BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF JOLIET,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY
Respondent.
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PCB No. 09-25
(Permit Appeal-Water)
NOTICE OF FILING
TO:
Roy M. Harsch
Yesenia Villasenor-Rodreguez
Drinker Biddle
&
Reath, LLP
191 North Wacker Drive
Suite 3700
Chicago, Illinois 60606
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
1 00 West Randolph Street
Chicago, Illinois 60601
PLEASE
TAKE NOTICE that on February 20, 2009 I filed with the Clerk of the Illinois
Pollution Control Board, the Respondent's Post Hearing
Brief and Certificate of Service, a copy of
which is attached and served upon you.
DATED: February
20,2008
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
BY:.~~
Gerald T. Karr
..
~<
Senior Assistant Attorney General
Environmental Bureau
69 West Washington Street
Suite 1800
Chicago, Illinois 60602
(312) 814-3369
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, February 20, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF JOLIET,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY
Respondent.
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PCB No. 09-25
(Pennit Appeal-Water)
RESPONDENT ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY'S
POST-HEARING BRIEF
NOW COMES Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, by and
through its Attorney and for its Post-Hearing Brief, states as follows:
Introduction
This matter is straight forward, the Agency Record is clear and the facts are not in dispute.
The Petitioner, the City
of Joliet ("Petitioner" or "Joliet"), owns and operates three wastewater
treatment plants.
(R - 104) 1 Petitioner obtained a pennit from the Respondent Illinois Environmental
Protection Agency ("lllinois
EPA") which allowed the sludge from the wastewater treatment plants
to be land applied. This
pennit was renewed in October 2006 and contained a special condition
limiting the increase
of radium in the soil to O.lpCi/g. This limit was later revised after an analysis
done during the development
of a draft Memorandum of Understanding between Illinois EPA and
Illinois Emergency Management Agency-Department
of Nuclear Safety to O.4pCi/g. (R-29). This
1 All references designated (R- ) refer to the record filed in this matter on December 11, 2008.
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Electronic Filing - Received, Clerk's Office, February 20, 2009
new limit was embodied in a new pennit issued by Illinois EPA on or about February 16,2007. (R-
29).
By a pennit modification application Petitioner sought to revise this limit further upward to
1.0pCi/g. (R- 6 to 8). The Illinois EPA denied this pennit modification and the present appeal was
taken.
(R-l to 2).
Applicable Statutes and Standards
The Illinois EPA, pursuant to Section 39( a) ofthe Illinois Environmental Protection Act (the
"Act"), 415 ILCS 5/39( a)(2006), has the duty to issue any pennits required under the Act upon proof
of a pennit applicant that the pennitted activity will not cause a violation of the Act or regulations
there under.
Section 40(a)( 1) of the Act, 415 ILCS 5/40(a)( 1 )(2006), provides an appeal right to an
aggrieved pennit applicant, and further provides that the burden
of proof during the appeal rests with
the petitioner.
Browning-Ferris Industries
of Illinois
v.
Pollution Control
Board, 179 Ill.App.3d 598,
601,534 N.E.2d 616,619,128 Ill.Dec. 434 (1989). The issues in a pennit appeal are framed by the
denial letter issued by the Illinois EPA and the Board can look to the reasons in such a denial letter
when reviewing the Agency's actions.
ESG Watts, Inc. v. Pollution Control Board,
286 Ill. App.3d
325,335,676 N.E.2d 299,306,221 Ill. Dec. 778 (1997). During the appeal the Board's actions are
judicial in nature and in reviewing an Agency pennit denial the Board is bound by the Agency record
and the evidence introduced at the hearing.
Illinois Environmental Protection Agency
v.
Pollution
Control Board,
88 Ill.App.3d 71, 77-78, 410 N.E.2d 98, 104, 43 Ill.Dec. 98 (1980).
Argument
The denial letter issued by the Illinois EPA to the Petitioner on or about September 12,2008,
is very specific in the reason for the denial of the requested pennit modification. The denial letter
provides that Sections
12 and 39 of the Act prohibit the Agency from issuing a pennit to a facility
which would threaten, cause
or allow the discharge of contaminants which might cause or tend to
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Electronic Filing - Received, Clerk's Office, February 20, 2009
cause water pollution in Illinois. (R-1). Even more specifically, the causing, threatening or allowing
of the discharge of contaminants which might cause or tend to cause water pollution will occur
because the Petitioner is seeking an increase in soil radium from
0.1 pCilg above background levels
to
1.0 pCilg above background levels, which will exceed the limit set in the Memorandum of
Agreement ("MOA") between Illinois EPA and Illinois Emergency Management Agency. (R-l, R-8
&
R-336-339). The denial letter has now framed the issue and provides a basis or justification for
the Agency's action. Now the
Petitioner has the burden, based on the Agency record and evidence at
hearing,
of showing that the Agency's action of denying the permit is not supportable.
The following overview
of the Illinois EPA and Act was set out by the Illinois Supreme
Court in the case,
People a/the State a/Illinois v. NI Industries,
152
Ill. 2d 82,604 NE. 2d
349,178
Ill. Dec.
93
(Ill. Sup.
1992). The Supreme Court stated in part as follows:
The Illinois Constitution
of 1970 provides that every citizen has a right to a healthful
environment. (Ill. Const.
1970, art. XI, § 2.) Section 1 of article XI, in fact, declares it
to be the public policy
of the State to provide and maintain a healthful environment
for the benefit
of future generations. (Ill. Const. 1970, art. XI, § 1.) Prior to enactment
ofthe Constitution of 1970, however, common law remedies were available to abate
and enjoin public nuisances which caused pollution. At the same time, in
1970, the
Illinois General Assembly enacted the Illinois Environmental Protection Act
(Ill.Rev.Stat.1989, ch.
111
112
, par. 1001
et seq.).
Repealing several statutes,
including the sanitary water board act (Ill.Rev.Stat.1969, ch. 19,
§ 145.1
et seq.)
and
the Illinois Air Pollution Control Act (Ill.Rev.Stat.1969, ch.
111
1/2,
§ 240.1
et seq.),
the Act established a unified statewide program to restore, protect and enhance the
quality
of the environment in the State.
The purpose of this Act was set forth as follows:
"(b)
It
is the purpose of this Act, as more specifically described in later sections, to
establish a unified, statewide program supplemented
by private remedies, to restore,
protect and enhance the quality
of the environment, and to assure that adverse
effects upon the environment are fully considered and borne by those who cause
.
them." Ill.Rev.Stat.1987, ch. 111
112,
par. 1002(b).
(c) The terms and provisions of this Act shall be liberally construed so as to
effectuate the purposes
ofthis Act as set forth in subsection (b) of this Section, but to
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Electronic Filing - Received, Clerk's Office, February 20, 2009
---------------------------------------------,
the extent that this Act prescribes criminal penalties, it shall be construed in
accordance with the "Criminal Code
of 1961 ", as amended.
In
denying the pennit modification application the Illinois EPA is fulfilling the mandate of
. the Illinois Constitution and the Illinois Environmental Protection Act of ensuring all citizens enjoy
the right to a healthful environment. Petitioner's proposed activities, for which it is seeking a pennit,
would be in contravention to this stated purpose. The Agency record and the Petitioner's
own
witnesses make numerous references to how the actions it would like to pennit will increase the
radium concentrations in the soil above what is already there and that it is the increase in
concentration that leads to an increase in risk. For example the Joliet Director
of Public Works, in a
letter to Illinois
EPA states that, "The hazard to the public is not related to the source ofthe radium,
but to the concentration in the soil matrix and the potential for the accumulation
of radon" (R-317).
A report attached to a submittal to the Illinois
EPA by the Petitioner, dated October 25, 2004,
provides that, "The application of the sludge to land raises radium concentration of the soil." (R-
109).
One of Petitioner's witnesses, Mr. Eli Port testified at the Hearing in this matter that the land
application
of the sludge as proposed by the Petitioner will lead to an increase in the radium
concentration over what is already in the soil. (H.T., pg. 25)
2.
An
additional witness for the
Petitioner, Dr. Richard Touhey testified that an increase in the concentration
of radium would lead to
an increased dose and assumed for regulatory purposes an increased risk. (H. T., pg. 31).
Petitionergoes to great lengths to show this increase in the concentration
of radium in the soil
and hence the increased risk to the general population is insignificant. This is beside the point. The
Illinois
EPA is charged with
inter alia
enforcing the Act. 415 ILCS 5/4 (2006), and issuing pennits if
2 All references designated (H.T., pg.-) are to the Hearing Transcript prepared in this matter of the Hearing held on
January
13,2009.
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an applicant meets the requirements ofthe Act. The standard for issuing a permit is whether the Act
will be violated not whether the activity will not lead to a significant risk
of harm to the general
population. Petitioner has failed in its burden
of showing that the Act will not be violated.
Petitioner also argues that the Agency erred in denying this permit modification because
without the increased level
of radium in soil concentration it will have no alternative but to landfill
the sludge from its wastewater treatment plants. (H. T., Exhibit
1, pg. 2). But yet during the hearing a
witness for the Petitioner, Mr. Harold Harty admitted that there are other alternatives to deal with
this sludge, but Joliet only considered landfilling. (H.T., pg. 13). Mr. Harty also testified that the
land application
of sludge by Petitioner had become a model for others to follow, but yet could not
name any other communities
or sanitary districts following Petitioner's model in its entirety. (H.T.,
Exhibit
1, pg. 2
&
H.T., pg 11-12). The fact that it may cost Petitioner more money to comply with
the Act, does not allow the Agency to issue a permit applicant a permit.
In
other words, cost is not a
basis for allowing a violation
of the Act. Again Petitioner has failed in its burden.
WHEREFORE, Respondent, Illinois Environmental Protection Agency, respectfully request
the Illinois Pollution Control Board enter an order affirming the denial
of Petitioner's July 30,2008
permit application.
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Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:~~"d~
Gerald T. Karr
Senior Assistant Attorney General
Environmental Bureau
69 West Washington
Street
Suite 1800
Chicago, Illinois 60602
(312) 814-3369
CERTIFICATE OF SERVICE
I, GERALD T. KARR, an Assistant Attorney General in this case, do certify that on this 20th
day of February, 2009, I caused to be personally served the foregoing Notice of Filing and
Respondent's Post Hearing Brief upon the individuals listed on the attached Notice
of Filing.
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GERALD T. KARR