ILLINOIS POLLUTION CONTROL BOARD
November 26, 1975
SPRINGFIELD SANITARY DISTRICT,
Petitioner,
v.
)
PCB 75—250
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
MR. JAMES BAKER AND MR. ROBERT S. COHEN, appeared on behalf of
Petitioner;
MR. ROBERT BAREWIN AND MR. JOSEPH E. SVOBODA, appeared on behalf
of Respondent.
OPINION AND ORDER OF THE BOARD (by Mr. Dumelle):
Petitioner filed an appeal of a permit denial on June 23,
1975. The Illinois Environmental Protection Agency (Agency)
filed an answer to the permit appeal on June 23, 1975. Petitioner
filed an amended permit appeal on August 25, 1975. The Agency
filed an answer to the amended permit appeal on September 10,
1975. Three hearings were held on September 12, 18 and 29, 1975.
Petitioner filed a brief on October 15, 1975. The Agency filed
a brief on October 24, 1975. Petitioner filed a reply brief
on October 29, 1975. Mr. Cohen orally waived his client’s
90-day decision period right until November 26, 1975.
Petitioner filed an application for a construction permit
on October 23, 1974 for permission to construct a pumping station
located at the intersection of Fayette Avenue and Jacksonville
Branch, in Springfield, Illinois. The pumping station was designed
to pump a portion of the flow from the West Side Interceptor
sewer into the Oak Knolls combined sewer during periods of
wet weather. On January, 1975 the Agency denied the permit
application because it would violate the Environmental Protec-
tion Act and Rule 602(b) of the Water Pollution Regulations
(Respondent Exhibit 4). Rule 602(b) states that “excess
infiltration into sewers shall be eliminated, and the maximum
practical flow shall be conveyed to treatment facilities.
Overflows from sanitary sewers are expressly prohibited.”
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The Agency indicated in its permit denial letter that:
The subject project would cause wastewater to be
pumped from the Jacksonville Branch sanitary sewers
to the Oak Knolls combined sewers. This proposed
pumping must be considered a sanitary sewer overflow
for the following reasons:
1. The Oak Knolls combined sewer has a wet weather
overflow to the Jacksonville Branch Creek at the
intersection of Washington Street and Chatham Rd. During
periods of time when the subject pumping station would
be discharging, the Oak Knolls combined sewer
would already be overflowing to the Jacksonville
Branch Creek and therefore the subject project would
cause additional wastewater from sanitary sewers
to be discharged to the Jacksonville Branch Creek.
2. The pumping from the sanitary sewers to the Oak
Knolls combined sewer is unnecessary in dry weather
and therefore the wet weather pumping must be considered
a sanitary sewer overflow (Respondent Exhibit 4).
Petitioner argues that the sewers immediately upstream
of the proposed pumping station are by definition of the Pollution
Control Board combined rather than sanitary sewers, and that
consequently the proposed pumping station would not constitute
a sanitary overflow (Petitioner’s Brief, p. 4). Petitioner
agrees that if the sewers upstream from the pumping station
are in fact sanitary sewers, then the proposed pumping station
would violate Rule 602(b) as a sanitary sewer overflow (Petitioner’s
Reply Brief, p. 4). Therefore, the major issue on appeal is
the correct characterization of the sewers upstream from the
proposed pumping station.
Petitioner would have the Board review the Agency’s
determination in light of the actual conditions present in the
sewer in question. To compare the undisputed characteristics
of the sewer upstream of the location of the proposed pumping
station with plain language of Rule 104 which defines
both sanitary and combined sewers defeats the purpose of the
Water Pollution Regulations and the Act (Respondent’s Reply
Brief, p.9). The Agency argues that “the primary
determining factor is what the sewers were designed and
intended to be, either sanitary or combined” (Agency
Brief, p. 3).
Rule 104 of the Water Pollution Regulations has the following
definitions:
“Sanitary Sewer” means a sewer that carries waste—
water together with incidental land runoff;
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“Combined Sewer” means a sewer receiving both waste—
water and land runoff;
The West Side Interceptor, the sewer in question, transports
a large quantity of water during periods of precipitation. This
is supported by evidence in the record that the dry weather
flows are approximately one-tenth of the wet weather flows.
Problems resulting from the wet weather flow carried
by the West Side Interceptor in the Outer Park Drive area of
Springfield, led to an Agency determination to not issue further
permits to construct and use sewers tributary to the west side
interceptor in the south western area of Springfield. These
problems consisted of basement backups, sewer overflows from
manhole covers, basement cracking, etc. and have been
discussed in previous Board Opinions decided by both Petitioner
and Agency. They need not be discussed at length in this
Opinion.
This record clearly demonstrates that prior to the filing
of the amended permit appeal, both Petitioner and the Agency
characterized the West Side Interceptor as a sanitary sewer.
A report submitted by Petitioner to Respondent entitled, “Infiltra-
tion/Inflow Analysis”, prepared by the consulting engineering
firm of Crawford, Murphy and Tilly, contains numerous references
which characterizes the sewer in question as being a sanitary
sewer (Agency Exhibit 2, p. 3, 4, 5, 6, 7, 8, 10, 11, 13, and 19).
In a letter from Mr. A. Paul Troemper, Executive Director of
the Springfield Sanitary District to Mr. William H. Busch, Manager,
Permit Section, Division of Water Pollution Control, Illinois
Environmental Protection Agency, indicates that the intercepting
chamber, located at Washington Street has a combined and a sanitary
sewer emptying into it (Exhibit 1 attached to Respondent Exhibit 1).
An examination of Respondent’s Exhibit #1 shows that the two
sewers emptying into the intercepting chamber are the West Side
Interceptor and the Oak Knolls combined sewer. If that portion
of the West Side Interceptor downstream from the proposed pumping
station is a sanitary sewer, then every portion upstream must
also be considered a sanitary sewer. All of the Agency engineers,
called as adverse witnesses by Petitioner, said they apparently
have always considered the West Side Interceptor as a sanitary
sewer (R. 137, 138, 203, 207, 213, and 305).
Petitioner established that the employees of the District,
the Agency engineers, and the consulting engineer hired by the
District, relied on a definition similar to that found in
Petitioner’s Exhibit 2. A sanitary sewer is defined
in this document as,
A sewer that carries liquid and water
—
carried wastes
from residents, commercial buildings, industrial plants
and institutions, together with minor quantities of
ground—storm, surface waters that are not admitted
intentionally (Petitioner Exhibit 2, p. 279).
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—
327
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A combined sewer is defined to be
A sewer intended to receive both wastewater and storm
or surface water (Respondent Exhibit 2, p. 63).
We find the definition of a sanitary sewer and
a combined sewer utilized by Agency personnel, representatives
of Petitioner, and Petitioner’s consulting engineer, as defined
in Petitioner’s Exhibit #2 and described in numerous places in
the record, to be consistent with the definitions as found in
Rule 104 of the Water Pollution Regulations. We must agree
with the Agency that to find otherwise would allow any sanitary
district to circumvent the prohibitions of sanitary sewer
overflows by the district’s own negligence and failure to
properly maintain its sewer system. If we were to accept
Petitioner’s argument that the actual condition of the sewer
at any given time is controlling, then a sanitary district could
change its sanitary sewers into combined sewers by allowing
excessive infiltration to enter its sewers and thereby changing
the sewers into combined sewers. To prevent pollution
one must be able to look at the design intent of the sewer;
if they are determined to be sanitary then excessive infiltra-
tions causing any overflow would be prohibited by Rule 602(b)
as such an overflow would constitute a sanitary sewer overflow.
We find based on a reading of the transcript, all of the
exhibits, including excerpts of previous testimony, and the
briefs supplied by both parties, that Petitioner’s West Side
Interceptor is a sanitary sewer which has an excessive
infiltration problem. The district has since 1926 had an
ordinance which prohibits the connection of footing tiles
to the sewer in question. Petitioner has attempted to have the City
of Leland Grove remove several street inlets that discharge
stormwater into the West Side Interceptor (R. 20 & 21).
Mr. Gerald Peters, district engineer for the Springfield
Sanitary District, provided extensive testimony for the
reasons for excessive infiltration into the sanitary sewers,
and what the district has done to remedy the situation (See
R. 78-82, 85-89). The fact that the District has been unable to
remove all of the illegal storm connections, repair the
faulty joints, or complete other procedures that it has
undertaken, does not convert what were designed and intended
to be sanitary sewers into combined sewers.
We find that the Agency correctly denied the permit application
because the proposed pumping station would constitute a sanitary
sewer bypass in violation of Rule 602(b) of the Water Pollution
Regulations as the pumping station would pump waste from a
sanitary sewer into a combined sewer which would be already
overflowing. Section 39(a) of the Illinois Environ-
mental Protection Act prohibits the Agency from granting
a permit it the facility or equipment would cause a violation
of the Act or Regulations adopted pursuant to the Act.
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Petitioner tried to establish that the Agency did not
treat the Petitioner as it would any other permit applicant.
We find that Petitioner has presented no evLdence that the
Agency has so treated Petitioner. What the record establishes
is that a period of discussion between various individuals at
the Agency took place regarding whether or not the permit in
question should be granted. The permit section recommended
that permit be granted because the pumping station for which
the permit was sought was correctly sized, etc. (R.
).
Members of the legal support section raised the legal objection
that the pumping station would constitute a sanitary sewer
bypass in violation of Rule 602(b). These conflicting positions
were taken to the assistant director, (R.
).
This was
a procedure that had been done in the past (R.
).
The
assistant director decided to discuss the matter with Dr.
Richard H. Briceland, the director of the Agency who determined
that the permit would not be granted. To single out mere
differences of opinion among Agency staff is not an indication
that Petitioner was somehow treated unfairly.
A third issue raised by Petitioner is that the permit
would allow the construction of a facility which would abate
a serious environmental problem in the Outer Park Drive area.
We have previously recognized that the pumping station might
not provide the projected results (See First National Bank
of Springfield Trustee of Trust #3010 v. EPA, PCB 74-298 at
pages 8 and 9 (December 19, 1974)). The issue of the environ-
mental acceptability of the project is not a correct issue
to raise in a permit appeal. Dr. Briceland in a letter to
Mr. Paul Troemper, dated January 8, 1975, indicated that
while the Agency could not issue the permit it was not
totally in disfavor of the project and that the proper
procedure for obtaining a permit for the pumping station
would be to seek a variance from the Board (Petitioner’s
Exhibit 14). In any variance case the Board would be
free to weigh the hardship to Petitioner and the resulting
environmental benefits and detriments associated with the
project.
This Opinion constitutes the Board’s findings of fact
and conclusions of law.
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ORDER
We find that the Environmental Protection Agency correctly
denied the application for a construction permit submitted by
the Springfield Sanitary District. Therefore, this permit appeal
is dismissed.
IT IS SO ORDERED.
Mr. Young took no part in the deliberation of this case and
abstained.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Order were adopted on the
~
day of November, 1975 by a vote of
3.0
QdI/~1e
Christan L. Moffett,,~4rk
Illinois Pollution C~~olBoard
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