ILLINOIS POLLUTION CONTROL BOARD

January 22, 1987

CITY OF OTTAWA,          

)

)

Petitioner,

v.

)    PCB 86-165

)

ILLINOIS ENVIRONMENTAL      

)

PROTECTION AGENCY,        

)

)

Respondent.

OPINION AND ORDER OF THE BOARD (by J. Anderson):

This matter comes before the Board on the October 6, 1986

petition of the City of Ottawa (City) for an eighteen month

variance from the January 1, 1986 deadline date of 35 Ill. Adm.

Code 306.373. The City seeks variance to enable it to file a

petition for exception to the combined sewer overflow (CSO)

regulations pursuant to 35 Ill. Adm. Code 306.350 

306.374 on or

before July 1, 1987, and thus to avoid the necessity of seeking

equivalent relief via the filing of a petition for site-specific

rule change. On November 20, 1986, the Illinois Environmental

Protection Agency (Agency) filed a Recommendation that variance

be denied for the City’s failure to prove that denial of variance

would impose an arbitrary or unreasonable hardship. On December

18, 1986, the City filed a response to the Recommendation, which

the Board construes as an amended petition by virtue of the

supplemental facts contained therein. Hearing was waived and

none has been held.

While the City of Ottawa has actively pursued elimination of

combined sewer areas over the course of the past ten years,

approximately 507~ of its service area continues to rely upon

combined sewers. The Agency’s Recommendation notes that

“inspection of the City’s sewer system maps indicates that dry

weather discharges from several outfalls appear to be a

possibility, discharges from separate sanitary sewers are likely,

and some obvious bottlenecks are apparent”. The City disputes

the Agency’s statement concerning dry weather overflows, as not

borne out by the Infiltration/Inflow analysis of 1977 or the

Sewer System Evaulation Survey of 1979. The Agency has made

comments concerning nine outfalls. (Rec. p.2, Pet. Response,

p.1) CSO is discharged into the Fox and Illinois Rivers.

Preliminary studies made by the City concerning its CSO indicate

that these discharges have minimal impact on these rivers.

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The City has been a participant in the federal construction

grant program since “the late sixties”. Step 1 work has been

completed, and the City has applied for Step Il-Ill funding.

However, given the City’s funding priority number of 880, and the

fact that the effluent discharged from its treatment plant is in

compliance with the requirements of its NPDES permit, the City

doubts that it will receive federal funding. The City notes that

its 1981 Sewer System Evaluation Survey and Facility Plan

estimated that the local share for recommended improvements was

S3.5 million, assuming a 75 grant. Assuming no grant funding,

the City would need to spend over $10 million to achieve full

compliance with the CSO regulations (Pet. pp. 2-3.)

In support of its request for variance, the City asserts

that it was unaware of the January 1, 1986 deadline date for use

of the CSO exception procedure mechanism of 35 Ill. Adm. Code

Part 306. The City’s response to the Agency Recommendation

states that “we wish to comply with all of the State and

Federal regulations pertaining to CSO’s 

however, we wish to do

so in a calculated timely economical manner as we do have

financial constraints and citizens who are concerned with the day

to day cost of government” (Response, p. 4).

The City additionally notes that its public water supply

system is in need of various improvements. The City has been

placed on restricted status because the 6.2 pCi/l combined

radium-226 and radium—228 contents of its finished water is in

excess of the 5.0 pCi/i limit of 35 Ill. Adm. Code 604.301; the

City is currently seeking variance from the effects of restricted

status in PCB 86-179. To achieve compliance with this standard

will require capital expenditures of between $1 million and $4

million, depending upon the compliance option chosen, requiring

increases in water and sewer bills of between $5.00 and $18.00

per quarter. While the petition is somewhat unclear, it would

also appear that an additional $1,989,000 of improvements to the

drinking water treatment plant have been recommended, and that

four of these needed projects, which are currently underway, have

“depleted the waterworks and sewage operations funds” (Pet. p.

3).

The Agency has no concerns about the environmental effects

of grant of variance, correctly noting that the issue of what CSO

relief, if any, the City should receive will be adjudicated in a

subsequent proceeding. The question is whether the City should

be required to seek relief by the filing of a petition for site-

specific rule, or whether the City should be allowed to use the

procedurally streamlined CSO exception procedure.

The Agency has grave concerns about the precedential effects

of granting variance based on the showing made by the City.

While the Agency does not dispute the City’s assertion that it

was unaware of the January 1, 1986, it contends essentially that

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“ignorance of the law is no excuse” since every community is

obliged to keep informed of governmental regulations. While

recommending denial of variance, the Agency has suggested

imposition of various conditions in the event the Board should

grant the requested variance.

The Board appreciates the Agency’s concerns, and agrees that

a plea of ignorance, without more, would be insufficient to

support a finding of arbitrary or unreasonable hardship.

However, considering all of the circumstances here, the Board

finds that denial of variance would impose an arbitrary or

unreasonable hardship.

As the Agency acknowledges, while the City’s consultants

were on the Agency mailing list for letters detailing

implementation of the CSO program, the City itself was

inadvertently omitted from the list. While the Board agrees that

the Agency was under no obligation to contact the City

individually, it is also the fact that it is rare for Board

regulations to embody a cut-off date for use of a procedural

mechanism; the Agency’s outreach program was instrumental to

timely utilization of this procedure by the many communities

which have done so. The Board does not find that grant of

variance here will serve as precedent, since a) “the Agency does

not know of any other community that claims ignorance of the

January 1, 1986 deadline” (Rec. p. 5), and b) the circumstances

surrounding the adoption of a deadline for utilizing the CSO

exception procedure are unusual.

In adopting the CSO exception rules, one of the Board’s aims

was to assure that consideration of any adjustments in the CSO

aspects of sewerage system upgrading be promptly addressed, so as

to keep CSO upgrading “on track” with the overall compliance

programs. The petitioner benefits from the procedure because it

is not only less time consuming, but also less expensive than a

site-specific rulemaking; it also enhanced the potential

eligibility for any available construction grant funding. The

process also allows for the most efficient utilization of scarce

resources by the Board and the Agency, as well as the

petitioner. The Board also notes that it is in the public

interest to grant this variance. A CSO petition, if adequate,

can be processed in 3-4 months; a site-specific rulemaking can

take 18-24 months. The sooner the key decisions are made on CSO

controls needed, in Ottawa, the sooner the solution will come.

The environment will thus benefit.

Given that needs of the Board and the Agency for

maximization of resources remains the same, the lack of negative

environmental impact in using the exception procedures per se,

and the City’s history of effort to reduce its CSO, the City has

made an adequate showing that, given the multi-millions

dollars

it

will need to finance and expend to achieve compliance

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with the CSO and public water supply regulations, it is within

the best interests of its citizens to allow use of the more

economical procedure for consideration of the City’s request for

relief from full compliance with the CSO regulations. The Board

must again emphasize, however, that in the usual course of

events, ignorance of the existence of regulations will be

considered by the Board to be, at best, a self-imposed hardship.

The Board notes that the effect of its action is to give the

City six months to file a CSO petition. On the basis of this

record, it is difficult to determine whether, in choosing the

variance term, the City has “built-in” adequate time for the

Agency’s review of the City’s CSO information and determination

as to whether the Agency wishes to join with the City as a co-

petitioner as provided in Sections 306.351 

306.352. In the

event that such is not the case, the parties are invited to move

for reconsideration.

In summary, variance from 35 Ill. Adm. Code 306.373 is

granted until July 1, 1987, subject to conditions similar to

those suggested by the Agency.

This Opinion constitute the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1. The City of Ottawa is granted variance from 35 Ill. Adm. Code

306.373 unt~1July 1, 1987 to allow it to utilize the

combined sewer overflow exception procedure of 35 Ill. Adm.

Code 306.350 

306.374, subject to the following conditions:

A)  The submittal to the Agency required by Section 306.351

shall be made as expeditiously as is practicable so as

to allow adequate time for Agency review and

notification pursuant to Section 306.352.

B) In the event that the City determines not to file a

petition for CSO exception, the City shall notify the

Agency in writing of this decision on or before July 1,

1987.

C)  During the term of this variance, the City shall convey

CSO flows to its treatment plant to the maximum extent

practicable.

2. Within 45 days of the date of this Order, the Petitioner

shall execute and forward to Toby Frevert, Division of Water

Pollution Control, Planning Section, Illinois Environmental

Protection Agency, 2200 Churchill Road, Springfield, Illinois

62706, a Certificate of Acceptance and Agreement to be bound

to all terms and conditions of this variance. This forty-

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five day period shall be held in abeyance for any period this

matter is being appealed.

I, (We), 

_____________________,

having read the Order of

the Illinois Pollution Control Board in PCB 86-165, dated January

22, 1987, understand and accept the said Order, realizing that

such acceptance renders all terms and conditions thereto binding

and enforceable.

Petitioner

By: Authorized Agent

Title

Date

IT IS SO ORDERED.

I, Dorothy M. Cunn, Clerk of the Illinois Pollution Control

Board, hereby certify that tb~above Opinion and Order was

adopte/d on the 

~~~-r’

day of ~         

1987, by a vote

~-~-o

/~

—1 /~

(

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~—Lf,

~Dorothy M. éu~nn, Clerk

Illinois Pollution Control Board

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