ILLINOIS POLLUTION CONTROL BOARD
March
14, 1974
IN THE MATTER OF
PROPOSED REGULATIONS FOR THE
IMPLEMENTATION OF THE NATIONAL
)
PCB R73-ll, R73—12
POLLUTANT DISCHARGE ELIMINATION
SYSTEM
)
ORDER OF THE BOARD DENYING MOTION TO SUSPEND PROCEEDINGS
(by Mr. Fenss)
The Illinois Environmental Protection Agency submitted
proposed regulations for the implementation of NPDES on October
1,
1973.
Four hearings were held on the Agency’s original proposal.
On January
16, 1974
the Director of the Illinois Environmental
Protection Agency requested that this
Board. “temporarily defer
further action on the NPDES Regulations” pending review of the
matter by the Agency.
Subsequently,
on January 30,
1974 in
light of certain comments and criticisms which had been made,
the Agency submitted
a second proposal.
A fifth hearing was
then scheduled in this proceeding for March
13,
1974.
On the day of the hearing, March
13,
1974,
the Illinois
Environmental Protection Agency appeared and filed its Motion
to Suspend Proceedings.
The Motion
specifically requests that
this Board “suspend all further proceedings in this matter until
September
5,
1974 and that the Board table the proposals made by
the Agency to the Board in this proceeding for the implementation
of an NPDES program in Illinoisv.
Dr. Richard Briceland,
Director
of the Illinois EPA, testified
that the Federal Agency had termed
the January 30,
1974 proposal ‘exceedingly cumbersome”.
This
criticism was one of the factors leading
to the mOtion to suspend
proceedings
(R.
801).
The Motion to suspend proceedings and table the proposals is
hereby denied.
The Illinois Environmental Protection Act requires
that we adopt Regulations which will enable the State of Illinois
to implement the national pollutant discharge elimination system
without creating a dual permit system for Illinois.
Section 13(d)
of the Act states:
“for purposes of implementing an NPDES
program, the Board shall adopt:
recuirements, standards and
procedures which together with other regulations adopted pursuant
to this Section 13 are necessary or appropriate to enable the
State of Illinois to implement and participate in the national
Dollutant discharge elimination system pursuant to and under
the Federal Water Pollution Control Act Amendments of 1972.’
The Statute further provides “that it is in the interest of the
People of the State of Illinois for the State to authorize such
NPDES program and secure Federal approval thereof, and thereby to
I I
—
609
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avoid the existence of duplicative, overlapping or
conflicting
State and Federal statutory permit systems”.
EPA
Section 11(a)
We regard it as our duty to adopt regulations which will assist
in implementing NPDES for Illinois, coordinate the appropriate
regulations,
and thereby avoid
a dual permit system in this State.
A suspension of these proceedings would thwart this purpose of the
Governor and the Legislature.
The testimony on March
13, 1974 indicates that the United
States Environmental Protection Agency, with the assistance of
the Illinois Environmental Protection Agency, will now proceed
to issue NPDES permits in Illinois.
The intent of the two agencies
is
to issue the Federal permit even though the Administrator of the
U.
S.
EPA has not yet approved a State program which will implement
the provisions
of the Federal Act in Illinois.
All major dischargers
in Illinois are to receive these Federal permits prior to December 31,
1974.
The issuance of Federal permits prior to Federal approval of
the State program assures
a dual system for Illinois and is
precisely the thing the Legislature and Governor sought to avoid.
Issuance of the Federal permit is apparently
to be the cooper-
ative effort of the State and Federal agencies.
This is partly due
to a Federal requirement that the State certify, prior to issuance
of the Federal permit, that the conditions
of the permit will, not
later than July 1,
1977, bring compliance with any State water
quality standards,
treatment standards,
or schedules of compliance
(emohasis supplied) which are more stringent than the Federal limi-
tations.
Federal
Water Pollution Control Act Amendments of 1972,
Section 401(a) (1);
Section 301(b) (1) (C)
Our Rule 951 presents
some problems for such certification by the Illinois EPA,
That Rule
provides:
“The Agency shall not approve any effluent discharge for
the purposes of any Federal permit unless that discharge
is in compliance with all provisions
of the
(Illinois
Environmental Protection) Act and this Chapter, or has
been granted
a variance under Title IX of the Act.”
Rule 951 existed at the time the Illinois legislature enacted
P.A,
78-862 which was passed in 1972 with the intention of qualifying
Illinois to administer the NPDES program.
To the extent that Rule
951 conflicts with that legislative enactment the Rule is voided.
It is obviously the intent of the Legislature to allow the Illinois
EPA to issue Illinois NPDES permits without reference to the limi-
tations of Rule 951 after the Illinois NPDES program comes into
existence.
EPA
Section 39(b)
However, we doubt that the Illinois
Agency can certify its approval of discharges which are in vio1atior~
of Illinois Standards prior to approval of an Illinois NPDES pro:~m.
For one thing,
it seems
that the Legislature did not contemplate
such a possibility, since the thrust of the legislation was
for
“one permit” system and not the dual and overlapping system
whier
will
exist upon issuance of Federal permits alone.
Second1y,~ sun
ii
~61O
—3—
certification is not contemplated by the Federal law.
On October
1,
1973 when the Illinois EPA filed its proposal, the Agency said:
“Region V of the U.
S. EPA has requested the Agency
to propose to the Board the deletion of the present
Rule 951 in its entirety so that the Agency may
provide certification,
as required by Section 401
of the FWPCA,
of proposed NPDES
(U.S.) permits
for
discharges presently not in compliance with Chapter
III effluentrequirements and~other standards.
The
Agency believes that even if Rule 951 were abolished,
it would be unlawful to provid.e such certifications
because the certification would state that the dis-
charge would be in compliance with the provisions
of Section 301(b) (1) (C)
of the FWPCA when such would
not be the case.”
We think that the Agency was correct in October 1973.
The
Agency can hardly certify that an applicant for a Federal permit
is meeting Illinois water quality standards,
treatment standards or
schedule of compliance unless the applicant is actually in compliance
with Pollution Control Board standards or the terms of an Illinois
NPDES permit.
When the Illinois NPDES program is implemented, such
schedules of compliance will be established by the Illinois Agency
but will be subject to review and modification.
Until this pro-
cedure has been developed,
certification of Federal permits by the
Illinois Agency seemingly is prohibited by the Federal
law as well
as
the Illinois
law.
We believe that the early implementation of an
Illinois NPDES program
is necessary in order to facilitate the
issuance of Federal permits
as well as Illinois permits.
In order to avoid
a dual permit system and the application of
overlapping and conflicting regulations
it will be necessary to
implement an Illinois NPDES program for the issuance of Illinois
NPDES permits.
Under Section 39(b)
of the Act an Illinois NPDES
permit could “allow discharges beyond deadlines established by the
Act or by Regulations of the Board without the requirement of a
variance” from Illinois requirements.
Operating permits need not
be obtained for any facility for which an Illinois NPDES permit
has been issued.
EPA
Section 13(b) (1)
Compliance with the terms
of an Illinois NPDES permit would then constitute compliance with all
Illinois and Federal requirements except for the discharge of
toxic
pollutants injurious
to human health.
See:
EPA Section 12(b)
These benefits of the “one permit” system will not he available
unless Illinois implements its NPDES program and it
is approved by
the Administrator of the U.
S.
EPA.
The
Deputy
Director of the Illinois EPA testified that the
Federal permits to be issued this year prior
to the Administrator’s
approval of an Illinois system will not protect the Illinois dis-
charger from prosecution for substantive violations of Illinois
effluent or water quality standards.
In
addition, operating permits
will be required under existing Illinois
law.
See:
EPA Section 39(b)
An
operating permit cannot be issued for a facility which will cause
—4—
a violation of the Illinois Regulations, unless
a variance has been
granted from those Regulations.
In addition to its request that we table Illinois NPDES pro-
posals, the Agency requested that we eliminate operating permits
for
those dischargers for which an NPDES permit
is required.
However,
even if we did this the recipient of a Federal permit would still be
subject to the Illinois effluent and water quality standards.
A suspension of these proceedings then will assure a dual
system in Illinois.
In addition to compliance with the Federal
NPDES permit an Illinois applicant would have to comply with
Illinois requirements regarding standards and variances and unless
we amend the regulations would also have to comply with Illinois
requirements
regarding operating permits.
It is entirely possible
that the applicant would be faced with two different compliance
deadlines.
These facts were understood by the Agency at the time
it requested suspension
of these proceedings.
This is clear from
the following testimony of the Deputy Director of the Illinois EPA:
Q.
I have about two or
three.
I would just like to
ask a very few questions,
since it
is late in the day.
I think it was brought out in answer to Mr. Marder’s
question that dischargers in Illinois are subject to
prosecution unless the permit is issued under
a
certified Illinois system.
Would that be a correct statement of what
I think
Jeff said?
A.
Yes,
it would be, except for~failureto have a
permit.
Q.
Except for what?
A.
Except for failure to have
a permit.
Any other
substantive violations other than failure to have a
permit——because we are considering that their permit,
if they have an application on file with USEPA,
is
pursuant to the amendments, the same as having an
application on file with us.
So we are just talking
about substantive violations of effluent or water
quality standards.
A person would he subject to prosecution for
those,
yes.
Q.
Well,
then,
this request for suspension of the
proceeding would to me mean that the permits which
are issued this year would provide no protection
from the Illinois statute to persons receiving that
permit,
and prosecution could be brought even though
they are in compliance with the terms of the permit,
would that be true?
—5—
A.
That would be potentially possible.
It would not
be
a result that we would look for; but it would be
possible.
Q.
Would it not seem
to be better,
then,
to act
quickly to have a simple Illinois system so that
those permits can be relied upon?
A.
Absolutely.
The thing we would like to do is
to proceed to get an approved Illinois program as
quickly as possible.
Q.
Well,
it sure would be nice to receive the
information from the Agency that would make that
possible,
then, rather’than a motion to suspend.
Are you saying that you cannot give us that kind of
information?
If so, what kind of a time schedule are
you talking about?
A.
I don’t think anybody at all is certain exactly
what that information is that not only will satisfy
the Board but other people who have commented on
the Regulations that will work the best for this Agency
given the environmental effort that has gone on in the
last three years.
I think the problem that we have
been having in drafting the regulation
is simply we
are trying to accomodate everyone and at the end
accomodating really no one.
Q.
Well,
I would say this procedure is sort of
a
trap to the person who gets
a permit,
in that he
receives it and he thinks he is okay,
and yet he
has been misled, he can be prosecuted;
and all of
these people who have been getting these permits
for the balance of this year——and that apparently
includes all of the major dischargers, and a great
number of-—the great majority of all dischargers in
the state will be receiving this permit, and i
assume they will be thinking that, well,
they are
okay,
they have got a permit,
all they have to do
is
comply with its terms; and what you are telling us
is that they could still be prosecuted under the
Illinois statute.
Now,
is
there justice in that?
A.
Well,
I am certainly hoping that should the
procedure that we outlined be followed that no
industry, municipality,
or other discharger in
the state would be misled--certainly not by the
Agency or USEPA as to whether or not he would be
subject to potential enforcement action by the
EPA or
a private citizen to enforce the substantive
standards of the Pollution Control Board regulations
—6—
during that period of time that he is not on an
Illinois permit, hut only on
a federal or U.
S.
NPDES permit.
As
I indicated,
though, we are not as inter-
ested in hauling a lot of people before the
Pollution Control Board or the Circuit Court as
we are trying
to act them on compliance programs
to bring them into the system.
That is the problem
we
have all the time that
is addressed to some
extent by our permit proqram and is supplemented
through the variance program, and ultimately
if we
find that neither of those devices work through
our enforcement program.
But we are ultimately
looking to bring
a guy into compliance.
Q.
Riqht.
A.
And
I hone we can communicate that to him and
indicate without otherwise tying our hands
that
should we get a reasonable compliance program it
is not our intention to prosecute him during that
period of time,
that he does not have protection
aqainst an enforcement action by IEPA.
Q.
Others could prosecute, you accept that
possibility?
A.
Oh, yes, and we are sure that the industries
or municipalities that are getting permits during
this neriod would understand that as well.”
It is cur view that
a suspension of these proceedings for
the purpose of issuing NPDES permits without the approved par-
ticipation of Illinois
in the National Pollutant Discharge
Elimination System would be in direct contravention of
the
Illinois statute.
The Agency indicated that it might not file
actions to enforce the Illinois requlations while a discharger
was in compliance with the terms of his Federal permit.
However,
the Act makes it ~‘theduty of all State and local law enforcement
officers
to enforce such Act and Regulations’.
EPA
Section 44(a)
Presumably,
in the absence of Agency enforcement,
civil or
criminal actions would be filed by
the Attorney General or by the
various
Stateb
attorneys.
We
now
have
no
alternative
under
the
Statute
but
to
proceed
as
expeditiously
as
we
can
toward
promulgation
of
an
NPDES
regulation
for
the
State
of
Illinois.
—7—
It is ordered that the Motion to Suspend Proceedings and
Table the Proposals be denied.
Mr. Seaman was not present for the vote.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Order was adopted this
14th
day of
March
,
1974 by
a vote of
4
to
0
_~JJ~
11—615