ILLINOIS POLLUTION CONTROL BOARD
December
18, 1980
ILLINOIS POWER CONP~NY,
(Hennepin Power Plant),
)
Petitioner,
v.
)
PCB 79—243
ILLINOIS
ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
ORDER OF THE BOARD
(by D,
Satchell):
On November
5,
1980 Illinois
Power
(IPC)
filed a motion for
rehearing and on November
6,
1980 Illinois Environmental Protection
Agency
(Agency)
filed
a motion for clarification, or alternatively
for rehearing,
concerning the
Boardvs October 2,
1980 Opinion and
Order.
On November
19, 1980
each party filed a response to the
other’s motion.
On November
20 the
Board agreed to reconsider and
denied an Agency
motion for relief
from clerical error.
CHLORINE LIMITATION
The Agency objects to the last paragraph on page
3 of the
Opinion which concerns Rule 910(a) (6)
of Chapter
3 and the ques-
tion of whether the Agency
is
authorized to impose its own effluent
limitations in a permit different from the federal limitation,
where there is
a federal limitation but no state limitation.
The
Agency is concerned
that
the language of the Opinion
may preclude
it from imposing its own
effluent
limitations where the parameter
is subject to neither a federal or a state effluent limitation.
When the entire paragraph is read it is clear that this latter
question was not before the
Board.
The
October 2,
1980 Opinion
and Order was not intended as a holding on this point.
CHLORINE MONITORING
In connection
with the chlorine
monitoring requirement, IPC
objects to the option
given the Agency
of either imposing a permit
condition based on total
chlorine
residual with quarterly concen-
tration curves or a
chlorine
monitoring condition based on
a
dif-
ferent method of measuring
chlorine.
IPC’s evidence on
chlorine
monitoring centered
upon the lack of
necessity for weekly monitor--
ing curves.
However, in connection with the evidence on what
standard should be applicable, there was some indication that
IPC
preferred monitoring by free available chlorine.
Had the
option
40—129
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not been included in the Opinion,
the result would have necessarily
been a permit with effluent limitations expressed as free available
chlorine and monitoring by total residual chlorine.
In expressing its decision as an option the Board intended to
allow IPC to amend its application to request monitoring by way
of free available chlorine if that were indeed its desire.
The
information attached to the motion as Exhibit C should be present-
ed to the Agency by way of an
amendment
to the application.
In its response to IPC~smotion the Agency has requested that
the Board remand the condition so that the Agency may rewrite it
to require that free available chlorine be monitored by means of
a
chlorine concentration curve to be developed quarterly.
This
appears to be what IPC is requesting in its Exhibit C.
However,
IPC did not make its request for free available chlorine monitor-
ing in connection with the permit application which resulted in
this appeal.
The question as to whether free available chlorine
on quarterly concentration curves is required to accomplish the
purposes of the Act is not before the Board.
There is ample leeway
in the Order as it is written for the Agency to so modify the con-
dition.
The Board therefore declines to modify its Opinion and
Order with respect to this condition, except to the extent that IPC
is specifically authorized to
amend
its permit application
on remand.
REMAND
IPC objects in general to the remand for further action “not
inconsistent with the Board~sOpinion of this date.”
IPC contends
that the Board should have rewritten the permit conditions in
question
and
ordered the Agency to incorporate those particular
conditions in the permit.
Section 4(g)
and Section 39 of the
Environmental
Protection Act
(Act)
confer upon the Agency the duty
and
authority
to
issue
permIts.
Procedural Rule 502(a) (10) provides
that
the
Order
of
the
Board in a permit
appeal
“may
affirm
or
re-
verse
the
decision
of
the
Agency
in
whole
or
in
part,
may
remand
the
proceeding
to
the
Agency
for
the
taking
of
further
evidence
or
may
direct
the
issuance of the permit in
such
form
as
it
deems
just,
based upon the law and the evidence.”
Remand
of
the
permit to the Agency for further
action is con-
sistent with the Act and Board Procedural Rules and is not a sub-
delegation of the Board~sSection 40 appellate powers.
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—3—
1\ny NPDES permit issued pursuant to the Board’s mandate in
this case will be
a final action of the Agency appealable to the
Board pursuant to Section 40(a),
If the Agency does not follow
the Board’s Order, or
if IPC has
additional objections to condi-
tions in the permit as issued,
it may raise these objections in
this manner.
SCREEN BACKWASH
IPC has stated at several points that the
Board
must
either
apply
Rule
401(b)
or Rule 403.
However,
Rule
401(b)
contains at
least
five
references
to other rules in Part
IV.
It
is
intended
to
be
read
in
conjunction
with the rest
of
Part
IV.
Indeed,
if
Part
IV
contained
no
effluent
limitations, then
Rule
401(b)
would
be
meaningless.
In
an enforcement
action
Rule
401(b)
creates
an
affirmative defense to a complaint alleging
violation
of
the
ef-
fluent standards--the respondent
can
admit that the contaminant
is present in its discharge, but demonstrate that it is also
present
in
its
intake water,
Its
function
in
the
context
of
a
permit is somewhat
similar,
Section
40(a)
of
the Act
places the burden of proof in a permit
appeal upon the permit applicant.
The burden
of demonstrating that
a
contaminant in a discharge
is
a part of the intake background
is
upon
the
permit
applicant.
With respect to the screen backwash
effluent
limitation
IPC
has
several
arguments concerning the
application
of
Appalachian
Power Company v.
Train
545 F,
2d 1351,
1377,
4th
Circuit
1976.
~~TTIEflmTtation
in question
is based on Rule 403 of Chap-
ter 3, not upon any federal effluent limitation.
Section 301(b)
(l)(C)
of the Clean Water Act
(CWA)
requires that the permit
con-
tain
any more stringent limitations, including those necessary to
meet water quality standards or treatment
standards
established
pursuant to state law or regulations.
Similar provisions are
found in Section 39(b)
of the Act and Rule 910(a)
of Chapter
3.
The State of Illinois is
free
to adopt more stringent water pollu-
tion rules than the federal rules and these must be included in
the NPDES permit.
If a state?s substantive law requires
background
contamination to be cleaned up, then a condition must be included
in the NPDES permit, regardless of whether the CWA so requires.
The question before
the Board was
exclusively one of state law:
Do the fish constitute an offensive discharge under Rule 403 and,
if so, are they nevertheless background under Rule 401(b)
of Chap-
ter 3?
IPC
quotes
the following language from
Section
12(f)
of
the
Act:
“No permit shall be required under this
Subsection
and under
Section 39(b)
of the Act for any discharge for which a permit
is
40—131
—4—
not
required
under
the
Federal
Water
Pollution
Control
Act
Amen-
ments
of
1972
(PL92-500)
and regulations pursuant thereto.’
IPC
contends that this, in connection with Appalachian Power,
limits
the Agency’s authority to impose permit conditions which would
require a discharger to remove background contaminants.
However,
Section 12(f)
relates to the permit requirement:
the Board cannot
require NPDES permits of dischargers which would not be required
to have
NPDES
permits
under
the
Clean
Water
Act.
IPC
has
not
at
any time in this proceeding contended that the facility, or its
cooling water discharge,
is not subject to the NPDES permit re-
quirement.
Once the permit requirement is established, conditions
required pursuant to state law must be included.
CATEGORIES OF FISH
IPC
has
indicated
confusion
about
the
categorization
of
fisn.
It
has
demonstrated
that there exist a certain number
of
dead
fish
in
the
river
water
before
it
is
taken
into
the
intake
structure.
These
fish
constitute
background
within
the
meaning
of
the
Rule
401(b);
Rule
403
therefore
does
not
require
that
they
be
removed
from
the
discharge
where
no
more
than
traces
are
added.
There also
exist
in
the
Illinois
River
live
fish,
some
of
which are impinged
in
the
intake
structure.
Those
fish
which
die
prior
to
discnarge,
and
which
are
floating,
violate
Rule
403.
They
are
not
within
the
background
exception
of
Rule
401(b),
even
though
they
were
present
as
live
fish
in
the
river
prior
to
intake.
Live
fish
are
not
‘background” contaminants within the meaning of Rule 401(b) with
respect to fish killed by IPC’s process.
Illinois Power has expressed concern about fish which are
merely injured in the impingement process but which may recover
subsequently.
The basis of the permit condition is not the pro-
tection of fish.
This was the subject of the Section
316(b)
study.
The permit condition is based on Rule 403 which proscribes the dis-
charge of dead, floating fish to the river.
Rule 401(b)
states that,
“it is not the intent of these regula~-
tions to require users to clean up contamination caused essentially
by upstream sources or to require treatment when only traces of
contaminants are added to the background.”
Upon reconsideration
the Board will modify its previous Opinion and Order in the follow-
ing manner:
“The permit should expressly authorize the discharge of
background or the addition of traces to background.”
Rule 401(b)
also states that the effluent standards “are abso~-
lute standards that must be met without subtracting background
concentrations.”
If IPC is adding more than traces to the back-
ground of dead fish, then it must remove all of the dead fish from
its discharge.
40—132
—5—
COST
OF
COMPLIANCE
Assuming
that
IPC
is
in
violation
of
Rule
403,
it is subject
to
an
enforcement
action
regardless
of
whether
the
condition
re-
quired by Rule 403
is included in the permit.
If IPC is already
required to spend a certain amount of money to comply with Rule
403
and the same expense would bring it into compliance with the
permit condition, then it cannot say that the condition imposes
any hardship upon it.
It is Rule 403 which causes the hardship,
not the permit condition.
Still assuming that Rule 403 requires the permit condition,
IPC may petition the Board for a variance from Rule 403.
Under
Rule 914 of Chapter
3 the Board can order modification of the
iTPDES permit as a result of a variance.
In a variance proceeding
the cost of compliance may be alleged as arbitrary or unreasonable
hardship.
Section
35
of
the
Act
authorizes
the
Board
to
award
variances
while
Section
39
authorizes
the
Agency
to
issue
permits.
If
the
Agency were to consider the cost or difficulty of compliance in
deciding whether to incorporate a permit condition required by
Board regulations, then it would be usurping the authority dele-
gated the Board under Section 35.
The permit would be
a type of
variance from the Board regulation.
MISCELLANEOUS CONDITIONS
With respect to the redundant oil and grease reporting re-
quirements, the Agency has responded to IPC’s motion by offering
to
delete
the
redundancy.
The Board authorizes the Agency to do
so
on
remand.
With
respect
to
Standard
Condition
No.
27,
the
Board
intended
to
endorse
the
Agency’s
suggested modification in
the
language,
which appears to adequately protect IPC.
The permit conditions
relate to exercise of the Agency’s
authority to impose
effluent limitations pursuant to Rule 910(a) (6)
of Chapter
3.
If
this authority is exercised,
it will be by way of permit modifica-
tion.
IPC may challenge that authority by way of appeal of the
modified permit.
The Board does not perceive any additional pro-
tection afforded by IPC’s surplusage.
The Board’s Opinion and Order of October 2,
1980 is modified
as noted above.
IT IS SO ORDERED.
40—133
—6—
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control Board, hereby certify that the above Order was adopted
on the
j~
~
day of
j•.,.
,
1980 by a vote of
~-‘-~
~
Christan L. Moff~tt,Cle
Illinois
Pollution
Control
Board
40—134