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Village of Fox River Grove v. Pollution Control Bd.

Case Date: 11/05/1998
Court: 2nd District Appellate
Docket No: 2-98-0058

Village of Fox River Grove v. Pollution Control Board,

No. 2-98-0058, 2nd Dist. 11-5-98

No. 2--98-0058

November 5, 1998

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE VILLAGE OF FOX RIVER GROVE,

Petitioner,

v.

THE POLLUTION CONTROL BOARD; CLAIR MANNING, in her official capacity as Chairman of the Pollution Control Board; MICHAEL L. WALLACE, Chief Hearing Officer of the Pollution Control Board; RONALD FLEMAL, G. TANNER GIRARD, MARILI McFAWN, J. THEODORE MEYER, KATHLEEN HENNESSEY, and JOSEPH YI, as members of the Pollution Control Board; THE ENVIRONMENTAL PROTECTION AGENCY; and MARY A. GADE, Director of the Environmental Protection Agency,

Respondents.

Petition for Review of Order of the Pollution Control Board.



No. 97--156 )

JUSTICE RATHJE delivered the opinion of the court:

The petitioner, the Village of Fox River Grove (Village), appeals from a decision of the Illinois Pollution Control Board (IPCB) refusing to eliminate certain restrictions attached to the National Pollution Discharge Elimination System (NPDES) permit issued to the Village by the Illinois Environmental Protection Agency (IEPA) for the wastewater treatment facility (the facility) owned and operated by the Village. We affirm the order of the IPCB.

On appeal, the Village has identified seven separate issues for our consideration. For clarity purposes, we restate the issues raised as follows:  (1) whether the standard of review applicable in this case is de novo; (2) whether the IPCB erred in utilizing the facility's hydraulic flow rating to arrive at population equivalents for purposes of determining whether stricter effluent limits under IPCB regulations applied; (3) whether the IPCB erred in refusing to consider the prior interpretations of the applicable regulations by the IEPA; and (4) whether the imposition of the stricter effluent limits will inhibit the ability of the facility to treat sewage within the facility's designated service area.

In order to understand fully the issues raised on this appeal, it is necessary to review the NPDES permit history of the Village's treatment facility, as well as the history of the facility itself.

The original treatment facility was built in 1926; it was last upgraded in 1978. The facility is located in a residential area. Construction of a new facility on the site is not possible since under current regulations the entire site is in a flood plain. The sewer system, which is a tributary to the facility and which was constructed in 1926-27, allows for more than the normal amount of infiltration of storm water and groundwater flow. When the facility was redesigned in 1977, it was determined that it would be easier to treat the infiltration rather than to try to remove it from the facility. The wastewater flow rates for the facility were based on a combination of sewage and infiltration. Thus, while the facility was designed for and is rated as having a hydraulic or design flow capacity of 1.25 million gallons per day, the facility was designed to treat only 1 million gallons of sewage per day.

Before turning to the history of facility's NPDES permits, it is necessary to understand the term "population equivalent" as defined in the regulations of the IPCB. "Population equivalent" (P.E.) is defined as follows:

"a term used to evaluate the impact of industrial or other waste on a treatment works or stream. One population equivalent is 100 gallons (380 liters) of sewage per day, containing 0.17 pounds (77 grams) of BOD (5) (five day biochemical oxygen demand) and 0.20 pounds (91 grams) of suspended solids. The impact on a treatment works is evaluated as the equivalent of the highest of the three parameters. Impact on a stream is the higher of the BOD (5) and suspended solids parameters." 35 Ill. Adm. Code