JUN-07-00 WED 03:09 PM

IL EPA LEGAL

FAX NO. 2175243339

BEFORE TliE ILLINOIS POLLUTION CONTROl. BOARD

CITY OF ROCK ISLANU,

Petitioner,

lJ.l.INOIS ENVIRONMENTAL

PROTECTION AGENCY,

R('-spondcnt.

Dorothy GUlln, Clerk

Illinois PolluLion ConLrol Board

James R. Thompson Center, Suite l1w500

100 West Randolph Street

Chicago, IL 60601

John Knittle

Hearing Officer

Illinois Pollulion Control Board

James R. TIlOmpson Center, Suite 11-500

100 West

Ranllolph

SLrceL

Chicago, IL 60601

)

PCB 98-164

(Variante)

NOTICE

Roy M. Harstb

Sheila Deely

Gardner, Carton & Douglas

Suite 3400 Quaker Tower

321 North Clark Street

Chicago, JIlinois 60610-4795

02/08

llicasc take notice that I have today filed with the Officc of the Clerk oftbc lllinois Pollution Control Board

the POST nEARING lIRU:F of the Illinois Environmental Protection Agency, a copy of which is served

upon yO\!o

PROT~fION

AGENCY

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;:r~hard

Associate

:w:i.-n(g';;'

Counsel

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Division of LegaJ Coun!\el

IlIinoi!t TInvironmerstal Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield. IL

62794~9216

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VlI1ianq;\pOM hearing brief lIodcc.doc

Jun.

6,00

Dal.C: June 7. 2000

JUN-07-00 WED 03:09 PM

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LEGAL

FAX NO. 2175243339

BEFORE THE

~LI4INOIS

POLLUTION CONTROL BOARD

CITY OF ROCK ISLAND,

Petitioner,

ILLINOIS ENVIRONlVJCNTAL

PROTECTION AGENCY,

Respondent.

)

PCB 98-164

(Varhtn~e

.. Wate .. )

POST HEARING BRIEF OF THE ILI,INOIS ENVIRONMENTAL PROTECTION

AGENCY

Respondent, the Illinois Environmental Protection Agency ("Illinois EP

A'1 by

one of its

attorneys, Richard C. Warrington Jr., hereby files its Post Hearing Brief.

l~lRODUCTION

This variance petition COllcems the operation of the main sewage treatment plant

P. 03/u8

("Plant") of the City of Roek Island ("City" or "Petitioner")_ The City has requested a variance to

grant such relief 8S may be necessary to allow it the necessary timc to construct modifications to

the Plant to increase the design maximum Jlow

("DMF")

from

million gallons per day

("MOD") to ] 6 MOD while remaining in compliance during design and construction period with

the Exception previously approved by the Board to the ndc governing the treatment of overflows

and bypasses" (Amended Petition, p. 2)1 Because the requested variance seek!i relief

from

a 16

MOO, DMF plant capacity requirement that was requested in 1970 and permitte.d as such in

1971, this petition and its relief are untimely.

References to the

eso

Exception Order of

May

9, J 986 are to Exception p.x; to the Amended Petition arc

\0 Amended Petition, p_ x; to the Amended Recommendation are to Amended recommendation p. x; to the trnnscl'ipt

orth~

variance hearing arc to Tr.

98~164

p. Xi to tbe trnnscript ofthl: penn it appeal hearing are to Tr. 00-13 p. x; and

JUN-(l1-00 WtD 03:10 PI1

IL EPA LEGAL

FAX NO. 2115243339

04/08

Moreover, the City and its engineers were aware of a DMF capacity problem in drafting

the Combined

Sewer Overflow exception petition from studies in 1982 and 1984 and the City

committed to itnptovements to allow operation of the plant at the 16 MGD, DMF level before the

IIljnois Pollution Control Board ("Illinois PCB"). (Exception p. 4)

The Illinois EPA believes that a fourteen year retroactive variance from the City's

commitment to

treat 16 MOD before bypassing is not justified by the law or this record. The

Illinois EPA incorporates its Amended Recommendation of November 2, 1999, with its Exhibits

and recommendation to DENY the requested vm1ance into this Post Hearing Brief.

STANDARD OF REVIEW

The standard of review for the Illinois PCB to consider in variahce petitions was given

the legislature as "compliance with

any

rule Or regulation, requirement or order of tlte Board

would impose

an arbitrary or unreasonable hardship". 415 JLCS S/35(a) (1998) This standard

was incorporated by the Illinois PCB in their own regulations at 35 lll. Adm. Code 104.160(0

(1985). Compliance has not been shown by this record to

arbitrary or a hardship to the City or

disproportionate to the environmental benefits sought by the regulations.

Treatment of the full 16 MOD. DMF before bypassing the CSO flow is not an arbitrary

requirement. The City specifically stated that the

DMF of the plant to be constructed in the early

1970's was

to be 16 MOD. (Line

C~34,

E"hibit 0 to the Amended Variance Recommendation.

Tr. 98-164 p. 89) Mr. McSwiggin, caned as an adverse witness by the City. testified tbnt there

was a reasonable possibility that the treatment plant improvements constructed in the early

1910's would have been capable of meeting secondary treatment limits at a maximum design

flow rate of 16 MOD. (Tr. 98-164 p. 68) Moreover, although the City has argued that the

to the permit appeal record Record p. xx.)

JUN-07-00 WED 03:10 PM

IL EPA LEGAL

FAX NO. 2175243339

05/08

maximum practicable flow for this plant is under the DMF, Mr. McSwiggin testified that the

maximum practicable

flow could be above the DMF. (Tr. 98-164 p. 88)

Furthennore, the City argucs that Mr. McSwiggin's testimony at Tr. 98-164 p. 69

confirms the ability

ofthe City to downrate the plant to 12 MGD, DMF. In actuality, Mr.

McSwiggin recognized that the ability of the City to now change the rating of the plant has been

constrained

by the Order of the Illinois PCB in the CSO Exception, PCB 85-214. and by the

National

rOnulant Discharge Elimination System

("NPDES~')

permit. (Tr.

98~164

p. 69, lines 17

and 18)

III.

HARDSHIP

The City makes no serious claim that compliance with the eso Exception is a hardship.

Compliance with the Illinois

PCB general standard for Combined Sewer Overflows was slated at

$55 million in 1985 as part of the CSO Exception proceeding. (Tr. 98-164 p. 36) and simply

extrapolated

$100 million in year 2000 dollars. (fr. 88-164 p. 36) However, the issue in this

variance is the cost to comply with the CSO Exception of only

bypas~ing

after

MOD. DMF is

given full treatment. The cost

of the 1985 improvements was only a little over $ 100 thousand

dollars (Petition

At.tachment 2) Obviously, the 1985 improvements were not sufficient to

eliminate

bypassing below the specified DMF and the City did not notice that bypa.c;sing still

occurred. Thc currcnt construction, also represented to be sufficient to treat

MOD, DMF is

projected to cost approximately $ 3 million dot(U"s in current dollars. It can be assumed that if

this collstruction was undertaken and cOlllpleterl when it was necessary to treat 16 MGD, DMF in

1985. the cost would have been less. The City has made no proof that these costs would be a

financial

hardship to tho City, indeed the City has made no proof of allY financial burden.

•

JUN-07-00 WED 03:10 PM

IL EPA LEGAL

FAX NO. 2175243339

Ttl addition to this delay, the Illinois PCB should not grant a variance retroactively

because the City itself contributed to the problem by failure to adequately assess the plant

performance

either before the CSO Petition or afterward.

Mr.

Ilawes. originally the City Engineer and now the Director of Public Works, testified

06/08

that he participated in the drnfting ofthc eso Exception Petition. (Tr. 98-164 p. 18) However, he

docs not remember details concenuog information used by the City's consulling finn to support

the conclusions contained in the eso Exception Petition. (fr. 98.164 p. 51) The Illinois RPA

would e"pect that a City Engineer should be familiar

with

the performance of a plant, including

the flow rate

at which it

!.1P~ses

untreated sewage. Likewise, after the 1985 improvements, the

City should have been

aware bcfore 1991 whcn it hired Mr. Huff that there was still a bonleneck

at the plant. (Tr. 98-164 p. 102) The Illinois EPA maintains that any burden has been caused by

the delay

of the City.

Ill.

ENVIRONMENTAL IMPACT

10.

Although the lllinois EPA joined with the City in 1985 in stating that there would be

minimal

environmental impacts as a result of the eso Exception, there is still the present

problem of

om~ll~ive

conditions below the eso outfall. The Illinois EPA documented these

offensive conditions in a

public arca through the photographs taken on August 5, 1998, October

22, 1998, November 2,

1998 and August 24,1999. (fr.

98~164,

Respondent's Exhibits 1 through

11.

These observations are corroborated by the City's Exhibit 14 to the Varia.l1ce Hearing.

This Exhibit provides a graphical representation ofthe debris collected occasionally by the City

from areas upstream and downstream ofthe eso outfall. (fr. 98-164 p, 59) The Exhibit shows

concentnlliolls of sanitary debris downstream of the eso outfall to be much higher than that

JUN-07-00 WED 03:11 PM

IL EPA LEGAL

FAX NO. 2175243339

07/08

found upstream.

(/d)

IV.

CONCLUSION

12.

The record in this proceeding shows that the reJiefrequested by the City or Rock Island is

untimely, beyond the statutory duration limits

fot

variance relief, without any justification for

being granted retroactively, caused by the City-s own delay and inattention, and not justified by

the'

ongoing violations of the most basic water qunlity standard ofbavillg the state's waters free

from floating debris. As stated in the Illinois EPA Amended Recommendation, a mistake does

not provide

defense from compliiancc; with

Order of the lllinois PCB. A mistake only

acknowledged on

the eve of federal entorcemellt calls into question the diligence of the City. To

absolve the City of penalty liability without consideration ofthc factors set forth in Section 33(c)

of tho Environmental Protection Act, 415 ILCS 5/33(c) (1998) is an affront to the environmental

control system enacted

by the Illinois legislature. lbcrcfore, the Illinois EPA continues to

recommend that this variance petition

DENIED.

Respectfully submitted,

ENVIRON

AI.. PROTecTION AGENCY ,

T~!E-Sf~~Of'

Z,aNcr:7

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By: ...

/./~

_ . ....:;_.

Riehar

(--

". Warrington Jr.

Associate Counsel

' ,--

Division of Legal Counsel

Illinois Environmental Protection

Agcney

1021 North Grand Avenue East

}l.O.

Box 19276

Springfield. IL 62794-9276

G:\warringlon\Rtll:k Island Vltiancc\post bearill& brier.doo

.I"n.1.oo

Date; June 7. 2000

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JUN-07-00 WED 03:11 PH

IL EPA'LEGAL

STATE OF ILLINOIS'

COUNTY Oli' SANGAMON )

)

FAX NO. 2175243339

PROOF

OF SERVICE

I, the undersigncd, on oath state that I have seIVed thc attached POST HEARING

BRIEF upon the persons to whom

is directed, by placing a copy in an envelope addressed

to:

Ms.lJorothyM. Gunn, Clerk

Jl1inoi" Pollution Control Board

James R. Thompson Centcr '

100 West Randolph St. Suite Il

500

Chicago, JJtinois 6060 I

Roy M. Harsch

Sheila H. Deely

Gardner, Carton

Douglas

Suite 3400 Quaker Tower

321 North Clark Street

Chicago, llIinois 60610-4795

P. 08/08

(By

Fa~rlimile

as Ordered by tbe Hearing

Officer on JUne! 6, 1000)

(By Facsimile as Ordered by tbe HeiriDI:

John Knittle,

H~aring

Officer

Illinois

Pollution Control. Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, TT. 60601

(8y

Faesimile as Ordered

the Hearing

Officer on June 6, 1000)

Officer

On June 6, 2000)

and i.clefaxing it from Springfield, Illinois On June 1, 2000 before the hour of 5:00 p. m ..

Gf!tl/MAI

09) dTod-

SUBSCRIBED AND SWORN TO BEFORE ME

G:\wnrringtan\R<lCK

Isla~

616100