ILLINOIS POLLUTION CONTROL BOARD
January
5,
1989
CITIZENS UTILITIES COMPANY
OF
ILLINOIS,
)
Petitioner,
)
v.
)
PCB 85—140
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
DANIEL
J. KUCERA,
ESQ.,
OF CHAPMAN AND CUTLER, APPEARED ON BEHALF
OF THE
PETITIONER, CITIZENS UTILITIES COMPANY OF
ILLINOIS
WAYNE L.
WIEMERSLAGE, ESQ.,
APPEARED ON BEHALF OF THE RESPONDENT,
ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY
OPINION AND ORDER OF THE BOARD
(by M.
Nardulli):
This matter comes
before the
Board on
a petition for review filed on
behalf of Citizens Utilities Company of
Illinois (hereinafter
“Citizens”) on
September 13,
1985.
The Petitioner seeks the Board’s
review of
certain
conditions contained
in
reissued NPDES Permit No. 1L00032735 issued
to
Citizens by
the Illinois Environmental
Protection Agency (hereinafter
tAgencyu) on August
22,
1985.
The permit
is applicable to Citizenst West
Suburban Treatment Plant No.
2
(hereinafter “Plant
No. 2”)
located
in
Bolingbrook, Will
County.
Public hearings were held on this matter in Joliet, Will County.
A short
hearing was held on November
2,
1987.
A second hearing was held on December
4,
1987.
At the December 4 hearing, the Petitioner called one witness while
the Agency presented
two witnesses.
Citizens filed
a Brief
in Support
of
Petition for Review on January
25,
1988.
The Agency filed
a Brief
in
Opposition to the Permit Appeal
on March
18,
1988 and Citizens responded with
a Reply Brief on
April
11,
1988.
As
a result
of the open waiver filed
by
Citizens on
October 2,
1985, there
is
no statutory decision deadline
in this
case.
In the Petition for Review, Citizens objected to two conditions
to the
permit.
One of those items,
requiring Citizens
to supply the Agency with
financial information
on
an annual
basis, was resolved by the parties prior to
hearing and
is
no longer
at issue
(R.
at
6).
The question before the Board
involves the imposition of
an effluent limitation for ammonia-nitrogen of 1.5
mg/i for the months
of April
through October and 4.0
rng/l
for the months
of
November through March, when the downstream daily maximum ammonia-nitrogen
concentration in the stream does
riot meet the requirement
in
35
Ill. 1dm. Code
302.212.
Based
on the
record, the Board finds that the condition was properly
95—03
—2—
imposed by the Agency and may properly be enforced against
a permittee.
BACKGROUND
Citizens
is
an
Illinois corporation that provides public utility water
service and sanitary sewer service to
a number of areas
in metropolitan
Chicago.
One of these service areas comprises
a substantial
portion of the
Village of Bolingbrook
in Will County, which
is commonly referred to
as
Citizen’s West Suburban service area.
In
1985, Citizens provided both water
and sanitary sewer service to 7,000 single—family residents, 800 apartment
units and
200 commercial
units
in the West Suburban service area.
Plant
No.
2
is one of
the two waste water treatment plants for the West Suburban service
area.
The plant provides secondary treatment by use of the activated sludge
contact stabilization process with
a design average flow of three-million
gallons per day.
Presently, the plant has no facilities for the treatment
of
ammonia—nitrogen.
Plant No.
2 discharges directly to the East Branch
of the
DuPage River,
approximately 2.5 miles upstream of its confluence with the West
Branch of the’ DuPage River.
35 Ill.
Adm. Code 312.212(a)
and
(b) establish the following standards
for ammonia—nitrogen in
Illinois waterways:
a)
Ammonia nitrogen
(as
N:
Storet Number 00610) shall
in no case exceed
15 mg/i.
b)
If ammonia nitrogen
is
less than
15 mg/i
and greater
than or equal
to
1.5 mg/i, then un—ionized ammonia
(as
N)
shall
riot exceed 0.04 mg/i.
Section
39
(b)
of the Illinois Environmental
Protection Act,
Ill. Rev.
Stat.
1985,
ch.
1111/7(hereinafter “Act”), paragraph 1039(b) provides in
relevant part that:
All
NPDES permits
shall contain those terms and
conditions which may be
required to accomplish the
purposes
and provisions
of this Act, and
The Agency may include,
among such conditions, effluent
limitations and other requirements
established under this
Act, and
Board
regulations.....
Section 2(b)
of the Act provides
in
relevant part:
It
is the purpose of this Act....
to establish
a
unified, state—wide program....to restore, protect
and enhance the quality
of the environment,
and to
assure that adverse effects
upon the environment are
fully considered and borne by those who cause them.
Section
11(b) of the Act
provides in
relevant part:
It
is the purpose
of this Title to restore, maintain
95-04
-3—
and enhance the purity of the waters
of this State
in order to protect health, welfare, property, and
the quality
of life,
and to assure
that no
contaminants are discharged
into the waters
of the
State...without being given the degree
of treatment
or control necessary to prevent pollution....
ISSUES PRESENTED
Citizens presents three arguments against the imposition of the permit
condition.
The
first
is that the condition
is not necessary to achieve the
purposes of the Act and Board
regulations.
The second
is
that the
cost of
compliance with the condition makes compliance unreasonable.
The third
is
that the construction time for the new nitrification plant
required to comply
with the permit
condition
renders nitrification pointless.
The major
issue to be resolved
in this permit appeal
is whether the
permit condition imposing the ammonia-nitrogen limitations
is
a condition
necessary to comply with the Act
or Board
regulations.
If
a petitioner
objects to conditions
imposed
by the Agency, the petitioner must show that
conditions are not necessary to accomplish the purposes of the Act and
therefore were unreasonably imposed.
Section 40(a)(1)
of
the Act clearly puts
the burden
of proof
an the petitioner
to show that the condition
is not
necessary.
The Board
reviews the permit condition by considering the
record
compiled by the Agency.
The Board reviews the evidence
in the record without
deference to the Agency’s decision.
The petitioner must show that the
Agency’s decision was
in error because the evidence proves that no violation
of the Act
or Board
regulations would result
if the permit conditions were not
imposed.
City of
East Moline
v.
Illinois Environmental
Protection Agency, PCB
86—218,
(Slip Op. September 8,
1988).
In this case the Petitioner argues that the effluent limitation of 1.5
mg/l
for April
through October
is
not contained
in the Board’s
regulations
(R.
at 98).
While this statement
is true,
it
is not conclusive proof that the
condition
is not necessary or unreasonable.
The condition will
be upheld
unless Citizens can
show that the condition
is
unnecessary
to ensure
compliance with the water quality standards.
The Petitioner introduced
an engineering study, prepared by
its
project
manager, Mr. William Brink,
in
an attempt to prove that the condition
in the
permit
is
unnecessary.
The Agency argues that
by introducing the engineering
study, the Petitioner
is attempting to
go outside the record
to establish the
levels of amonia—nitrogen concentration upstream of the plant
and therefore
this information should not be considered by the Board.
After a review of the
record compiled by the Agency, the Board
has determined
that Mr. Brink’s study
does not contain material outside the record,
but instead
represents
a
reformulation of the information from the record together with information
that was generally available to the Agency.
As
such, the study should be
considered
in the review of the condition.
In his testimony concerning the engineering study, Mr.
Brink maintained
that the
permit condition concerning ammonia—nitrogen effluent from Plant
No.
95—05k
-4-
2
is unnecessary.
For purposes
of his study, Mr. Brink assumed
a
concentration upstream dilution ratio
of 19.1
(R. 47)
and assume that
all
seven
of the upstream treatment plants had completed installation of
nitrification facilities and were complying with their permits
(R.
30).
The
study states that when
a plant
is
operating its
nitification facility
it
should be able to achieve
a concentration of 0.2 mg/i.
Therefore, the study
concludes that the upstream concentration should be below 1.0 mg/i.
With this
upstream ammonia—nitrogen concentration,
Plant
No.
2 could discharge effluent
well
above
its
present concentrations and still
not cause
a violation of the
water quality standard.
At hearing, Mr.
Brink attempted to dismiss the
impact of an upstream
treatment plant discharging above
its average by stating that
if one plant
is
above average, it
is
reasonable to assume that one of the remaining six will
be simultaneously discharging at
below
its average,
so that you have an
averaging effect upstream
(R. 48).
Further, he states that the study allows
enough
of
a safety factor to protect
against higher concentrations upstream
(R.
48-49).
The Agency maintains that the NPDES permit
for all of
the sewage
treatment plants upstream allow maximum effluent
at 4.0 mg/i
of ammonia—
nitrogen.
Therefore,
Citizens must show that the standard will
be met
when
all
of the upstream plants are discharging
at 4.0 mg/i
of
ammonia—nitrogen.
The Agency contends that Mr.
Brink’s study fails
to address this possibility.
Further,
in its Brief in Opposition
to the Permit Appeal, the Agency gave the
following justifications
for the limitation
it imposed:
The Agency imposed the less strict ammonia nitrogen effluent
limitation
of 4.0 mg/i
for the months of
November through
March because
35
Ill. 1dm. Code 304.301(b)
provides for that
less strict limit during those months for discharges causing
or contributing to water quality violations.
That section
states that 35
Ill.
1dm. Code 304.105 does
not apply for the
months of November through March,
but
it imposes
an effluent
limitation
of 4.0 mg/i
on discharges causing or
contributing
to
a water quality violation.
35 Ill. Adm. Code 304.105
does
apply for the months
of April
through October,
so effluent
must not violate water quality standards and
the stricter
effluent limit
of 1.5 mg/i
is
imposed.
Hence, the effluent limits
of
1.5 mg/i
for October through
April,
and 4.0 mg/i
for November through April, are
required
by the interaction of
35
Iii.
Adm. Code 302.212(c),
35
Ill.
Adrn.
Code 304.105 and 35
111.
1dm. Code 304.301(b).
The Agency agrees with the Company that the effluent
limitation
of
4.0 mg/i
for the months of
November through
March
is
a temporary
limit that terminates after July
1,
1988
pursuant to
35
Ill. Adm. Code 304.301(d).
This means that
any
permit issued
to the Company after July
1,
1988 will
not have
the
relaxed effluent limitation
of 4.0 mg/i for the months
of
November through March,
but would have to have the effluent
limit
of 1.5 mg/i as
long as there were ammonia nitrogen water
95—06
—5—
quality
violations.
This termination of the less strict
standard demonstrates
a public policy to “tighten up” on
dischargers
who
cause
or
may
cause
ammonia
nitrogen
water
quality violations,
such as the Company.
As
argued
by
the
Agency,
Mr.
Brink’s
study
fails
to
address
the
possible
scenario
of
all
of
the
upstream
treatment
plants
discharging
effluent
at
4.0
mg/i.
Further,
the study fails to present any evidence that this stream
situation
could
not
possibly occur.
The Agency points out that during periods
of extremely cold weather
it
is
conceivable that
all
of the upstream plants
will
suffer equipment failure and not be able to operate their nitrification
facilities.
Under these circumstances,
it
is conceivable that
all
of the
plants would discharge at 4.0 mg/i
of ammonia—nitrogen.
The Illinois State
Water Survey estimates indicate that essentially the entire flow of the East
Branch
is attributable to
sewage discharge under low flow conditions.
Twenty
five to thirty
percent
of
the occurrences of low flow can be expected
in
January and February when domestic use of water decreases substantially (R.
at
81).
By failing to show that this situation could never occur,
or that the
water quality standard could still
be met without Citizens adhering to the
condition proposed by
the Agency, Citizens
has failed
in
its burden
of proving
that the proposed condition
is not
necessary.
In its petition, Citizens introduces
information concerning the cost of
compliance with the permit condition and argues that the expense of compliance
makes the imposition
of the condition unreasonable and would
result
in
an
undue hardship on the Petitioner.
in
a permit appeal
case,
the standard of
review
is the issue
of whether or
not compliance with the Act or Board
regulations
is advanced by the Agency’s action.
An arbitrary
or unreasonable
hardship
is
not
an issue.
Peabody Coal Company
v.
Illinois Environmental
Protection Agency, PCB
78—296,
38-131,
132
(May
1,
1980).
Therefore,
information concerning the cost of compliance and hardship on the Petitioner
will
not be
considered by the Board
in this opinion.
It should
be noted that the information concerning cost of compliance
in
this matter
is even less relevant because the compliance plan proposed by
Citizens
is not necessarily mandated
by the permit condition.
The Agency
is
only requiring Citizens to meet specified effluent standards under certain
conditions and
not specifying the installation
of equipment.
If Citizens
is
confident
in the study
it presented by
Mr.
Brink,
it may chose not to make any
changes
in its
operation.
However, the risk
of violating the permit condition
and the water quality standard should
be borne by Citizens and not by
the
people of the State of
Illinois.
Citizens may also opt to act
as the complainant
in enforcement actions
against upstream water treatment facilities that fail to comply with their
permit
conditions,
as
a means
of
assuring that the upstream conditions will
not
result
in
a water quality standard violation.
Further,
if Citizens
is
cited for
a
violation of the water quality standards,
it may join any and all
of the upstream dischargers
in an
enforcement
or variance proceeding and
therein determine necessary effluent reductions under
35
Ill.
1dm. Code
304. 105.
Throughout
its permit appeal,
Citizens attempts to rely on projections of
95—07
-6—
future operation by
upstream sewage treatment plants.
The relief the
Petitioner
is
seeking resembles
a wasteload allocation for all upstream
dischargers
and for Plant
No.
2
if there
is
a water quality violation.
However, as
a sole petitioner, Citizens
is
in
no position to
represent the
upstream dischargers and determine the technical feasibility, economic
reasonableness and fairness to
all
dischargers, nor is
it
in
a position
to
guarantee future action for upstream dischargers.
The Board also rejects the Petitioner’s position that the construction
time
for
a nitrification facility renders the permit condition pointless.
While
it
is not clear on what basis the Petitioner feels the construction time
would make the permit condition unnecessary,
it
is clear that Citizens has
failed
to meet the burden
of proof with this argument.
Again,
it
should
be
emphasized that the permit condition does not necessarily mandate the
construction of
a nitrification plant.
The Petitioner has failed
to show that
other means
of compliance are not available and has even suggested through its
engineering study that
no change
in operation
is
required to comply with the
permit condition.
It
is Citizen’s responsibility,
as part of the NPDES
permit,
to
determine
a way to adhere
to the permit condition.
CONCLUS ION
Citizens
has failed
to conclusively demonstrate the disputed permit
conditions are not necessary to achieve the purposes of the Act
or Board
regulation.
On this basis,
Citizens’
request
of the Board to delete the
condition
is denied.
This Opinion constitutes the Board’s findings of fact and conclusions
of
law in this matter.
ORDER
The Agency’s right
to impose of ammonia-nitrogen concentration
limitations
at
Citizens Utilities Company’s
Plant
No.
2
in Bolingbrook,
Will
County
is hereby upheld, and Citizen’s
request
of the Board to delete the
conditions
is denied.
Section
41
of the Environmental Protection Act,
Ill.
Rev. Stat.
1985,
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
requi rements.
IT
IS SO ORDERED.
95—08
—7—
I,
Dorothy M.
Gunn, Clerk
of the Illinois Pollution Control
Board,
hereby
certif
that the above Opinion and Order was adopted
on the
,5’tt~_
day
of
____________________,
1989,
by
a vote of
7—
0
~7~1)~ ~
Dorothy M.G~/~,C1
~tro1
Board
95-09