ILLINOIS POLLUTION CONTROL BOARD

April

11, 1991

ESG

WATTS,

INC.

Petitioner,

v.

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

PCB

90-95

)

(Permit Appeal)

Respondent,

and

PEOPLE OF THE STATE

OF ILLINOIS,

Intervenors.

KEVIN

T. McCLAIN, of IMMEL,

ZELLE, OGREN, McCLAIN,

& COSTELLO,

APPEARED ON BEHALF OF PETITIONER;

LISA MORENO APPEARED ON BEHALF OF RESPONDENT;

and

KELLY A.

O’CONNOR, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF

OF INTERVENORS.

OPINION AND ORDER OF THE BOARD

(by J.D. Dumelle):

This matter comes before the Board on ESG Watts’,

Inc.

(herinafter “Watts”

or

“Company”) petition for review concerning

its

NPDES permit applicat~on for a proposed Industrial Waste

Treatment Complex (“facility”)

located

in Rock Island,

Illinois.

The Company filed this permit request with the

Illinois Environmental Protection

Agency (“Agency”)

on February

11,

1987.

Watts subsequently waived the statutory deadline date

on numerous occasions.

On March 30,

1990,

the Agency denied the

Company’s permit application,

On May

7,

1990, Watts filed this

appeal with the Board.

Hearing was held on December

10,

1990,

at

which time the Attorney General

(“AG”) moved to intervene.

Over

the objection of the petitioner,

the Hearing Officer granted

this

motion.

FACTS

-

PROCEDURAL HISTORY

On February

11, 1987,

Watts filed a permit application to

develop and construct its Industrial Waste Treatment Complex

located at 602 First Street, Rock

Island,

Illinois.

The proposed

facility would store and treat hazardous wastes which would be

contained at the facility and stored

in either an incoming bulk

121—21

---

—2—

truck, drum, plant receiving or treatment tank, the plant piping

system or the facility waste water treatment equipment.

The

facility planned

to have eight treatment and receiving tanks

for

hazardous waste and five tanks

for storage of product chemicals,

treated water and waste oil for recycling.

In its treatment

operations, the facility would handle water—based or aqueous

waste, containing heavy metals, dichromate,

cyanide, sulfide, oil

and solvent residues.

The facility is designed to treat and

discharge 100,000 gallons of wastewater per day, with a maximum

of 120,000 gallons per day.

The treatment provided by the

facility would consist of hexavalent chromium reduction,

cyanide

destruction, sulfide destruction, metal prescription,

simple

neutralization and filtration prior

to discharge.

(See,

generally,

Ex. 18.)

In its initial application, Watts advised the Agency that

treated wastewater would be discharged into the City of Rock

Island’s storm sewer system.

Using this alternative, the

discharge point would be the Mississippi River.

(Ex.

18).

On

October

28, 1988,

a draft permit was written which was,

in part,

based upon the Agency’s determination that the specific discharge

point was identified

to

a geographical location.

(Ex.

25)..

On

November

1,

1988, however,

the company modified its permit

application when its consulting engineer informed the Agency that

the proposed discharge through the storm sewer was impossible

because the storm sewer was indirectly linked to the Rock

Island

sanitary system.

(Pet.

Br. at

3).

On November

7,

1988,

Watts informed the City of Rock Island

that it

intended to discharge the water directly to the

Mississippi River via

private pipeline.

(Ex.

9).

In order

to

construct a pipeline, however,

the company needed to obtain an

easement.

Hearing was held

in this regard at the local

level and

on March 29,

1990,

the City of Rock Island denied the company’s

petition for an easement.

(Ex.

2).

On March 30,

1990, the

Agency,

having no waiver

for the statutory deadline date,1 denied

the petitioner’s NPDES permit application.

In support of

this

denial,

the Agency cited sections 12 and

39 of the Illinois

Environmental Protection Act

(“Act”)

in addition to

35

Ill. Adm.

Code

309.241.

The denial letter further stated:

...An NPDES permit for the proposed project

cannot be issued because a feasible discharge

location has not been identified.

Construction permits cannot be issued until an

NPDES permit can be issued.

(Ex. 1).

u-The deadline expired on March 31, 1990.

121—22

---

—3—

Pursuant

to the Hearing Officer’s order,

a briefing schedule

was established and subrnittals were filed by the Petitioner as

well as the AG.

The Agency did not file a brief.

ISSUE PRESENTED

The issue presented upon appeal

is whether Watts should be

able to obtain an NPDES permit and thus begin construction of

its

facility despite the fact that it

is unable to inform the Agency

of a specific discharge point.

In its brief supporting the

Agency’s decision,

the AG argues that without

a feasible

discharge point, an NPDES permit cannot be issued.

The AG states

that the discharge point

is a crucial aspect of any NPDES

permit.

Watts does not deny this,

but instead maintains that

throughout

the permit application period (three years),

it did

nothing

to cause the Agency

to believe that any other body of

water would receive its discharge other than the Mississippi

River.

To this end,

the company asserts that construction of

its

facility should not be postponed as

a result of

a local zoning

issue which

is separate and apart from the merits of

its permit

application.

DISCUSSION

The AG asserts that pursuant to Section 39(a)

of the Act

in

addition

to well—established case law,

the burden

is on the

petitioner

to demonstrate that no violation of the Act

or Board

regulations will occur

in order

to reverse a permit denial.

Waste Management

Inc.

v

IEPA, PCB 84—45,84—6 and 84—68

(Consolidated Opinion) November

26, 1984;

aff’d,

IEPA V. PCB and

Waste Management,

Inc.,

138 Ill. App.

3d 550 (3rd Dist.

1985);

aff’d 115 Ill.

2d

65 (1986);

Browning Ferris

v. PCB,

179 Ill.

App.

3d 598

(2nd Dist.

1989).

Having established this foundation,

the AG submits that the

petitioner failed

to live up to this burden

in that it did not

provide the Agency with a specific discharge point.

In support

of this contention,

the AG cites

35

Ill. Mm. Code 309.241.

Yet

this

is not the regulation applicable in the instant case.

Section 309.241 applies

to those permits outside the scope of

the

NPDES program.

See,

35

Ill.

Adm. Code 309.101(a).

This

is a

dispute regarding an NPDES permit and therefore the pertinent

regulation is

35

Ill. Adm. Code 309.154.

35

Iii. Adm. Code 309.154 states:

a.

No person shall

cause or allow the

construction of

any new treatment works,

disposal well

or wastewater source for which

an NPDES Permit

is required...unless

SUC.h

NPDES Permit contains an authorization

to

construct as a condition of such permit.

121—23

---

—4—

*

*

*

C)

The Agency shall not issue any authorization

to construct unless the applicant submits

adequate proof,

including any of the

information or documents set forth in Section

309.221 as the t~gencymay require, which

ensures that the proposed construction,

modification or operation:

1)

Either conforms

to the criteria

promulgated by the Agency under Section

309.221 or

is based on other criteria

which the applicant proves will produce

consistently satisfactory results; and

2)

Will not cause a violation of the

conditions of the NPDES Permit.

This regulation reinforces

the assertion contained within

the Agency’s denial letter as well

as the argument put forth by

the AG.

That

is, construction of a facility can only take place

as a condition of an NPDES permit.

(Int.

Br.

at

11;

Ex.

1).

Having established that an NPDES permit must issue prior

to

construction,

the question remains as to whether an NPDES permit

can be issued without an identifiable discharge point.

Within this context,

the remedy which the company seeks

is

only that

it

be allowed to begin construction of the facility in

question.

It

is indisputable that given the circumstances at

bar, Watts

is unable

to discharge ~y

wastewater.

In this

regard,

the company first maintains that the Board’s review of

a

permit appeal can only be based upon the record.

Mathers

v

PCB,

107

Ill.

App.

3d 729

(3d. Dist.

1982).

Secondly, Watts states

that the sole question before this Board

in

a review of the

Agency’s denial

is whether the petitioner can prove that the

permit application, as submitted

to the Agency, establishes

that

the facility will not cause a violation of the Act.

IEPA v.

PCB,

118

Iii.

App.

3d 772

(1st Dist.

1983).

Finally,

the company

asserts that the Agency should not deny

a permit because the

petitioner’s proposed method of discharge is subject

to a local

zoning ordinance.

Lake County

v.

PCB,

75

Ill. Dec.

750

(1983);

Carlson

v,

Village of Worth,

62

Ill.

2d 402

(1975).

With this in mind,

the company argues

that:

...To the extent

the agency had environmental

concerns about

the eventual disposal of the

water,

it could have

issued an NPDES permit

with the condition that no discharge could

occur until

the actual discharge point was

121—24

---

—5--

identified or,

further, condition the

construction permit,

stating that an NPDES

permit would have to be obtained before the

discharge commenced into the Mississippi

River.

(Pet.

Br. at

8).

While this argument at first appears reasonable,

it

ignores

the legal standard to which Watts must adhere.

As already

discussed in this Opinion,

35

Ill. Adm. Code 309.154 makes clear

that NPDES permits and the construction of a facility are

inseparably linked.

Thus the company’s contention that the

Agency could have conditioned

the construction permit

requiring

that an NPDES permit would have

to be obtained before discharge

commenced into the Mississippi

River

is clearly mistaken.

The

whole purpose behind NPDES permits

is the regulation of point

source discharges.

While the facts

in the instant case are very

unusual indeed,

the company’s attempt

to put the horse before the

cart is simply unpersuasive.

It

is not inconceivable,

for

example, that Watts will be unable

to procure a local easement.

Should this occur,

the company may seek another means

of disposal

such as underground injection.

It could be the case,

then,

that

an NPDES permit would be issued to allow construction and the

facility would never even discharge into a navigable waterway.

The petitioner also maintains that:

...The Agency’s reasons for denial were based

upon speculation, not evidence

in the record,

that the petitioner might,

possibly, sometime

in the future, commit a violation by

improperly disposing of the wastewater at

the

Watts Disposal Facility.

(Pet.

Br.

at

7).

This mischaracterizes the problem.

The Agency was forced

to

speculate due to the lack of evidence in the record.

While the

Agency record leaves no doubt that Watts intends to discharge

into the Mississippi River,

the company has been unable to

provide a means

to do so nor has

it provided the Agency with a

specific discharge point.

Because the discharge point remains

a

fundamental component of NPDES permits, and because the company

has been unable to specify where that discharge would be located,

it has failed to adequately prove that

in the event

it

was

granted a permit,

it would comply with the provisions of the

Act.

See 35

Ill. Adm. Code

309.103 and

40 CFR l22.22(k)(l).

Similarly,

the company has maintained that “other options

remain available

to the petitioner”.

(Pet.

Br. at

5).

What

these other options might entail

is inherently speculative.

121—25

---

—6—

Because they were not specifically identified and included in the

permit application,

the Agency had no choice but to guess as to

how compliance with the Act would be accomplished.

Finally, Watts’

assertion that the Agency should not deny

a

permit because the company’s method of disposal

is subject

to

a

local zoning ordinance is less than compelling.

This argument is

premised on the theory that but for the easement dispute,

the

Agency would have granted a permit.

Such an approach is not only

speculative, but fails to address the lack of a specific

discharge point.

Although we agree with the company that our

decision can only be based on the record,

the lack of

information

regarding

a discharge point

remains a significant deficiency in

the petitioner’s permit application.

That this omission

is

a

result of

a local dispute

is incidental

rather

than

dispositive.

That

is,

the company’s dispute over an easement may

be local

in nature, yet

it still remains within the scope of

the

Act because the company has made the securing

of

that easement a

vital aspect of

its permit application.

The Agency cannot

overlook

a fundamental component of an NPDES permit merely

because a permittee experiences local problems which happen to

involve the same issue.

Nor can it issue a permit

for something

which the petitioner

intends to do,

but is without the resources

to actually comport with the Act and the provisions thereto.

Thus

we must affirm the Agency here because Watts has failed

to prove that had a permit been issued, the company would have

complied with the provisions of the Act.

IEPA v.

PCB,

107 Ill.

App.

3d 729

(3rd.

Dist.

1982).

Even if the easement were not at

issue

in this case,

the Board would not reverse the Agency

because Watts

has failed

to identify a specific discharge

point.

The issue

in this case is not whether Watts is able to

ultimately obtain an easement from the city, but whether Watts

can adequately demonstrate compliance with the Act without

identifying a specific discharge point.

We hold today that the

company has failed to live up to this burden and, accordingly, we

affirm the Agency’s permit denial.

This Opinion constitutes

the Board’s findings of Fact and

Conclusion of

law.

ORDER

For the reasons contained herein,

the Agency’s denial of

petitioner’s permit appeal

is hereby affirmed.

Section 41 of

the Environmental Protection Act,

Ill.

Rev.

Stat.

1989 ch. lll~,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.

121—26

---

—7—

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

___________________,

1991 by a

vote of

7—0

—.

~

~2.

Dorothy

M.

G,~hn,

Clerk’~

Illinois Pol’lution Control Board

121—27

---

S