ILLINOIS POLLUTION CONTROL BOARD
December 20, 1995
THE GALESBURG SANITARY
)
DISTRICT,
Petitioner,
PCB 96—46
v.
)
(Variance—Water)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD (by J. Yi):
On August 23, 1995 the Galesburg Sanitary District (District)
filed a petition for variance for its wastewater treatment plant
located at 2700 W. Main Street, Galesburg, Knox County, Illinois.
The District is requesting relief from the requirements of 35
Ill. Adlu. Code 304.207(b) (1) as this section applies to the
District’s deoxygenating waste discharges or that the requested
variance is not necessary. The District filed the petition
pursuant to Section 35 of the Environmental Protection Act (Act).
(415 ILCS 5/35 (1994).) On October 5, 1995 the Board found that
we have the authority in a variance proceeding to make a
determination as to the interpretation of 35 Ill. Adm. Code
304.207(b) (1), the regulation from which the District is
requesting relief, and established a briefing schedule for the
parties for that purpose.
Pursuant to that briefing schedule and the Board’s order of
October 19, 1995, the Agency filed its response on November 16,
1995 and the District filed its reply on November 22, 1995.1 The
sole issue before the Board is the interpretation of our
regulation set forth at 35 Iii. Adm. Code 304.207(b)(1). For the
reasons stated below the Board interprets Section 304.207(b) (1)
to mean that the District’s discharge may not alone or in
combination with other sources, as set forth in Section 304.105,
cause a violation of Section 302.206, in Cedar Creek, downstream
of its outfall and that it may come into compliance with Section
304.207(b) (1) by effluent aeration, in-stream aeration, or other
means. As we found in our October 5, 1995 order this petition is
deficient and therefore we dismiss this matter pursuant to 35
Ill. Ad. Code 125.
‘The District’s petition for variance will be referenced as
“Pet. at
“,
the Agency’s response will be referred to as “Resp.
at
“
and the District’s reply will be referenced as “Reply at
“.
2
Applicable Law
Section 304.207
Galesburg Sanitary District Deoxygenating
Wastes Discharges
a) The deoxygenating wastes general effluent standards of
Section 304.120(c) shall not apply to the Galesburg
Sanitary District discharges into Cedar Creek. Such
discharges must meet the deoxygenating wastes general
effluent standards set below:
***
b) The above standard shall apply so long as the Galesburg
Sanitary District achieves:
1) by November 1, 1984, compliance with 35 Iii. Adm.
Code 302.206 throughout Cedar Creek downstream of
the treatment plant outfall, by effluent aeration,
in—stream aeration, or other means,
***
Section 302.201
Scope and Applicability
Subpart B contains general use water quality standards
which must be met in waters of the State for which
there is no specific designation.
Section 302.206
Dissolved Oxygen
Dissolved Oxygen (STORET number 00300) shall not be
less than 6.0 mg/i during at least 16 hours of any 24
hour period, nor less than 5.0 mg/i at any time.
Section 304.105
Violation of Water Quality Standards
In addition to the other requirements of this Part, no
effluent shall, alone or in combination with other
sources, cause a violation of any applicable water
quality standard. When the Agency finds that a
discharge which would comply with effluent standards
contained in this Part would cause or is causing a
violation of water quality standards, the Agency shall
take appropriate action under Section 31 or Section 39
of the Act to require the discharge to meet whatever
effluent limits are necessary to ensure compliance with
the water quality standards. When such a violation is
caused by the cumulative effect of more than one
source, several sources may be joined in an enforcement
action or variance proceeding, and measures for
3
necessary effluent reductions will be determined on the
basis of technical feasibility, economic reasonableness
and fairness to all dischargers.
Arguments
The District argues in its petition that Section
304.207(b) (1) means that if it adds
“. .
.iuore oxygen to Cedar
Creek than the incremental oxygen demand it adds to the Creek by
discharging BOD above the generally applicable levels, it has
complied with Section 304.207(b) (1) such that the relief afforded
by Section 304.207 continues to apply.” (Pet. at 7.) In support
of its position the District points to the statements made in a
document from the Joint Committee of Administrative Rules (JCAR).
(Pet. at 7, Att. B.)2 The JCAR document, which was attached to
the petition, states that the Board in responding to this issue
stated the following:
“...the Board did not require Galesburg Sanitary
District to guarantee compliance with any dissolved
oxygen (DO) level in Cedar Creek. If Galesburg
Sanitary District can prove that any impact its
discharges have on DO downstream of its treatment plant
outfall is more than offset by in—stream aeration or
other means, compliance with Section 302.206 has
necessarily been shown, regardless of the actual DO
concentration since GalesBurg Sanitary District has not
caused or contributed to any violation.” (Att. B at
11.)
The District concludes that Section 304.207(b) (1) requires it to
meet the water quality standard for dissolved oxygen in Cedar
Creek downstream of its outfall in that it is not contributing or
causing a violation of Section 302.206. (Pet. 13.)
Agency Response
In the first 12 pages of its response the Agency re-argues
whether the Board has the authority to interpret its regulations
in this case and concludes that any resulting interpretation is
void. (Resp. at 1-13.) Since the Board has already decided this
issue in our October 5, 1995 order, we will not repeat those
arguments here.
The Agency in its response further argues that the
interpretation of the regulation is limited to the Board’s
2The attachments to the petition will be referenced as “Att.
at
“.
4
opinion associated with that regulation. (Resp. at 14.) The
Agency states “tjhe construction and interpretation of
administrative rule is governed by the rules of construction and
interpretation applicable to statutes in the same field”, citing
to Shell Oil Co. v. PCB 37, Ill. App. 3d 264, 346 N.E. 2d 212,
200 (1976). (Resp. at 14.) The Agency states it arrived at its
interpretation by utilizing the plain and ordinary meaning of the
words in the regulation and it
“. . .
interprets Section
304.207(b) (1) to mean what it says, i.e., that the general
dissolved oxygen water quality standard of Section 302.206 is
applicable to Cedar Creek and that the District must treat its
discharges, by aeration or other means to achieve (and maintain)
the dissolved oxygen standard in Cedar Creek downstream of its
outfall.” (Resp. at 13-14.) Additionally, citing to People ex.
rel. Baher v. Cowlin, 154 Ill 2d 193, 80 Ill.Dec. 738, 740
(1992), the Agency states that if there are ambiguities “...it is
proper to resort to the legislative history of an enactment to
ascertain intent”. (Resp. at 14.) The Agency states the Board
in its First Notice Opinion in R80-16, June 2, 1983, on page 7
states:
The Board declines the request to adopt a dissolved
oxygen standard for Cedar Creek of zero. None of the
hearing participants provided testimony or exhibits to
show such a standard would protect existing biological
communities and uses of Cedar Creek, or be acceptable
to USEPA. The Board affirms that Section 302.206
applies to Cedar Creek and direct (sic) the District in
today’s order to achieve the standard not later than
November 1, 1984, by use of effluent aeration, in—
stream aeration or other methods.
The Agency further states that at Second Notice the language
was modified by the Board to include the word “downstream” and
explained that this was to clarify that the District was
responsible for meeting the dissolved oxygen standard of Section
302.206 downstream of its discharge. (Resp. at 15.) In support
of its interpretation, the Agency points out that the Board
stated pursuant to a motion for reconsideration the following:
“...Section 304.207(b)(1)requires that the GSD the
Districti assure compliance with the downstream
dissolved oxygen limitations by November 1, 1984, in
order to qualify for relaxed biochemical oxygen demand
(BOD) and suspended solids (SS) limitations. It does
not exempt GSD from the dissolved oxygen limitations of
Section 302.206 with regard to any reach of Cedar
Creek. Rather, the rule is based upon the recognition
that upstream dissolved oxygen violations may result
from factors over which the GSD has no control. If,
however, dissolved oxygen violations can be found to
result from GSD’s activities it is subject to
5
enforcement. (R80-16, February 9, 1984 at 1.)
Furthermore, the Agency argues that the District’s
interpretation based on the JCAR documents should not be relied
upon. (Resp. at 16-17.) The Agency cites to Salich v. Portes
Cancer Prevention Center, 158 Ill 2d. 76, 196 Ill. Dec. 655, 658
(1994) and argues that there is no rule of construction which
authorizes a court to depart from the plain meaning of the
language and the Board
hI•
.may not now, 11 years later, read
conditions and qualifications into Section 304.207(b) (1) that
were not there when the regulation was adopted”. (Resp. at 18.)
In addition the Agency argues that the JCAR documents may not be
relied upon by the Board because “in Illinois, it is the
collective expressions of a body, such as floor debates or
Congressional Committee Reports, that are recognized as sources
of legislative intent; individual expressions by a sponsor or
drafter are not”. (Resp. at 18.) Finally the Agency argues that
since the JCAR documents are not Board documents, they should not
be used for purposes of determining the Board’s intent. (Resp.
at 18.)
District’s Reply
In reply to the Agency’s argument concerning the
interpretation of Section 304.207(b) (1), the District states that
it “agrees that there should be no reason to go beyond the plain
language of the rule, but it disagrees with the Agency as to what
the plain language means.”3 (Reply at 3.) However, the District
argues that due to the disagreement of the plain meaning, it
presented documents that “...may not fall under the definition of
‘legislative history’ (and the District has not charged that they
do), they in no uncertain terms set forth the Board’s intent and
are evidence of that intent, despite the Agency’s
characterization of the Second Notice as ‘nothing more than an
individual expression”. (Reply at 4.) The District argues that
304.207(b) (1) must be read in conjunction with 304.105 and that
“...Section 304.207(b) (1) only requires the District to comply
with Section 304.105.” (Reply at 3—4.) The District states that
this “...interpretation is completely consistent with the Board’s
February 9, 1984 Order in which the Board stated that if
‘dissolved oxygen violations can be found to result from Ithe
District’sl activities, it is subject to enforcement”. (Reply
at 4.) In conclusion the District states that the plain meaning
of the regulation is that the District is only obligated to
3The District also discusses whether the Board has the
authority to interpret its regulation but since, as we previously
stated, that issue has been decided and is not under review in
this matter we will not repeat those arguments. (See supra, p.
3.)
6
ensure that its activities do not cause or contribute to the
violation of Section 302.206. (Reply at 5.)
Discussion
The Board adopted the site-specific rule, 35 Ill. Adm. Code
304.207, governing the District’s deoxygenating waste discharges
in docket R80-16 on April 19, 1984. As part of the Board’s grant
of site—specific relief from the rule of general applicability
for the deoxygenating wastes, the Board included certain
conditions which applied to the District’s discharge. The
condition contained in Section 304.207(b) (1), as stated above, is
the subject of this dispute before the Board.
As far as the statements made in the JCAR documents
supplied by the District we agree with the Agency in that they
should not be relied upon in determining the intent of the
Board’s regulations. Pursuant to Section 5(a) of the Act the
Board may only make a final determination by quorum of the Board.
(415 ILCS 5/5(a) (1994).) There is no indication that the
expressions attributable to the Board in the JCAR document meet
this requirement.
As the Agency states in its arguments, in Section
304.207(b) (1) the Board intended to apply the water quality
standard for dissolved oxygen to Cedar Creek; that the District
must be in compliance with that standard downstream of its
outfall in order for the deoxygenating waste site-specific relief
of Section 304.207(a) to apply to the District’s discharge. The
Board specifically stated that it declined the request of the
District to adopt a dissolved oxygen standard for Cedar Creek of
zero. It further stated that there was no evidence presented
which demonstrated that such a standard would protect existing
biological communities and uses of Cedar Creek. The Board
affirmed that Section 302.206 applies to Cedar Creek and directed
the District to achieve the standard not later than November 1,
1984, by use of effluent aeration, in—stream aeration or other
methods. (R80—16, June 2, 1983, at 7—8.)
In R80-16, the Agency filed a motion for reconsideration
after the Board went to First Notice due to its concern that the
language contained in the condition set forth in 304.207(b) (1) by
implication would void the water quality standard for dissolved
oxygen upstream of the District’s outfall. (R80—16, February 9,
1984) In response the Board stated the District must assure
.compliance with the downstream dissolved oxygen limitations
by November 1, 1984, in order to qualify for relaxed biochemical
oxygen demand (BOD) and suspended solids (SS) limitations.
. .“
and
did not exempt the District from the dissolved oxygen limitations
of Section 302.206 with regard to any reach of Cedar Creek.
(R80—16, February 9, 1984, at 1.) The Board further stated that
7
the rule is based upon the recognition that upstream of the
District’s outfall the dissolved oxygen violations may result
from factors over which it has no control, but goes on to say
that if the dissolved oxygen violations can be found to result
from the District’s activities it is subject to enforcement.
(R80-16, February 9, 1984 at 1.)
Although the language of Section 304.207(b) (1) may be
inelegantly drafted, we recognize that to implement the water
quality standard for dissolved oxygen against the District we
must utilize Section 304.105. Section 304.105 was adopted by the
Board as Rule 402 in Docket R70-8 on January 2, 1972 as a part of
the effluent regulations. As more fully stated on page two of
this order, Section 304.105 states
“. .
.no effluent shall, alone
or in combination with other sources, cause a violation of any
applicable water quality standard and if the Agency finds that a
discharge which would comply with the effluent standards
contained in this Part would cause or is causing violation of
water quality standards, the Agency shall take appropriate action
under Section 31 or Section 39 of the Act to require the
discharger to meet whatever effluent limits that are necessary to
ensure compliance with the water quality standards”.
The Board stated that Section 304.105 sets forth the
principle that discharges causing violations of water quality
standards, alone or in combination with other sources, are
forbidden, and prescribes basic considerations for determining
which of a number of contributors to an overloaded stream must
take measures to abate the problem. (R70-8, January 6, 1972 at
5.) In addition Section 304.105 sets forth the principle that a
discharger may be in violation of a water quality standard even
though that discharger may be in compliance with the applicable
effluent standards.
Therefore in reading the language of Section 304.207(b) (1)
along with Section 304.105, the Board’s intent in its adoption of
the language contained in Section 304.207(b) (1) was that the
District’s discharge of deoxygenating waste may not alone or in
combination with other sources, as set forth in Section 304.105,
cause, or in combination with other sources cause a violation of
Section 302.206 in Cedar Creek downstream of District’s its
outfall and that the District may come into compliance with
Section 304.105, and thus 304.207(b) (1) by effluent aeration, in—
stream aeration, or other means.
Conclusion
The Board interprets Section 304.207(b) (1) to mean that the
District’s discharge may not alone or in combination with other
sources, as set forth in Section 304.105, cause a violation of
Section 302.206, in Cedar Creek, downstream of its outfall and
8
that it may come into compliance with Section 304.207(b) (1) by
effluent aeration, in—stream aeration, or other means. As we
found in our October 5, 1995 order this petition is deficient and
therefore we dismiss this matter pursuant to 35 Ill. Ad. Code
125.~ If the District chooses to pursue variance relief it may
do so by filing a new variance petition which meets the statutory
and Board procedural requirements. This matter is dismissed and
the docket is closed.
This opinion and order constitutes the Board’s findings of
fact and conclusions of law in this matter.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/40.1) provides for the appeal of final Board orders within 35
days of service of this decision. The Rules of the Supreme Court
of Illinois establish filing requirements. (But see also, 35
Ill. Adm. Code 101.246, Motions for Reconsideration.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abov~opinion and order was
adopted on the ~21~ day of
~
,
1995, by
a vote of 7~
Dorothy M. inn,
A
Clerk
~
Illinois P~,llutionControl Board
4The statutory decision deadline in this matter is December
21, 1995. The October 5, 1995 order envisioned adequate time for
the District to amend its petition curing the deficiencies prior
to the running of the statutory decision deadline.