ILLINOIS POLLUTION CONTROL BOARD
June
20,
1986
IN THE MATTER OF:
)
JOINT-PETITION OF THE AURORA
)
PCB 85—224
SANITARY DISTRICT, THE CITY OF
)
AURORA,
ILLINOIS AND THE
)
ILLINOIS EPA FOR AN EXCEPTION
)
FROM SECTION 306.305(a)
AND
(b)
)
TITLE
35:
ENVIRONMENTAL PROTECTION;
SUBTITLE
C:
WATER POLLUTION;
)
CHAPTER
I:
POLLUTION CONTROL BOARD
)
INTERIM OPINION AND ORDER OF THE BOARD
(by B. Forcade):
This matter comes before the Board on
a Joint Petition of
the Aurora Sanitary District
(“District”),
the City of Aurora,
Illinois
(“Aurora”) and
the Illinois Environmental Protection
Agency
(“Agency”)
for an exemption
to the Board’s combined sewer
overflow
(“CSO”) regulations,
filed December
31,
1985.
Hearing
was held
on March
6,
1986.
The Agency filed supplemental
information requested
at hearing and
a draft
order on April
7,
1986,
and May 12,
1986,
respectively.
At hearing,
it was ascertained
that of
a total
of
fourteen
(14)
sewer overflow points,
thirteen
(13)
go to the Fox River and
one
(1) goes
to Indian Creek
(R.
74).
The combined sewer
overflow going
to Indian Creek
is identified as one of the four
major overflow points
of the fourteen
in the system and would be
one of the major discharge points remaining after completion of
improvements (Joint Petition,
p.
2).
No information was con-
tained
in the Joint Petition regarding Indian Creek.
Petitioners
stated that
they had no data of any sort,
including flow data or
water quality data,
for Indian Creek nor had the discharge
to
Indian Creek been modeled
or analyzed
(R.
76, 79).
The Agency
testif~.edthat no biological analysis had been done regarding
Indian Creek
nor the impact
of the discharge
(R.
78).
The Agency hypothesized that there would be some
documentable biological degradation as
a result of the existing
overflow
(R. 78—79).
The Agency,
at the
request of the hearing
officer, did provide some information on Indian Creek
subsequent
to hearing.
The supplemental information indicates that Indian
Creek is
a general use waterway approximately seven miles
long
with a zero 7—day,
10—year Low Flow.
Discharge No.
25 outfalls
approximately one mile above
Indian Creek’s confluence with the
Fox Ri-ver
(Agency Supplemental Information, April
7,
1986,
R.
77).
This information would support
the Agency’s statement
at
hearing that Indian Creek
is probably adversely impacted to some
documentable degree.
70-265
—2—
Petitioners assert that their request for
relief from
Section 306.305(a)
and
(b)
is justified on the basis of minimal
discharge impact.
Section 306.361 establishes two levels of
justification that
joint petitioners must show
in order to
receive an exception from
the general regulations requiring
a
high level
of treatment.
Where
there
is a “minimal discharge
impact,” Section 306.361(a) establishes
a minimum quantum of
information
that must be provided
to the Board:
An
exception justification
based
upon minimal
discharge
impact
shall
include,
as
a minimum,
an
evaluation
of
receiving
stream
ratios,
known stream uses,
accessibility
to stream and
side land use activities
(residential, commer-
cial,
agricultural, industrial, recreational),
frequency
and
extent
of
overflow
events,
inspections
of
unnatural
bottom
deposits,
odors,
unnatural
floating
material
or
color,
stream
morphology
and
results
of
limited
stream chemical
analyses.
Section 306.361(b) provides:
Where
a minimal impact exception justification
cannot
be
established
pursuant
to
subsection
(a),
or
where
an
exception
will
include
a
modification
of
otherwise
applicable
water
quality
standards,
an
exception justification
shall
include,
as
a
minimum,
evaluations
pursuant
to
subsection
(a)
and evaluations
of
stream
sediment
analyses,
biological
surveys
(including
habitat
assessment),
and
thorough
stream chemical
analyses
that may include
but
are
not
limited
to
analysis
of
parameters
regulated
in
35
Ill.
Adm.
Code
302,
analysis
of
toxics
or
metals
if
the
collection
system
tributary
to
the
overflow
receives
wastes
which
might
contain
them,
sediment
oxygen
demand,
volatile
solids,
and
diurnal
moni-
toring
under
both
dry
and
wet
weather
conditions.
The Petitioners have provided the minimum information
required by
(a) for the discharges
to the Fox River.
The
evidence presented regarding the Fox River would seem
to support
the Agency’s contention that the impact of the discharges are
“localized,” rather than minimal, but that
it would
be difficult
to document any significant or
identifiable impact in terms of
water -chemistry of
the main flow area
(R.
78—80).
The evidence
presented would seem to support an exemption for discharges
to
the Fox River under Section 306.361(a),
although
it
is probably
a
close case.
However,
there
is very little information
in the
70.266
—3—
record
on Indian
Creek
and
the impact of discharge point No.
25
at present or after completion
of improvements.
Clearly the
minimum levels of justification envisioned under Section
306.361(a) have not been met.
From an initial review of the
situation,
it would appear
that Section 306.361(b)
levels of
justification would be necessary for the discharge to Indian
Creek.
The only evidence currently
in the record supports the
conclusion that Indian Creek
is
a
low flow stream which receives
a very large discharge and, consequently, experiences
identifiable adverse impact (Joint Petition, p.
2;
R. 76—81;
Agency Supplemental Information,
April,
1986).
Because of
the deficiencies
in the record regarding Indian
Creek,
the Board cannot begin to assess
the environmental impact
or weigh
appropriate factors
to come to
a final decision on this
CSO petition.
What little information does exist points to
potentially significant impact.
However,
at this stage
in the
proceeding,
it
is difficult to assess which
level
of
justification
in Section 306.361 needs to
be met.
It
is clear,
however,
that not even the “minimal impact”
level
of
justification has been provided, even
if
it were appropriate.
Section 306.371(b) provides,
in pertinent part,
that:
“The
Board
shall
issue
and enter
such orders
concerning
a
petition
for
exception
as
are
appropriate
for
the
reasons
stated
in
its
written opinion.
Such appropriate
orders may
include
but
are
not
limited
to
orders
directing
that
further
hearings
be
held
to
develop
further
information
or
to
cure
any
procedural
defects
or
remanding
the petition
to
the
petitioners
with
suggested
revisions.
And
the
hearing
shall
be
held
on
any
revised
petition exception.”
The Board
will,
for the reasons outlined
in this Opinion,
remand
the petition back
to the joint petitioners.
Petitioners
are directed
to develop further information
regarding Indian
Creek and the impact of the discharge consistent with the levels
of justification established
in Section 306.361
Upon filing of
the amended petition,
the Board will schedule
a second hearing
and consider
further action
in this proceeding.
70-267
—4—
ORDER
Pursuant to Section 306.371,
this matter
is
remanded
to
the
Petitioners
to develop further information regarding Indian Creek
and the impact
of the discharge consistent with the levels of
justification established
in Section 306.361.
Hearing will
be
held upon filing
of an amended petition.
IT
IS SO ORDERED.
I, Dorothy M. Gunn, Clerk
of
the Illinois Pollution Control
Board, hereby certify that the above Interim Opinion and Order
was adopted
on the~~—~
day of
____________________,
1986, by a
vote of
7-o
.
/7
,~-
~
~Dorothy
N. Gu~n,Clerk
Illinois Pollution Control Board
70-268