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JUN-07-00 WED 03:44 PM
IL EPA LEGAL
P.
02/09
ern,' OF ROCK ISLAND,
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'ECEIVED
"CLERKS OFFICE
JUN 082000
Petitioner,
v.
, 'fE Of lLUN015
PCB
00-7~
v~;:t!Of1
control Board
(permit Appcal- NPDES)
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
NOTICE
Dorothy Gunn. Clerk
Illinois Pollution Control
Board
James R. Thompson Center. Suite
11~500
100 West Randolph Street
Chicago, IL 60601
John Knittle. Hearing Officer
Illinois l'ollution Control Board
Ja.mes R. Thompson Center
100 West Randolph Street, Suite 11
~500
Chicago, n.
60601
Roy M. Harsch
Sheila H. Deely
Gardner, Carton
&
Douglas
Suite 3400 Quaker Tower
321 North Clark Street
Chioago, IUinois 60610-4795
Please take notice that I have today filed with the Office of the Clerk of the lllinois Pollution
Control Board the POST HEAlUNG DRIElt' of the lIJinois Envil'Onmentall»:rotection Agency, a
cop)' ofwhtch is served upon you.
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rchm: 'C', arrington
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Division ofJ,egal Counsel
Date: June 7, 2000
Illinois Environmental Protection Agency
1021 North Grand Avenue Hast
P.O. Box 19276
SpriYlgfield, XL 62794
m
9276
O:\warrinBton\Rock Mand pcmlit AJ'lpcnl\NO'\'(CE,doc
6/6100
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TIltS
~·Xf.,:rNG
SUBMITTED
ON RECYCLED PAPER
JUN-07-00 WED 03:44 PM
IL EPA. LEGAL
FAX NO, 2175243339
BEFom~
THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF ROCK
ISLAN~,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROT}~CTION AGE~CY,
Respondent.
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PCB 00 .. 73
(Permit Appeal-NPDES)
POST ilEA RING BRIEF OF THE lLIJINOIS ENVIRONMENTAL
PROTECTION AGENCY
Respondent, the Illinois Environmental Protection Agency ("Illinois EPA")
by
onc of its
attomeys, Richard C. Warrington Jr., hereby files its Post Hearing Brief.
I.
INTRODUCTION
1..
This National Pollutant Discharge Elimination System ("NPDES") permit appeal
concems the operation of the main sewage treatment plant ("Plant',) of the City of Rock
Island
("City"or UPetitioner'"). The City operates the Plant ullder NPDES pennit No. IL
00307893.
II.
CHLORINE RESIDUAL
2.
The Illinois EPA joins in the request to reevaluate the chlorinl: residual applicable
to this permit, with a limit of 1.0 milligrams per Liter ("mglL") until such testing of
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P.
03/09
JUN-07-00 WED 03:44 PM
IL EPA. LEGAL
FAX NO. 2175243339
actual pcrfOrma!lCe ofthe system to control fecal coliform limits justifies an alternate
chlorine residual limit. (Tr.
OO~73
p. 8)1
Ill.
PLANT CAPACITY
3.
The J1Jinois EPA and the City have agreed to incorporate the record of the
Variance case, PCB
98~164
into this pennit appeal record. (Tr. 00,73 p. 7) However.
although the facts may be mutual between the two proceedings, the standard of review
for the llHnois Pollution Control Board ("Illinois PCB'!) is distinct in each. In a pennit
apl-'eal, the standard is whether the application demonstrates that the facility will not
cause a
violation oftho Illinois Envirolln'Jp-ntal Protection Act ("Act
U
)
or the regulations
thereunder. 41 S .1LCS 5/39 (1998) The Illinois EPA is required to specify thoso terms and
conditions which
mayb~
required to accomplish.the pUJPosesand provisions ofthis Act.
415 ILCS S/39(b)
4.
In the ease ofthis NPDES permit, the plant capacity has been specified as 16
million callons per day ("MOD") for the design maximum flow ("DMF') ever
~inec
tho
Mayor ofthe City and their engineer applicd for the permit in 1970. (Record p. 353, line
C-34) Tlle DMF was again specified as 16 MOD in the Combined Sewer Ovcrflow
Exception
proceeding, PCB 85
H
214. May 9, 1986. (Record p. 284) Yn particular, the City
represented to the Illinois PCB that cedain specified improvemeJ'lls would allow
"operation of the treatrnent plant at the design maximum level of 16 MOD and
improvements
to the North Slope lntc::rceptor to aSSllre that maximum available transport
capacity will be utilized prior to ovcrfk"..,
event..~."
(Record p. 287) A Municipal
References to th,:
eSO
Exception Order of May 9,1986 tlrc to lixceplion p.)t;
tf)
tho Amended
Petition arC to Antended Petition,
~I.
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to
the Amended Recommendation 31Te
to
Amended
Recommendation p.
x~
to
the Iranscript of tIle
V~\Iia1\Cl!
hoaring arc to Tr. 98-164 p. x: to the transcript ufthe
pennit appcal hCllrins ate to Te. 00-73 p. :>1: and
tD
the pennit "ppeal record arc
to
~cord
p. X1(.)
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JUN-01-00 WED 03:45 PM
IL EPA LEGAL
FAX NO. 21?S243339
Compliance Plan
("Mep")
was subsequently approved
by
the JJJinojs EPA on July 1.
1986 specifying this upgrade. (Record p.
~
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The DMF of 16 MOD was again specified
in tho NPDES pCfalit modified on July 17, 1998. (Record p. 159) Although the City
could have sought relief, the City Council concluded that it had made a commitment to
providing an Sn 6 MOD plant. (Tr. 98-164 p. 38)
5.
The City attempts
to
argue that a clarification between the terms "maximum
practicable flow't and DMF, as requested by tho United States Enviromnental Protection
Agency ('"USEP A") to implcm(:nt the lllinois PCB' s Order in PCB
85~214,
May
9~
1986
is
an error. Pursuant to the NPDES
progtam~
draft permits are reviewed by USEPA
before issued by the Illinois EPA. In this case, USEPA recognized that the use of
"maximum practicable flow" was not defined in the draft permit. (Record p. 90) Tbe tcnll
is not defined by the JlIinois PCB, although it is used in 36 Ill. Adm. Code 306.303 in the
context of sewer efficiency. The
Cjty
argues that tho maximum practicable flow, if the
. tenn is applied to the treatment plant and not to the sewers is less than 15 MOD.
Testimony by Mr. McS'!Viggin, called as an adverse witness by the CitYt indicated that
there was a reasonuble possibility that the treatment plant improvements constl11cted
in
the early 1970's would have been capable of meeting secondary treatment limits at a
DMF of 16 MOD. (Tr.
98~
164 p. 68) Mr. McSwiggin also proposed a definition for
maximum practicable flow as appiied to treatment works.
(tr.
98-164 p. 75)
6.
It
should also be noted that the regulations of the Illinois PCB require conditions
as least as stringent as applicable federal regulations in 35 ut. Adm. Code 309.146(e).
The USEP A has promulgated 40 CFR 122 .41 (c) that provides:
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JUN-07 -00 WED 03: 45
pr~
I L . EPA LEGAL
FAX NO. 2175243339
Need to halt or reduce activity not a defellse,
It
shan not be a defense for a.
permittee .in an enforcement action that it would
hnve
been necessary to halt or
reduce the pennittcd activity in order to maintain compliance with tbe c-Onditions
oftllis permit.
The Illinois EPA includes this provision as standnrd condition 3 in every NPDES permit.
(Record p. 18) .
IV.
OUTFALL 007
7.
The dispute oyer whether outfall 007 should be characterized as a sanitary sewer or a
P.
06/09
combined newer requires an analysis of the only
tw\l
alternatives availablo undel' the regulations
of the Illinois PCB. Under the definition of a combhwJ sewer, a sewer is combined if it was
designed and constructed to receive both wastewater and land runoff. (See 35 Ill. Adm. Cod.J
301.255) A sewer is sanitary ifit carries wastewatu-A' together with ineidcntalland runoff
~~""e
35
III. Adm. Code 301.375)
The
problC'.Jn in the apl)Jh:ation of these defiuitions js Olat some of tho
sewers trihutary to cutfhll 007 weI" originally designed and constructed as combined sewers, but
then reconstructed to separate out street drains into a new stonn sewer system. The lemaining
sewer, nllhough now lacking the land runCi.:: .!.:om tllc street drains, admits stonnwater fTOr.: a
variety of private sounies. The amount of this stormwatt'f !low is more than incMental. (Tr.OO"
73 p, 17)
Conseql1cnt1y~
the sewer tributary to outfall 007 hIlS perfOlmancc
characteristi~s
not
satislYing either rcgqlatory definition.
It
was reconstructed from being 11 combined sewer yet stm
canies an excessivo amount of stormwnter.
8.
This sewer was first addressed by the JUinois PCB in PCB 80-212. (Record p. 338)
Aithougb the Illinois i'CB did not fin.J that is was a sanitary sewer (Tr. 00-73 p. 12), it did
describe the manholes upstream ofthe lift station liS 3urcharging ordinary domestic sewage
during wet weather periods. (Record p. 338) The lllinois I'ea did not describe it
as
a combined
S6Wo!f and the City and the llIinois EF A addressed it as a sanitary sewer in development of the
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IL EPA LEGAL
FAX NO. 2175243339
P.
07/09
City's municipal compliance plan ("MCPIJ). (Tr. OOg'l3 p. 12) TIle City did not seek an exception
fol' this discharge under 35 111. Adm. Code 306.Subpart D as it did for the eso discbarge at the
main treatment plant.
8.
The
m~icipal
compliance plan was approved as a project to correct infiltration/inflow to
eliminate all sanitary t;ewer overflows. (Record p. 279, 277) Obviously, the MCP was not
successful in removing all sanitary iScwer overflows and the lllinois EPA has attempted to
engineer a solution using the combined sewer overflow concepts of first flush a.nd capture of 1 0
times the dry weather flow. (Tr. 00-73 p. 21) Nonc:ilclcss, the applicable NPDES peTJllit listed
outfall 007 as a prohibited sanitary aewer discharge. ("fr. 00-73 p. 16) The Illinois EPA
bclicvcs~
with the City, that after the completion of certain improvements thnt the discharge from outfall
007 wilt not continue. (Tr.
OO~73
p. 19)
V.
CONCLUSION
9.
Ofthe three appeal points raised by the City, the chlorine limitation can be resolved by
provision of an'interim
~imit
until additional information can be generated and provided to
th~
Illinois EPA. The question of the proper DMF for the main treatment plant is resolved by
consideration oftha evidence that the City asked for that capacity rating in the original permit
application, confirmed 16 MGD as the resulting DMF 1n the eso Exception proceeding PCB
85~214,
lInd affilmed it rather than rerating the plnnt or seeking carlier relicf. Conse,qucmly the
DMF of tho pJant and the threshold that must be met before bypassi1)g of untreated sewage must
remain ttl 16 MOD. The oharacterization oCthe dischargo from outfaU 007 should rem.ain as a
sanitary sewer overflow based on the long undcrstnnding of its nature before the Illinois
pca by
the City and the Illinois EPA that it is a sanitary sewer, with an Ullsatisfactory attemllt to correct
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JUN-07-00 WED 03:46 PH . IL EPA LEGAL
FAX NO. 2175243339
P.
08/09
its genesis as a combined sewer. The Illinois EPA believes that recognition as a leaking sanitary
sewer
will be only temporary until the discharge is eliminated completely.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
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Riohard C. Warrington Jr.
Associate Counsel
Dated' June 7. 2000
(i:\wamnnltln\kut:k Monti P','T1TIit ApPtlIl'9os! hearing brief.doc
6f11OO
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JUN~01-00
WED 03:46 PM
IL EPA LEGAL
STATE OJ;' n.;UNOIS
.COUNTY OF SANG
AMON )
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FAX NO. 2175243339
PROOF OF SERVICE
r. the undersigned, on oath state that I have served the attached POST HEARING
BRIEF
upon the persons to whom it is directed, by placing a copy jn an envelope addressed
to:
Ms. Dorothy M. GUM, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Rancolph St. Suite 11-500
Chicago, Illinois 60601
Roy M. Harsch
Sheila H. Deely
Gardner, Carton & Douglas
Suite 3400 Quaker Tower
321 North Clark Street
Chicago, lllinois 60610.4795
P.
09/09
(8y
Fatsimilc a" Ordered
by
the Hearing
Officer
on June 6, 2000) .
John
Knittle, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
(By Facsimile 85 Ordered hy the Hcaring
om~cr
On June 6, 2000)
.100 West Randolph Street, Suite
11~500
Chicago, IL 60601
(By Fa€simile as Ordered by t'le Hearing
Officer
on June
6~
2000)"
and tclefaxing
it
from Springfield. Illinois on June 7, 2000 before the hour of 5:00 p. m ..
SUBSCRIBED AND SWORN TO BEFORE
22v
ME
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rit(~
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