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