ILLINOIS POLLUTION CONTROL BOARD
    December
    15,
    1988
    VILLAGE OF
    SAUGET,
    Petitioner,
    )
    v.
    )
    PCB 86—57
    PCB 86—62
    ILLINOIS ENVIRONMENTAL
    )
    (Consolidated)
    PROTECTION AGENCY,
    Respondent.
    )
    MONSANTO COMPANY,
    Petitioner,
    )
    v.
    )
    PCB 86-58
    )
    PCB 86-63
    ILLINOIS ENVIRONMENTAL
    )
    (Consolidated)
    PROTECTION AGENCY,
    Respondent.
    )
    DISSENTING OPINION
    (by B. Forcade):
    I respectfully dissent
    from today’s action.
    I believe several
    of the
    Agency imposed conditions
    should have been upheld.
    I also believe the
    majority opinion sets
    a tragic precedent for the future control
    of toxic
    chemicals in
    Illinois.
    As
    a preliminary matter,
    I must note that the permit appeal
    opinion
    issued today
    is the culmination
    of
    a process that began
    in August,
    1980.
    Since that date, Sauget and the Agency have been involved
    in negotiations and
    litigation on the limitations that should apply to the P/C plant.
    Since
    October
    24,
    1984,
    negotiations and litigation
    involving the
    All Plant have been
    ongoing.
    These matters have been pending before this Board alone for nearly
    2
    1/2 years.
    I have little doubt that this matter will
    spend
    at
    least another
    year before the Illinois Judiciary.
    It
    is
    a very sad commentary on Illinois
    Government that
    it takes nearly
    a decade to get
    a finally effective permit
    issued to Sauget.
    During this unconscionable period
    of delay the environment
    has
    been denied whatever protection
    it was entitled to
    receive,
    and Sauget has
    been denied
    the
    right
    to
    a quick and final
    answer stating their permit
    obligations.
    Government alone must carry the blame for these delays.
    My primary objection to the majority opinion
    relates to the discussion of
    whole-effluent toxicity limits
    on pages
    17—18.
    There,
    the majority discusses
    the relative merits of the “direct” approach versus the “tiered” approach to
    whole-effluent
    toxicity
    limitations.
    The
    majority
    then
    finds
    favor
    with
    the
    94—29

    -2-
    “tiered” approach.
    When the majority
    opinion
    is
    stripped of
    its obfuscating
    bureaucratic language, one finds that the “direct” approach means you can set
    an effluent limitation without scientific data to establish that the effluent
    is toxic (or data to establish how toxic
    it
    is).
    The “tiered” approach means
    that you need scientific data to establish how toxic
    an effluent
    is before you
    can place
    a
    legally valid
    limitation
    upon it.
    In short,
    is
    an effluent
    considered guilty
    until
    proven innocent,
    or innocent until
    proven guilty.
    The
    majority holds
    that an effluent cannot
    be held subject
    to whole—effluent toxic
    chemical controls until
    it
    is
    found
    by
    proper scientific evidence to be toxic;
    in other words, innocent until
    proven guilty.
    I
    am unable
    to support that
    position.
    Further,
    I believe the majority should have had the courage to
    state
    its
    holding
    in
    plain english.
    I believe,
    based
    on the facts
    presented, that Sauget’s effluent
    can
    legally be presumed guilty until
    proven innocent.
    I believe that the
    immediate imposition
    of
    a whole-effluent toxicity limit was appropriate.
    Generally, the burden
    is upon the permit applicant to prove that the
    Environmental Protection Act
    and Board regulations will
    not be violated absent
    the contested condition.
    In short, the burden
    is
    upon the permit applicant to
    prove that their effluent
    is
    innocent.
    Here, the record shows that several
    flows influent to the A/B plant were either toxic
    or inadequately
    characterized:
    the P/C plant effluent demonstrated extreme toxicity and the
    Monsanto effluent had no analyses for organic chemicals.
    Here, there was no
    evaluation of the A/B plant effluent
    (since
    it was
    not then operational) to
    show that
    all traces of toxicity from the irifluent had been removed.
    In
    short,
    I
    believe the Agency was fully justified in questioning whether the A/B
    plant effluent would be toxic,
    and Sauget did not provide information
    to
    demonstrate that the effluent would
    not be toxic.
    Consequently,
    a whole-
    effluent toxicity
    limit
    seems
    appropriate.
    If today’s factual
    scenario does
    not justify
    whole—effluent toxicity limit,
    I cannot
    imagine
    a
    situation that
    would.
    I also disagree with the majority where
    it fails
    to resolve conflicts
    regarding past effluent concentrations.
    This Board’s
    review of
    an NPDES
    permit constitutes more than
    a device to ensure future compliance with the
    law.
    Such
    a
    review also operates to determine whether
    a condition was
    valid
    when issued
    so that subsequent violation of that condition would constitute
    a
    violation of
    law.
    By failing to address that issue this Board
    is saying that
    it will
    not
    render
    a decision
    on whether Sauget was
    in conpliance with the law
    from March 21,
    1986 to December
    15,
    1988, because that will
    not affect
    future
    pollution control.
    I disagree.
    I also disagree with the majority on the effective date for the A/B
    plant
    effluent limitations.
    Those dates
    came from Sauget
    in
    its permit
    application.
    If Sauget did not amend its
    permit application
    to
    reflect more
    reasonable dates,
    the Agency should
    not be penalized by having the permit
    effective dates
    stricken.
    94—30

    —3—
    Lastly,
    I continue to dissent from the majority Order
    of October 6, 1988,
    which vacated
    an additional
    hearing to evaluate the admission of evidence
    offered by the Agency.
    It
    appears that this information
    pertained to the
    Sauget
    facility and its effluent toxicity, was
    in the possession of the Agency
    at the time it
    issued
    its
    permit decision,
    and would have had
    a direct bearing
    on the decisions rendered by this Board today.
    I would have proceeded to hold
    the additional
    hearing authorized
    by the September 22,
    1988 Order and allowed
    the admission and cross examination
    of any evidence
    in the possession
    of the
    Agency at the time the permit was
    issued.
    Some of that evidence might
    have
    supported Board
    affirmance of conditions which the majority reversed.
    For these reasons,(~ssent.
    I, Dorothy
    M. Gunn, Clerk
    of the Illinois Pollution Control Board,
    hereby
    certify~-t~iat
    the above Dissenting Opinion was submitted
    on the
    //~—
    day
    of _____________________________,
    1 989.
    Dorothy
    M. ,~Vnn,Clerk
    Illinois P~J~’1utionControl
    Board
    94—31

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