97078D.PDF

ILLINOIS POLLUTION CONTROL BOARD

January 23, 1997

DEKALB SANITARY DISTRICT,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 97-78

(Variance - NPDES)

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

On October 30 1996 the DeKalb Sanitary District (District) filed a request for variance

from the Board's regulations at 35 Ill. Adm. Code 304.141 and 304.120(c), as they apply to

the District's effluent discharges of carbonaceous biochemical oxygen demand (CBOD

) and

total suspended solids (TSS).

The District requests the variance for a period of four months

to complete construction of its tertiary facility.

On December 2, 1996 the Illinois Environmental Protection Agency (Agency) filed its

recommendation, recommending that the variance be granted with certain conditions.

The

District did not file a response to the Agency’s recommendation. The District waived hearing

in its petition, and no hearing was held.

The Board's responsibility in this matter arises from the Environmental Protection Act

(Act) (415 ILCS 5/1

et seq.

(1994).) The Board is charged in the Act with the responsibility

of granting variance from Board regulations whenever it is found that compliance with the

regulations would impose an arbitrary or unreasonable hardship upon the petitioner. (415

ILCS 5/35(a).) The Agency is required to appear in hearings on variance petitions. (415

ILCS 5/4(f).) The Agency is also charged, among other matters, with the responsibility of

investigating each variance petition and making a recommendation to the Board as to the

disposition of the petition. (415 ILCS 5/37(a).)

BACKGROUND

The District states that it has received two provisional variances to perform

rehabilitation and corrosion control on the sand filter units, and past experience has indicated

that it can achieve CBOD

monthly averages of 15 mg/1 with a daily maximum of 30 mg/1

The petition filed by the District will be referenced to as “Pet. at ” and petitioners exhibits

will be referenced to as “Exh. at .”

The Agency’s recommendation will be referred to as “Rec. at .”

and TSS monthly averages of 30 mg/1 with a daily maximum of 50 mg/1.

(Pet. at 1.) The

District is requesting the variance so that it may exceed its National Pollution Discharge

Elimination System (NPDES) permit discharge limits for TSS and CBOD

for its main

wastewater treatment plant for a period of four months during tertiary facility rehabilitation

scheduled concurrent with ongoing plant expansion. (Pet. at 1.) The Agency states that the

District is "requesting a variance from the Illinois PCB’s regulations requiring discharges of

five-day carbonaceous biochemical oxygen demand (CBOD5) and total suspended solids (TSS)

not to exceed 10 and 12 milligrams per liter monthly average, respectively, as found at 35 Ill.

Adm. Code 304.120(c)." (Rec. at 1.) The Agency also states that the District is seeking relief

from 35 Ill. Adm. Code 304.141(a) NPDES Effluent Standards. (Rec. at 1.) The Agency

further asserts that the requested variance would specifically provide relief from the

requirements of 35 Ill. Adm. Code 304.120(c) and 304.141(a). (Rec. at 1.)

The District's main plant serves a Facilities Planning Area which includes the City of

DeKalb, the Town of Cortland, and adjacent commercial and industrial areas. (Pet. at 2.)

The District claims that the limits of the Facilities Planning Area are as indicated in the

Facility Plan on file with the Agency (EPA No. C171334). (Pet. at 2.) The District asserts

that the population served is approximately 40,000 persons. The District employs 15 persons

at its facility. (Pet. at 2.)

The District’s main wastewater treatment plant currently discharges approximately 5.99

MGD (average daily flow) of treated plant effluent. (Pet. at 2.) The District's plant

discharges directly to the South Branch of the Kishwaukee River at designated 001 STP

outfall. (Pet. at 2.) Currently, there is a major expansion project underway which will

increase plant capacity due to need caused by substantial development in this area. (Pet. at 2.)

The District states that the rehabilitation of the tertiary filter building includes removal of all

eight cell appurtenances, structural repairs, replacement of cell filtration elements,

miscellaneous valve repairs and replacements, a new control system, preservation, and media

replacement, and will cost $386,192. (Pet. at 2.) The Agency asserts that the District is

presently involved in a 8.85 million dollar improvement and expansion project for its facility.

(Rec. at 2.) The Agency claims that only a portion of this project involves a comprehensive

overhaul of the eight tertiary filter cells at the facility to repair damage caused by wear and

corrosion. (Rec. at 2.) The Agency states that "[t]his work will include removal of the

existing filter media, hold down beams, perimeter anchors, the entire underdrain system, the

backwash trough V-notch weirs, the splash plates and the underdrain support channels." (Rec.

at 2.)

The District states that the tertiary facility at issue is composed of eight individual sand

filtration cells housed in one building with supporting pumps, compressors, and electrical

control components. (Pet. at 2.) The District asserts that each of the filtration cells is

fabricated from steel, with I-beam underdrain support rails and that ten inches of sand is

located above the stainless steel screens that are supported by the above underdrain rail system.

The District's prior provisional variances were granted in PCB 93-127, July, 1, 1993 and

PCB 96-104, November 16, 1995.

(Pet. at 2.) The District states that the wastewater is filtered through the above described

filtration system removing CBOD

and TSS prior to disinfection and discharge to the receiving

stream. (Pet. at 2.) The District claims that frequently the underdrain support system fails

and treatment unit corrosion, among other issues associated with the operation of the facility,

must be corrected to assure future process reliability and compliance with the NPDES limits as

defined in the District's NPDES permit. (Pet. at 2.) The District states that its eight cell sand

filter process was designed to meet the 10 CBOD

/12 TSS daily limits with seven cells in

operation and one backwash condition. (Pet. at 2.) However, the District maintains as the

cells fail and no longer function, the system begins to have fewer units “on-line" to meet

requirements and the viable units become overloaded and thus fail more frequently. (Pet. at

2.)

The District claims that excessive man hours, downtime and expenses have been the

result of structural problems and that the advanced stage of deterioration and high maintenance

requirements dictated that a major renovation be prudent to enable it to continue to meet

discharge limits well into 21st century. (Pet. at 2.) The District states that by undertaking the

renovation concurrently with the ongoing plant expansion it will ensure greater reliability of its

tertiary treatment component for the next twenty plus years. (Pet. at 2.) The District asserts

that the replacement components will remain basically the same as those existing, however, the

equipment currently is in an advanced state of deterioration and will be replaced with state-of-

the-art components. (Pet. at 3.) The District claims that the structural rehabilitation will

provide the cell components with an extended life-expectancy through better design of

supporting structures and replacement of existing decayed infrastructure. (Pet. at 3.)

The Agency states that it agrees with the facts described in the District's petition and

believes, after viewing all the facts, that the only means to perform the necessary refurbishing

work described above is to remove the tertiary filters from service. (Rec. at 3.) Furthermore,

the Agency agrees with the District's statement that the only means of compliance is to employ

an alternate tertiary treatment system during the four month period, and that no such

alternative system is presently available to the District. (Rec. at 3-4.)

REGULATORY FRAMEWORK

The District is requesting a variance from the Board's water regulations set forth at 35

Ill. Adm. Code 304.141, NPDES Effluent Standards, and 35 Ill. Adm. Code 304.120,

Deoxygenating Wastes. The pertinent language of those sections are as follows:

Section 304.141 NPDES Effluent Standards

a) No person to whom an NPDES Permit has been issued may discharge any

contaminant in his effluent in excess of the standards and limitations for that

contaminant which are set forth in his permit.

Section 304.120 Deoxygenating Wastes

c) No effluent whose dilution ratio is less than five to one shall exceed 10 mg/1

of BOD

or 12 mg/1 of suspended solids, except that sources employing

third-stage treatment lagoons shall be exempt from this subsection provided

all of the following conditions are met:

1) The waste source qualifies under one of the following categories:

A) Any wastewater treatment works with an untreated waste load

less than 2500 population equivalents which is sufficiently

isolated that combining with other sources to aggregate 2500

population equivalents or more is not practicable.

B) Any wastewater treatment works in existence and employing

third stage treatment lagoons on January 1, 1986 whose

untreated waste load is 5000 population equivalents or less and

sufficiently isolated that combining to aggregate 5000

population equivalents or more is not practicable.

C) Any wastewater treatment works with an untreated waste load

of 5000 population equivalents or less, which has reached the

end of its useful life by January 1, 1987, and is sufficiently

isolated that combining to aggregate 5000 population

equivalents or more is not practicable.

D) Any wastewater treatment works with an untreated waste load

of 5000 population equivalents or less which has reached the

end of its useful life and which has received an adjusted

standard determination from the Board that it qualifies for a

lagoon exemption. Such a Board determination will only be

made in an adjusted standard proceeding, held in accordance

with Section 28.1 of the Environmental Protection Act (Ill.

Rev. Stat. 1987, ch. 111 ½, par. 1028.1) and applicable

procedures set forth by 35 Ill. Adm. Code 106.

i) In an adjusted standard proceeding the Board may

determine that the petitioning wastewater treatment

source qualifies for a lagoon exemption if the

wastewater treatment works proves that it is so situated

that a land treatment system is not a suitable treatment

alternative. Factors relevant to a suitability finding

may include the following: cost; influent character;

geographic characteristics; climate; soil conditions;

hydrologic conditions; and the availability of irrigable

land.

ii) For the purposes of this subsection (D), a land

treatment system is a wastewater treatment system

which does not directly discharge treated effluent to

waters of the State but instead uses the treated effluent

to irrigate terrestrial vegetation.

In determining whether any variance is to be granted, the Act requires the Board to

determine whether a petitioner has presented adequate proof that immediate compliance with

the Board regulations at issue would impose an arbitrary or unreasonable hardship. (415 ILCS

5/35(a)(1994).) Further, the burden is on the petitioner to show that its claimed hardship

outweighs the public interest in attaining compliance with regulations designed to protect the

public. (Willowbrook Motel v. Pollution Control Board, 135 Ill. App.3d 343, 481 N.E.2d

1032 (1985).) Only with such a showing can the claimed hardship rise to the level of arbitrary

or unreasonable hardship.

A further feature of a variance is that it is, by its nature, a temporary reprieve from

compliance with the Board's regulations, and compliance is to be sought regardless of the

hardship which the task of eventual compliance presents an individual polluter. (Monsanto

Co. v. Pollution Control Board, 67 Ill.2d 276, 367 N.E.2d 684 (1977).) Accordingly, except

in certain special circumstances, a variance petitioner is required, as a condition to grant of

variance, to commit to a plan which is reasonably calculated to achieve compliance within the

terms of the variance.

COMPLIANCE PLAN

The District states that the project start date was Fall 1996 and that the rehabilitation

project is estimated to take four months. (Pet. at 3.) The District asserts that "[c]ompliance

has been maintained during the past several years, however, corrective repairs at this time to

the tertiary facility will assure continued reliability of the tertiary facility in the future." (Pet.

at 3.) DeKalb claims that the past efforts to achieve compliance have included two provisional

variances to allow for filter renewal which included sandblasting and painting as well as some

structural improvements. (Pet. at 3.) The District maintains that the current project should

provide it with a “new” filter process that should achieve and maintain compliance. (Pet. at 2-

3.)

The District states that other compliance alternatives such as construction of alternative

sand filtration facilities would be cost prohibitive and there is no suitable space near the

existing facility. (Pet. at 3.) The District also considered storage of the wastewater flow but

because the total daily wastewater flow, which is about six million gallons per day, goes

through the sand filter, storage for four months (the projected time necessary for rehabilitation)

is not feasible.

The District scheduled this work and requests variance relief for the winter months

because the plant flows are lower, more predictable during those months, and Northern Illinois

University is on vacation for about four weeks during this time. (Pet. at 3.) The District

claims that it will utilize the remaining treatment components to maximum efficiency by re-

calculating and using additional primary clarifiers to enhance suspended solids and CBOD

removal. (Pet. at 4.) The District states that the analysis of the wastewater prior to the sand

filtration treatment facility has indicated the following mg/1 concentrations:

CBOD

TSS

Monthly Average

10 mg/1

25 mg/1

Daily Maximum

20 mg/1

42 mg/1

The District’s belief is that it can achieve the following numerical interim discharge limits:

CBOD

TSS

Monthly Average

15 mg/1

30 mg/1

Daily Maximum

30 mg/1

50 mg/1

The District states that "[t]he requested interim discharge limits suggested are a bit higher than

those seen prior to the sand filtration process, thus allowing a little room for wet weather

flows, if any are experienced over the duration of the variance." (Pet. at 4.)

The Agency states that the District's project will ensure compliance in the future and

continued protection of the environment. (Rec. at 3.) The Agency also maintains that the

District's monthly averages for those contaminants have been well below the permit limits for

the past twelve months. (Rec. at 4.)

ENVIRONMENTAL IMPACT

The District states that there will be no adverse impact upon the receiving stream

during the tertiary facility rehabilitation. (Pet. at 3.) The District asserts that the months of

scheduled rehabilitation (November, December, January, and February) are normally below

average in organic discharge from the treatment facility and rarely experience the high flows

associated with Spring and Summer months. (Pet. at 3.) Finally, the recreational activity in

the receiving stream is non-existent during the aforementioned months. (Pet. at 3.)

The Agency states that after review of the facts in this matter, it agrees with the

District's statement that no adverse environmental impact is anticipated on the receiving stream

during the rehabilitation project. (Rec. 4-5.)

HARDSHIP

The District asserts that compliance with 35 Ill. Adm. Code 304.141 and 304.120

would impose an arbitrary or unreasonable hardship upon it for the following reasons:

(a)

There is no question that the sand filters are in dire need of rehabilitation and

renewal. Unfortunately, filter requires temporarily taking this part of the

wastewater treatment process off-line and out of service; and

(b)

Alternative methods to assure compliance with NPDES CBOD

/TSS limits are

either cost prohibitive or physically impossible.

The Agency agrees that denial of this variance would pose an arbitrary and

unreasonable hardship on the District during the tertiary filter rehabilitation project, as

described in Section 35(a) of the Act. (Rec. at 2-3.) Additionally, the Agency asserts that the

granting of this variance request, with the conditions described below, should allow the

District to continue to operate its facility during the tertiary filter rehabilitation project without

the possibility of violating the Board's regulations and consequently facing enforcement action.

CONSISTENCY WITH FEDERAL LAW

The District provides no statement as to whether the grant of the requested variance

would be consistent with federal law. The Agency states that there are no applicable federal

laws or regulations which would preclude the granting of this variance.

CONCLUSION

Based on the record, the Board finds that the District has established that immediate

compliance with 35 Ill. Adm. Code 304.120(c) and 304.141(a) constitutes an arbitrary or

unreasonable hardship. The Board also finds that the temporary relief provided by this

variance does not pose a risk to environmental health. The District has demonstrated the

impact to the environment will be minimal during the variance period. The District's

requested interim effluent limitations are only slightly higher than the applicable limitations to

allow for wet weather flows if any are experienced. Additionally, we agree that the granting

of variance will be consistent with federal law.

The District requested that the variance term start upon the initiation of the bypassing

of the tertiary filter system and continue for four months. The Board cannot determine from

the record if the tertiary filter has been bypassed or when it will be bypassed. Since the

District argues that the environmental impact will be minimal during the winter months and

that rehabilitation is scheduled for November, December, January, and February the Board

will start the variance term as of the date of this order and end the variance term on March 31,

1997 to ensure the environmental impact is minimal.

This opinion constitutes the Board findings of fact and conclusions of law in this

matter.

ORDER

The Board hereby grants the DeKalb Sanitary District a variance from 35 Ill. Adm.

Code 304.141(a) and 304.120(c) so that it may complete its rehabilitation of its facility. The

variance is subject to the following conditions:

The variance shall commence upon the date of this order if initiation of

bypassing of the tertiary filter system has begun and continue until March 31,

1997;

During the period of the variance, the effluent discharged shall meet the

following limits, expressed in milligrams per liter:

CBOD

TSS

Monthly Average

Daily Maximum

50;

All other terms and conditions of DeKalb Sanitary District’s NPDES permit will

remain in effect during the variance period;

The DeKalb Sanitary District shall notify Eugene Forster, Illinois

Environmental Protection Agency, Field Operations Section, Rockford Regional

Office, at (815) 987-7755 when work on the tertiary filters begins, or began,

and again when the filters are returned to service. Written confirmation of each

notice shall be sent within five (5) working days to the following address:

Illinois Environmental Protection Agency

Bureau of Water

Compliance Assurance Section

2200 Churchill Road

Post Office Box 19276

Springfield, Illinois 62794-9276

Attn: Mark T. Books

During this variance, the DeKalb Sanitary District shall operate its wastewater

treatment facility so as to produce the best effluent practicable. Additionally,

the DeKalb Sanitary District shall perform the necessary work on the tertiary

filters as expeditiously as possible to minimize the time period the filter is out of

service;

IT IS SO ORDERED.

Board Member K. M. Hennessey abstained.

If the petitioner chooses to accept this variance subject to the above order, within forty-

five days of the grant of the variance, the petitioner must execute and forward the attached

certificate of acceptance and agreement to:

Charles W. Gunnarson, Assistant Counsel

Illinois Environmental Protection Agency

Division of Legal Counsel

2200 Churchill Road

Post Office Box 19276

Springfield, Illinois 62794-9276

Once executed and received, that certificate of acceptance and agreement shall bind the

petitioner to all terms and conditions of the granted variance. The 45-day period shall be held

in abeyance during any period that this matter is appealed. Failure to execute and forward the

certificate within 45-days renders this variance void. The form of certificate is as follows:

CERTIFICATION

I (we), ____________________________________________, hereby accept and agree

to be bound by all terms and conditions of the opinion and order of the Pollution Control

Board in PCB 97-78, January 23, 1997.

Petitioner

__________________________________________

Authorized Agent

__________________________________________

Title

__________________________________________

Date

Section 41 of the Environmental Protection Act (415 ILCS 5/41) provides for the

appeal of final Board orders within 35 days of the date of service of this order. (See also 35

Ill. Adm. Code 101.246, Motion for Reconsideration.)

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 ___________________,

1997 by a vote of _______.

___________________________________

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board