ILLINOIS POLLUTION CONTROL BOARD
April 26,
1990
CALVARY TEMPLE CHURCH,
Petitioner,
v.
)
PCB 90—3
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
MR. JOHN R.
SHEAFFEP.
II, SHEAFFER
& WINN,
APPEARED ON BEHALF OF
PETITIONER;
MR. JOHN J. BRESLIN, APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by R.
C. Flemal):
This matter comes before the Board upon
a January
4,
1990
petition for review filed by Calvary Temple Church (“Calvary”).
Calvary seeks review of
the December
1,
1989 denial by the
Illinois Environmental Protection Agency (“Agency”)
of Calvary’s
application for a construction and operating permit for a
wastewater land treatment system.
Public hearing was held on
February
26,
1990
in Wheaton,
Illinois; DuPage County Board
Chairman Jack Knuepfer made a statement for the record.
The
parties submitted briefs on April
9,
1990.
BACKGROUND
On June
20,
1988,
Calvary submitted to the Agency a
Preliminary Engineering Report for a proposed wastewater
management system for its proposed new church complex located
in
DuPage County,
Illinois.
In comments dated August
23,
1988
the
Agency informed Calvary that
to assure conformance with Section
208 of the Clean Water Act
(33 U.S.C.
§1251 et
seq.)
(“CWA”)
and
consistency with the Illinois Water Quality Management Plan
(“IWOQMP”), concurrence of
the designated management agency for
•the
facility planning area must
be obtained
(Agency Record,
Exh.
24).
The Agency at that time apparently believed that Calvary
should connect with the Aurora Sanitary District
(“ASD”)
treatment plant
for treatment of its sewage,
concluding:
Considering
the above comments and proximity of the
proposed project
site to
the existing sanitary sewer
on
Montgomery Road,
it
is our opinion
that the
I 1.fl—335
—2—
wastewater from this project area must
be
transported
through
the
IASD’s
sewer system and treated at
the
ASDI
sewage treatment plant.
Id.
Various correspondence between Calvary,
the ASD,
the City of
Aurora, Northeastern Illinois Planning Comniission
(“NIPC”),
and
the Agency ensued.
The ASD and NIPC sent letters of
non—support
for the proposed project
to the Agency,
on July
6 and October
10,
1989,
respectively.
On October
31,
1989,
the Agency sent
a
letter
to Calvary regarding a sewage lagoon on the proposed
site.
In
that
letter,
the Agency again informed Calvary
that the
project was not
in conformance with Section
208 of the Clean
Water Act and not consistent with the IWQMP,
reiterating the need
to obtain the concurrences
of the planning agencies:
Prior
to issuance of any permits
by this Agency,
the
applicant would have to obtain written concurrence
from the Designated Management Agency which is the
Aurora Sanitary District,
and the Areawide Management
Agency,
which
is the Northeastern
:llinois Planning
Commission,
for the applicant’s prOposal to amend the
Water Quality Management Plan
to include
a new sewage
treatment works not previously
included
in the plan.
Failure to obtain concurrence may require
the
applicant
to proceed through Conflict Resolution
as
identified
in
35
Ill. Adm. Code 351.
Section
208
of
the Clean Water Act contains provisions
for public
input
regarding modifications to the Water Quality
Management Plan and any citizens objecting
to the
construction
of
a sewage lagoon and sewage land
application system
in this residential area would have
the opportunity
to object to the proposed sewage
plant.
(Agency Record,
Exh.
5.)
On November
15, 1989,
Calvary submitted
a permit application
for construction and operation of
a wastewater
land treatment
system for a proposed church complex
in Naperville Township,
DuPage County,
Illinois.
The Agency denied Calvary’s permit
application
by letter of
December
1,
1989.
Calvary then filed
this appeal.
REQUESTED RELIEF
The relief
that Calvary
is essentially asking,
as indicated
in
its brief,
is
for
the Board
to require
the Agency
to provide
an expeditious revision to the Illinois Water Quality Management
Plan (‘IWQMp”),
based on its allegation that
its proposed system
is a zero discharge,
non—point source
land treatment system
(also
not subject
to the NPDES permit
system)
.
Calvary also asks the
Board
to order
the Agency
to issue Calvary’s permit over
the
objections
of the ASD and NIPC.
110—386
—3—
APPLICABILITY OF CLEAN WATER ACT REQUIREMENTS
As a threshold matter,
the Board must determine
the
applicability of Section
208 of
the CWA
to land
treatment systems
such as Calvary’s.
The Agency’s decision
to deny the permit was based on its
determination that there would be a conflict with the IWQMP,
as
indicated by the objections
of the planning agencies.
The Agency
therefore did not amend
the IWQMP, but rather
thought the
applicant should go through
the conflict resolution process
that
is outlined
in
its rules, Section 351.
The Section
351 rules
were promulgated
to implement Section
303(e)
of the CWA which
requires
a continuing areawide planning process consistent with
the plan requirements of
Section
208, and
to
implement Section
4(m)
of
the Environmental Protection Act
(Ill.
Rev.
Stat.
1987,
ch. lll~par.
1001
et
seq.)
(“Act”).
Section
4(m)
of the Act
gives
the Agency the authority
to engage in the planning process
and
to develop plans with units of local government,
as well
as
requiring that
the Agency promulgate procedural
rules
for public
hearings to
be held on
the planning process.
Section lOl(a)(5)
of the CWA establishes
a national policy
that each state develop and implement areawide waste
treatment
management planning processes
to assure adequate control
of
sources
of pollutants.
Section 208 of the CWA establishes
a
system for areawide waste treatment management which
includes
requirements
for
the planning process:
Plans prepared in accordance with
this process
shall
contain alternatives
for waste treatment management,
and be appplicable
to all wastes generated within the
area
involved.
(Section 208
(b)(l)(A), emphasis
added)
The plan must also identify “treatment works necessary
to
meet the anticipated needs of the area over
a twentY—year period,
annually updated...”
(Section 208(b)(2)(A)).
Section 2l2(2)(A)
includes
in
the definition of
the term “treatment
works”,
“any
works,
including site acquisition of the land that will
be an
integral part
of the treatment process
(including
land used for
the storage of treated
;.7astewater
in land
treatment
systerr.s prior
to
land ap~licatior.) or
is used
for ultimate disposal of
residues
resulting from such treatment”.
Section
208(b)(2)(EK)
requires plans
to include
“any process
to control
the disposal of pollutants
on
land, or
in subsurface
excavations within such area
to protect ground and surface water
quality”.
Lastly,
Section 208(c)(.)
also requires the State
to
designate an areawide managertent agency which develops water
I1~—3~7
—4—
treatment plans and a designated management agency which
implements the water treatment plan.
For the area
in
this case,
these agencies are NIPC and ASD.
A plain reading of the Section
208 planning requirement
indicates that Section
208 applies
to a wastewater
land treatment
system such as Calvary’s.
The language of
Sections
208 and 212
shows
that Calvary’s proposed land treatment system
is a
treatment works.
Furthermore,
all wastes generated
in the area
are meant to be considered
in the plan,
and,
as required by
Section 20’8(b)(2)(K),
plans are
to include any process
to control
the disposal of pollutants on
land.
Calvary submits
that the
Agency’s procedural requirements
implementing Section
303(e) are
unreasonable and “do
not encourage
the implementation
of
technology that will result
in the national goal
of
eliminating
discharge.”
The Board has previously noted
the benefits
associated with land treatment
technology
(In the Matter
of:
Proposed Amendments
to
35
Ill.
Adm.
Code 304.120, Deoxygenating
Wastes Standards,
R86’-l7(B)
98 PCE 357
(April
27,
1989); and
Th
the Matter of: Petition of the City of Tuscola
to Amend
Regulations Pertaining to Water Pollution,
R83—23,
88 PCB 391
(April
21,
1988)).
However,
the Board
finds nothing which would
exempt land treatment from the Section
208 and 303(e) areawide
planning process.
On the matter of
the Section
351 Agency procedural
rules,
the Board further finds
that
it has
no authority
to review the
reasonableness of Agency rules promulgated pursuant
to the
directives of
the Act.
The Board intends
to make no finding
on
the applicability
•of
the Section
351 rules to petitioner,
but
only finds
that land treatment systems such as petitioner’s are
certainly encompassed
by the Section
208 and 303(e) Clean Water
Act requirements for areawide planning of wastewater treatment.
BOARD REVIEW
The Board now turns
to the remaining issue of whether
the
Board can grant Calvary’s requested relief and order
the Agency
to amend
the IWQMP and issue Calvary’s
permit,
and,
if
not, which
relief
is appropriate
in this circumstance.
The Board
finds
guidance on this
issue from the First District Appellate Court
case Jurcak
V.
Illinois Environmental Protection Agency,
161
Ill.
App.
3d
48,
513 N.E.
2d
1007,
112
Ill.
Dec.
398
(1987).
In
that
case, JurcaK
filed
a permit application
for operation of his
sewage treatment plant which was denied because the point source
was not authorized by the IWQMP.
Jurcak then filed
a petition
for conflict resolution with the Agency pursuant
to
the Agency’s
Section 351 rules.
The Agency amended the plan
to allow the new
point
source,
but attached conditions.
The conditions were also
included in the NPDES permit
issued by the Agency.
Jurcak then
appealed these conditions
to the Board.
The Court found that
110—388
—5—
although
the Board has the duty
to
review conditions
if
it
is
requested
to do so by a permit applicant,
it has no authority
to
review the IWQMP,
nor
is an Agency decision amending the IWQMP
reviewable except through an action
in the circuit
court
by
a
writ of certiorari.
The court further
found
that despite
the
conflict which might arise with the
IWQMP
if the Board were to
strike a condition,
the Board does have
the jurisdiction
to
review the condition at
issue.
The court stated that
the Board’s
review of permit conditions “required evaluation and judgment
based on scientific data,
knowledge of wastewater treatment
technologies and engineering methodology and application of
technical standards”
(112
Ill.
Dec.
402).
Applying the Jurcak reasoning and
findings,
the Board has
jurisdiction and the duty pursuant to Section
40 of the Act
to
review a permit denial
if
it
is
requested
to do so by
an
applicant.
There
is
no distinction here
in the Board’s technical
review of permit conditions and
a denial
of
a permit,
as both are
authorized by Section
40 of the Act.
However,
the Board cannot
order the Agency
to amend
the IWQMP since
it
is barred from
reviewing any Agency determination to amend or not amend
the
IWQMP.
In the instant review,
the Agency denied the permit, and
expressly did not conduct
a full technical
review of
the permit
application:
The following
information, clarification or
corrections must be provided
for
us
to complete our
technical review and are to be considered specific
reasons why the Act and Subtitle C,
Chapter
I will
not
be met:
1.
As stated
in the Agency’s letter
to you dated
October
31,
1989,
the proposed project
is not
in
conformance with Section 208
of the Clean Water
Act and
is not consistent with
the
IWQMP.
Prior
to issuance of any permits
by this Agency,
the applicant will have
to obtain written
concurrence from the Designated Management
Agency, which
is the
ASDI,
and the Areawide
Management Agency, which
is the NIPC,
for
the
applicant’s proposal
to amend
the
IWQMPJ
to
include
a new sewage treatment works
not
previously included
in the plan.
2.
The engineering report
for these facilities has
not been approved,
including a complete analysis
of
all
alternatives
for sewer service as
detailed
in the October
31,
1989 Agency
letter.
I 1fl—3S~
—6—
Until
these issues have been resolved,
a technical
review for purposes of permit issuance cannot be
completed.
(Agency Record Exh.
2,
Emphasis added)
The Agency also states that
it did not
reach the issue of
whether issuance of the permit would cause a violation of the
Act, and that
this
issue was not addressed by the parties at
hearing
(Agency Brief at
2-3).
The Agency states that
the reasons
set forth
in its permit
denial letter are
to be considered specific reasons why the Act
and Subtitle
C,
Ch.
I
(the Board’s Water Pollution Pegulations)
will not
be met,
yet the Agency states
no provisions of
the Act
or
regulations which would be violated.
Although the Agency
believes that Section
4(m)
of
the Act may be violated,
Section
4(m)
does not require the applicant
to secure concurrences of
the
planning agencies prior
to full Agency technical review.
The
Agency hints that certain odor
regulations may he violated,
but
this was not addressed
at hearing and there
is
no evidence
in the
record that
the Agency conducted
a
review of this or
of
the
technical merits
of Calvary’s system.
The Board therefore
finds
that
remand
is
required in this instance
to afford the applicant
this full review, and for the record
to be complete on
the
technical matters involved
in Calvary’s land treatment
system,
including but not limited
to whether violations of
Subtitle C,
Ch.
I would occur.
It
is apparent from the Agency’s denial letter and brief
that the Agency believes that due
to an apparent conflict with
the IWQMP,
before
it can issue
a permit, Calvary must obtain the
concurrences of the planning agencies.
Notwithstanding whether
or not the concurrence of the planning agencies
is
required
before the Agency may amend the plan,
the Board believes
that
the
concurrence of the planning agencies
is not required before the
Agency can complete
its technical
review
for purposes of permit
issuance.
As
the Agency also states
in its brief,
such
concurrence
is not always required
for the Agency
to issue
a
permit
(Agency Brief
at
12).
Therefore,
even following the
Agency’s argument,
it becomes apparent that such concurrence
would not be
required before
the Agency can complete
its
technical review
of
a permit
application.
The Agency also states that
it did make
a permit decision,
giving weight to
“the specific objections
of
the local agencies,
based on the physical and cost effective availability
of existing
sewer service”
(Agency Brief
at
12).
What
the Agency failed
to
do was
to conduct
a full
technical review and
inform the
applicant whether
its wastewater
land treatment system would
cause
a violation of
the Act and applicable Board requ~ations.
The Board cannot
now
conduct
the required
‘evaluation and
judgment based on scientific data,
knowledge of wastewater
treatment technologies and engineering methodology and the
110—390
application of technical standards” when
the record before the
Board
lacks an Agency technical review and these matters have not
been addressed at hearing.
The Court
in Jurcak
found
that the
applicant had a
right
to have the Board review the Agency’s
decision on technical aspects of the permit “despite the conflict
which might arise” with the IWQMP
(112
Ill.
Dec.
at
400).
In
order
for the Board to implement
that holding,
the Board must
have authority to
require the Agency
to make
such a technical
decision,
“despite the conflict that might arise” with the IWQMP
(Id.
at
401).
Today,
the Board orders the Agency
to make such a
decision.
Therefore,
the Board
finds
that since
there were
no
technical
issues reached,
the Board cannot grant Calvary’s
requested
relief and require
the Agency
to issue
a permit for
construction
of
a wastewater
land treatment system without any
technical review
in the record which shows
that such system would
not cause
a violation of the Act or Board regulations governing
such systems, or any other provisions of
the Act or
Board
regulations.
The Board believes remand
to the Agency
is more
appropriate
in this circumstance.
The Board finds
it
is improper
for the Agency
to deny the permit
or impose conditions on a
permit
for the reasons given by the Agency.
The Agency’s roles
in permit issuance under
the Act and as Water Quality Management
Agency are separate roles.
Furthermore,
should the Agency grant
Calvary’s permit,
there
is
no guarantee
that the permit can
be
used
if
the proposed facility has not secured other approvals
that may be required by
law.
Also,
whether or not Calvary
obtains
the approval of
the planning agencies,
the Agency could
still deny the permit based on
its technical review.
On the issue of whether Calvary should
be required
to supply
the Agency with alternatives
to
its system prior
to full Agency
review
(point
2 of the permit denial
letter),
the Board
notes
that Calvary bears
the burden of proof
of whether
the wastewater
land treatment system will not cause
a violation of
the Act or
regulations.
Alternatives
to Calvary’s system are peripheral
to
this review and would presumably require
their own permit
applications.
Therefore,
the Board further
finds
that the
presentation
of alternatives
to petitioner’s system
is not
required for
the Agency to complete its review of the permit
application.
The Board makes
no findings on the applicability
of the
Section 351 rules
to this proposed wasrewater
land
treatment
system,
or whether or not Calvary would be
required
to go through
conflict resolution prior
to any amendment
to the IWQMP.
This Opinion constitutes the Board’s
findings of
fact and
conclusions of
law in this matter.
1 1fl—3~1
—8—
ORDER
The Board hereby remands
this matter
to the Agency for
consideration and evaluation
of whether or not Petitioner’s
wastewater
land treatment
system would cause
a violation of the
Act and any applicable Board regulations,
consistent
with this
Opinion.
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
;I”T~’
day
of
________________
,
1990,
by a
vote of
/-l1•.
.
A
~
Dorothy M.
Gunn,
Clerk
Illinois Pollution Control Board
110—392