ILLINOIS POLLUTION CONTROL BOARD
April 23,
1992
IBP,
INC.,
)
Petitioner,
)
v.
)
PCB 88—98
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
RICHARD A. JOCHUM, APPEARED ON BEHALF OF PETITIONER;
BOBELLA
GLATZ,
APPEARED
ON
BEHALF
OF RESPONDENT.
OPINION
& ORDER OF THE
BOARD
(by B. Forcade):
This matter comes before the Board on remand from the
Illinois Appellate Court. IBP Inc.
v. Illinois Pollution Control
Board
(1990),
204 Ill.
App.
3d 797,
563 N.E.2d 72.
In its
opinion, modified November 30,
1990,
the third district appellate
court reversed and remanded the Board’s order of September 3,
1989,
which affirmed the conditions of the permit as issued by
the Agency.
The appellate court held that the Board should have
considered the stipulation of facts submitted by the parties at
the July 18,
1989 hearing,
in reviewing the permit conditions.
The court further instructed the Board to hold a de novo hearing
on the issue of whether the conditions of the final permit issued
to IBP on May 5,
1988, are necessary to accomplish the purpose of
the Environmental Protection Act (Act).
In its order of February 27,
1991, the Board instructed the
parties to conduct a hearing limited to the stipulation.
This
hearing was to be completed by August 2,
1991.
On September 25,
1991,
the parties filed a joint motion for continuance.
The
parties sought a continuance due to ongoing negotiations between
IBP, USEPA and the Agency involving among other things, the
conditions of the NPDES permit.
IBP, IEPA and USEPA have
primarily resolved the NPDES permit issues but the settlement has
not been finalized and no timetable for completion has been
presented to the Board.
On September 26,
1991, the Board denied
the parties motion for continuance and ordered the parties to
proceed with a hearing to be completed by November 15,
1991,
or
the matter would be subject to dismissal for want of prosecution.
A hearing was held on November 6,
1991, in Rock Island,
Illinois.
At hearing,
IBP argued that the stipulation and the
draft permit demonstrate that the conditions of the NPDES permit
were more stringent than necessary to meet state and federal
requirements.
IBP seeks an order from the Board instructing the
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2
Agency to issue a new permit with conditions consistent with the
agreement reached between the parties.
(Tr. at 3.)
At hearing, the Agency did not present any witnesses or
tender any evidence.
Despite previous denials, the Agency simply
repeated its request that the Board take no action until the
negotiations between the parties on the federal level have been
completed.
(Tr. at 11.)
Petitioner filed a post hearing brief on
December 6,
1991.
The Agency did not file a post hearing brief.
In short, the Agency failed to present any case whatsoever.
IBP initially sought review of the chlorine residual limit,
the ammonia nitrogen load limit and the imposition of a special
condition that required IBP to conduct mixing zones study of the
receiving stream to assess compliance with water quality
standards.
IBP contends that the only issue remaining before the
Board is the imposition of a discharge load limit for ammonia
nitrogen of 2700 lbs/day.
(Pet. Brief 2.)
IBP has the burden of
proving by a preponderance of the evidence that no violation of
the Act would occur if the permit was issued without the
conditions imposed by the Agency.
(Ill. Rev.
Stat.
1991,
ch.
111—1/2, par.
39(a)).
IBP argues that the Agency by the stipulation and by issuing
subsequent draft permits to IBP with less stringent levels of
ammonia nitrogen demonstrates that the ammonia nitrogen discharge
condition of IBP’s permit is more stringent than necessary to
satisfy the requirements of the Act.
In the stipulation, the
Agency acknowledges that less stringent conditions may be imposed
upon IBP which in all respects, complies with Federal and State
water pollution standards.
Paragraph 6 of the stipulation reads
as follows:
The draft permit contains effluent limits based upon
federal categorical standards as well as Illinois Water
Quality Standards and in all respects is at least as
stringent as required by 35 Illinois Administrative
Code Section 309 for the combined meat processing and
tanning facility.
The permit issued to IBP on May 5,
1988, contained a year-
round ammonia nitrogen effluent limit of 2700 lbs/day.
The
modified settlement draft permits of December of 1988 and August
of 1990 contained the following limitation on ammonia nitrogen:
The combined effluent from Outfalls 001 and 002 shall not
exceed the following daily maximum load limits for ammonia
nitrogen:
A.
When daily river flow is less than or equal to 1306
cfs, the load limit shall be 2340 lbs/day.
133—116
3
B.
When daily river flow
(QR)
is greater than 1306 Cf
5
but
less than 1906 cfs, the load limit shall be computed as
follows:
NH3
—
N (lbs/day)
=
2340
+
1.79 (Q~
—
1306)
Where QR
=
daily flow of Rock River in cfs.
C.
When daily river flow
(QR)
is greater than or equal to
1906 cfs, the load limit shall be 3414 lbs/day.
(Ex.
1 at 10)
The Agency has raised no objections to the stipulation or
the permit conditions of the draft permit.
The Agency presented
no argument to discredit IBP’s interpretation of the stipulation
and subsequent draft permit conditions.
The Agency appeared at
the hearing but failed to present any evidence.
At the hearing,
the Agency chose to readdress the prior motions for continuance
which the Board had previously denied.
The Agency’s failure to
proceed to hearing as instructed by the Board, results in a
default finding pursuant to Section 103.220 of the Board’s
procedural rules.
Section 103.220 reads:
Failure of a party to appear on the date set for
hearing or failure to proceed as ordered by the Board
shall constitute a default.
The Board shall thereafter
enter such order as appropriate, as limited by the
pleadings and based upon the evidence introduced at
hearing.
(See also Brian 3. Peter v. Geneva Meat and Fish Market,
et.al.
(March 22,
1990),
PCB 89—151,
109 PCB 531.)
The only evidence before the Board concerning the
stipulation is the evidence presented at hearing by IBP.
Because
the Agency did not present any adverse evidence, IBP has
satisfied its burden of proof by a preponderance of the evidence.
The stipulation of facts between the Agency and IBP shows that
the Act will not be violated if the permit is issued with the
conditions imposed by the draft permit.
Therefore, the requested
modifications to the permit will issue by default.
The Board notes the Agency’s assertion that if the Board
orders the Agency to issue a new permit, the USEPA may not
consider the permit valid and may assume authority to issue IBP’s
NPDES permit.
(Tr.
11.)
The Board is acting in direct response
to an Illinois Appellate Court mandate issued to the Board in
September of 1990.
The Agency’s failure to follow Board orders
and proceed to hearing has unduly prolonged disposition of this
matter.
Many of the unresolved issues between the USEPA and IBP
are unrelated to this permit and outside the jurisdiction of the
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4
Board.
The Board notes that the initial permit was issued in May
of 1988 and will expire in January of 1993.
As a result of the
delays in proceeding on the review of this permit,
a final permit
pursuant to the Court Order has not been issued to IBP.
This opinion constitutes the Board’s findings of facts and
conclusions of law in this matter.
ORDER
This matter is remanded to the Agency with directions to
reissue IBP’s NPDES permit, modifying the effluent discharge
limit for ammonia nitrogen as per the stipulation of the parties
and as contained in the draft permits of December 1988 and August
1990.
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1991 ch.
111 1/2 par.
1041, provides for appeal of final
orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the_.~~~day
of
,
1992, by
a vote of
7—~~
.
7
I
Control Board
133—118