the unnamed ditch, and although East
Moline has suggested
that the ditch
is either
not
a
“Water of the
State”
(Tr.
122;
125—126)
or,
in any event
is not seriously
impacted by the treatment plant discharges
(Tr.
53-54),
it has on
several occasions made the point that
it
is willing to consider
installation of
a pipeline
(or extension of
the storm sewer)
to
convey
its discharges directly to the river
(Tr.
15—16;
57;
74—
75;
117).
East Moline has suggested that this alternative could
be embellished by installation of a “high velocity discharger
with
a diffuser on the end
of
the pipe”
to produce more rapid
mixing
of
sludge in the river
so as to reduce bottom sediment
deposits near the outfall
(Tr. 225—226).
However, East Moline
did not describe this option or provide any information regarding
feasibility or effect.
In any event, East Moline has made clear
that
it considers the costs associated with this alternative
($50,000
to $75,000;
see item #4 of Attachment A of PC #8)
to not
be unreasonable
(Tr.
183)..
East Moline states that the cost of control
is approximately
$750,000, based upon the recommended least—cost alternative
considered,
which consists of building sludge lagoons
(Tr.
42;
*
Upon motion by Illinois-American,
the Board allowed Illinois—
American to subsequently reopen
the record so that it could
submit additional information regarding alternative treatment
methods.
This reopened,
or
“second”, proceeding eventually
resulted
in the Board’s granting of
a temporary and conditional
rule allowing the Illinois—American facility
in East
St. Louis
to
be exerrpted from ~ne general effluent stardards while
it
experimented with the exc~usiveus~
of
biodegrade~lecoagulant~
(R85—ll,
Final Opinion and Order
of February
2,
1989).
This
latter
decision is cited by both East Moline
(see PC #8,
p.
29-
30)
and illinois—American (~ #iU,
p.1- 3).
109—33t)
—9—
74_75)~* Other alternatives considered included discharge to a
storm sewer system, discharge to a sanitary sewer system,
landfilling
after thickening and partial
dewateririg, and
irrigation, alum reclamation and recaicination
to recover lime;
for
the filter backwash, recirculation and reuse were also
considered
(Exh.
7, pp.
19,
36—40).
At present, East Moline
is
considering some use of polymers
(Tr.
55—56,
209—214 and 218—219;
see also item #3 of Exhibit A of PC #8).
As
for the economic reasonableness of
requiring adherence to
the general standards rather than allowing
it to discharge
to the
Mississippi River,
East Moline argues that the limited impact on
the river,
both in terms of East Moline’s discharges
(as noted
previously) and in terms of similar discharges to the Mississippi
River, does not warrant
the $750,000 expense of controls
in light
of East Moline’s present economic difficulties.
In its comments,
Illinois—American suggests
in support that,
in light of the other
site—specific factors,
the expense of controls
is not warranted
even
if one discounts East Moline’s economic condition as one
such factor
(PC #10,
p.
18).
East Moline notes that numerous other communities along the
Mississippi
River discharge their water plant sludges to that
river,
including St. Louis,
Missouri, Davenport,
Iowa and Alton,
Illinois
(Tr.
107).
East Moline further notes that the Ohio
River Valley Water Sanitation Commission
(ORSANCO),
of which
Illinois
is
a member,
favors allowing the controlled release
of
water plant
sludges on a case—by—case basis,
provided there are
no adverse stream effects
(Tr.
108).
East Moline cites ORSANCO
studies which conclude that technology—based effluent limits are
inappropriate because of the high cost compared to the lack of
significant
benefits due
to the large dilution capacity of
the
river and temporal variability of the background water quality
(Tr. 108—109;
117).
East Moline also directed the Board’s
attention
to the results of studies performed by the Illinois
State Water Survey
(ISWS)
on the impact of wastes from other
water treatment plants
in
Illinois, including that of
the City of
Pontiac on the Vermilion River
(Exh.
12),
the City of Alton on
the Mississippi River
(Exh.
11),
and the City of East
St.
Louis
on the Mississippi
River
(Exh.
16).
Each of these studies
generally concluded that the subject discharge had no significant
effect on the receiving
river beyond a very small area nearest
*
In its closing comments, East Moline acknowledges
that a
potential different least
cost alternative had been identified
in
the Greeley and Hansen draft report which was received after the
hearing
in this matter.
However,
East Moline states that
it
is
unprepared to commit
to this alternative absent receipt
of
a
final
report; moreover,
East Moline casts doubt
as to whether the
Greeley and Hansen report significantly changes East Moline’s
position
in this case
in that the compliance costs “are
substantially the same as
those presented at hearing”
(PC
#
8,
p.
13).
109—331
—10—
the outfall and that such effect might
in certain cases be
beneficial
(PC #8,
pp.
20—22).
East Moline strongly suggests that its situation closely
resembles that of Aiton,
to which this Board on March 8,
1984,
granted site—specific rule relief in docket R82—3
(PC
#8,
p.
23).
Illinois—American concurs,
suggesting
further that a grant
of
“complete relief”
to East Moline by the Board in the present
case will not be inconsistent with its grant of limited relief to
Illinois—American
in R85—ll
(PC #10,
pp.
14—15).
Illinois—American takes particular note of the Agency’s
position in docket R87—27
(adopted by the Board)
favorable to
downgrading water quality and effluent standards affecting the
Metropolitan Sanitary District
of Chicago,
now known
as the
Metropolitan Water Reclamation District
(MWRD).
In that
proceeding,
Illinois—American argues,
the Agency in effect
endorsed the ORSANCO position, stating that:
It
is not cost effective
to spend taxpayers’
money
for
major
wastewater
treatment
facilities
which
result
in
marginal
water
quality
improvements.
In
the
Matter
of
Amendments
to
Water
Quality
and
Effluent
Standards
Applicable
to
the
Chicago
River
System and
the Calumet
River System,
PCB R87—
27,
Tr.
13.
Illinois—American notes that the Board subsequently adopted the
proposed Opinion and Order with but one change,
requiring the
MWRD,
like Illinois—American in the East
St. Louis case
(R85—ll),
to perform a comprehensive study of water quality (PC #10,
p.
12).
Illinois—American suggests that the Agency’s position in
the MWRD rulemaking, which involved sewage waste
rather than
water supply waste, cannot be reconciled with its position
in
opposition to relief
for public water supplies
(Ibid.,
p.
13).
As the third basis
for
a finding that compliance with the
general standards would be economically unreasonable, East Moline
asserts the alleged hardship that would attend full compliance.
East Moline offers two means of demonstrating this alleged
hardship.
First, East Moline points out that the capital costs
of
compliance measured by the pounds
of solids discharged and
removed per day would be $485 per pound per day for East Moline.
This cost compares
to $240 for Alton and $103 for East
St. Louis
(Tr.
216—217).
Second,
East Moline repeatedly points out that the city’s
economj
Itas ~fi~r~d
~erious se~hacksin ~:hel9~Os (Tr.
11—52;
76—91;
114—116;
149;
165).
It asserts that denial of the rule
change request wculd rececsitate a ten percent incre~ase ($26 ~per
ye~)
in
the
ave~geiousehol&wa~er.till to pay for ~thenee~ed
109—332
—11—
improvements
(Tr.l53).
Further, East Moline points
to a long
list of needed
repairs and improvements in its public water
supply system and wastewater treatment system
(Tr.
43—46;
48—51;
Exh.
20).
It characterizes these other needed improvements as
competing for scarce public funds,
suggesting that,
based upon a
balancing of costs versus benefits, compliance with the standards
for TSS, iron and manganese
is of
a
lower priority than many of
the other
projects planned
(PC
#8,
pp.
25-26).
It notes
that
property tax and sales tax revenues have dropped since the early
1980s while
the costs
of borrowing funds have risen
as the city’s
bond
rating has declined
in response to the weakened economy
(Tr.
114—116;
162—165; item #2
of Exhibit A of
PC
#8).
In rebuttal,
the Agency asserts that East Moline has
seriously considered only one compliance method,
sludge
lagoons.
It states that “noticeably absent”
is any discussion of
applying sludge to land, and asserts that at least one other
water treatment plant on the Mississippi
River applies
sludge to
land
(PC #7,
pp.
2—3).
However,
the Agency provided no evidence
as to land application of sludge and elicited no testimony on
that subject at hearing.
The Agency next takes issue with East Moline’s arguments
regarding competing projects.
The Agency states that “many of
the items on the improvements list are normal maintenance items
and should have been completed long ago”
(Ibid., p.3).
The Agency takes strong exception to the idea of granting
relief
to East Moline due to its depressed economy, suggesting
that such economic conditions are temporary and as such do not
support permanent
relief from the rules
(Id.).
The Agency notes
that East Moline residents “have
for years avoided the compliance
costs that were long ago paid by other Illinois communities.
Equity demands that the costs of pollution abatement be fairly
allocated among all Illinois communities...”
(Id.).
The Agency
asserts,
“the record
is bereft of any substantially and
significantly different factor that distinguishes East Moline
from the many Illinois Communities
that have already expended
ever—scarce resources
to comply with effluent standards”
(Ibid.,
p.4).
Finally,
the Agency notes
that a 10
increase
in water rates
amounts to only about $2.17
per month per household (Tr.
175)
or
as little as $1.90 per month per user
(PC #7, pp.4—5).
The
Agency therefore concludes that
“an economically reasonable
compliance method exists for
East Moline that should be pursued
in the context of its variance proceeding,
PCB 87-127, and not
in
a site—specific context”
(Ibid.,
p.
5).
In
this context,
the
Agency rejects comparisons
to the Alton case,
noting that full
compliance
for Alton would have cost $3,000,000
“in
1982
dollars”.
The Agency also observed that
in granting Alton’s
relief, the Board had specifically noted the physical limitations
on Alton’s water plant
(which unlike East Moline’s was “land
10~—
333
—12—
locked”) and side land uses “not present
in this proceeding”
(Ibid.,
pp.
5—6).
Consistency With Federal Law
In its petition, East Moline asserts that federal law does
not prevent the Board from granting the requested relief
(Exh.
1,
p.
13).
In testimony, East Moline again asserts that,
insofar as
the United States Environmental Protection Agency (USEPA) has not
adopted categorical Best Practicable Technology
(BPT)
standards
applicable to public water supply treatment plant discharges,
the
Board
is empowered
to adopt standards on a case—by—case basis
using Best Professional Judgment
(BPJ)
for the establishment of
NPDES effluent limits
(Tr. 109—113).
In
its final comments,
East
Moline again asserts this view,
with somewhat more elaboration
(PC #8, pp.
26—30).
East Moline states that a permit writer
using BPJ
in the absence of categorical standards is to consider
the factors set forth
at Section 304(b)
of the Clean Water Act
(CWA),
“which include cost/benefit considerations”
(Id.).
It
further states that the federal anti—backsliding statute
(Section
402(o)
of the CWA,
33 U.S.C.
1342(o))
and rule
(40 C.F.R.
122.44(1))
apply only where
a facility’s new permit contains less
stringent requirements than the previous permit.
It
asserts that
the fact that its permit
is
under appeal and has never been
enforceable
renders the “backsliding” provisions inapplicable
(Id.).
Finally, East Moline asserts
as follows:
Regardless
of
whether
a permit
can be
issued
which contains no limitation on the discharge
of
suspended
solids,
the
Board
can certainly
exempt
East
Moline
from
the
generally
applicable
rule.
In
turn,
if
a
limit
is
required
in the permit,
the Agency can impose
a
limitation
in
the permit
based
on
its
best
professional judgment..
.“
(Ibid.,
p.
29)
On the other hand,
the Agency asserts that the effluent
limitations at
issue are BPT and that the factors enumerated
in
Section 304(b)
of the CWA and
40 C.F.R.
125.3(d)
are exclusive
in
making a BPT determination;
these
factors,
the Agency asserts,
preclude the consideration of economic effects and environmental
impact
(PC
#7,
pp.
7—8).
The Agency also takes a somewhat
different view of
the “cost/benefit” provisions of Section
304
(b)
of the CWA than does East Moline.
According to the Agency,
the factors delineated in subsection
(b)(l)(B) state an “economic
law of diminishing returns”,
not,
as
the Agency believes East
Moline contends, a comparison of “economic hardship of compliance
with the environmental benefit of
compliance”
(PC #7,
p.
8;
emphasis
in original).
i~y
far the most extensive
~reatment of this sub1ect ~as
provided
in the final comments
of Illinois—American
(PC #10).
LKe
East Moline, Illinois—American asserts that the relief
souoht
i.s not inconsistent with federal
law.
Like Last Mol~ne,
109—334
—13—
Illinois- American points to the lack of categorical standards
(BPT)
under Section 304(b) of the CWA; unlike East Moline or the
Agency, however,
Illinois-American argues that permits for public
water supplies are written under the BPJ case—by—case provisions
of Section 402(a)(1)
of the CWA
(33 U.S.C.
l4l2(a)(l))
and 40
C.F.R.
125.3(c),
not under any part (including case—by—case
provisions)
of Section 304 of the CWA or any rule promulgated
thereunder
(Ibid.,
pp.
5—7).
Further, Illinois—American,
unlike
either
the City
or the Agency,
contends that “backsliding”
applies only
to permits that were issued when there were no
federal effluent guidelines
for the discharge category, but are
being
renewed,
reissued or modified after USEPA has promulgated
less stringent guidelines under
Section 304(b)
(Ibid.,
p.
7).
Finally,
Illinois—American argues that even
if “backsliding” did
apply,
the subsection
(B)(ii) exception of CWA Section 402(o)(2)
would apply, due to the Agency’s
“mistake of law”
in issuing East
Moiine’s permit (Ibid.,
pp.
8—9).
Illinois—American notes
that
the Board has previously addressed and rejected the Agency’s
contentions
regarding the applicability of BPT provisions
in its
September
25, 1986,
June
16,
1988, September
26,
1988,
and
February
2,
1989 Opinions and Orders
in R85—ll
(Ibid.,
pp.
5—6).
Threshold Issues
We shall deal first with the threshold questions raised
in
this proceeding.
These
are,
first, whether federal law precludes
this Board from granting the relief sought, and second, whether
the unnamed tributary to the Mississippi River
into which East
Moline presently directs its effluent (generally referred to by
witnesses
at the hearing as “the ditch”)
is
a “water
of the
State”
for purposes of the Act.
Finally, East Moline expresses
“uncertainty” as to the applicability and effect
of
35
Ill.
Adm.
Code 304.103 and “mixing zone”
provisions.
Federal Law
As
to the question of federal
law, we are unpersuaded by the
Agency’s arguments.
The Agency has identified no reason why the
Board’s long-standing position on this
issue should change.
To
our knowledge, USEPA still has not promulgated regulations
establishing effluent limitations on water treatment plant
waste.
In the absence of such regulations, effluent limitations
are to be established on a case—by-case basis under CWA Section
402(a)(l).
The Agency has not identified any newer federal
guidelines which might countermand the USEPA directives upon
which the Board has relied since
its initial determination of
this issue on September
25,
1986,
in R85—ll
(72 PCB 429,
437—
438).
The Board also notes that CWA Section 402(a)(i) on its face
relates
to the permitting function, which
is the province of the
Agency.
That being
so,
it would appear
that, as East Moline has
suggested,
grant
by the Board of the requested regulatory relief
does not preclude the Agency from exercising its responsibilities
109—335
—14—
and discretion as the permitting agency for Illinois pursuant to
Section
39 of
the Act.
Under any outcome of this proceeding,
the
Agency will continue to be responsible
for establishing such
permit
terms and conditions as necessary to assure that effluent
discharges from East Moline do not violate or contribute to
violation of applicable standards,
including water quality
standards
(see
35
Ill.
Adm. Code 304.105).
As for the
“backsliding” issue,
the Board agrees with
Illinois—American that the anti—backsliding provisions do not
apply
to this proceeding
in the absence of promulgated federal
standards.
To hold otherwise would preclude the State from
exercising
its own judgment over
its own waters even where,
as
here,
there has been no corresponding federal pronouncement on
the subject.
Particularly inasmuch as the Agency retains its
permitting powers and responsibilities irrespective of the
Board’s determination in this proceeding,
“backsliding”
is not an
issue.
We also believe that,
to the extent that the permit terms
are themselves the subject of
a proceeding on appeal
in the
courts,
they cannot serve as the basis
for “backsliding”.
To
hold otherwise would make
a hollow exercise of the appeal process
and convey a measure of unfettered discretion to the permitting
agency which
is at odds with constitutional guaranties of due
process and equal protection (see Ill. Const.
1970, Art.
1,
Sec.
2).
Waters of the State
East Moline suggests that given the characteristics of the
ditch into which
it directs its effluent,
the ditch “could be
properly found
not
to be a water
of the State and,
therefore,
not
subject
to protection”
(PC #8,
p.
5).
Significantly, East Moline
cites no authority for this proposition.
This issue has
previously been before the Board and the courts.
In Tn—County
Landfill Co.
v.
Illinois Pollution Control Board,
41
Ill.
App.
3d
249,
53 N.E.2d 316
(1976),
the Appellate Court
for the Second
District, noting the sweeping purposes and goals of the
Environmental Protection Act, held that “waters of
the State”
means all waters located in the State,
including waters on
private land,
not
just such waters as are navigable.
The court
quoted the language of Section
11
(a)(i)
of the Act:
“(1)
that
pollution
of
the
waters
of
this
State
constitutes
a
menace
to
public
health
and
welfare,
creates
public
nuisances,
is
harmful
to
wildlife,
fish,
and aquatic
life,
impairs
domestic,
agricultural,
industrial,
recreational,
and
other
legitimate
beneficial
uses
of water,
depresses property values,
and
offends the senses.”
Nothing in this record suggests that the meaning and usage thus
adopted
by
the cnurt
in 1976
i.s no longer valid,
or that the
concerns exnressr~~~
by
the-
leçislai-L’re
in the excerpted portion
oi.
109—336
—15—
the Act
(which provision
remains intact to this day) are any less
compelling
now.
We find East Moline’s suggestion that the stream
or ditch is not a “water of the State”
is without merit.
Other Threshold Issues
East Moline has somewhat casually raised the issue
of
whether
35
Ill. Adm. Code 304.103 exempts
it from compliance with
the effluent standard for iron and manganese,
since these heavy
metals originate
in the raw water
of the Mississippi River
(PC
#8, pp.
3—4).
It
cites no authorities
for
its position and
acknowledges that its process does serve
to concentrate these
constituents
in its effluent
(Ibid.,
p.4).
As we did
in the
“companion” variance case, we find that
the concentrations of
iron and manganese
in East Moline’s effluent do not result
entirely from influent contamination as
35
Ill. Adm. Code 304.103
requires
(PCB 87—127,
slip op.
at p.
5,
November
15,
1989).
Finally,
East Moline states that “there
is some question
as to whether relief
is necessary from 35
Ill. Adm. Code 302.203
or
304.106”
(PC
#8,
p.
4).
East Moline suggests, again without
citing authority,
that a “mixing zone” concept applied to bottom
deposits
in the ditch would obviate the need for such relief
(Ibid., pp.4—5).
Again, as we did
in the
“companion” East Molirie
variance case Opinion, we reject East Moline’s arguments.
We
agree with the Agency that the mixing zone concept
is not
intended to apply to stationary bottom deposits.
Conclusions
We turn now to the question as
to whether East Moline
is
entitled to the permanent site—specific relief
it seeks.
As
noted above, that issue turns on whether East Moline has shown
that site—specific circumstances make compliance with the general
standards economically unreasonable.
For the reasons stated
below,
we have concluded that East Moline has failed to make that
showing.
East Moline’s first articulated argument
in support of its
contention that compliance with general standards would be
economically unreasonable
is rooted
in the alleged lack of
environmental impact associated
with
its discharges.
Since,
as
noted previously,
there are arguably two receiving bodies
of
water
(the “ditch” and the Mississippi River),
there are two
potential outcomes.
First, we conclude that East Moline’s assertions that no or
minimal environmental harm would result from continued unchecked
discharges from the plant
to the unnamed tributary (“ditch”)
are
contrary
to the evidence.
The record,
as noted above,
is clear
that East Moline’s discharges have substantially reduced
(in
excess of an order
of magnitude)
the number of benthic
invertebrate organisms
in the stream below East Moline’s outfall,
commensurately increased the depth of bottom sediments, and
109—337
—16—
altered the distribution and types of organisms in those
sediments, with sludge worms dominant near
the outfall.
Against
these significant negative results,
East Moline can offer only
a
slightly enhanced MBI value in downstream waters as a “positive”
attribute.
Our determination in this case is fully consistent
with our Opinion and Order
in the
“companion” variance case,
wherein we noted
that the record of
that proceeding persuaded us
that East Moline’s discharges
“do,
in fact,
present a serious
risk to the receiving stream”
(Ibid., p.
10).
Second,
although East Moline has demonstrated
a very limited
negative impact on the Mississippi River
from the storm sewer
outfall,.
it has neither shown the relative contribution of the
treatment plant discharge
to that outfall,
nor demonstrated that
a direct treatment plant discharge
(such as East Moline has
suggested as an “alternative”
to sludge lagoons) would have the
same characteristics and the same minimal
effects upon the
river.
Mr. Huff did testify that he expected the impact
from
such
a direct discharge would be the
“same type” as that
currently exhibited by the storm sewer
(Tr.
117), but he provided
virtually no foundation for
that statement.
We do not know the
relative contribution or
character of other sources tributary to
the storm sewer outfall.
We do not know where
a direct discharge
would
be located
in relation
to the features of the river.
We do
not know whether East Moline proposes
to equip the proposed
direct discharge with a high velocity discharger with a diffuser
as
it intimated at hearing
(Tr. 225—226),
or,
if
so, whether such
a device would be efficacious.
We do not know whether East
Moline would propose to extend the direct discharge further out
into the river
as
it also implied
(Tr.
226),
or,
if
so, whether
such an extension would be efficacious or,
indeed,
possible.
We should not be understood as saying
today
that such
a
“direct discharge” proposal has no merit.
Rather,
we
are merely
noting that whatever merits such a proposal may have were
not
presented
to us by East Moline;
the Board will not take it upon
itself to salvage an incomplete proposal or
to fashion a new
proposal from the remnants of another.
We are more nearly persuaded by East Moline’s argument that
East Moline’s situation
is analogous
to that of other dischargers
to
the Mississippi River.
However,
East Moline has not shown
that,
like Alton,
it requires permanent relief because
it
is.
physically prevented from constructing the required treatment
facilities on—site
by a lack of available space, by incompatible
adjacent land uses,
or by any other
factor.
It has not shown,
as
did Illinois—American
in the East
St.
Louis case,
that
it
requires temporary relief
to facilitate research into novel
treatment techniques.
In short,
it has not shown a comparable
combination cf factors that
wr~uld
distinguish
.~
~.
from the host of
Illinois cor~uunitieswhich are sub~~otto Illinois’ technolog~-
based standards.
The fact that communities
in other
states may
he ~.l.1owed
to pollute the river with
their.
r.,~blicwater supply
i09—3’~
—17—
treatment wastes
is beyond our ken and irrelevant
for purposes
of
determining the merits of a site—specific claim for relief.
We should not
be understood as ruling on the merits of the
concepts espoused by ORSANCO and endorsed by both East Moline and
Illinois-American.
However,
these concepts reflect an approach
which would represent a broad departure from Illinois’
current
technology-based standards, and must
be addressed in the context
of general
rulemaking,
not
in the context
of
a site—specific
rule.
To do otherwise would induce chaos and inequitable
treatment
of similarly—situated dischargers.
Moreover,
to do otherwise flies
in the face of this State’s
conscious decision, now decades old,
to reject
the notion that
environmental regulation must await proof of environmental
degradation.
The Environmental Protection Act and our
regulations thereunder essentially recognize,
through the device
of technology-based standards and the Act’s call for
environmental restoration and enhancement
(see,
e.g.,
§1(b)),
that real harm to the environment sometimes
results from the
cumulative effects
of many small injuries,
rather than
a single
blow.
It
is indeed difficult to identify or quantify the harm
where the subject
is a major body of water.
No better example
exists than that of the mighty Mississippi, which serves as the
drinking water
supply,
recreational resource and vital
transportation link
for millions of Americans.
We also believe that the comments of
the Board almost
20
years ago
in an opinion drafted by Mr. Currie are as relevant
today as they were then.
“...it
would
be
folly
to
set
effluent
standards
at
such
a
level
as
to
permit
existing
pollution
sources
in
every
case
to
degrade
the
water
to
the
level
set
by
the
standard.
To
do so would
transform standards
designed
to
protect
the
environment
into
licenses to degrade.
It would ignore
the fact
that
a
water
quality
standard prescribes
not
the ideal condition of the environment, but an
outer
limit
of
dirtiness
that
should
be
avoided
if
it
reasonably
can
be.
It
would
commit
us
to
the philosophy
of
allowing
the
environment
to
be as dirty
as we can bear
it,
when our correct philosophy
should
be
to make
the
environment
as
clean
as
we
reasonably
can.
Finally,
to allocate
to existing
users
the
entire
waste—diluting
capacity
of
the
environment
would
leave
no
room
for
new
industry,
encourage inefficient practices, and
either
discriminate
against
new
entrants
or
require
a
re—examination
and
tightening
of
effluent limit whenever
a new facilit’y was
109—339
—18—
contemplated.”
(R70—5,
Opinion,
p.
4
adopted
March
31,
1971.
Also see PCB 88—47,
p.
8).
We are completely unpersuaded by East Moline’s final
argument regarding economic reasonableness,
based on the
“compliance hardship”.
First,
we
generally reject
the rationale
underlying East Moline’s comparison of the costs,
in dollars per
pound per day,
of solids removal for East Moline as opposed to
other communities.
Such an approach
is
fundamentally at odds
with
a technology—based standard
(it is always harder
for some
persons
to comply with
a law or rule than it
is for other
persons).
Moreover,
such an approach leads us down the slippery
slope of attempting to divine the maximum “right” price of
compliance with standards.
At best,
the Board will consider such
statistics as secondary indicia of hardship.
Second, we agree with
the Agency that a temporary
10
rate
hike,
amounting
to approximately $2 per month per customer does
not constitute an unreasonable economic burden of
compliance.
In
a related vein, we find unpersuasive East Moline’s assertions
that this
10
increase would drive industrial users away;
the
previous 35
increase in rates resulted
in a documented loss of
only 1.6
of East Moline’s users
a
golf course and a car
wash(Tr.
187—188;
item #2
of Exh.
A of PC #8).
While
we are
sympathetic
to the present economic plight
of East Moline and its
residents, we cannot ignore the fact that East Moline has chosen
to put off compliance with the clear requirements of the law for
almost
20 years.
It has studied its options
to death,
without
a
single concrete step towards achieving compliance;
to this day,
East Moline has not selected a compliance alternative.
Meanwhile, according to its own testimony,
for much of the time
that
it has deferred decision and action
it was experiencing an
economic boom (Tr.
79; 82).
Taken together, we cannot conclude
that the economic
forces acting upon East Moline entitle
it to
permanent relief as requested.
Third,
we
do not believe that East Moline’s
long list of
competing water
treatment and water supply projects under
contemplation by East Moline render compliance with the general
effluent standards
of
35
Ill. Adm. Code 304.106 and 304.124(a)
economically unreasonable.
We agree with the Agency that many of
these projects are normal maintenance items with which water
suppliers must generally cope.
Certainly a long list of
competing uses for public funds could be assembled by any
community in Illinois; this hardly distinguishes East Moline.
We are mindful that our Opinion
in the “companion”
variance
case
(PCB 87—127)
includes several statements suggesting that at
least some of East Moline’s arguments
in that case were better
directed to seekina permanent reliE
as East Molii.e requests in
~his proceeding:
“Eas3-
Mclin~
arc’ue-~
-he.t.
~e
-ost
shouLl
perman~ntlyexcuse Fomoliance.
East i~cLine’s
109—340
—19—
arguments may be
relevant
to permanent
relief
in a site—specific proceeding but they are not
relevant
to
temporary
relief
in
a
variance
proceeding.”
(Ibid.,
p.
4)
“The
economic
reasonableness
arguments
put
forth
by
petitioners
are
not
appropriate
to
the
temporary
relief
contemplated
in
a
variance petition.”
(Ibid.,
p.7)
“Economic
reasonableness
speaks
to
the
standards
for
permanent,
not
temporary
relief.”
(Ibid.,
p.11)
Our decision today should not be construed as inconsistent
with these prior statements.
In
fact,
the blurring of the lines
distinguishing variance
requests and site—specific rulemakings
has occurred throughout
the instant proceeding
(e.g., Tr.
21;
51;
Exh.
1,
p.
12);
at one point during the hearing
in this docket,
the attending Board member noted the erroneous references
in the
petition and in testimony to “arbitrary and unreasonable
hardship” as grounds for site—specific rule relief
(Tr.
209).
We
have directed our attention in the instant proceeding
to those
factors relevant to the permanent rule
relief requested;
in the
“companion” variance case,
we focused on those factors enunciated
by law as applicable to the temporary variance relief requested
in that proceeding.
The statements quoted above from the
“companion”
variance Opinion were intended to clarify and
identify the relevant issues,
not
to prejudge the issues
in this
proceeding.
ORDER
For the reasons discussed above, the Board declines to
continue further with this proposed rulemaking.
The petition of
the City of East Moline is denied and this Docket
is closed.
IT IS SO ORDERED.
I, Dorothy
M. Gunn, clerk of the Illinois Pollution Control
Board, hereby certi,~vthatthe above Final Opinion and Order was
adopted on the
,~‘~-~‘--~
day of
~
,
1990 by
a vote
of
‘7—o
.
liiino
Control Board
109—341
