ILLINOIS

 POLLUTION CONTROL

BOARD

February

5,

1981

CATERPILLAR

 TRACTOR CO.,

)

Petitioner,

v.

)

 PCB 80-3

tJT1LLNOIS

 ENVIRONMENTAL PROTECTION

)

AGENCY,

Respondent.

MR.

 RICHARD

 J. KISSEL, MARTIN,

CRAIG,

CHESTER

&

 SONNENSCLTEJT’T,

APPEARED ON BEHALF OF PETITIONER;

MR.

 STEPHEN

GROSSMARK,

 ASSISTANT

 ATTORNEY GENERAL,

 APPEARED ON

REHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by

I.

 Goodman):

On January

3,

 1980 Caterpillar Tractor Co.

 filed an appeal of

the NPDES permit no.

 IL 0001732 issued by the Illinois Environiacn~l.

Protection Agency (Agency)

 on December

4,

1979

 for Caterpillar~~

Joliet manufacturing facility, the effluent of which discharqc~

into the DesPlaines River after treatment with chemicals,

 an air

floatation unit,

 an activated sludge treatment unit, aeration ba-

sins and clarifiers.

 The application was made on December 28,

 1979,

Of ten issues originally presented to the Board,

 the Agency

has agreed to modify the permit regarding eight of these

 (Tr,

 2-9).

The two remaining issues for the Board~sconsideration are as

follows:

1.

Is

there adequate authority for the Agency to include,

as

 Par.

 six of Attachment

B,

 the following condition?

6.

 Facil~y_Process

Evaluat

ion

Accompanying the reapplication for permit,

 the permittee

shall submit to the Illinois EPA and USEPA an evaluation of

all plant processes with regard to known or potential toxic

pollutants* which may have been or are being discharged

to

the receiving water.

40—397

The process evaluation should consider the potential

for

discharge of pollutants by reviewing the raw materials,

solvents, catalysts,

 modifiers,

 stabilizers,

 preservat.ic7e~,

cleaning agents,

 intermediates,

 products, possible

unintentional by-products,

 and other potentially toxic

chemicals present at the plant.

 Following this evaluation,

if a reasonable possibility is shown to exist for discharie

of

 a toxic or potentially toxic pollutant in other than

trace amounts,

 its presence or absence should he confirmed

by wastewater sampling.

 Samples

 for analysis shall

he

composites taken so as to be representative of

the

d~sch~j:~ce

 which would occur during an operating day for

the

 procc:i~s

sampled.

 Insofar as is possible,

 samples shall

 be taken

prior to dilution with cooling water or mixing with other

process wastewaters.

 The analytical techniques shall he

those specified

 in 40 CFR 136 or chosen from published

methods with prior approval of USEPA.

The final

 report containing the detailed results of the

process evaluation,

 including measured or estimated amounts

of any toxic pollutants

 found,

 shall be submitted no later

than 180 days prior to the exoiration of this permit.

*Toxic pollutants are defined in Section 502(13)

 of the

Clean Water Act (PL 95—217).

 Note that the term “toxic

pollutant”

 is not limited

 to the list designated under

Section 307 of the Clean Water

 Act, nor to the 129 Priority

Pollutants

 or any other

 list.

 The toxic substances of

concern in the waste of this particular facility depend upon

the raw materials, products, and processes employed at this

facility.

2.

 Was the Agency in error

 to have excluded the following

language, contained

 in Caterplllarvs last,

 (JSEPA—issued permit?

The permittee shall not, during the period of this permit,

be authorized to discharge pollutants other than those

specified in Part

 I herein,

 unless the concentrati:ns of

those pollutants do not exceed the standards or limitations

of the Illinois Pollution Control Board’s Water Pollution

Regulations,

 Chapter

3,

 in force on the date of any

particular discharge of said pollutants;

 provided,

 however,

that the concentrations of these pollutants shall not exceed

any standard or limitation promulgated by the United States

Environmental Protection Agency under Section 307(a) of the

Federal Water Pollution Control

 Act,

 PL 92—500.

 At any time

after compliance monitoring by the United States Environmental

Protection Agency, the permittee on written request of the

United States Environmental Protection Agency may demonstrate

that any pollutant not specified in Part

 I herein is

 in com-

pliance with the effluent limitations of this paragraph.

40—:398

Section 39(h)

 of the Act sets forth the powers oE the Agency

in issuing permits:

 “All ~9PDESpermits

 shall contain those

 terms

and conditions

...

 which may be required to accomplish the purposes

and provisions of this Act,”

...

 “and may include, among

 such con-

ditions, effluent limitations and other requirements estahlts~ied

under this

 Act, Board regulations, the Federal Water Pollution

Control Act Amendments of

1972

 Clean

 Water Act

 and regulations

pursuant thereto.”

 The Board’s role in deciding permit appeal

matters

 is to either uphold or overrule the Agency’s decision

as

to the conditions

 in issue.

The Facility Process Review condition prescribes activity

which is to be performed

 in the event Caterpillar applies

 for its

next permit.

 Its terms are not linked to the period of the instant

permit.

 The Agency argues that it imposed this condition pursu~n(;

to

 it.s authority under §39 of the Act and certain of the Board’s

Water Pollution Control Rules

 and Regulations

 (Chapter 3),

The

motivation

 for inclusion was the indication in Caterpillar’s appli-

cation

 (at p.

 11—0,

 Item 16)

 of the presence of toxic pollutants

listed pursuant to §307(a)

 of the Clean Water Act (algicides;

chlorinated organic compounds/methyl chloride and methyl chloroforo;

chlorinated cutting oils; “pesticides,

 see algaecides

 (sic)”;

and

chronium)

 (Tr.

 92—4,111).

The question before the Board therefore is whether the permit

condition may be required to accomplish the purposes and provtsLon~

of the Act.*

 The Board finds the condition to be required to

accomplish the following purposes of the Act:

1.

 to assure that adverse environmental effects are fully

considered and borne by those who cause them (~2(h)of the Act);

2.

assure

that

contaminants

are

 discharged into the

waters

 of the state without being made

 subject to conditions

required in order to achieve compliance with state and federal

law (~l1(b)of the Act);

and

3.

 to assure that the Board’s regulations are not

construed to limit,

 affect,

 impair or diminish the authority,

duties and responsibilities of the Agency to control pollution,

to protect and enhance the quality of the environment,

 and to

achieve all other purposes of the Act (~11(c) of the Act).

There

 is no evidence in the

record

that

Caterpillar

knew

the presence in its effluent of toxics other than

those

reporLe~.

*In Peabod~Coal Co.

v.

 IEPA,

 PCB 79—296,

May

 1, 1980, the

Board referred to permit conditions such as the facility process

evaluation here at issue as “discretionary,” and those conditions

specifically required to be included pursuant to federal or state

regulations

 as “mandatory.”

 As use of these terms has caused

considerable confusion,

 the Board will no longer employ them

in

its analysis of whether appealed permit conditions are required

to

 accomplish the purposes of the Act.

40—39 9

—4—

The Agency maintains that the presence of some toxics indicates

the

possible presence of others

 (ft. 92—4).

 To impose the require-

ment on Caterpillar to evaluate the potential of all of its plant

processes for discharges of known and potential toxic pollutants

which either are presently or may have been discharged to the

receiving water (and to sample when they are present in other than

trace amounts) will assure that the adverse environmental

impact

of those toxic discharges are

borne

by Caterpillar, and not the

public, by assuring

that

Caterpillar considers them.

Caterpillar is the best source for information regarding the

presence of toxics and the degree of their presence in its discharges.

(ft.

 115).

 To force the Agency to inspect

and

monitor these toxics

not only would increase the burden upon that agency but would not

place responsibility for considering the adverse environmental

effects of the discharges on the one causing then.

 A toxic sub-

stance present in a discharge but not identified or

quantified

is

still

fact

substance

which

NPDES

permit

must

regulate;

when

suspected

to

present

but

 is not

quantified

reasonable for the Agency to regulate it

with

monitoring

and

sampling requirements as

permit

conditions.

Moreover, the condition allows a construction of the Board’s

regulations in a way which does

not impair

the Agency’s duties and

authority under the

Act

to protect and enhance the quality of the

waters of the state.

 As Caterpillar is the best source for inform-

ation on its

own

toxic discharges, the Agency should not be prohth-

ited

from applying its monitoring authority to the evaluation of

processes in order to have a discharger consider the existence arid

potential existence of toxic substances.

 Under the Board’s regula-

tions, the Agency must require monitoring.

 Under the condition at

issue the Agency requires a specific kind of monitoring.

 This

monitoring is not prohibited by either the Act or the Board’s regu-

lations and it enables the Agency to fulfill its duties to protect

and enhance the quality of waters of the state.

However, the Board finds that the condition relates to what is

required when Caperpillar, if ever, reapplies for an NPDES permit.

The Agency lacks authority under the Act to expand the requirenents

of an application for an NPDES permit which are set forth in thapter

3, Rule 902.

 The Agency’s decision to include this provision is

therefore reversed.

As to the second issue presented by this appeal, the

noninclusion of a condition which the USEPA had included in

Caterpillar’s prior NPDES permit, the Agency is not bound either

to include the substance of prior conditions or to word any

condition in a specific way.

 The Board upholds the Agency’s

exclusion of the condition Caterpillar had requested.

 There

is no evidence

that

the wording of this condition is required

to accomplish the purposes of the Act, the Board’s regulations

or the Clean Water Act.

The permit proceeding is remanded to the Agency for issuance

of a permit consistent with this Opinion.

40—400

—~—

This Opinion constitutes

 the findings of fact and the

conclusions of law of the Board in this matter.

ORDER

It is the Order of the Illinois Pollution

Control Board

that

the Agency’s

inclusion of paragraph six of Attachment

 13 in the

t’PDES permit No. IL 0001732 issued on December

4,

1979

to

Caterpillar Tractor Co.

 is reversed.

 The permit is remanded to

the Illinois Environmental Protection Agency for further action

consistent with the Opinion herein.

IT

 IS SO ORDERED.

I, ~hristan

L.

 Moffett,

 Clerk of the Illinois Pollution

Control

 Board, hereby certify that the above Opinion and Order

were adopted on the

—

 day of

 1980 by a vote of

Christan

L.

 Moffetk~.Clerk

Illinois Pollution Control Board

40—401