ILLINOIS POLLUTION CONTROL BOARD

November

2,

1978

VILLAGE OF BLOOMINGDALE,

Petitioner,

v.

)

PCB 78—124

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

OPINION OF

THE

BOARD

(by Mr. Dumelle):

The Village of Bloomingdale

(Blooniingdale)

requested a

variance from Rule 203(d), Rule

203(f)

as

it pertains to ammonia

nitrogen,

Rule 402 as it pertains to dissolved oxygen and ammonia

nitrogen,

Rule 404(f)

and Rule 962(a)

of Chapter

3:

Water Pollu-

tion of the Board’s Rules and Regulations.

On motion of the

Agency,

287 additional dischargers were joined as parties in this

matter.

A hearing was held on October 13,

1978

in the Civic

Center

in the Village

of Glendale Heights.

Bloomingdale

is seeking this relief

in order to obtain

a per-

mit to construct an interim expansion of its sewage treatment

facilities.

The expansion will produce an effluent of

10 mg/i

BOD and 12 mg/i suspended solids

(10/12).

Normally this level

would

be acceptable and no variance would be necessary if Blooming-

dale made

a demonstration under Rule 404(f) (ii)

of Chapter

3.

The

Agency advised Bloomingdale that such a demonstration could not be

made because of a study undertaken by the Northeastern

Illinois

Planning Commission

(NIPC).

The NIPC study is

a model which pre-

dicts violations of the Board’s Water Quality Standards

for

dissolved oxygen throughout the six county Chicago metropolitan

area.

The Agency asked that all point source dischargers

in the

six county area be joined in this matter because of the NIPC

study.

The Agency contends that

this study prohibits the issuance

of any permit which provides for a discharge

in excess of

4 mg/i

BOD and

5 mg/i suspended solids

(4/5)

without extensive proof

from each discharger

in the six county area that no violation of

water quality standards will occur.

The Agency feels that this

proof would be very costly and would

serve no useful purpose.

This feeling

is based

in part on the fact that the 4/5 standard

is presently under review in a regulatory proceeding

(R77-l2,

Docket C).

If the Board adopts the Agency’s proposal

in R77-12,

the 4/5 standard would be eliminated.

The NIPC study is being

completed as a part of

a review of water quality management under

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Section 208 of the Clean Water Act.

Once that review is complete,

a comprehensive plan will be developed which will cover all point

and non—point sources of water pollution in the six county area.

As a part of this plan,

an implementation schedule will be pre-

scribed to bring all sources into compliance with its provisions.

Rule 902(j) (4) provides that the Agency may not issue any NPDES

permit which authorizes a discharge

in conflict with a plan

approved under Section 208 of the Clean Water Act.

Consequently

the Agency feels that it would be inappropriate to require all the

dischargers in the six county area to provide proof that their

discharges do not cause or contribute

to violations

of the Board’s

Water Quality Standards when regulatory relief may render the proof

unnecessary or the Section

208 planning process may supersede

present standards.

The NIPC study is a model which employs the techniques of

computer simulation

to predict

the impact of various alternate

strategies for water pollution control.

At the hearing the

Metropolitan Sanitary District of Greater Chicago

(MSD),

one of

the joined parties, challenged the accuracy of the model’s pre-

dictions.

The MSD claimed that the model had not been sufficient-

ly calibrated or verified.

While the MSD supported the grant of

a variance to all dischargers

in the six county area,

it felt that

this position was adequately supported by actual field data and

that use of the model

in this instance was unnecessary and unwarran-

ted.

The Board finds that

it need not determine whether or not the

model’s predictions are accurate.

By its very existence the NIPC

study provides evidence of possible present and future violations

of the Board’s dissolved oxygen water quality standard.

While the

model does not provide

conclusive proof that any individual dis-

charge will cause or contribute to violations,

the Board sees no

reason why the model’s conclusions should be challenged

in a series

of permit denial appeals

or obviated

in a series of variances.

Extensive litigation would constitute economic hardship on hundreds

of dischargers and would impose an administrative burden on the

Agency.

This hardship is rendered arbitrary or unreasonable by

virtue of the fact that

it may be needless.

Pending regulatory

changes may remove the need for some of this litigation.

In its Recommendation,

the Agency claimed that Bloomingdale

had not demonstrated adequate hardship in being required to meet

the ammonia nitrogen standards

in Rule 402.1 of Chapter

3.

At

the hearing, Bloomingdale withdrew its request for relief from

the ammonia nitrogen standards.

Consequently relief from the

ammonia nitrogen standards

is denied.

Two of the joined parties testified at the hearing that they

were presently discharging at levels

in excess of the 10/12 stan-

dard pursuant to variances.

In its Recommendation the Agency

asks that any joined party whose discharge

is not covered by Rule

404(f)

be allowed to continue discharging at currently permitted

levels.

Each of these dischargers would then be subject to

a case—

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by-case review at the time its NPDES permit

is reissued.

The Board

agrees that its decision in this matter should not have any effect

on existing variances.

The Agency’s proposed method of handling

discharges not covered by Rule 404(f)

is acceptable with the

following conditions.

During the term of this variance no discharge

shall be set at a level more stringent than the 10/12 standard,

and

no party

is forfeiting any right to seek review of an Agency

decision through the procedures established

in the Board’s regula-

tons,

All dischargers affected by the Board’s decision in R77-l2,

Docket C shall be required

to comply with that decision.

The Agency has recommended that Bloorningdale and each joined

party be required to execute a Certification of Acceptance and

Agreement to be bound by the terms of this variance.

Since no

conditions are being attached to the grant of this variance,

the

Board finds that no purpose would be served by such a Certification

and none will be required.

The relief granted

in this proceeding

is unusual.

The Board’s

decision to acquiesce in this procedure should not be construed as

a recommendation that this practice be followed in the future.

The facts here called for a broad response to a particular set of

circumstances.

Whenever possible the Board’s rulemaking procedures

should be followed to cover classes of dischargers.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

I, Christan

L. Moffett, Clerk of the Illinois Pollution

Control Bo~rd, hereby certify the above Opi

on was adopted on

the

~

day of

,

,

1978 by

a vote of

_______

_________________

Illinois Pollution Control Board

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