ILLINOIS POLLUTION CONTROL BOARD
April
10,
1986
IN THE MATTER OF:
)
SITE—SPECIFIC RULEMAKING
)
R85—15
FOR THE SANITARY DISTRICT
OF DECATUR
PROPOSED RULE.
SECOND NOTICE.
OPINION AND ORDER OF THE BOARD
(J.
Anderson):
On January 23, 1986,
the Board proposed to adopt
a new rule,
35
Iii. Adm. Code
304.212, which provides site—specific relief
from the
Board’s effluent discharge regulations
for the Sanitary
District
of Decatur
(District).
The parameters at
issue
are five
day biochemical
oxygen demand
(BOD5), which
is proposed
to be
limited
to 20 milligrams per liter
(mg/i),
and total suspended
solids (TSS), which
is proposed
to be limited
to
25 mg/l.
First notice of
the proposal was published
in the Illinois
Register
on February 21,
1986.
The first notice comment period
expired on April 6,
1986.
On March 17,
1986, the Board
received
written comments from the Illinois Environmental Protection
Agency (Agency), which also con~tainsubmissions
from the
District.
On March 25,
1986,
the District submitted
an
independent
filing
in which
it adopts and supports the Agency’s
comments: no other comment has been received.
The Agency comments specifically addressed five issues,
as
requested
in
the First Notice Opinion.
Based on review of
these
comments,
the Board will make
a change
in
the proposed rule
concerning restrictions
on ammonia—nitrogen
(NH3—N)
concentrations.
This and the other issues
in the comments are
discussed individually below.
IMPACT OF SUSPENDED SOLIDS
The Board
noted
in the First Notice Opinion that the record
as then developed contained minimal
information concerning
the
impact of the proposed increase
in
effluent TSS.
While
recognizing
that the proposed increase
in the BOD5 limitation
required an
attendant increase
in
the TSS limitation due
to
interrelationships between these two parameters,
the Board
believed
that further exposition of the environmental impact of
TSS should be presented before this matter proceeded further.
The Agency comments address this concern by providing
excerpts from the United States Environmental Protection Agency’s
“Quality Criteria for Water” and the American Fisheries Society’s
“A Review
of the EPA Red Book:
Quality Criteria for Water”
(Comments,
Exh.
1
and
2).
These excerpts present,
inter
alia,
69.209
—2—
the effects
of TSS
on aquatic communities, and conclude that TSS
concentrations under
25 mg/i provide
a “high
level
of protection”
and that concentrations under
80 mg/i provide
a “moderate level
of protection”.
The Agency further notes that TSS concentrations
above
80 mg/i do occur at water quality stations located
downstream from Decatur,
associated principally with high flow
events.
The Agency thereby concludes that “the District’s
discharge,
at 25 mg/i TSS, will not cause or contribute to
excessive suspended solids levels
in the river”.
The Agency also
concludes that the District’s discharge should not
result in any
identifiable bottom deposits.
With the addition of these observations,
the Board
determines
that the matter
of environmental impact of the
proposed TSS effluent limitation
is now adequately addressed in
the record and that no alteration
in the TSS aspect of the First
Notice Rule
is warranted.
INSTREAM MONITORING
The second
issue raised by the Board
in the First Notice
Opinion and addressed
in the Agency’s comments
relates
to the
appropriateness of
requiring the District,
as
a provision of the
proposed rule,
to conduct instream monitoring
of dissolved oxygen
(DO) concentrations.
The concern of the Board on this
issue
stemmed from the District’s contention,
based on computer
modeling,
that the proposed relj~efwould not occasion violations
of the instream DO water quality standard.
The Board asked
whether addition monitoring would be necessary to enable
verification of this contention.
Both the Agency and
the District (Comments,
Exh
4) believe
that monitoring requirements specified as part of the rule would
not provide any meaningful benefit over existing program
authority.
They point out that it is the Agency’s prerogative
through the NPDES permitting process
to impose any necessary
requirement
as
to monitoring, pursuant
to
35
Ill.
Adm. Code
309.146
and Section 30l(b)(1)(C) of the Clean Water Act; that the
District already conducts monitoring of
instream DO;
and that the
Agency already monitors DO at three downstream ambient water
quality stations.
Thus,
the Agency and District contend that
adequate monitoring safeguards already exist,
and further that
adding
a specific monitoring provision in the rule would restrict
any flexibility
in future monitoring.
Based on these observations, the Board affirms its
determination
in the First Notice Opinion that
it would be
unwarranted
to specify instream monitoring provisions in the
proposed rule.
AMMONIA NITROGEN LIMITATION
In the First Notice Opinion the Board proposed that
the
District’s relief
be limited
to such times as when the NH3—N
69.210
—3—
effluent discharge
is less than or equal
to 1.5 mg/i.
This
proposal was based on demonstration by the District that at an
NH3—N discharge of 1.5 mg/i no violations of instream DO are
projected by the modeling studies, but an absence of
demonstration
of the same condition at higher NH3—N discharges.
The Board specifically asked that comments address whether the
1.5 mg/i restriction
is necessary,
and,
if necessary,
whether it
should apply under both warm and cold weather conditions.
In response the Agency and the District suggest that the
ammonia provisions of
35 111.
Adm. Code 302.212, which place
limitations on instream ammonia levels, are sufficient safeguard
to assure that the District’s facilities perform in accordance
with the modeling results.
The District has further affirmed
its
previous contention,
and the Agency agrees
(Comments,
p.4),
that
the design of the plant will allow treatment adequate
to meet the
water quality limitations of Section 302.212.
On this basis,
it
is asserted that an additional limitation on NH3—N
in the site—
specific rule
is unnecessary.
The Board notes that it
is explicit
in
35
Ill. Adm. Code
304.105 that an exception
to an effluent regulation,
as
is the
issue
here, does not remove the burden
of meeting water quality
standards.
The Board,
in fact, so emphasized
in the First Notice
Opinion.
Accordingly,
the existence of
a water quality
rule on
the same parameter, which in this case
is Section 302.212, could
be viewed
as
an effective limitation on effluent discharges.
While
the Board does not find this position broadly compelling,
in that
its logical extension
is that the existence
of water
quality standards negates the need for any parallel effluent
standards,
the Board nonetheless does determine
that there
is
merit
in allowing the water quality standards
to control
in this
case.
The Board does not at present have
a generally applicable
effluent standard for ammonia.
Moreover,
in promulgating Section
302.212,
the Board
noted,
inter alia,
that
it was
so doing “in
order
to relieve municipalities from the burden of ammonia
control where such control does not appear necessary to protect
the environment”
(In the matter
of:
Amendments to Title 35:
Environmental Protection;
Subtitle
C:
Water Pollution; Chapter
I:
Pollution Control Board
(Ammonia Nitrogen), R8l—23,
49 PCB
297).
Implicit in this determination is that,
for the case of
ammonia, performance
to water quality standards
is an acceptable
determinant of the appropriate level
of ammonia effluent
discharge.
The Board
sees
no reason why this strategy
is any
less appropriately applied
to the District’s discharge than it is
to other discharges across
the State.
Based on the above,
the Board determines that the inclusion
of an NH3—N limitation in the Decatur site—specific proposed rule
is unnecessary.
Accordingly,
the Board will delete the NH3—N
limitation provisions as proposed under
First Notice.
This
69-211
—4—
determination makes irrelevant
the matter of whether such
a
limitation should differ depending upon the temperature of the
receiving water.
BIOCHEMICAL OXYGEN DEMAND
The fourth
issue requested to be addressed
is the matter
of
the relationship between carbonaceous five—day biochemical oxygen
demand
(CBOD5)
and five—day biochemical oxygen demand
(BOD5).
This request was occasioned by the Board’s note that the
District’s modeling was based upon various scenarios of CBODç
discharge, but that the proposed rule is presented as
a liini? on
BOD5.
The Agency responded in
its comments that, as the Board
had noted in the First Notice Opinion, presenting
the proposed
rule
in
terms of BODç introduces
a safety factor
into the
modeling results.
TF~iscondition stems
from the fact that CBOD5
is
a component of the more general BOD5*.
Thus,
since
the
modeling
results indicate that 20 mg/i
of CBOD5 produces minimal
environmental impact, setting
of the proposed rule with
a
20 mg/i
BOlD5 limitation restricts the District to a lower CBODç output
than demonstrably produces minimal environmental impacE.
Based on this additional perspective, the Board will make no
modification
in the BOD5 provision of
the proposed rule.
LIMITED DURATION
(“SUNSET”)
PROVISION
The final issue addressed by the Agency
is the matter
of the
Board’s proposal
to limit
the requested relief
to
10 years
beginning from completion
of the District’s improvements.
This
is the “sunset” proposal.
The Board asked that two aspects
of
this proposal be addressed:
the impact such proposals might have
on procurement of
funding,
and the general appropriateness of
such proposals
in certain site—specific rulemakirigs.
It
is the Agency’s belief that
a sunset provision should
have
no effect on federal funding,
since
the purpose of the
federal program
is
to enable
a facility to meet
final effluent
limits at the time of completion
(Comments,
p.12).
The matter
of
whether
the procurement of other capital funding would
be
affected is less certain.
Since this funding
is
typically
achieved through the issuance of twenty—year
bonds, the Agency
speculates that
a ten—year limit “could conflict” with this
issuance
(Comments,
p.12).
No more substantial perspective
is
offered.
At the outset, the Board notes that
it
is persuaded by the
Agency arguments,
at least
in part,
against including
a “sunset”
provision in this particular
site—specific.
The following
concerns,
taken
together, weigh against the inclusion.
*In the District’s current effluent CBOD5 comprises approximately
61
of the
BOlD5 (Comments, p.5).
69-212
—5—
The
implications of,
and rationale for,
a
10 year sunset
provision as
it would
relate
to Decatur’s circumstances would
better have
been raised earlier and aired
at hearing.
However,
this statement
is not intended to imply that in other
circumstances airing at hearing
is
a necessary prerequisite to
establishing sunset provisions.
Additionally,
the Board’s
rationale supporting
“sunset”
in
large measure focused on
concerns applicable generally
to site—specific regulations
(and
arguably
to general regulations),
rather than concerns special
to
the Decatur
situation.*
Next,
the effect
of specific sunset
language on
local bond issues
is
a matter that needs further
consideration.
Finally,
the Board, on balance, does not feel
that
a sunset provision
is so essential
in Decatur’s case, given
other
review benchmarks,
as
to warrant delaying the decision in
order
to hold further hearings.
In so holding, however,
the Board wishes
to emphasize its
areas of disagreement with
the Agency’s comments,
as follows.
In addressing
the general merits
of sunsetting certain site—
specific rules,
the Agency first questions whether the Board
presently possesses authority to do
so.
The Agency points out
that both the Illinois Environmental Protection Act
(Act)
and the
Board’s procedural
rules
are silent on the matter of limiting
the
duration of
rules.
The Agency concedes that the Act does provide
the Board
authority to adopt procedural
rules which could
include
provisions for sunsetting site—specific rules
(Comments, p.7—
8).
However,
the Agency believes that
the Board may not
impose
sunset provisions without first promulgating an enabling
procedural
rule;
to do otherwise,
the Agency argues,
would cause
the Board
to exceed
its authority.
The Agency additionally notes that
a higher court may
invalidate
a Board regulation
if
it
is clearly arbitrary,
unreasonable,
or capricious,
and believes
that it may
“be argued
that in the absence of
a procedural rule setting
forth criteria
for
the imposition of
a limited duration provision in
a site—
specific rule the Board’s action
in doing
so would
be arbitrary
and capricious”
(Corrnnents, p.10).
The Board does not find compelling
the argument that there
must
be underlying procedural
rules before sunsetting
on a site—
specific basis,
although this route might
be more desirable.
Section
27(a)
of
the Act delegates a broad rulemaking authority
to the
Board and authorizes,
inter
alia,
that “any such
regulations may make different provisions
as required by
circumstances
for different contaminant sources and
for different
geographical areas”.
The same section concludes with the
*
The Board recognized
this in asking
for general comments on the
concept.
These general comments on the policy aspects will
be
further
considered
in R82—36,
the generally applicable regulatory
proceeding.
69-213
—6—
statement that “the generality of this grant
of authority shall
only be limited by the specifications of particular classes of
regulations elsewhere
in
this Act”.
No restriction on sunsetting
exist elsewhere
in the Act.
Moreover, sunsetting may prudently
be viewed as within
the scope of Board authority
to make
different provisions
as required by circumstances for different
contaminant sources and for different geographical areas.
Therefore,
the Board determines that it presently does have
authority to promulgate sunset provisions
in rulemakings,
as
circumstances may warrant.
While the Board allows that a
procedural rule specifying procedures for sunsetting may have
merit*,
it does not believe its existence
is a necessary
condition to
a determination that sunsetting
is appropriate
in
any specific case.
The Agency also asserts that
the particular
facts
in this
proceeding do not justify a sunset provision.
The Board agrees
only insofar
as enunciated earlier.
The Board has not retreated
from its concerns expressed
in the First Notice Opinion,
including loss of justification with time,
inequitable future
distribution of
the spoils and burdens of environmental
regulation, assignment
of the burden of justification for
exceptions
to rules, evolution of treatment technologies and
understanding of appropriate environmental controls, and
obsolescence of rules.
The Agency further
argues that the ten—year period
is
arbitrary,
in that
it bears no relationship
to any of the
following:
the expected timetables of funding,
the expected
performance of the treatment facilities,
the projected impacts
upon the Sangamon River,
the projected growth of
the City
of
Decatur,
or the potential development of downstream uses.
The
Board concedes
that the above listed criteria were not given
weight
in determination of the proposed ten—year duration of the
rule,
and could legitimately be
raised at hearing.
However,
it
should also
be noted
that,
in the First Notice Opinion,
the Board
determined that “a ten—year exception should provide a
sufficiently long period for observation and study
so that a
well—informed decision on the continuing merits can then be
made”.
Lastly,
the Agency argues
that:
there
is
no
substantial
benefit
in
requiring
the
Board
to
re—evaluate
the proposed
relief
after
ten
years.
Since
no
water
quality
standards
would
be
relaxed,
the
Agency
has
the
capability
to
modify
permit
requirements
at
any
time
to
eliminate
violations.
In addition, permits may be issued
for
a
maximum
of
five years.
The
renewal process will
*However,
the Board notes
that the instant matter
is not the
proper forum within which such merits might be debated.
69-214
—7—
allow
the
assessment
of
water
quality
in
the
Sangamon
River
and
any
conflict
between
the
operations
of
the
District
and
downstream
dischargers.
Agency
review will
be more timely and
efficient in this matter.
(Comments,
p.12)
The Agency’s argument fails
to recognize the sharp distinction
in
responsibilities delegated to the Board
and the Agency by
the
Act.
Section 5(b)
of the Act plainly states:
The
Board
shall determine,
define
and
implement
the
environmental
control
standards
applicable
in
the
State
of
Illinois
and
may
adopt
rules
and
regulations
in
accordance
with
Title
VII
of
this
Act.
Though
the functions performed
by the Agency obviously are
crucial
to the State and multivariate
in nature,
the Board
is the
entity
in Illinois created
to “determine,
define and
implement”
environmental control regulations.
Exercise
of this authority
necessarily involves
a certain amount of judgement and discretion
that only the Board
can appropriately exercize.
The Board must
assume
responsibility,
both concurrently and
in
the future,
for
the decisions
it reaches.
For
this reason
the Board must be the
entity
to
re—evaluate
the proposed relief after
ten years
if
in
fact such re—evaluation necessarily must take place.
Given that
the relief could only emanate from the Board
initially,
it
is
appropriate that the Board determine
the continuing validity
of
that relief
in the future.
Based
on
the foregoing,
the Board will delete
the provision
in
its First Notice proposal
that the rule be
of
a defined
duration.
ORDER
The Board hereby directs
that second notice of the following
proposed rule be submitted
to the Joint Committee on
Administrative Rules:
69.215
—8—
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE C:
WATER POLLUTION
CHAPTER I:
POLLUTION CONTROL BOARD
PART 304
SUBPART B:
SITE—SPECIFIC RULES
AND
EXCEPTIONS
NOT OF GENERAL APPLICABILITY
Section 304.212 Sanitary District of Decatur Discharges
a)
This Section applies only to effluent discharges from
the Sanitary District of Decatur’s Sewage Treatment
Plant
into the Sangamon River, Macon County,
Illinois.
b)
The provisions of Section 304.120(c) shall not apply to
said discharges, provided that said discharges
shall not
exceed
20 mg/l
of five day biochemical oxygen demand
(BOD5)
(STORET number 00310)
and
25 mg/l of total
suspended solids (STORET number 00530).
IT
IS SO ORDERED.
J. Dumelle,
R.
Flemal
and
B.
Forcade concurred.
I, Dorothy M.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify that the above Proposed Rule/Second Notice
Opinion and Order was adopted on the
/o~Z
day of
~
1986,
by
a vote of
7—0
.
Dorothy
M.
unn, Clerk
Illinois Pollution Control Board
69-216