BEFORE THE II .. LINOIS POI"LUTION CONTROL BOARD

CITY OF ROCK ISLAND,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 98-]64

(Variance - Water)

POST HEARING BRIEF OF CITY OF ROCK iSLAND

RECEIVED

CLERK'S OFFICE

MAY

8 2000

STATE OF ILLINOIS

Pol/utlon Control Board

Petitioner City of Rock Island ("Rock Island"), by its attorneys Gardner, Carton

Douglas, hereby files its Post Hearing Brief.

INTRODUCTION

Rock Island operates two sewage plants, but only the main treatment plant (the "Plant") is

the subject

of the Petition for Variance filed in this matter. On December 26, 1985, Rock Island

filed a petition for exception seeking relief from the requirement under

35 Ill. Adm. Code

306.305 (a)(b) to construct and operate certain combined sewer overflow ("CSO") transport and

treatment facilities. (Petition for Variance, Att. ]).

On May 9, ] 986, the Illinois Pollution

Control Board granted Rock Island and Illinois Environmental Protection Agency's Joint

Petition for Exception

("Joint Petition") from 306.305. which provides:

All combined sewer overflows and treatment plant bypasses shall

be given sufficient treatment to prevent pollution, or the violation

of applicable water quality standards unless an exception has been

granted by the Board pursuant to

Subpart D. Sufficient treatment

shaH consist of the following:

All dry

weather flows, and the first flush of storm

flows as determined by

the Agency, shall meet the applicable

effluent standards; and

TIllS FILING IS SUBMITTED ON RECYCI"ED PAPER

Additional flows, as detennined by the Agency but

not less than ten times the average dry weather flow for the design

year, shall receive a minimum

of primary treatment and

disinfection with adequate retention

tit". and

Flows in excess

of those described in subsection (b)

shall be treated, in whole or

in part, to the extent necessary to

prevent accumulations

of sludge deposits, floating debris and

solids in accordance with

35 HI. Adm. Code 302.203, and to

prevent depression

of oxygen levels; or

Compliance with a treatment program authorized by

the Board in an exception granted pursuant to Subpart

(35 Ill. Adm. Code 306.305; see Petition for Vuiance, Att. 2). The Board found that the existing

CSOs from the main treatment plant produced only a minimum

impac~

upon the Mississippi

River and that requiring Rock Island to expend $55 million to come

into compliance with the

express tenns

of the rule would constitute an undue economic hardship on Rock Island. (Petition

for Variance, Au. 2). As conditions

of the Order granting the exception, the Board required

Rock Island to implement modifications which consisted

of improvements to the screening

system, flow diversion

by increasing weir elevations and interceptor chamber modifications

which were projected to cost

$101,000. (Petition for Variance, Att. 2). The Board adopted by

reference three paragraphs

of the Joint Petitiorl in which Rock Island described the modifications

that Rock

Islalld w"'llld perfonn in order to obtain the Illinois Environmental Protection

Agency's

("IEPA") support for the Joint Petition.

At 4]15 of the Joint Petition which was adopted by referenced in the Board's Order, the

modifications were described as

"the construction of head works improvements to allow

operation

of the treatment plant at the design maximum flow level of 16 million gallons a day."

The 16 million gallons per day ("MOD") figure used in the Joint Petition and by the Board in its

Order was derived from the May 1982 eso study prepared by Missman, Stanley

Associates.

Rock Island retained James E. Huff of Huff

Huff to detennine the design maximum flow of

the Plant. Mr. Huff testified that, using IEPA's CU"Tent design

standard~,

the design maximum

flow is actually

12 MOD, rather than 16 MOD. (Tr.

3122/00,

PCB 98-164, pp. 101-02). Rock

Island filed a Petition for Variance to allow it to address this mistake while moving forward with

the design and construction

of modifications to its sewage treatment plant, which will allow it to

treat a 16

MOD design maximum flow.'

Rock Island also filed an appeal of its NPDES Permit issued in September 1999, which

addresses certain issues that are pertinent to this Variance proceeding. A hearing was held on

March 22,

2000, in conjunction with the hearing on this Petition for Variance. The testimony

and exhibits

in this Variance proceeding were incorporated by reference into the record of the

Permit Appeal pursuant to agreement of the parties. (Tr.

3/22/00,

PCB 00-073, p. 7).2

Based on the testimony and exhibits presented at the hearing, Rock Island has

demonstrated that it is entitled to a Variance from the requirements

of35 Ill. Adm. Code

306.305(d), which requires that Rock Island comply with the Board's Order in

PCB

85-214, to

the extent that the

Order requires Rock Island to operate its Plant at a design maximum flow of

MOD.

The Treatment Plant Does not Have a Design Maximum Capaeity of 16 MGO

At the time the Plant was designed in

tL~

late 1960s, it was designed to meet then-

existing narrative standards for treatment, which required secondary treatment. (Tr.

3/22/00,

~I)ck

Island originally believed, when it filed its Pe.ition for Variance, that the 16 MGD figure first appeared in the

Missman, Stanley

Associate report as an error. During the pendency of this proc,'ding, Rock Island learned that

the 16 MGD figure was placed in the original operating and constructic.1I penn its for the Plaut as a result of the

f1Jinois Sanitary Water Board and IEPA policy of multiplying the design average flow by two in order to designate a

maximum flow rate. (Pennit fh:cord, PCB 00.073, pp. 00344-53;

"it.

3/22/00,

PCB 98-164, pp. 71-72).

7. Because the hearings for both PCB 00-073 and PCB 98-164 were held on the same dale. the transcript for PCB 00-

073 shall be referred to herein as "Tr.

3/22/00,

PCB 00.073, p. _" and the transcript for PCB 98-164 shall be

,eferred to herein liS Tr.

3/22/00,

PCB 98-164, p.

_.n.

PCB 98-164, p.68). Existing design standards at that time required that final clarifiers be

designed on the basis

of design average flow rate. (Tr.

3/22/00,

PCB 98-164, p. 67). Thomas

McSwiggin, manager

of the Permit Section of the Bureau of Water ofIEPA, testified at hearing

that at that time, the

Plant also would have had a "reasonable possibility" of meeting effluent

limitations

of 40 mg/L for biochemical oxygen demand ("BOD") and 45 mg/L for total

suspended solids

("TSS"), which were enacted while the Plant was being constructed.

Jd.

However, Mr. McSwiggin stated that it is impossible to state with certainty what the maximum

flow rate is that can be treated at a given sewage treatment plant.

Jd.

During the pendency ofthis action, Rock Island has learned that the plant was described

tEPA in the first operating pernlit issued after construction was completed in 1971 as an 8

MGD design average flow, with

"max 200%" or 16 MGD peak flow capacity, subject to the

water effluent limitations of20 mg/L BOD and 25 mglL TSS that were promulgated shortly

before issuance

ofthe permit. (Permit Record, PCB 00-073, see pp. 00344-53). This apparently

was done consistent with the then existing

IEPA practice of doubling the design daily average

flow rate to designate the design maximum flow

rate. (Tr.

3/22/00,

PCB 98-! 64, pp. 71-72)

Rock Island sought

in its Petition for Variance such relief as may be necessary to allow it

to construct modifications to the sewage treatment plant to increase the maximum design flow

from

12 MOD to 16 MOD, while remaining in compliance with regulations governing the

treatment

of overflows and bypasses during the construction.

On May 9, 1986, the Board granted Rock Island and the Agency's Joint Petition in PCB

85-214. However, one ofthe conditions of the exception was the adoption of the 16 MOD

maximum design flow which was erroneously included in the Joint Petition. Rock Island has

recently discovered that the maximum design flow

of the main treatment plant is actually 12

MOD. To address this situation, Rock Island has designed and is currently in the process of

constructing plant modifications to increase the maximum design flow from 12 MOD to 16

MOD. These modifications include adding a final clarifier, improving aeration basin and

digester efficiency, and making various piping modifications. (Tr.

3/22/00,

PCB

98~

164, p. 35).

Rock Island submitted preliminary engineering plan to carry out this work to the IEP A in 1997,

and IEPA approved it.

(T!'.

3/22/00,

PCB 98-164, p. 31; Pet. Exh. 10) Rock Island originally

filed a Petition for Variance in June 1998, which IEPA objected to, primarily because the

compliance plan was conditioned

on obtaining low interest loan money from IEP A and that the

loan process would take too long. (Tr.

3/22/00,

PCB 98-164, p. 33). In response, Rock Island

decided to finance the improvements through the sale

of general

obli~ation

bonds, so that it

could begin the project in 1999, and it filed an Amended Variance

Petition in April 1999. (Tr.

3122/00,

PCB 98-164, p. 33). Rock Island currently is scheduled to complete the project by June

I, 2001, at a cost of approximately $3 million, and is approximately four months ahead of

schedule. (Tr.

3/22/00,

PCB 98-164, p. 30).

Rock Island requested a Variance from the CSO rules and the Board's CSO exception

granted to Rock Island because some personnel within the IEPA interpret the

Order to require

that Rock Island must treat 16

MOD before bypassing through CSO Outfall 001 A. Rock

Island's

NPDES Permit, prior to changes being made in response to comments by the United

States

Environmental Protection Agency ("U.S. EPA"), which provision is on appeal in PCB 00-

073,

recognized Rock Island's inability to treat flows in excess of 12 MOD, in that it required

Rock Island only to treat the maximum practical flow prior to utilizing the

CSO bypass. (See

Permit Record, PCB 00-073, Draft NPDES Permit No. IL0030783, p. 00161). Mr. McSwiggin

testified at the hearing that

it is long-standing IEPA policy to require treatment plants to treat the

"maximum practical flow" prior to utilization of the CSO bypass. (Tr.

3/22/00,

PCB 98-164, p.

74). The purpose

of this policy is to avoid washout of solids that are necessary to achieve BOD

and TSS limits.

Id.

Mr. McSwiggin also testified that there would be nothing to preclude the

IEPA from designating the Plant's design maximum flow at 12 MOD. (Tr.

3/22/00,

PCB 98-

164,

p. 69). Despite this, Rock Island has determined that it wants to improve its Plant, and is

willing to increase the capacity

of the Plant to 16 MOD. However, Rock Island needs the

requested Variance in order to be given the time to do so without being subject to enforcement

for utilizing the

CSO bypass when flows exceed what it is capable of treating without suffering

solids washout. As reported by the

IEPA in its Variance Recommendation, Rock Island has

received an administrative order from

USEPA dated February 13, 1998, which is based on the

erroneous designation

of the plant as capable

oftre~ting

16 MOD. However, contrary to the

assertion made in

IEPA's opening statement, Rock Island had committed to this expansion and to

obtaining the present Variance

in 1997, long before it knew of any federal enforcement. (Tr.

3/22/00,

PCB 98-164, pp. 27-32, 42-43).

There was and still is no independent regulatory authority which mandates that Rock

Island's 8

MOD daily average flow Plant have a daily maximum flow of 16 MOD. This

designation was based solely on

IEPA's policy of mUltiplying the daily average flow by 2 in

order to state the design maximum flow. (Tr.

3122100,

PCB 98-164, pp. 67-68). Mr. McSwiggin

acknowledged that the designation has nothing to do with Rock Island's treatment plant being

physically capable oftreating

16 MOD and complying with its effluent limitations.

(Tr.3/22/00,

PCB 98-164, p. 71).

Rock

Island has

attempted [0 ensure

that the maximum

prn~tkal

amount of now b

t~(ltcd

in the Plant before using the CSO bypass. (Tr.

3/22/00,

PCB 98-164, p. 37). In response to

continued concern by the Illinois EPA, Rock Island has carried out a series of improvements,

including completing the installation

of additional sludge drying beds and a new mechanical

sludge dewatering system to address what it, and the

IEPA, thought would allow the Plant to

treat increased flows. (Tr.

3/22/00,

PCB

98~

164, p. 24).

When this did not result in the practicable ability

to handle 16 MGD, Rock Island hired

Huff and Huff, Inc.

("Huff

Huff') to conduct a review ofthe Plant's units to determine which,

if any, were limiting. Huff

Huff deternlined that the final clarifiers were sized to achieve 8

MGD as a daily average flow but were only sized to handle

12 MGD as a daily maximum flow.

(rr.

3/22/00,

PCB 98-164, pp. 25, 101-02). While Rock Island originally thought that this error

had been made in the initial designation

by Rock Island's consultant in the 1980's as part ofthe

CSO study prepared by its consultants, Rock Island has learned, during the pendency of this

proceeding, that this designation also dates back to the original

Sanitary Water Board and IEPA

issuance of the original construction pennit and the initial operating permit. (Permit Record,

PCB 00.073, pp. 0034] -53).

Rock Island has embarked upon an expeditious schedule to upgrade the

Plant so that the

daily maximum flow is truly

16 MGD. (rr.

3/22/00,

PCB 98- t 64, p. 28). Rock Island advised

the

IEP A of work done by Huff and the discovery of the mistaken designation at a meeting on

•

October 16, 1997, and obtained a favorable response as to the proposed scope ofimprovements.

(rr.

3/22/00,

PCB

98~

164, p. 26). At that meeting, in addition to proposing significant

improvements, Rock Island also agreed to collect and catalog floatables on the shoreline, replace

a sanitary

sewer that runs through Blackhawk State Park, and to convert the existing storage

basins (Fransiscan and

Saukie) to treatment units. (rr.

3/22/00,

PCB 98-164, pp. 25, 42; see also

Pet. Exh. 7). Rock Island also agreed to carry out certain actions with respect to the NPDES

permit's nine minimum eso requirements, which Rock Island has been carrying out. (Tr.

3/22/00,

peB 98-164, pp. 26, 41-42). Rock Island advised IEPA at this time that it intended to

seek temporary modification

of the 16 MGD designation. (Pet. Exh. 7

9). Rock Island

submitted a

Preliminary Engineering Report, which was the first step toward obtaining the

necessary permits to build the improvements, which the

IEPA formally approved on February 5,

1998, and Rock Island began

carrying out the plan to build the improvements. (Tr.

3122/00,

peB

98-164, p. 32).

Rock Island has also demonstrated that granting the Variance while Rock Island

continues to improve its

Plant will have minimal impact on the environment. In 1984, the

Illinois

EPA concurred with Rock Island's consultants' conclusions that the existing eso

overflows from Rock Island "have a minimal impact on the water quality of the Mississippi

River and do not restrict stream

use." (Petition for Variance, Att. 2). The Illinois EPA further

recognized that

"there should be even less impact as a result of the further proposed

modifications." (Petition for Variance, Au. 2, paragraph 1). In conjunction with Rock Island's

commitment to the floatable collection and the nine minimum

eso requirements, the impact to

the environment should remain minimal, and, as Mr.

Huff testified, would be even less than

expected in 1985. (Tr.

3122/00,

peB 98-164, p. 101-07). In addition, the most recent studies of

Rock Island's esos performed by Huff

Huff continues to demonstrate that no environmental

impact exists.

(Pet. Exh. 18).

In addition, since the Board made this finding, Rock Island has completed the required

eso exemption improvements and other improvements that have, in actuality, reduced esos.

(Tr.

3122/00,

peB 98-164, pp. 62-63). Therefore, as the IEPA agreed in the eso Exemption

Petition, the impact should already have lessened and should continue to lessen with the

completion

of improvements identified herein.

There is No Independent Regulatory Requirement that the Plant be CapabJe of

Treating a Design Maximum Flow of 16 MGD

As previously stated, apart from Rock Island's reliance upon the historical designation of

the design maximum flow by its previous consultant, and pursuant to Sanitary Water Board and

IEP A practice to double the design average flow rate to designate the maximum flow rate, and

the resulting reliance upon the

16 MOD figure in the Board's Order in PCB 85-214 and TEPA

documents, there is no independent regulatory requirement that the Plant have a design

maximum flow

of 16 MOD. According to Mr. McSwiggin, apart from the Board's Order, Rock

Island could have pursued a program to simply rerate the

Plant

having an 8 MOD and 12

MOD. (See Tr.

3/22/00,

PCB 98-164, p. 69).

Instead, Rock Island chose

to pursue the program of identifying the necessary

improvements to achieve a design maximum flow of 16 MOD. Rock Island did not have any

means to recognize the original consultant's mistake apart from authorizing a new engineering

review

of the Plant's treatment units. This was done when Rock Island had completed additional

sludge handling facilities in early 1997, and still could not provide continued treatment

of flows

at the 16 MGD level without experiencing solids washout. (Tr.

3/22/00,

PCB 98-164, pp. 23-

25).

Rock Island and the Illinois

EPA recognize that these proposed improvements are

necessary before the Plant can provide continuous treatment of a design maximum flow of 16

MOD. The problem facing Rock Island is that it cannot immediately change the limiting units.

The schedule that Rock Island has implemented and continues to implement is a reasonable, but

extremely expeditious one. Condition 1.b.

of the Board's Order granting the CSO exemption

required Rock Island to "implement all modifications to its sewer system as identified in

paragraphs 14,

15 and 16 ofthe petition in this proceeding." (69 PCB 432).

Rock Island promptly

can-ied out all of the identified and agreed upon sewer system

improvements in compliance with Condition l.b. (Tr.

3/22/00,

PCB 98-164, p. 20). The purpose

of those improvements was to allow the maximum amount of flow to be directed to the Plant for

treatment before bypassing through the

CSO overflow. (Tr.

3/22/00,

PCB 98.164, p. 21)

Rock Island is requesting a variance from the

CSO rules and the Board's CSO exception

granted to Rock Island because the IEPA interprets the

Order in PCB 85-214 to require that Rock

Island must treat 16

MOD before bypassing. At the hearing, IEP A stipulated that because of

differences in language between the Permit and letters from U.S. EPA and IEPA to Rock Island

that discuss it, there is a possibility

of confusion as to whether that requirement would be for

Rock Island to physically

treat 16 million gallons of wastewater on any day that it has a bypass.

(Tr.

3/22/00,

PCB 00-073, pp. 22-23). IEPA stipulated that the language in the permit would

require that Rock Island provide a treatment

of a flow rate of 16 MOD before it wou!d be

allowed to use the bypass. (Tr.

3122/00,

PCB 00-073, p. 24). Rock Island maintains that the

draft NPDES permit, prior to revision in response to

U.S. EPA comments, recognized that issue

because it required Rock Island to treat the maximum flow practicable prior to using the

CSO

bypass. Because of this difference in interpretation, Rock Island remains subject to enforcement

for

utiHzing the CSO bypass when flows exceed what is practical to treat without solids washout

at levels less than

16 MOD. Therefore, Rock Island requests that the Board remand this issue to

IEP A for clarification.

CONCLUSION

In summary, the Illinois EPA has not presented any convincing argument to support why

Rock Island is ineligible for the requested relief

or any reason why the Board should not grant

the relief. Attempting to hold Rock Island

subj~ct

to enforcement for not sending 16 MGD of

flow through the Plant prior to utilizing the CSO bypass simply because the original CSO

petition and Board Order were based upon such a mistaken designation is to subject Rock Island

to an arbitrary and unreasonable hardship. The

Plant was properly designed, permitted and

constructed on the basis

of a design average flow rate of 8 MGD, not a 16 MGD design

maximum flow rate. IEPA's policy to require sewage treatment plants to only treat maximum

practical flow before bypassing applies even to plants that actually were required to be designed,

permitted and constructed to meet a design maximum flow rate. Even these plants are not

required in their permits to treat their design maximum flow rate. Accordingly,

it is

unreasonable and technically infeasible

to require Rock Island to direct 16 MGD through the

Plant prior to the construction

of the improvements under threat of enforcement for arguably

violating the effluent limitations, when the 16 MGD designation is simply a result

"f!EPA

policy, and not the actual design maximum flow rate of the Plant.

WHEREFORE, Rock Island respectfully requests that the Board grant the variance relief

requested in the Amended Petition for Variance.

Roy M. Harsch

Roberta

Saielli

GARDNER, CARTON

DOUGLAS

321 N. Clark Street

Suite

3400

Chicago, Illinois 60610-4795

CHOIl12072775.l.

....

CERTIFICATE

SERVICE

The undersigned, an attomey, certifies that he caused to be served a copy of the City of

Rock Island's Post Hearing Brief of City of Rock Island on the following:

John C. Knittle, Esq.

Illinois

Pollution Control Board

100 W. Randolph Street

Suite

11-500

Chicago, IL 6060)

Richard C. Warrington

Associate

Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

___

~",'Illgfield,

Illinois 62794-92