ILLINOIS POLLUTION CONTROL BOARD
October 16,
1992
CITIZENS UTILITIES COMPANY
OF ILLINOIS,
)
Petitioner,
)
v.
)
PCB 85—140
)
(Permit Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
DANIEL
J.
KUCERA,
CHAPMAN
AND
CUTLER,
APPEARED
ON
BEHALF
OF
PETITIONER;
LISA
E. MORENO, ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY, APPEARED
ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by M. Nardulli):
This matter comes before the Board upon a remand directive of
the Illinois Appellate Court,
Third Judicial District.
(Citizens
Utilities Company of Illinois v. Pollution Control Board (3d Dist.
1990),
193 Ill. App.
3d 93,
549 N.E.2d 920.)
On January
5,
1989,
prior
to remand,
the Board
upheld the Agency’s
imposition of
a
condition in Citizens Utilities Company of
Illinois’
(Citizens)
NPDES permit for its West Suburban Treatment Plant No.
2 located in
Bolingbrook, Will County,
Illinois.
On March 9,
1989, the Board
denied Citizens’ request for reconsideration noting,
inter
alia,
that it could not consider evidence in a permit appeal which was
not considered by the Agency
in rendering its permit decision.
Citizens’ appealed and the Illinois Appellate Court reversed the
Board’s holding regarding the scope of review in a permit appeal
and remanded the case back to the Board for a decision based on the
new evidence.
Upon remand, on October 4,
1990,
a hearing was held
in
Joliet,
Illinois.
Neither
Citizens
nor
the
Illinois
Environmental Protection Agency (Agency) presented any witnesses.
Rather,
the
parties
presented
a
joint
stipulation
with
seven
exhibits from the record in In the Matter of: Amendments to 35
Ill.
Adm.
Code Section
304.30)..
ExceDtion
for Ammonia Nitrogen Water
Quality Violation,
R88—22.
BACKGROUND
The Board will not reiterate all the facts
of this case as
those facts are set out in the Board’s
1989 opinion.
(Citizens
Utilities Co.
v. IEPA (January 5, 1989), PCB 85-140.)
We note that
the instant appeal concerns the Agency’s imposition of a condition
in Citizens’ NPDES permit limiting the amount of ammonia-nitrogen
in Citizens’ effluent from Plant No.
2 which discharges into the
0136-0339
2
East Branch of the DuPage River.
The issue before the Board on
remand is the
same as that presented to the Board
in January of
1989; whether Citizens has met its burden of establishing that no
violations
of the Environmental Protection Act
(Act)
and Board
regulations
would
occur
if
Citizens’
NPDES
permit
were
issued
without the challenged condition.
(Joliet Sand
& Gravel v. IEPA
fist
~Dist.~1985j
,-163~
Il1;~App.
~
The
distinction
between the instant case and that presented to the
Board in 1989
is that, upon the directive of the appellate court,
the Board has before it evidence which was not considered in its
prior decision.
Citizens alleges that this new evidence, coupled
with the prior record, supports reversal of the Agency’s imposition
of an effluent limitation for ammonia—nitrogen of 15 mg/l for the
months
of April through October and 4.0 mg/i for the months
of
November
through March,
when downstream daily maximum
ammonia—
nitrogen
concentration
in
the. stream
does
not meet
the
water
quality standard
set
forth
in
35
Iii.
Adm.
Code 302.212.
The
Agency maintains that a consideration of this new evidence and the
record prior to remand establishes that Citizens has not shown that
compliance with the water quality standard can be achieved without
imposition of the ammonia—nitrogen effluent limitation.
STATUTORY AND REGULATORY PRAXE
WORK
Section 2(b) of the Act sets forth the general purpose of the
Act which is to establish a unified, state—wide program to restore,
protect and enhance the quality of the environment.
(Ill. Rev.
Stat.
1989,
ch.
111 1/2,
par. 1002(b).)
Section 11(b)
of the Act provides that it is the purpose of Title III of the Act
governing water pollution to
“restore,
maintain and enhance the
purity
of
the waters
of
this
State
...
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
...
.“
(Ill. Rev.
Stat. 1989,
ch. 111 1/2, par.
1011(b).)
The Act
also sets
forth
specific provisions governing the
NPDES program.
Section 39(b) of the Act (Ill. Rev. Stat.
1989,
ch.
111 1/2,
par. 1039(b)) provides as follows:
The Agency may issue NPDES permits exclusively
under
this
Subsection
for
the
discharge of
contaminants from point sources into navigable
waters
...
All
NPDES
permits
shall contain those terms
and conditions,
including but not limited to
schedules of compliance, which may be required
to accomplish the purposes and provisions of
this Act.
01 36-03I~O
3
The Agency may include, among such conditions,
effluent
limitations
and other
requirements
established under this Act, Board regulations,
the Federal
Water
Pollution Control Act
and regulations pursuant thereto
Section
12(a)
of
the
Act
prohibits
th~ discharge
of
any
contaminants into the environment that cause or tend to cause water
pollution,
either alone or in combination with any other sources,
or that violate any regulations or standards adopted by the Board.
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
1012(a).)
Similarly,
Section 304.105 of the Board’s water pollution regulations provides
that “no effluent shall,
alone
or in combination with any other
sources,
cause
a
violation
of
any
applicable
water
quality
standard.”
(35
Ill.
Adm.
Code
304.105.)
The
water
quality
standard for aimnonia nitrogen
is
set forth at
35
Ill.
Adm. Code
302.212 and establishes the following:
a)
Ammonia
nitrogen
(as
N:
St”et
number
00610)
shall in no case excr
15 mg/i.
b)
If ammonia nitrogen is less Lhan 15 mg/i
and greater than or
equal
to 1.5 mg/i,
then un-ionized ammonia
(as N)
shall not
exceed 0.04 mg/i.
Additionally,
in recognition of the fact that ammonia nitrogen is
temperature and pH dependent,
subsection
(e) of 302.212 sets forth
the maximum ammonia nitrogen concentrations allowable for certain
combinations
of
pH
and
temperature.
(35
Ill.
Adm.
Code
302.212(e).)
At the time the Board
reached
its
first
decision
in this
matter
on
January
5,
1989,
the
following
“winter
exemption
regulation” was in effect1:
b)
Section 304.105 shall not apply to Section 302.212
for
This “winter exemption regulation” terminated on July 1,
1991.
(See, 35 Ill. Adm. Code 304.301, amended in R88—22
at 13
Ill. Reg.
8880,
eff. May 26, 1989.)
However, the
Board will review the Agency’s permit decision in light
of the regulations in effect at the time the application
was filed.
This position is consistent with the Board’s
duty in
a
permit appeal to review the Agency’s permit
decision and to assess whether the Agency correctly found
that the condition
is necessary to achieve compliance
with the Act and regulations.
On August 22,
1985,
the
date the Agency issued Citizens’ NPDES permit with the
contested condition, the 4.0 winter effluent limitation
was in effect.
OI36~03~L
4
any source during the months
of November through
March; except that
during the months of November
through
March
no
source
...
shall
discharge
an
effluent
containing
a
concentration
of
ammonia-
nitrogen greater than 4.0
mg/i
if the discharge,
alone
or
in
combination
with
other
discharges,
causes
or
contributes
to
a
violation
of
that
portion of Section 312.212.
(35 Ill.
Adin. Code 304.301(b).)
DISCUSSION
Citizens’
first contention is that the Agency does not have
authority to
impose the contested condition because the Board’s
regulations do not require the disputed condition.
According to
Citizens,
Board
affirmance
of
the
disputed
condition
would
constitute
an
improper
delegation
of
the
Board’s
rulemaking
authority to the Agency.
The Board notes this argument was raised
in the previous proceeding in this case and was addressed by the
Board.
In its prior opinion, the Board noted that Citizens argued
“that the effluent limitation of 1.5 mg/i for April through October
is not contained in the Board’s regulations.
While this statement
is
true,
it
is not conclusive proof that
the condition
is not
necessary
...
•“
(PCB 85—140 at 3
(January
5,
1989).)
The Board
stated
that
the
condition
would
be
upheld
unless
Citizens
demonstrated that it was unnecessary to ensure compliance with the
water quality standards.
(u.)
Because Citizens has expanded upon
this argument
in
its
instant brief
(Cit.
Brief
at
11—12;
Reply
Brief at
2, 4-7), the Board will take this opportunity to address
this contention in more detail.
The
Agency
relies
upon
the
above—quoted
statutory
and
regulatory language and asserts that the seasonal exemption for
ammonia nitrogen water quality standards “explicitly establishes
the wintertime
ammonia nitrogen effluent standard which
is the
source
of
the
ammonia
nitrogen—related
condition contested
by
Citizens.”
(Agency Brief at 8
(emphasis added))
At the time the Agency rendered its decision on Citizens’
permit application, the Board’s regulations provided for an ammonia
nitrogen effluent limit of 4.0 mg/i during the months of November
through March (“winter exemption”) when the discharge, alone or in
combination
with
another
source,
causes
or
contributes
to
a
violation of the ammonia-nitrogen water quality standard.
(35 Ill.
Adm. Code 304.301.)
The Board agrees with the Agency that this
regulation authorizes the Agency to impose the “winter” effluent
limitation
as
a
condition
in
Citizens’
NPDES
permit.
The
imposition of such a condition in
a permit where the Board has a
formally adopted effluent standard does not constitute an improper
delegation of the Board’s rulemaking authority to the Agency.
0136-03142
5
The
Board will now address
Citizens’
argument
of
improper
delegation
as
it
relates
to the
“summertime
limitation”.
The
Agency admits that the Board’s regulations do not set a specific
“summertime” effluent limitation for ammonia nitrogen.
However,
the Agency asserts that Section 304.105, which provides that “no
effluent shall, alone or in combination with other sources, cause
a-v4.-olation -of
-
any -appiicable--water-qua-iity-stamiard”~am1-Section
302.2122 setting forth the general ammonia nitrogen water quality
standard, establish the Agency’s authority for imposing an effluent
limit which reflects the water quality standard.
Section 39(a) of the Act mandates that the Agency shall issue
permits upon proof
by the applicant that the facility will not
cause
a violation of the Act or
Board regulations.
(Iii.
Rev.
Stat. 1989, ch.
111 1/2, par. 1039(a).)
The Board has established
a temperature and pH dependent water quality standard for ammonia
nitrogen.
(35 Iii. Adm. Code 312.212.)
If the Board were to hold
that the absence of an ammonia nitrogen effluent standard precludes
the Agency from imposing such a limitation in an NPDES permit, the
Agency would not be able to fulfill
its duty of issuing permits
only upon proof
of compliance with the water quality
standard.
Therefore,
the absence
of an ammonia nitrogen effluent standard
does not,
in and of
itself,
lead the Board to conclude that the
Agency has acted beyond its authority.
We now reach the main issue of whether Citizens has met its
burden of proving that the contested condition is not necessary to
establish
compliance
with
the
Act
and
regulations
(j.~.,
the
ammonia nitrogen water quality standard).
As it did in the prior
proceeding before remand, Citizens again raises the argument that
a
comparison
of
the
“costs
resulting
from
the
condition
far
outweigh its benefits” and,
therefore, imposition of the condition
is
unreasonable.3
(Cit.
Brief
at
8,
13—16,
26—27)
Citizens
erroneously
asserts
that
the
Board
may
reverse
the
Agency’s
imposition of a permit condition upon a finding that the condition
is
“unreasonable”.
Citizens relies upon Illinois
Environmental
Protection Agency v. Pollution Control Board (1st Dist.
1983), 118
Iii.
App.
3d
772,
780,
455
N.E.2d
188,
which
states
that the
applicant “must prove
that the conditibns are not necessary to
accomplish
the
purpose
of
the Act
and therefore
were
imposed
unreasonably.”
The appellate court is merely reiterating that the
2
The Agency apparently cites Section 302.202 incorrectly
when it intended to cite Section 302.212.
Citizens’ “cost—benefit argument” assumes that affirmance
of the imposed condition necessitates the construction of
a nitrification facility.
(Cit. Brief at 226—27; Ex. C;
App.D at 2.)
As the Board noted in its January opinion,
the contested condition does mandate the installation of
such a facility.
(Board Opinion at 6.)
0136-03143
6
standard the Board applies in reviewing an Agency permit decision
is whether the permit
condition is
necessary to accomplish the
purposes of the Act and regulations.
If the Board determines that
the condition is not necessary to achieve compliance with the Act
and regulations, it may be said that the condition is unreasonable.
However, the Board does not conduct a separate inquiry into whether
the
ööñdition
iS
nrèasonãbl
~Therefôre,
the ~B~ard
again
rejects
any
arguments
raised
by
Citizen’s
regarding
“costs
and
benefits”
and
“undue
hardship”
resulting
from
the
condition
as
being irrelevant
in this permit appeal where the sole inquiry is
whether the condition is necessary to accomplish the purpose of the
Act and regulations.
By its very terms, the condition limiting Citizens’ effluent
applies only when the downstream daily maximum ammonia nitrogen
concentration does not meet the water quality standard of 35 Ill.
Adm.
Code
302.2i2.~
Consequently,
exceedence
of
the
effluent
limits
without
a
corresponding violation
of
the water
quality
standard does not constitute a permit violation.
Citizens could
exceed
the
contested effluent limitations
and
if there
was no
violation
of
Section
302.212,
no
enforcement
action
could
be
brought for violating the terms of the NPDES permit.5
Conversely,
if Citizens exceeds the effluent limitations and there is also a
downstream water quality violation, an enforcement action could be
brought for both violation of the general water quality standard
and the permit condition.
Because a Board-adopted effluent standard establishes the 4.0
“winter” limitation, the Board will analyze the 4.0 and 15 permit
conditions separately.
Initially, the Board addresses whether the
4.0 “winter” ammonia-nitrogen effluent limitation is necessary to
achieve compliance with the Act and regulations.
Citizens contends
that the condition is not necessary to establish compliance with
the Act and regulations because its effluent, discharged in excess
of the
imposed
limit,
will not cause
a violation of the water
quality standard because all upstream dischargers now nitrify.
The Agency based this condition on an existing regulation in
The transcripts of R88-22 introduced by the parties here
indicate that USEPA no longer accepts NPDES permits with
effluent limits subject to the provision that they only
apply when the water quality standard is being violated.
(Ex. R—3 at 105—07.)
This
is inconsistent with the principle of regulating
water
quality
with
more
certainty
and
simplifying
enforcement by focusing on the effluent attributable to
a
specific discharger
rather
than
the stream quality
itself.
(See
generally,
In
the Matter
of:
Effluent
Criteria
(January
6,
1972),
R70—8
.)
0136-031414
7
effect at the time it issued Citizens’ NPDES permit.
(35 Ill. Adm.
Code 304.301(b).)
Section 304.105(b),
in effect at the time the
permit application was filed, specifically provided for an effluent
limit of 4.0 mg/i during the months of November through March if
the
discharge,
alone
or
in
combination with other
discharges,
causes or contributes toaviolation of the wate q~a1i~ystandard
in Section 312.212.
Citizens’ relies on data establishing that all
upstream
dischargers
now
nitrify
and
contends
that
the
4.0
condition
is
unnecessary.
(Stip.
par.
1.)
However,
the
4.0
effluent limit imposed by the Agency in Citizen’s permit imposes no
greater
obligation
than
that
which
exists
by
virtue
of
the
regulation
itself.
The
permit
condition
establishing
the
4.0
“winter”
limitation
is
worded
virtually
identically
to
the
regulation
establishing
this
as
a temporary effluent
standard.
Both the permit condition and the effluent regulation require
a
violation of the water quality standard for the 4.0 effluent limit
to become effective.
While the Agency was not required to write
this limitation
into Citizens’
permit to have the 4.0
effluent
standard apply to Citizens, doing so is certainly consistent with
its authority under the Act and Board regulations.
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par. 1039(b).)
Citizens
is, in essence,
attempting
to have this
effluent
standard
declared
invalid
as
applied to Citizens.
The Board will not review
a regulation’s
validity
in
a
permit
appeal
where
the
Board’s adoption
of the
regulation could have challenged by judicial review.
(Ill.
Rev.
Stat.
1989,
ch. 111 1/2, par.
1029.)
The Board concludes that the
4.0
“winter” ammonia—nitrogen effluent condition
is necessary to
accomplish the purposes of the Act and regulations.
(35 Ill. Adm.
Code 304.301(b).)6
We now address whether the 1.5 “summer” effluent limitation is
necessary to achieve compliance with the Act and regulations.
In
the
original
proceeding,
Citizens
relied
upon
a
study
of
the
disputed condition prepared by William P.
Brink,
P.E.
(“Brink’s
Study”)
in support
of
its
position
that the
condition
is
not
necessary.
(Ex.
C;
Cit.
Brief App.
D)
Applying a mass balance
methodology
for ammonia nitrogen, the Brink’s
Study developed a
relationship between upstream,
downstream,
and effluent ammonia
nitrogen concentrations.
(~.
at
4.)
“The downstream ammonia—
nitrogen
concentration
...
is
dependent
upon
the
upstream
concentration, the effluent concentration for Plant No.
2 and the
dilution ratio of upstream flow to plant effluent flow (R=Qu/Qe).”
(u.)
The Brink’s Study concluded that the downstream ammonia-
6
The Board notes that the proper avenue for seeking relief
from a Board regulation is through a petition for site-
specific relief
(Ill. Rev.
Stat. 1989,
ch. 111 1/2, par.
1027;
35 Ill.
Adm.
Code 102.140), an adjusted standard
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par.
1028.1), or a
variance (Ill. Rev.
Stat.
1989,
ch.
111 1/2,
par.
1035;
35
Ill.
Adin.
Code 104.120).
0136-03k5
8
nitrogen concentration will always be less than that allowed by the
water quality standard whenever the upstream concentration is 1.0
mg/i or less.
(~.
at 5.)
The Agency responded that the Brink’s
Study
failed
to address the possible worst—case scenario of all
upstream plants
discharging effluent of 4.0 mg/i as allowed by
their permits.
The Board,
in its January
5,
1989 opinion, agreed
with
-the—Agency -and—concluded
-that- Citizens failed to~refuteth±s
worst—case
scenario or establish that the water quality standard
could be met without adhering to the condition.
Citizens contends that, due to the appellate court’s remand of
this
matter
for
the
introduction
of
new
evidence
and
the
corresponding passage of time, the evidence submitted upon remand
establishes
that
the
Brink’s
Study
is
correct
and
that
the
downstream ammonia—nitrogen concentration will always be less than
1.5
mg/i,
regardless
of
the
season,
whenever
the
upstream
concentration is 1.0 mg/i or less.
(Cit.
Brief at 14—15.)
As of
July
1,
1988,
all
six wastewater treatment
plants
upstream
of
Citizens’ Plant No.
2 have completed installation of nitrification
facilities.
(Stip. par. 1.)
From January 1, 1987 through June 30,
1990,
Plant
No.
2’s
effluent
exceeded
the
contested
permit
condition
and
corresponding
water
quality
standard
on
three
occasions.
(~.
at par.
2; Exh. R-1.)
Having concluded above that
the Agency’s imposition of the 4.0 effluent limit is proper, the
Board is concerned at this point only with the propriety of the 1.5
“summer”
limitation.
Hence,
the Board will look only to those
excursions from the 1.5 limitation and corresponding water quality
violations.
On May 12,
1988, when the upstream concentration was 1.1 mg/i
and Citizens’ un-ionized ammonia nitrogen effluent was 2.9 mg/i,
the downstream ammonia nitrogen concentration was 1.7 mg/i and the
un—ionized ammonia nitrogen concentration7 was 0.1239 mg/i rather
than the allowable 0.04 mg/i.
(Exh. R—1; Agency Brief at 12.)
On
April
18,
1989,
Citizens’ effluent was 14.7 mg/i,
the downstream
ammonia nitrogen concentration was
1.55 mg/i and the un—ionized
concentration
was
0.0610
rather than the
allowable
0.04
mg/i.
(j~)
Citizens notes that one of these excursions occurred prior
to July
1,
1988,
the date upstream plants began nitrifying,
and
another occurred when one-half of Plant No.
2 was out of operation
for a new aeration system.
(Stip.
pars.
1,
2;
Ex.
R—1.)
As noted above, the arguments in this case focus more heavily
on
the
4.0
“winter”
exemption
than on
the
1.5
effluent
limit
applicable for the remaining months.
While there
is no specific
Section 302.212(b) provides that if ammonia nitrogen is
less than 15 mg/i and greater than or equal to 1.5 mg/i,
un—ionized ammonia shall not exceed 0.04 mg/i.
Section
302.212(d) sets forth the method of computing un-ionized
ammonia.
0136-03146
9
explanation of how the Agency arrived at the
1.5 mg/i effluent
limit,
in its prior brief the Agency stated that because Section
304.301(b) does not apply for the months of April through October,
the stricter effluent standard of 1.5 mg/i is imposed.
The Agency
also relies
on Section 304.105 which provides that “no effluent
shall,
alone
or
in
combination
with
other
sources,
cause
a
viólátlànof
ány~Iica~bIé
~àtè± qU~LttyStaWda~dA~eyBr’ief
at
9.)
An
examination
of the water
quality
standard provides
further
possible
explanation.
In
Section
312.212(e),
the
ammonia-
nitrogen water quality standard is given as a function of pH and
temperature.
The data submitted by Citizens
(Cit.
Brief 11/7/90
App.E)
indicates
that
the
pH
is
above
8.0.
Under
these
pH
conditions,
the water
quality
standard
is
1.5 mg/i unless
the
temperature is lower than 15C (59F).
The months of April through
October
generally
exceed
this
temperature.
Therefore,
the
appropriate water
quality standard is 1.5.
Given the testimony
that, during periods of low flows, the waterway into which Citizens
discharges
can
consist
almost
entirely
of
sewage
effluent
discharge,
it appears that the Agency has imposed the
1.5 mg/i
water quality standard as an effluent limit.
It
appears that the evidence submitted
in the stipulation
establishes
that
Citizens
exceedence
of
the
contested
permit
conditions
has
caused
a
corresponding water
quality
violation.
Although the May
12,
1988 violation occurred before all upstream
dischargers were nitrifying,
Citizens concedes that the April 18,
1989
violation
occurred
when
part
of
the
plant
was
out
of
operation.
The water quality standards are to be complied with at
all times and while one exceedence may not result in an enforcement
action,
the evidence
indicates
that the
1.5
effluent
limit
is
necessary for compliance with the Act and regulations.
In reaching
this conclusion,
the Board emphasizes that,
by the very terms of
the contested condition,
the effluent limits only apply when the
downstream ammonia—nitrogen concentration does not meet the water
quality standard.
Therefore,
Citizens’ argument that,
because all
upstream dischargers now nitrify, its effluent need not be limited
in
order to achieve compliance with the water quality standard
downstream is somewhat inconsistent with the fact that the effluent
limits imposed apply only when there is a downstream water quality
violation.
ORDER
For the foregoing reasons, the Board concludes that,
in light
of evidence submitted after remand, the Agency’s imposition of a
4.0 mg/i “winter”
ammonia-nitrogen effluent limit and
1.5 mg/i
effluent limit for the remaining months when the water quality
The Illinois State Water Survey estimates that 25-30
of
the occurrences
of
low flow can be expected to occur
during January and February.
(Tr.
12/4/87 at 80-81.)
0 136-03147
10
standard
downstream is exceeded is necessary to achieve compliance
with
the
Act
and
regulations.
This
constitutes
the
Board’s
findings
of
fact
and
conclusions
of law in this matter.
IT IS SO ORDERED.
Section 41
of
the Environmental Protection Act
(Ill.
Rev.
Stat.
1991,
ch.
111
1/2,
par.
1041)
provides for the appeal
of
final Board orders within 35 days.
The Rules of the Supreme Court
of Illinois establish filing requirements.
(But see also,
35 Iii.
Adm.
Code 101.246, Motions for Reconsideration,
and Casteneda
V.
Illinois
Human Rights
Commission
(1989),
132
Iii.
2d
304,
547
N.E.2d 437.)
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board
hereby certt~~.hat-the above order was adopted on the
_____
day of
________________,
1992 by a vote of
7—
~‘
Dorothy M. ,9~unn, Clerk
Illinois ~v1lution Control Board
0136-03148