ILLINOIS POLLUTION CONTROL BOARD

June 26, 1975

CHRYSLER CORPORATION,

Petitioner,

v.

)

PCB 74—466

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

MR. ELMER C. RUDY and MS. CONNIE GALE, appeared on behalf

of Petitioner;

MR. JOHN T. BERNBOM, appeared on behalf of Respondent.

OPJ.NION AND ORDER OF THE BOARD (by Mr. Dumelle):

Chrysler Corporation (Petitioner), on December 12,

1974, filed a Permit Appeal seeking review of the refusal of

the Environmental Protection Agency (Agency) to issue Petitioner

a permit. The Agency filed a Motion to Dismiss on January

2, 1975. On January 16, 1975, Petitioner filed an Answer to

the Motion to Dismiss. After review of issues raised in the

Motion to Dismiss and the Answer to Motion to Dismiss, the

Board decided to take the Motion with the case. A hearing

was held on February 20, 1975 in Belvidere. Both Petitioner

and the Agency submitted Briefs. Petitioner has filed a

waiver of its right to a decision within 90 days, extending

the date for final decision to June 26, 1975.

Petitioner operates an automobile manufacturing plant,

known as the Belvidere Assembly Plant, which is located in

the City of Belvidere in Boone County, Certain industrial

wastes are provided treatment and subsequently discharged by

Petitioner. This waste water discharge is the subject of

this petition.

Petitioner seeks to appeal a refusal by the Agency to

issue Petitioner a permit for its Belvidere Assembly Plant

and to have its point of waste water discharge redefined as

exiting to the Kishwaukee River rather than to the drainage

ditch referred to by the Agency as an “unnamed tributary” of

the K±shwaukeeRiver (Petition, page 1).

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The Agency answers that it has only drafted a National

Pollutant

Discharge Elimination System (NPDES) permit

containing

certain limitations pursuant to an agreement between the

Agency and Region V of the U.S. Environmental Protection

Agency (U.S. EPA) (Motion to Dismiss, page 1). The Agency

further states that the Board has no authority to hear an

appeal concerning an NPDES permit until the State of Illinois

has been delegated the authority to administer the NPDES

permit program by the Administrator of the U.S. EPA pursuant

to Section 402 of the Federal Water Pollution Control Act

Amendments of 1972 (FWPCA) (Motion to Dismiss, page 2). The

Agency further alleges that the relief requested concerning

a redefinition of the point of waste water discharge is not

the proper subject of a permit appeal (Motion to Dismiss,

page 2).

A review of the record shows that Petitioner was issued

a permit to install and operate an industrial waste treatment

facility with discharge to a present small intermittent water

course tributary to the Kishwaukee

River

by the Sanitary

Water Board on August 28, 1964 (emphasis added) (Petitioner

Exhibit 2), On July 9, 1970, Mr. C,W. Kiassen, then Director

of the Agency, approved the 20 mg/i BOD and 25 mg/i suspended

solids effluent quality for Petitioner;s discharge into the

minor tributary of the Kishwaukee

River

(emphasis added)

(Petition Exhibit 3)

On June 30, 1971, Petitioner applied

to

the Army Corps

of Engineers for a 1899 Refuse Act discharge permit (Petitioner

Exhibit 6). Petitioner requested

on

May 25, 1971 that the

Agency provide the required state certification that such

discharges will not violate applicable water

quality

standards

(Petitioner Exhibit 4). The pending Refuse Act permit

application was deemed by operation of federal law

t~

be an

application for an NPDES permit on October 18, 1972 (Section

402(a) of the FWPCA), Pursuant to a working agreement

between the Agency and the U.S. EPA,

the Agency

prepared

draft NPDES permits for U.S. EPA issuance pursuant to the

FWPCA. The Agency has prepared a series of draft permits

for Petitioner’s Belvidere Assembly Plant with the last

draft

dated December 31, 1974

(Agency

Brief,

page 2

of

Argument)

*,

On November 6, 1973, the Agency notified Petitioner

that Rule 404(f) of Chapter Three

Water Pollution Regulations

*Found two pages following the caption of

Argument.

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400

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adopted in March 1972 (Water Regulations) required that

discharges into a stream with less than a 1 to 1 dilution

conform to a standard of 4 mg/i BOD5 and 5 mg/i suspended

solids (Petitioner Exhibit 16). This letter states that

“the new regulation require that standards be based on the

dilution ratio in the stream to which the effluent is discharged”.

(Ibid). The Agency stated that “our records indfCat~9 t1i~t

these facilities discharge into a tributary of the Kishwaukee River...

(Ibid) (emphasis added).

Petitioner has failed to allege and prove that it has

applied for an Illinois permit to operate its waste treatment

system pursuant to Rule 952 of the Water Regulations (formerly

Rule 902). Therefore, the Agency has not been shown to have

çlenied such a permit. Petitioner stated that the Agency has

!!jssued no formal permit to Chrysler to discharge those [20

mg/i of SOD5 and 25 mg/l of suspended solids] levels” (Answer

to Motion to Dismiss, page 1). Petitioner bases its appeal

upon the premise the issuance of a draft permit and the

letter of November 6, 1973, which both require that Petitioner

comply with Rule 404(f) of the Water Regulations, amounts to

a denial of the Agency approval of other limitations (Answer

to Motion to Dismiss).

While not holding that the Board lacks authority to

hear any permit appeal resulting from Agency action in

drafting and certifying NPDES permits, the Board finds that

there was no permit in existence from which Petitioner could

appeal. In the appropriate case, a Petitioner could file a

variance from the regulation in conflict, such as Rule 404(f)

in this case. The Board could make the initial determination

if the rule in fact applied. If the rule was found to indeed

apply, as interpreted by the Agency, the Board would then

decide if a variance should be granted from that rule. Petitioner

could then utilize the Board’s decision in an attempt to amend

the draft NPDES permit or in a request to modify a final NPDES

permit, Other than the draft NPDES permit no evidence was

introduced that Chrysler ever applied for an operating

permit after Rule 902 (presently Rule 952) of the Water

Regulations was adopted. This rule required all discharqers

to have an operating permit in accordance with Section 12(d)

of the Environmental Protection Act.

Although having found that Petitioner had no permit

which would trigger the review requested by Petitioner, the

Board must still decide whether the application for a Refuse

Act permit (and by operation of law an NPDES permit) constitutes

an operating permit application. The Board finds that until

Illinois is granted authority to administer the NPDES permit

system separate applications must be made for federal and

state permits, When the Board enacted the NPDES regulations,

17—401

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—4—

R 73-11 and 12,

it suspended the operating permit requirement

for all dischargers who must obtain an NPDES permit (Rule

952(b) of the Water Regulations). This suspension expires

on June 30, 1975. Thus pursuant to Section 12(d) of the Act

and Rule 952 of the Water Regulations, Petitioner will be

required to possess a state operating permit after June 30,

1975. Petitioner was originally required to have an operating

permit on April 16, 1972, until October 5, 1974, the date

the requirement was suspended.

Petitioner has additionally requested that its point of

discharge be reclassified from the “unnamed tributary” to

the Kishwaukee River. Petitioner, however, stated that

“the present petition does not refer to a request for a

variance from the draft NPDES Permit” (Answer to Motion to

Dismiss, page 2). The Board agrees with the Agency that a

permit appeal, even if a proper appeal, is not the type of

case to seek such a change. For example, Petitioner has the

regulatory amendment process to seek such a permanent change.

Much of the testimony at the hearing dealt with the lack of

necessity of meeting the 4—5 standard when the present

quality of effluent adequately protects the tributary in

Petitioner’s opinion. If Petitioner could demonstrate the

required circumstances in a variance request, Petitioner

could be granted a variance while it came into compliance

with the requirements.

The Board has determined to dismiss the permit appeal

with

prejudice after finding no permit in existence which the Board

can review. However, the Board’s decisionhas not reached

the merits regarding any potential variance petition or

regulatory proposal.

This Opinion constitutes the Board’s findings of fact

and conclusions of law.

ORDER

The Motion to Dismiss filed on January 2, 1975 is

hereby granted. Petitioner’s permit appeal is dismissed

with prejudice.

IT IS SO ORDERED.

I,

Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Opinion and Order were

adopted on the

Qt~

day of June, 1975 by a vote of

~-b

Christan L.

~.

Mof

M~fr~)

ett, Clerk

Illinois Pollution Control Board

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