ILLINOIS POLLUTION CONTROL BOARD

February 22,

1990

IN THE MATTER OF:

)

THE PETITION OF THE CITY OF

)

R 88-25

HAVANA FOR A SITE-SPECIFIC

)

(Site-Specific)

Rulemaking

RULE CHANGE TO THE COMBINED

SEWER OVERFLOW REGULATIONS

)

PROPOSED RULE

SECOND NOTICE

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 Iii.

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.

The

Board today adopts the

proposed rule for Second Notice.

PROCEDUR~.LHISTORY

The procedural history leading to First Notice is detailed in

the Board’s First Notice Opinion and will not be reiterated here.

The Board received two Public Comments

(PC

#)

since First Notice

publication.

PC

#3 was

filed by the Administrative Code Unit of

the

Secretary

of

State’s

Office

and

addresses

nonsubstantive

changes to the proposed rule to conform to the Joint Committee on

Administrative Rules (JCAR) requirements.

Havana filed PC #4 which

consists of 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.

BACXGROUND

The factual background of this case was detailed

in the First

Notice Opinion and we will only briefly summarize those facts here.

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,

lqR—2S5

---

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.

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 dose 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 over-flow 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.

(u.)

The total

capital cost for this project would be

$

5.6 million.

(id.

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 affordability

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.)

These studies were summarized

in detail

in the Board’s First

Notice Opinion and will not be repeated here.

The Board notes that

the results

of these studies

support Havana’s position regarding

I ~—2S6

---

environmental impact and have not been seriously challenged by the

Agency.

CONCLUSION

Initially,

the

Board

notes

that

although

inquiries

into

whether

evidence

of

a

significant

environmental

impact

from

Havana’s discharge exists and whether more economically reasonable

methods of full or partial compliance are available to Havana were

posed at First Notice, no such evidence has been 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,

we

noted

in

the

First

Notice

Opinion

that

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

is

convinced

that Havana has sufficiently investigated alternative compliance

plans.

The

Board

also

remains

persuaded

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 proceed to Second Notice.

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 today adopts the proposal

for Second Notice.

ORDER

The Board hereby proposes the following amendment to

35 Ill.

Adn. Code 306.

The Board directs that these additions be submitted

to the Joint Committee on Administrative Rules.

I

03

287

---

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 subject

to the treatment

r~quireTnents of

Section

306.305(a)

nor

the

compliance

date

of

Section 306.306(c).

The Washington Street discharge is located at

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 40°, 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

9 West

of the Third Principal Meridian

and can further

be

defined

as

being

located

at

North

40°, 17

minutes

35

seconds

latitude añd’West 90,

4 minutes

5 seconds longitude.

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 of

~‘

Dorothy

M. Gunn,

Clerk

Illinois Pollution Control Board

108—288