2

After receiving a 90-day extension of the appeal period on February 7, 2002, on May 5,

2002, SIUE timely petitioned the Board for review of several conditions of SIUE’s Agency-

issued NPDES permit. On May 16, 2002, the Board accepted this matter for hearing and the

Agency filed the record on appeal on June 7, 2002. On April 26, 2005, the parties

simultaneously filed cross motions for summary judgment. The Agency responded on May 17,

2005, and SIUE responded on May 18, 2005. On June 16, 2005, SIUE replied to the Agency’s

response, timely pursuant to a May 19, 2005 hearing officer order.

FACTS

Tower Lake

Tower Lake is a man-made lake located on SIUE’s campus in Edwardsville Madison

County, Illinois. Tower Lake was constructed to provide cooling water for condensers used in

SIUE’s heating and refrigeration plant, which provides the university’s core campus with air

conditioning. Rec. at 6, 43. Tower Lake is not a source of drinking water and SIUE allows no

recreational boating or swimming in the lake, although shoreline fishing is permitted. Rec. at 6.

The plant draws water for condenser cooling purposes during periods of warm weather, passes

the water through condensers, and then returns the water to Tower Lake via either a submerged

discharge line (Outfall 001) or a flume (Outfall 002). Rec. at 6, 17. The flume is 1750 feet long.

Rec. at 17. At the end of the flume is an approximately 150-foot-long “rip-rapped” slope that

cools and aerates the water before delivering the discharge water to Tower Lake. Rec. at 6-10.

SIUE uses the flume during the summer.

According to SIUE, the temperature of Tower Lake varies widely. Rec. at 6. SIUE states

that intake water approaches ninety degrees Fahrenheit in the late summer. Rec. at 6, 17. At the

time SIUE applied to the Agency for an NPDES permit, heat gain from the water passing

through the condensers varied from 2-10 degrees Fahrenheit. Rec. at 6. At peak demand, the

maximum daily flow is 19.5 million gallons per day (MGD). Rec. at 4, 6.

NPDES Permit

The Agency received SIUE’s application for a cooling water discharge from its heating

and refrigeration plant into Tower Lake on March 8, 2001. Rec. at 1. The application concerned

an existing source that came into operation in 1965 to provide cooling water for refrigeration

units.

Id

. On July 19, 2001, the Agency sent a draft NPDES permit to SIUE for its review and

asked for comments within 15 days. Rec. at 21. The draft permit included thermal limits and set

forth the location of the proper point of compliance. SIUE did not submit any comments during

the 15-day notice period. Rec. at 30. On August 10, 2001, the Agency published a 30-day

notice of the draft permit. Rec. at 39. The Agency received a public comment from SIUE on

August 28, 2001, raising several questions about conditions 2.A and 2.B of the permit and the

applicability of the thermal limits to Tower Lake. Rec. at 43-44.

On January 2, 2002, the Agency issued the final NPDES permit unchanged from the draft

permit language. The Agency addressed SIUE’s concerns in the permit cover letter stating that

Tower Lake is not an artificial cooling lake, but rather a water of the State as defined in 35 Ill.

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3

Adm. Code 301.440. The letter also clarified that temperature monitoring will be required at a

point representative of discharge and prior to entry into Tower Lake. Rec. at 47.

Petition for Review

SIUE’s petition for review challenges the following conditions of its NPDES permit no.

IL 0075311 (Pet. at 2-3):

SPECIAL CONDITION 2. Discharge of wastewater from this facility must not

alone or in combination with other sources cause the receiving stream to violate

the following thermal limitations at the edge of the mixing zone which is defined

by Section 302.211, Illinois Administration Code, Title 35, Chapter 1, Subtitle C,

as amended:

A.

Maximum temperature rise above natural temperature must not exceed 5°F

(2.8°C).

B.

Water temperature at representative locations in the main river shall not

exceed the maximum limits in the following table during more than one

(1) percent of the hours in the 12-month period ending with any month.

Moreover, at no time shall the water temperature at such locations exceed

the maximum limits in the following table by more than 3°F (1.7°C).

(Main river temperatures are temperatures of those portions of the river

essentially similar to and following the same thermal regime as the

temperatures of the main flow of the river.)

* * *

SPECIAL CONDITION 3. Samples taken in compliance with the effluent

monitoring requirements shall be taken at a point representative of the discharge,

but prior to entry into the receiving stream.

APPLICABLE STATUTES AND BOARD REGULATIONS

Section 39(a) of the Act provides in part:

When the Board has by regulation required a permit for the construction,

installation, or operation of any type of facility, equipment, vehicle, vessel, or

aircraft, the applicant shall apply to the Agency for such permit and it shall be the

duty of the Agency to issue such a permit upon proof by the applicant that the

facility, equipment, vehicle, vessel, or aircraft will not cause a violation of this

Act or of regulations hereunder . . . In granting permits, the Agency may impose

reasonable conditions specifically related to the applicant's past compliance

history with this Act as necessary to correct, detect, or prevent noncompliance.

The Agency may impose such other conditions as may be necessary to

accomplish the purposes of this Act, and as are not inconsistent with the

regulations promulgated by the Board hereunder.

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4

Section 40(e) of the Act provides:

[t]he Board shall hear the petition (i) in accordance with the terms of subsection

(a) of this Section and its procedural rules governing permit denial appeals and

(ii) exclusively on the basis of the record before the Agency. The burden of proof

shall be on the petitioner.

Section 302.104 of the Board’s water quality standards defines “main river temperatures”

as:

[t]emperatures of those portions of a river essentially similar to and following the

same thermal regime as the temperatures of the main flow of the river.

Section 301.225 of the Board’s regulations defines an “artificial cooling lake” as a:

[m]anmade lake, reservoir or other impoundment, constructed by damming the

flow of a stream, which is used to cool the water discharged from the condensers

of a steam-electric generating plant for recirculation in substantial part to the

condensers. 35 Ill. Adm. Code 301.225

Section 301.440 of the Board’s regulations defines “waters” as:

[a]ll accumulations of water, surface and underground, natural, and artificial,

public and private, or parts thereof, which are wholly or partially within, flow

through, or border upon the State of Illinois, except that sewers and treatment

works are not included except as specially mentioned; provided, that nothing

herein contained shall authorize the use of natural or otherwise protected waters

as sewers or treatment works except that in-stream aeration under Agency permit

is allowable. 35 Ill. Adm. Code 301.440.

Section 302.201 of the Board’s regulations describes standards that apply to waters of the

State that have no specific designation: “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

303.201).” 35 Ill. Adm. Code 302.201.

Section 302.202 of the Board’s water regulations sets forth the purpose of the general use

water quality standards:

The General Use standards will protect the State's water for aquatic life (except as

provided in Section 302.213), wildlife, agricultural use, secondary contact use and

most industrial uses and ensure the aesthetic quality of the State's aquatic

environment. Primary contact uses are protected for all General Use waters

whose physical configuration permits such use.

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5

Section 302.205 of the Board’s water quality standards applies specifically to reservoirs

and lakes:

Phosphorus (STORET number 00665): After December 31, 1983, Phosphorus as

P shall not exceed 0.05 mg/l in any reservoir or lake with a surface area of 8.1

hectares (20 acres) or more, or in any stream at the point where it enters any such

reservoir or lake. For the purposes of this Section, the term “reservoir or lake”

shall not include low level pools constructed in free flowing streams or any body

of water which is an integral part of an operation which includes the application

of sludge on land. Point source discharges which comply with Section 304.123

shall be in compliance with this Section for purposes of application of Section

304.105.

Section 302.211 of the Board’s water quality standards sets thermal standards for general

use waters of the State:

* * *

d)

The maximum temperature rise above natural temperatures shall not exceed 2.8

o

C (5

o

F).

e)

In addition, the water temperature at representative locations in the main river

shall not exceed the maximum limits in the following table during more than one

percent of the hours in the 12-month period ending with any month. Moreover, at

no time shall the water temperature at such locations exceed the maximum limits

in the following table by more than 1.7

o

C (3

o

F).

o

C

o

F

o

C

o

F

JAN.

16

60

JUL.

32

90

FEB.

16

60

AUG.

32

90

MAR.

16

60

SEPT.

32

90

APR.

32

90

OCT.

32

90

MAY

32

90

NOV.

32

90

JUNE

32

90

DEC.

16

60

* * *

j)

All effluents to an artificial cooling lake must comply with the applicable

provisions of the thermal water quality standards as set forth in this Section and

35 Ill. Adm. Code 303, except when all of the following requirements are met:

1)

All discharges from the artificial cooling lake to other waters of the State

comply with the applicable provisions of subsections (b) through (e).

2)

The heated effluent discharged to the artificial cooling lake complies with

all other applicable provisions of this Chapter, except subsections (b)

through (e).

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6

3)

At an adjudicative hearing the discharger shall satisfactorily demonstrate

to the Board that the artificial cooling lake receiving the heated effluent

will be environmentally acceptable, and within the intent of the Act,

including, but not limited to:

A)

provision of conditions capable of supporting shellfish, fish and

wildlife, and recreational uses consistent with good management

practices, and

B)

control of the thermal component of the discharger's effluent by a

technologically feasible and economically reasonable method.

4)

The required showing in subsection (j)(3) may take the form of an

acceptable final environmental impact statement or pertinent provisions of

environmental assessments used in the preparation of the final

environmental impact statement, or may take the form of showing

pursuant to Section 316(a) of the Clean Water Act (CWA) (33 U.S.C.

1251 et seq.), which addresses the requirements of subsection (j)(3).

5)

If an adequate showing as provided in subsection (j)(3) is found, the Board

shall promulgate specific thermal standards to be applied to the discharge

to that artificial cooling Lake.

Section 309.102 (a) requires dischargers into a water of the State to have an NPDES

permit:

Except as in compliance with the provisions of the Act, Board regulations, and the

CWA, and the provisions and conditions of the NPDES permit issued to the

discharger, the discharge of any contaminant or pollutant by any person into the

waters of the State from a point source or into a well shall be unlawful.

STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is appropriate when the pleadings, depositions, admissions on file,

and affidavits disclose that there is no genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law.

Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,

693 N.E.2d 358, 370 (1998). In ruling on a motion for summary judgment, the Board “must

consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the

opposing party.”

Id

. Summary judgment “is a drastic means of disposing of litigation,” and

therefore should be granted only when the movant’s right to the relief “is clear and free from

doubt.”

Id

.; citing

Purtill v. Hess, 111 Ill. 2d 299, 240, 489 N.E.2d 867, 871 (1986).

On appeal, the Board is limited to the record before the Agency when it made the

decision. 415 ILCS 5/40(e) (2004).

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7

BURDEN OF PROOF IN PERMIT APPEALS

Related to the burden of proof issue is the

standard of review. Section 39(a) requires the

Agency to issue permits that will not cause a violation of the Act or Board regulations. 415

ILCS 5/39(a) (2004). Further, the Act allows the Agency, when granting permits, to “impose

reasonable conditions specifically related to the applicant’s past compliance history with this Act

as necessary to correct, detect, or prevent noncompliance. The Agency may impose such other

conditions as may be necessary to accomplish the purposes of this Act, and are not inconsistent

with the regulations promulgated by the Board hereunder.” 415 ILCS 5/39(a) (2004).

Accordingly, when appealing conditions imposed in a permit, it is the petitioner’s burden

to prove that the conditions in the Agency-issued permit are not necessary to accomplish the

purposes of the Act and Board regulations, and therefore, must be deleted from the permit.

Noveon v. IEPA, PCB 91-17 (Sept. 16, 2004); citing City of Rock Island v. IEPA, PCB 00-73,

slip op. at 2 (July 13, 2000);

Browning-Ferris, 179 Ill. App. 3d 598; Jersey Sanitation Corp. v.

IEPA, PCB 00-82 (June 21, 2001);

aff’d

IEPA v. Jersey Sanitation Corp. v. PCB, 336 Ill. App.

3d 582, 784 N.E.2d 867 (4th Dist. 2003).

CROSS MOTIONS FOR SUMMARY JUDGMENT

SIUE requests that the Board grant summary judgment in its favor and strike all

requirements that SIUE comply with Section 302.211(e) from its NPDES permit (Special

Condition 2.B). Alternatively, should the Board find Section 302.211(e) applicable, SIUE

requests that the Board strike the requirement that SIUE monitor for compliance with Section

302.211(e) at the point of discharge (Special Condition 3). SIUE Mot. at 21.

SIUE concedes that an NPDES permit is required for SIUE’s discharge of non-contact

cooling water into Tower Lake. SIUE Reply at 1. However, SIUE disputes that Section

302.211(e) is applicable to the discharge. Rather, SIUE contends the Board should grant

summary judgment in its favor because Section 302.211(e) of the Board’s rules is not applicable

to SIUE’s discharge into Tower Lake. In the alternative, SIUE argues that the Board should

direct the Agency to modify SIUE’s NPDES permit to allow monitoring for compliance in

Tower Lake, rather than at a point prior to the discharge’s entry into Tower Lake. SIUE Mot. at

1.

According to SIUE, it has made improvements since applying for the permit that are

expected to reduce the total heat input to Tower Lake by 50 percent. SIUE Mot. at 4; citing Rec.

at 43. SIUE contends, however, that even with these plant improvements, SIUE cannot

guarantee it will meet conditions 2.B and 3, which require monitoring for compliance with

Section 302.211(e) at the point of discharge. If SIUE is prevented from using Tower Lake to

cool water from August through November, it claims it will be forced to close because the

buildings will be too warm to inhabit. SIUE Mot. at 4.

SIUE sets forth two primary arguments in support of its motion for summary judgment.

First, SIUE claims that Section 302.211(e) of the Board’s regulations applies only to rivers, and

rather than all waters of the State. SIUE Mot. at 4. Second, SIUE contends that even if Section

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8

302.211(e) applied to lakes such as Tower Lake, Section 302.211(e) states that the proper

monitoring point is in Tower Lake itself, not at the point of discharge. SIUE Mot. at 8.

In its motion for summary judgment, the Agency requests that the Board affirm the

Agency’s decision to grant NPDES permit no. IL 0075311 to SIUE, and deny SIUE’s petition

for review. Regarding SIUE’s motion for summary judgment, the Agency states that “SIUE’s

argument is based on semantics” and demonstrates a “fundamental misunderstanding” of the

applicability of the Board’s water quality standards. Ag. Resp. at 6, 8. The Agency emphasizes

the purpose of the Board’s regulations by citing the Board’s policy reasons for promulgating

water quality standards, which include: “to prescribe the water quality standards required to

sustain the designated uses for which the various waters of the state must be maintained and

protected.” Ag. Resp. at 6; citing 35 Ill. Adm. Code 301.102. The Agency states that Section

302.211(e) is applicable and that SIUE’s NPDES permit was properly issued. Each of the

parties’ arguments, and corresponding responses to the arguments, are discussed below.

Before analyzing the parties’ arguments, the Board notes that for the purposes of this

opinion and order, the Board finds that Tower Lake is not an “artificial cooling lake.” In a public

comment submitted during the required public notice period prior to the Agency issuing SIUE’s

permit, SIUE argued that Tower Lake is an artificial cooling lake, regulated by Section

302.211(j), rather than a water of the State. However, SIUE did not raise the issue in its motion

for summary judgment or in any response that Tower Lake is an artificial cooling lake. The

Agency contends that Tower Lake does not meet the Board’s definition of an artificial cooling

lake because it was not constructed by damming the flow of a stream as required by Section

301.225 of the Board’s rules. The record supports the Agency’s argument and the Board finds

that Tower Lake is not an artificial cooling lake.

As to Special Condition 2.A, though SIUE contests the condition in its petition for

review, SIUE does not further discuss the applicability of Section 302.211(d) in the motion for

summary judgment. For this reason, the Board finds that the Agency properly included

condition 2.A in SIUE’s NPDES permit.

Applicability of Section 302.211(e) to Tower Lake

SIUE’s Arguments

SIUE reviews and compares various Board regulations, including definitions and general

water quality standards. SIUE concludes that the plain language of the Board’s rules dictates

that Section 302.211(e) is specifically applicable to rivers, not lakes.

Section 302.211(e) Applies to Rivers Only.

First, SIUE states that Part 302 of the

Board’s rules “. . . contains schedules of water quality standards which are applicable throughout

the State as designated in 35 Ill. Adm. Code 303.” SIUE Mot. at 4; citing 35 Ill. Adm. Code

302.101(a). Second, SIUE asserts that Part 303 states that all waters of the State must meet the

general use standard of Subpart B of Part 302, except where otherwise specifically provided.

SIUE Mot. at 4-5. Section 302.211, within Subpart B of Part 302, sets temperature limits for the

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9

different months of the year referring to the limits as “monthly maxima,” explains SIUE. SIUE

Mot. at 5; citing 35 Ill. Adm. Code 302.211(a)-(e).

SIUE claims that Section 302.211(e) is not a general use water quality standard, but

rather specifically directed toward rivers. SIUE Mot. at 6. Because of this specific provision,

SIUE states that Section 302.211(e) is inapplicable to all other waters of the State.

Id

.

SIUE argues that a Board regulation focusing on one type of water body is not unique.

SIUE Mot. at 6. For example, SIUE states that Section 302.205 applies phosphorus standards

only to “any reservoir or lake” of specified surface area and streams at the point where they enter

the specified reservoirs or lakes. 35 Ill. Adm. Code 302.205. Further, SIUE contends that

Section 302.211(j) applies only to artificial cooling lakes. SIUE Mot. at 6.

The Term “River” Does Not Include Tower Lake.

SIUE continues that the Board did

not use the term “waters of the State” as in other water quality regulations. SIUE Mot at 7; citing

35 Ill. Adm. Code 302.210. In the absence of a specific definition in the law in question, argues

SIUE, words are given their ordinary and popularly understood meaning. SIUE Mot. at 7; citing

People v. Dednam, 55 Ill. 2d 565 (1973). According to SIUE, the ordinary meaning of “river”

does not include lakes. Citing Webster’s Dictionary, SIUE asserts that a “river” is popularly

understood to be “a natural stream of water of considerable volume.”

Webster’s Seventh New

Collegiate Dictionary

, 743 (1972).

Permit Condition 2.B is not Necessary to Accomplish the Purposes of the Act.

SIUE

concludes that Section 302.211(e) applies only to rivers, not all waters of the State and,

therefore, not Tower Lake. SIUE states that condition 2.B of SIUE’s NPDES permit, requiring

compliance with Section 302.211(e), is not necessary to accomplish the purposes of the Act.

Rather the Agency’s inclusion of the condition in its permit was arbitrary and unnecessary.

SIUE moves the Board for summary judgment in its favor and moves the Board to strike all

portions of the NPDES permit requiring SIUE’s discharge to comply with Section 302.211(e).

SIUE Mot. at 8.

Agency Arguments

The Agency contends that Tower Lake is a general use water of the State. The Agency

further argues that the use of the term “river” does not exclude Tower Lake and that Board

precedent supports this conclusion. According to the Agency, “concluding that Section

302.211(e) applies only to rivers is an absurd reading of the regulations and must be rejected.”

Ag. Resp. at 8. As a result, the general use water quality standards found in Subpart B of Part

302 apply to Tower Lake.

SIUE’s Discharge Requires an NPDES Permit.

The Agency states that pursuant to

Section 309.102, any person discharging a

pollutant

from a

point source

into the

waters of the

state

must have an NPDES permit to do so. Ag. Mot. at 5; citing 35 Ill. Adm. Code 309.102(a).

According to the Agency, SIUE’s discharge of heat from the heating and refrigeration plant falls

within the definition of a “pollutant” as that term is defined in Section 301.340. Ag. Mot. at 5;

citing 35 Ill. Adm. Code 301.340. Additionally, the Agency states that the discharge of non-

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10

contact water by a submerged discharge line or by a flume is a discharge of a pollutant from a

point source.

Id

. The Agency argues that because Tower Lake is not exempt from the definition

of waters of the State, the discharge of non-contact cooling water from the SIUE’s heating and

cooling plant requires an NPDES permit. Ag. Mot. at 6.

Conditions 2.A and 2.B are Required by the Act and Board Regulations.

The

Agency states that under Section 39(a) of the Act, it has a duty to issue permits that “will not

cause a violation of this Act or regulations thereunder.” Ag. Mot. at 6; citing 415 ILCS

5/39(a)(2004). According to Section 304.105 of the Board regulations, argues the Agency, “no

effluent shall alone or in combination with other sources, cause a violation of any applicable

water quality standard.” 35 Ill. Adm. Code 304.105. The Agency claims that Board regulations

require that waters of the State with no specific designation must meet the general use water

quality standards. Ag. Mot. at 17; citing 35 Ill. Adm. Code 302.201. Further, states the Agency,

the general use standards are designed to protect the “State’s water for aquatic life.” 35 Ill. Adm.

Code 302.202.

The Agency asserts that conditions 2.A and 2.B of SIUE’s Agency-issued NPDES permit

are identical to Sections 302.211(d) and (e), respectively. Ag. Mot. at 6. The Agency contends

that Section 302.211 contains temperature standards applicable to general use waters whether the

water body is a stream or lake.

Id

. Further, the Agency states the permit requires SIUE to meet

the Section 302.211 thermal standards at the end of the pipe because no mixing zone is provided

for in the permit. In conclusion, the Agency states that the Act provides the Agency with limited

authority in authorizing discharges to the waters of the State. Ag. Mot. at 7. The Agency must

adhere to Board regulations, and thus has no authority to relax the temperature standards that

apply to SIUE’s discharge. For these reasons, the Agency urges the Board to grant summary

judgment in its favor.

Id

.

Tower Lake is a General Use Water of the State.

The Agency asserts that “designated

uses” is a term of art that is identified in Parts 302 and 303 of the Board’s regulations. Ag. Resp.

at 6. The Agency states that “’Part 303 contains water use designations which determine for a

given body of water which set of Part 302 water quality standards applies.’” Ag. Resp. at 6;

citing 35 Ill. Adm. Code 303.100. The Agency continues that the Board divides Part 303 into

four subparts: Subpart A provides general provisions (35 Ill. Adm. Code 303.100-102); Subpart

B lists nonspecific water use designations (35 Ill. Adm. Code 303.200-206); Subpart C lists

specific use designations and site specific water quality standards (35 Ill. Adm. Code 303.300-

444); and Subpart D contains site specific water quality based thermal discharge standards (35

Ill. Adm. Code 303.500, 502). Ag. Resp. at 7.

The Agency states that contrary to SIUE’s argument, if a water body is a general use

water, then Section 303.201 of the Board’s regulations dictates that the water body must meet the

general use standards of Subpart B of Part 302. Ag. Resp. at 7; citing 35 Ill. Adm. Code

303.201. Because Tower Lake does not have a specific designation or any site-specific standard

under Subpart C of Part 303, the Agency contends that Subpart B of Part 303 must determine the

applicable designation. Ag. Resp. at 7. Since Tower Lake is not a public or food processing

water supply, nor does it have a secondary contact or an indigenous aquatic life designation, the

Agency asserts that by default, Tower Lake is a general use water of the State. Accordingly,

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11

states the Agency, Section 302.211(e), within Subpart B of Section 302, applies to Tower Lake.

Id.

Section 302.211(e) Applies to All General Use Waters of the State.

The Agency

disagrees with SIUE’s argument that the use of the term “main river” means that the Board did

not intend for Section 302.211(e) to apply to all waters of the State. The Agency claims that

“concluding that Section 302.211(e) only applies to rivers is an absurd reading of the regulations

and must be rejected.” Ag. Resp. at 8. The Agency asserts that the opinion adopting Section

302.211(e) makes no suggestion that the Board intended to limit the applicability of this section

to rivers only. Ag. Resp. at 8; citing

Water Quality Standards Revisions, R71-14 (Dec. 21,

1971). The Agency states that the Board instead adopted a case-by-case approach to address

thermal discharges. Ag. Resp. at 10.

Further, the Agency states that SIUE’s interpretation of Section 302.211(e) is not

supported by the discussion in the Board’s adopting opinion in

Water Quality and Effluent

Standards Amendments, Cooling Lakes, R75-2 (Sept. 29, 1975). Ag. Resp. at 8. The Agency

explains that in that rulemaking, the proponent sought a revision of the Board’s thermal

standards as they apply to cooling lakes for steam-electric generating plants. According to the

Agency, while the Board set specific thermal standards applicable to an individual artificial

cooling lake in that rulemaking, the Board rejected the proponent’s request to generally exempt

discharges to artificial cooling lakes from the thermal standards stating:

The record indicates that there is no question that excessive thermal inputs can be

damaging to the aquatic environment of an artificial cooling lake . . . No

individual factor can justify the complete de-regulation of these lakes, and no

individual factor, (such as recreational use), can by itself provide the test of

acceptability for an artificial cooling lake.” Ag. Resp. at 9; citing

Water Quality

and Effluent Standards Amendments, Cooling Lakes, R75-2, slip op. at 25.

The Agency further states that it has been applying thermal standards to artificial cooling

lakes across the State and those affected have applied for adjusted standards from Section

302.211. Ag. Resp. at 9; citing

Illinois Power Company (Clinton Power Station), PCB 92-142

(Aug. 26, 1993). Accordingly, argues the Agency, if Section 302.211 standards are applicable to

artificial cooling lakes, these standards also apply to Tower Lake, a water of the State. Ag. Resp.

at 10.

SIUE’s Reply

In reply, SIUE states that nothing in the Agency’s response supports a Board finding that

Section 302.211(e) applies to Tower Lake. SIUE Reply at 2. SIUE contends that “with all due

respect to the IEPA, what is ‘absurd’ is the IEPA’s attempt to apply a rule applicable to rivers to

Tower Lake.”

Id

. SIUE claims the Agency never explained how SIUE is to determine the “main

river temperature” of Tower Lake.

SIUE states that in

Water Quality and Effluent Standards Amendments, Cooling Lakes,

R75-2, the Board was focusing specifically on thermal effluents from steam-electric generating

---

12

plants. Therefore, argues SIUE, while the opinion does not directly support SIUE’s position, it

also does not undermine SIUE’s position. SIUE Reply at 3.

SIUE contends that “simply because the IEPA has been mis-applying a regulation does

not mean the IEPA should be allowed to continue to do so.” SIUE Reply at 3; citing

People v.

Agpro, 214 Ill. 2d 222, 824 N.E.2d 270 (2005). SIUE states that even if the Agency has been

consistently applying Section 302.211(e) to lakes, as the Agency states, that contention is

irrelevant to the Board’s decision in this matter. Based on the facts, the record, and the

applicable law, SIUE moves the Board to find that SIUE’s discharge to Tower Lake is not

subject to Section 302.211(e) and grant summary judgment in its favor. SIUE Reply at 4.

Board Analysis

On this issue only, the Board grants summary judgment in favor of SIUE finding that

Special Condition 2.B and any reference to Section 302.211(e) must be stricken from SIUE’s

January 2, 2002 NPDES permit. The Board concludes that the pleadings and admissions on file

disclose there is no genuine issue of material fact, and SIUE is entitled to judgment as a matter of

law. Even when viewing the facts in a light most favorable to the Agency, the Board finds that

condition 2.B of SIUE’s NPDES permit is not consistent with Board regulations.

The issue before the Board is the construction of the definition of “main river” as that

term is used in Section 302.211(e) of the Board’s regulations, and how it affects the applicability

of Section 302.211(e). In construing administrative rules, the same rules that apply to statutory

construction apply.

Ohio Grain Co. v. IEPA, PCB 90-143, slip op. at 16 (Oct. 16, 1992); citing

May v. PCB, 35 Ill. App. 3d 930, 342 N.E.2d 784 (1976). Statutory interpretation also requires

that the intention of the drafter be ascertained and given effect.

Piatak v. Black Hawk College

Dist. #503, 269 Ill. App. 3d 1032, 647 N.E.2d 1079 (3rd Dist. 1995); People v. Kerans, 103 Ill.

App. 3d 522, 431 N.E.2d 726 (1982). The initial source for determining intent is the plain

meaning of the language used, and where unambiguous, the plain meaning of the language

controls. Finally, where a literal meaning would defeat the obvious and clearly expressed

purposes, the courts need not adhere to the literal reading.

Village of Woodridge v. DuPage

County, 144 Ill. App. 3d 953; 494 N.E.2d 1262.

Here, the plain meaning of the language of Section 302.211(e) of the Board’s water

quality regulations would apply the thermal regulations contained in that subsection to

representative locations in the main river. Further, the Board interprets the words “in addition”

at the beginning of Section 302.211(e) to indicate that the standards contained in that subsection

applicable to rivers are in addition to those standards applicable to all waters of the state.

A literal reading of this subsection would not defeat the Illinois Sanitary Water Board’s

intent of the State’s original thermal regulations, which it promulgated. Those regulations, as

SIUE notes, applied to specific rivers, sections of rivers, and Lake Michigan. Illinois Sanitary

Water Board Rules and Regulations: Water Quality Standards, SWB-14 (Mar. 7 1967). Even

when the Board originally adopted the Sanitary Water Board’s thermal standards as Rule 203(i),

the Board adopted the standards as applicable to specific rivers, such as the Wabash, Ohio, and

Mississippi Rivers, as well as to “other streams.”

In the Matter of Effluent Criteria, R70-8;

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13

Water Quality Standards Revisions, R71-14; Water Quality Standards Revisions for Intrastate

Waters, R71-20, slip op. at 9 of the Board’s opinion (Mar. 7, 1971).

Interpreting Section 302.211(e) to apply only to rivers would not leave other waters of

the State unregulated with respect to thermal standards. The language of Section 302.211(d),

included as condition 2.A of SIUE’s permit, does not limit the applicability of that thermal

standard to rivers. 35 Ill. Adm. Code 302.211(d).

The Board will not, as the Agency suggests, interpret “main river” to mean all waters of

the State. Reinforcing this position, the Board even expressly defines “main river temperatures”

within the Board’s general water quality standards (and SIUE’s NPDES permit) as “temperatures

of those portions of a river essentially similar to and following the same thermal regime as the

temperatures of the main flow of the river.” 35 Ill. Adm. Code 302.104. Had the Board intended

the thermal temperatures in Section 302.211(e) to apply to waters of the State other than rivers, it

could have changed the language of Section 302.211(e) or the section defining main river

temperatures. Having done neither, the Board does not now interpret “main river” to apply to all

waters of the State.

The Board agrees with the Agency that because Tower Lake does not have a designated

use and no site-specific standard applies to it, Tower Lake is a general use water that must meet

the general use water quality standards of Subpart B of Part 302. The parties concede that

Section 302.211(j) does not apply because Tower Lake is not an artificial cooling lake.

Similarly, the Board finds Section 302.211(e) does not apply because Tower Lake is not a river.

That the Agency has historically included Section 302.211(e) in permits applicable to waters of

the state other than rivers is also not persuasive. The Board will not make a strained

interpretation of a Board regulation included in an Agency-issued permit simply because of the

Agency’s past usage. The plain meaning of Section 302.211(e) is clear and unambiguous and

consistent with the history of the Board’s thermal regulations.

The Board finds that SIUE has succeeded in demonstrating that condition 2.B of its

NPDES permit is inconsistent with Board regulations. The Board orders the Agency to strike

Special Condition 2.B and any reference to Section 302.211(e) from SIUE’s NPDES permit.

Next, the Board discusses SIUE’s alternative argument regarding the proper point of monitoring

for compliance with water quality standards.

Proper Point of Measurement: Receiving Lake or Prior to Discharge

SIUE’s Arguments

Alternatively, SIUE argues that if the Board determines that Section 302.211 applies,

SIUE requests that the Board strike the portion of the permit requiring SIUE to monitor for

compliance with Section 302.211(e) at the point of discharge into Tower Lake. SIUE contends

that the requirement in the NPDES permit to monitor compliance with Section 302.211(e) at the

discharge point runs counter to the plain language of Section 302.211(e) itself. SIUE Reply at 2.

SIUE states that Section 302.211(e) provides: “water temperature at representative locations in

the main river shall not exceed the maximum limits.” 35 Ill. Adm. Code 302.211(e). According

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14

to SIUE, Section 302.211(e) specifies a location at which to measure water temperature:

representative locations in the main river. SIUE Mot. at 9; 35 Ill. Adm. Code 302.211(e).

SIUE asserts that the requirement to measure temperature at the discharge point does not

fulfill the requirements of Section 302.211(e) to measure water temperature at representative

locations in the main river. SIUE Mot. at 9.

Further support for measuring temperature after discharge to Tower Lake rather than

prior to discharge, according to SIUE, is found in the Board’s adopting opinion of thermal

regulations for Lake Michigan. SIUE Mot. at 9; citing

Thermal Standards, Lake Michigan, PCB

R70-2 (June 9, 1971). There, the Board specified monitoring locations “outside of a mixing zone

which shall be no greater than a circle with a radius of 1000 feet or an equal fixed area.” SIUE

Mot. at 10; citing

Thermal Standards, Lake Michigan, R70-2 at 62 (now codified at 35 Ill. Adm.

Code 302.507). SIUE states the adopting opinion of the Lake Michigan thermal standards

illustrates its argument that the Board is concerned with the temperature of the main river, not

the temperature at the discharge point.

SIUE claims that the evolution of the Board’s thermal standards, as well as the Part 303

regulations that use almost the same language to govern the temperature of specific rivers,

further demonstrates that the location to monitor for compliance with Section 302.211(e) is not

the point of discharge, but rather at representative locations in the main river. SIUE Mot. at 11.

SIUE explains that before the Board came into existence, the Illinois Sanitary Water Board had

enacted thermal rules and regulations applicable to Illinois waters. SIUE continues that when the

Board adopted the Sanitary Water Board’s thermal standards, the Board adopted standards

specifically applicable to rivers, sections of rivers, and Lake Michigan.

SIUE claims that the first thermal standards adopted by the Board prohibited temperature

rises of more than five degrees Fahrenheit above natural temperatures. SIUE Mot. at 12; citing

Ohio-Wabash Thermal Standards, R71-12, slip op. at 2-565-66 (Sept. 30, 1971). The Board rule

provided that the 5 degree F standard must be met within no more than 600 feet from the

discharge and also adopted monthly maximum temperatures. The Board again adopted a 5

degree F temperature rise at the edge of a 600-foot mixing zone and set monthly maxima

applicable to the main river in

Mississippi Thermal Standards, R70-16 (Nov. 23, 1971).

In 1973, the Board adopted new thermal rules without the 600 foot mixing zone, instead

stating that mixing zones, with radii of no more than 600 feet, would be granted on a case-by-

case basis. Rule 201(a), July 1973. In 1982, the Board revised the water pollution regulations

and codified the water quality standards as Part 302 and the site-specific rules and water use

designations as Part 303. SIUE Mot. at 17; citing

Rulemaking for Codification of Chapter 3:

Water Pollution, R81-3 (Jan 21, 1982). Section 302.211(e) remains as it was adopted in R81-3.

SIUE cites several Board opinions it asserts also support the argument that the proper

point of temperature measurement is in Tower Lake. First, SIUE states that in the past, the

Board has granted an exemption from the Section 302.211 thermal standards for water

discharged from an artificial cooling lake into a water body, relying on data collected from

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15

within the water body. SIUE Mot. at 18; citing Illinois Power Company (Clinton Power Station),

PCB 92-142, slip op. at 10 (Aug. 26, 1993).

Second, SIUE states that in a past request for variance, the Board has noted that available

data proved a violation of the Section 302.211(e) standards would occur during low flow

conditions. SIUE Mot. at 19; citing

Deere and Co., John Deere Foundry v. IEPA, PCB 81-163

(Oct. 5, 1982). According to SIUE, the Board’s reference to low flow conditions indicates that

monitoring would occur at representative locations in the main river, not at the discharge point.

Third, SIUE cites a 1978 request for an exemption from the thermal standards for the

same proposition that monitoring for compliance with Rule 203(i)(4), like for Section

302.211(e), requires monitoring at representative locations in the main river. SIUE Mot. at 20;

citing

CIPS (Hutsonville Power Station) v. IEPA, PCB 78-108 (Oct. 19, 1978).

Finally, SIUE reiterates that the purpose of the monthly maxima rule requires that

thermal measurements be taken in Tower Lake rather than at the point of discharge. SIUE Mot.

at 17. SIUE claims that monitoring at the point of discharge, as required by its NPDES permit,

“provides absolutely no information as to whether the ‘monthly maxima’ regulation is being

violated; monitoring at a representative location in the main river does provide the relevant

information.” SIUE Mot. at 17. SIUE asserts that the permit, as issued, deprives SIUE of using

the diluting capacity of Tower Lake for heat that is specifically allowed by Section 302.211.

SIUE Mot. at 18.

For these reasons, SIUE argues that the NPDES permit requirements to monitor for

compliance with Section 302.211(e) at a point representative of discharge rather than in Tower

Lake is arbitrary, unnecessary to accomplish the purposes of the Act, and should be stricken.

Agency Arguments

Regarding the point of sampling, the Agency states that to prevail on this issue, SIUE

must prove that requiring the thermal standard be met at the discharge point is not necessary to

accomplish the purposes of the Act and Board regulations. Ag. Resp. at 11. The Agency states

that it issued an NPDES permit requiring SIUE to meet Section 302.211(e) limits at the

discharge point in order to ensure compliance with the Section 309.142 requirement that “the

authorized discharge will not violate applicable water quality standards.” Ag. Resp. at 11; citing

35 Ill. Adm. Code 309.142. Further, the Agency states that the Board’s regulations on mixing

zones provide that dischargers may comply with water quality standards within a mixing zone,

“provided the discharger has made every effort to comply with the requirements of 35 Ill. Adm.

Code 304.102.” Ag. Mot. at 18; citing 35 Ill. Adm. Code 302.102.

The Agency claims that because SIUE did not meet the mixing zone requirements, a

mixing zone was not assigned to SIUE’s discharge. Ag. Mot. at 18. The Agency states that it

believes SIUE could have lowered lake temperatures by lowering the condenser inlet and also by

discharging below the thermocline, in the deeper, colder strata of the lake. However, the Agency

states that the Board regulations do not permit the Agency to grant mixing zones in instances

where the whole lake is subject to high temperatures, and SIUE has not attempted to find

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alternatives to lower lake temperatures. Accordingly, the Agency states it could not have granted

SIUE a mixing zone, and absent a mixing zone, SIUE must meet the applicable standards at the

point of discharge.

The Agency states that the caselaw SIUE cites in the motion for summary judgment are

not applicable. The Agency states that the cases cited, such as

Illinois Power Company, are

requests for regulatory relief that presume the general applicability of the regulation, as opposed

to permit appeals which challenge the conditions based on the application of the regulation.

The Agency concludes that SIUE’s permit is consistent with the mandates of the Act and

Board regulations and the conditions are necessary to accomplish the purposes of the Act and

Board regulations. Accordingly, the Agency requests that the Board deny SIUE’s motion for

summary judgment.

SIUE’s Reply

In response, SIUE claims that the Agency never addressed the plain language used by the

Board to identify the monitoring point. SIUE Reply at 4. By ignoring the plain language of

Sections 302.211(e) and 302.104, SIUE states that the Agency has conceded the point that

monitoring should occur in Tower Lake.

Id

.

SIUE disputes the Agency’s position that the only possible monitoring points are at the

edge of a mixing zone or at the point of discharge. SIUE Reply at 4. SIUE states that in this

case Section 302.211(e) explicitly provides that monitoring must occur “at representative

locations in the main river.” SIUE Reply at 4-5; citing 35 Ill. Adm. Code 302.211(e).

SIUE states it is merely asking that the Agency apply Board regulations as they are

written. SIUE Reply at 5. SIUE further urges the Board to find that it has met its burden in this

proceeding to show that monitoring for compliance with the Board’s thermal regulations at the

discharge point is inconsistent with Section 302.211(e). Accordingly, SIUE contends that if the

Board determines that Section 302.211(e) is applicable to discharges into Tower Lake, the Board

should grant summary judgment in SIUE’s favor as to the proper monitoring point.

Id

.

Board Analysis

The Board finds that whether or not Section 302.211(e) applies, the proper point of

sampling for compliance for water quality standards in Tower Lake is at the point of discharge.

The Board is persuaded by the Agency’s argument that a lack of a mixing zone requires

compliance with Section 302.211 at the point of discharge. SIUE does not argue that a mixing

zone should apply to its discharge, only that, if applicable, the proper sampling point to

determine compliance with the Board’s thermal standards should be at some point within Tower

Lake.

The Board disagrees with SIUE’s argument that Board precedent, specifically Illinois

Power, demonstrates that the proper point of measurement for compliance is in Tower Lake, not

at a point prior to discharge. As discussed by the Agency, Illinois Power

was a thermal

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demonstration proceeding. In Illinois Power, the petitioner conducted monitoring in the

receiving water body to demonstrate that the discharge from the power station caused no

significant ecological damage pursuant to Section 302.211(f), not to show compliance with

Section 302.211(e). Illinois Power

, PCB 92-142 slip op. at 14-15.

Other Board thermal demonstrations, however, support the Agency’s argument regarding

the proper point of monitoring for compliance. The Board granted an adjusted thermal standard

as it applies to that facility’s discharges in 410(c) Petition for Dresden Nuclear Generating

Station, PCB 79-134 (Jul. 9, 1981). The Board in Dresden Nuclear Generating Station

prohibited the temperature of plant discharges from exceeding 32.2ºC more than 10% of the time

(rather than 1% as provided in Rule 203(i)(3) and (4), now Section 302.211(e)) in the period and

never exceeding 33.9ºC (93ºF)). The amended thermal standard granted by the Board did not

include a mixing zone. The Board’s decision in Dresden Nuclear Generating Station

demonstrates that in instances where no mixing zone applies, the proper point to monitor for

compliance is the facility’s discharge rather than a point in the receiving water body.

The Board finds the requirement Special Condition 2.A contains a thermal requirement

that is an applicable water quality standard. However, because no mixing zone applies to SIUE’s

discharge, SIUE must produce an effluent that complies with the water quality standards.

Accordingly, the Board agrees with the Agency’s designation of a point prior to discharge as the

representative sampling point in Special Condition 3.

The Agency’s argument that a point prior to discharge was chosen because SIUE did not

meet mixing zone requirements is persuasive as supported by Dresden Nuclear Generating

Station. The cases SIUE cites in its motion for summary judgment are not permit appeals. The

Board agrees that the cited Board opinions demonstrate that Section 302.211 is concerned with

the temperature of the water body at issue, not the temperature of the effluent prior to discharge.

However, the Board also finds that without a designated mixing zone, SIUE must demonstrate

that its effluent complies with any applicable water quality standard. The Board finds that even

when considered in favor of SIUE, the record shows that sampling SIUE’s effluent prior to

discharge is necessary to further the purposes of the Act and is consistent with Board regulations.

The Board grants summary judgment in favor of the Agency on this issue and declines to strike

condition 3 from SIUE’s permit.

CONCLUSION

The Board grants SIUE’s motion for summary judgment in part and denies the motion in

part. Simultaneously, the Board grants the Agency’s motion for summary judgment in part and

denies it in part. The Board finds that SIUE has successfully demonstrated that condition 2.B of

its NPDES permit, as issued by the Agency to SIUE on January 2, 2002, is not necessary to

accomplish the purposes of the Act, as it is inconsistent with Board regulations. The Board

grants summary judgment in favor of SIUE on the applicability of Section 302.211(e).

On the other hand, the Board grants summary judgment in favor of the Agency on the

issues of the maximum temperature standard and the proper point of monitoring for compliance,

finding the permit properly issued with respect to Special Conditions 2.A and 3, respectively.

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Accordingly, the Board orders the Agency to strike Special Condition 2.B and any reference to

Section 302.211(e) from SIUE’s NPDES permit no. IL 0075311. The record indicates that the

high temperatures of SIUE’s discharge as well as determining the “natural temperature,” as

required by Special Condition 2.A, of Tower Lake are outstanding issues that the Board does not

address in this permit appeal. Nonetheless, monitoring SIUE’s discharge for compliance with

the remaining standards in SIUE’s permit must occur prior to discharge, not in Tower Lake.

ORDER

The Board orders the Agency to strike Special Condition 2.B and remove any reference

to Section 302.211(e) from SIUE’s National Pollutant Discharge Elimination System permit no.

IL 0075211. The Board affirms the issuance of permit no. IL 0075211 with respect to the

remaining contested conditions, Special Condition 2.A and 3. Today’s order resolves the issues

on appeal, and this docket is closed.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2004);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on August 4, 2005, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board