ILLINOIS POLLUTION CONTROL BOARD
January 19, 2006
PRAIRIE RIVERS NETWORK and SIERRA
CLUB,
Petitioners,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and PRAIRIE
STATE GENERATING COMPANY, LLC,
Respondents.
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PCB 06-124
(Third-Party NPDES Permit Appeal -
Water)
AMERICAN BOTTOM CONSERVANCY
and DALE WOJTKOWSKI,
Petitioners,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and PRARIE
STATE GENERATING COMPANY, LLC,
Respondents.
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PCB 06-127
(Third-Party NPDES Permit Appeal -
Water)
(Consolidated)
ORDER OF THE BOARD (by A.S. Moore):
On January 6, 2006, Prairie Rivers Network (Prairie Rivers) and Sierra Club filed a
petition asking the Board to review a December 5, 2005 determination of the Illinois
Environmental Protection Agency (Agency). The Agency granted a National Pollutant
Discharge Elimination System (NPDES) permit to Prairie State Generating Company (Prairie
State) for its coal-fired power plant located at Marigold Road and Highway 12 in Marissa,
Washington County. On January 11, 2006, American Bottom Conservancy (ABC) and Dale
Wojtkowski also filed a petition asking the Board to review the December 5, 2005 determination
of the Agency to grant an NPDES permit to Prairie State. For the reasons set forth below, the
Board accepts the petitions for hearing and on its own motion consolidates the two cases.
THIRD-PARTY APPEAL RIGHTS
Section 40(e)(1) of the Environmental Protection Act (Act) (415 ILCS 5/40(e)(1) (2004))
allows certain third parties to appeal Agency determinations to grant NPDES permits. The third
party’s petition to the Board must contain:
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a demonstration that the petitioner raised the issues contained within the petition during
the public notice period or during the public hearing on the NPDES permit application, if
a public hearing was held; and
a demonstration that the petitioner is so situated as to be affected by the permitted
facility. 415 ILCS 5/40(e)(2) (2004);
see also
35 Ill. Adm. Code 105.210(d).
The petition also must, among other things, specify the grounds for appeal and include a copy of
the issued permit. 35 Ill. Adm. Code 105.210(a), (c). The third party must file the petition
within 35 days after the “date of issuance of the Agency’s decision.” 415 ILCS 5/40(e)(1)
(2004);
see also
35 Ill. Adm. Code 105.206(b). If the Board determines that the third party’s
petition for review is not “duplicative or frivolous,” the Board will hear the petition. 415 ILCS
5/40(e)(3) (2004);
see also
35 Ill. Adm. Code 105.214(d). An action before the Board is
duplicative if it is “identical or substantially similar to one brought before the Board or another
forum.” 35 Ill. Adm. Code 101.202. An action before the Board is frivolous if it is “a request
for relief that the Board does not have the authority to grant” or “fails to state a cause of action
upon which the Board can grant relief.”
Id.
THE PETITIONS HERE
Prairie Rivers’ and Sierra Club’s petition in PCB 06-124 states that members of both
organizations appeared at the Agency’s public hearing, submitted comments in opposition to the
permit, or did both with regard to the issues on which it now appeals Prairie State’s NPDES
permit. Specifically, Prairie Rivers and Sierra Club appeal on the grounds that the draft permit
(1) allowed discharges of harmful chlorinated organics that will impair existing and designated
uses of the Kaskaskia River and lead to concentrations of contaminants hazardous to human
health; (2) allowed stormwater discharges before a stormwater pollution prevention plan
(SWPPP) is prepared; (3) did not contain necessary effluent limitations for the proposed
discharge of stormwater pursuant to an SWPPP; and, (4) in setting effluent limits, relied on
assumptions that failed to consider withdrawals from the Kaskaskia River. Prairie Rivers’ and
Sierra Club’s petition states that members of the two organizations are so situated as to be
affected by the permitted facility and includes a copy of the issued permit.
ABC’s and Wojtkowski’s petition in PCB 06-127 states that ABC members and
Wojtkowski testified at the Agency’s public hearing and submitted oral and written comments
with regard to the issues on which it now appeals Prairie State’s NPDES permit. Specifically,
ABC and Wojtkowski claim that the draft permit (1) allowed discharges of harmful chlorinated
organics that will impair existing and designated uses of the Kaskaskia River and fails
adequately to monitor those chemicals; (2) allowed stormwater discharges before an SWPPP is
prepared; (3) did not contain necessary effluent limitations for the proposed discharge of
stormwater pursuant to an SWPPP; and (4) did not consider cumulative impacts on water quality
from the entire project. ABC’s and Wojtkowskis’s petition states that they are so situated as to
be affected by the permitted facility and includes a copy of the issued permit.
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The Board finds that both petitions were timely filed and satisfy the content requirements
of 35 Ill. Adm. Code 105.210. No evidence before the Board indicates that either action is
duplicative or frivolous. The Board accepts Prairie Rivers’ and Sierra Club’s petition for hearing
in PCB 06-124 and accepts ABC’s and Wojtkowski’s petition for hearing in PCB 06-127.
In addition, the Board finds that “consolidation is in the interest of convenient,
expeditious, and complete determination” of these claims. 35 Ill. Adm. Code 101.406. The
Board accordingly consolidates these two proceedings for hearing on its own motion, as has been
its practice in similar situations involving multiple appeals of the same permit.
See, e.g.
, Village
of Lake Barrington, Cuba Township, Prairie Rivers Network, Sierra Club, Beth Wentzel and
Cynthia Skrukrud v. IEPA and Village of Wauconda; Slocum Lake Drainage District of Lake
County, Illinois v. IEPA and Village of Wauconda; Al Phillips,
et al
. v. IEPA and Village of
Wauconda, PCB 05-55, 58, 59, slip op. at 3 (Oct. 7, 2004) (third-party NPDES permit appeal).
HEARING AND DECISION DEADLINE
Petitioners Prairie Rivers and Sierra Club and ABC and Wojtkowski have the burden of
proof. 415 ILCS 5/40(e)(3) (2004);
see also
35 Ill. Adm. Code 105.112(a). Hearings “will be
based exclusively on the record before the Agency at the time the permit or decision was issued.”
35 Ill. Adm. Code 105.214(a);
see also
415 ILCS 5/40(e)(3) (2004). Hearings will be scheduled
and completed in a timely manner, consistent with the decision deadline.
See
415 ILCS
5/40(a)(3) (2004). Only Prairie State as the permit applicant may extend the decision deadline
by waiver.
See
35 Ill. Adm. Code 101.308. If the Board fails to take final action by the decision
deadline, Prairie State “shall be entitled to an Appellate Court order pursuant to subsection (d) of
Section 41 [415 ILCS 5/41(d) (2004)].” 415 ILCS 5/40(a)(3) (2004). Currently, the decision
deadline is May 6, 2006, the 120th day after January 6, 2006, which is the filing date of the
earlier petition in PCB 06-124.
See
35 Ill. Adm. Code 105.114. The Board meeting immediately
before the decision deadline is scheduled for Thursday, May 4, 2006.
AGENCY RECORD
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination within 30 days after Prairie Rivers and Sierra Club filed the petition.
35 Ill. Adm. Code 105.212(a). If the Agency wishes to seek additional time to file the record, it
must file a request for extension before the date on which the record is due to be filed. 35 Ill.
Adm. Code 105.116. The record must comply with the content requirements of 35 Ill. Adm.
Code 105.212(b).
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on January 19, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
