ILLINOIS POLLUTION CONTROL BOARD
April
1,
1987
ILLINOIS POWER COMPANY
)
(Hennepiri Power Plant),
)
Petitioner,
v.
)
PCB 86—154
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
SHELDON
A.
ZABEL AND MABILI MCFAWN,
SCHIFF HARDIN
& WAITE
APPEARED ON BEHALF OF ILLINOIS POWER COMPANY;
THOMAS DAVIS, ATTORNEY AT LAW, APPEARED ON BEHALF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by J.D. Dumelle):
This matter comes before
the Board upon Illinois Power
Company’s
(IPC’s) September
22,
1986 petition for review of NPDES
Permit No.
IL0001554 which was reissued by the Illinois
Environmental Protection Agency (Agency)
on August
21, 1986.
Hearing was held on January
8,
1987,
at which the parties, but no
members of the public, were present.
IPC filed
its post—hearing
brief
(grief)
on February 13,
1987,
to which
the Agency responded
on March
2,
1987 (Response),
and IPC replied
on March
13,
1987.
IPC has contested certain provisions of its NPDES Permit for
its Hennepin Power Plant.
IPC has summarized
the contested
conditions as follows:
1.
The limitations
and monitoring requirements
imposed for
two internal waste streams
identified
as Outfalls
001(a) and 001(c), both of which discharge into the
Condensor Cooling Water;
2.
The
requirement contained
in Special Condition
3(A) to
prepare weekly
a Total Residual Chlorine
(TRC)
Concentration Curve
for Outfall 001,
the discharge
point
for the Condensor Cooling Water;
3.
The requirement contained
in Special Condition
7
to
monitor once for 162 pollutants listed at Part V—A,
B,
and
C of EPA Application Form 2C of the consolidated
Permitting Program and to monitor
twice
for chromium,
lead, nickel,
zinc, sulfate
and ammonia nitrogen;
77-36
—2—
4.
The sampling frequency and sampling type for Total
Suspended Solids
(TSS)
required
at Outfall 004,
the
discharge point
for the Ash Line Drain;
5.
The type of sampling required
at Outfalls 002,
003,
and
005,
all
of which
are Ash Pond discharges; and
6.
The signature requirements imposed
at Standard
Condition
11, paragraphs
(a)
and
(b).
(IPC Brief at 5—6).
This proceeding
is an embarrassment
to the state’s
environmental protection program.
This
is the
third
time IPC has
appealed the NPDES permit issued
for its Hennepin facility.
As a
result,
IPC has been without
a completely valid permit
for seven
years.
In
the first appeal
(Hennepin
I:
IPC v.
IEPA, PCB 79—243,
39 PCB 508, Oct.
2,
1980),
IPC prevailed
on procedural issues
similar
to the procedural issues before
the Board
in this action
and prevailed
in part on substantive issues, some of which are
again before
the Board
here,
and the Board remanded the
proceeding
to the Agency.
In
a subsequent appeal
of the Board’s
decision
to the appellate court,
the court affirmed
in part and
reversed
in part the Board’s decision, and remanded
to the
Board.
IPC
v.
PCB,
100 Ill,
app.
3d
528,
426 N.E.2d 1258
(3d
Dist.
1981).
On
February 17,
1982,
the Board again remanded
the
permit
to the Agency “for issuance
of
a permit modified
in
accordance with the agreement and referenced materials.”
(PCB
79—243,
45 PCB 383,
384).
For whatever
reason,
it appears that such permit was
not
issued until July 12,
1985.
That issuance resulted
in a second
appeal
(Hennepin II),
in PCB 85—119 which was decided
March
27,
1986,
(68 PCB
527).
In that case,
IPC litigated most of the same
issues litigated
in the
instant appeal.
The Board declined
to
reach the substantive issues after
finding
that “the Agency has
a
duty to respond
in writing
to comments by the permit applicant
which are submitted
in response
to a draft permit,
...
and
to
prepare
a written statement of the bases
for each permit
condition listed
in Section 309.108(b),
and
that the Agency
failed to meet those requirements.”
(68 PCB 531).
As the Board
stated upon reconsideration,
“if the Board were to continue
to
reach
the merits of cases such
as this,
there would
be little
impetus
for the Agency
to correct
its procedures to fully comply
with state
and federal
law.
(PCB 85—119
at
1, July 11,
1986).
One issue that the Board
specifically did not reach was “whether
there was procedural error
regarding the
internal waste
streams
which
is predicated upon
a substantive determination that
the waste streams
at issue
are
internal.”
(id.
at
2).
77-37
—3—
Despite the Board’s presumption
in Hennepin
II that “the
parties will take appropriate actions
to minimize the
administrative inefficiencies which could result” from that
ruling
68
PCB 531,
the parties are again before the Board
in
the present Hennepin
III.
The Agency, quoting Yogi Berra, states
that “this case is like deja vu all over again.”
(Response at
2).
IPC refers to
“Third strike, you’re out,” and “Third time
is
the charm.”
(Post—Hearing Brief at
3).
The six
issues set forth by IPC can be classified into two
groups:
conditions relating
to internal waste streams (issues
1
and
3
as set forth by IPC) and
those that do not
(issues
2,
4,
5,
and 6).
The Board will deal with the latter issues
first.
There
is
no reason
for
the Board
not
to finally adjudicate these
issues
in that IPC no longer contends that the Agency has failed to meet
the procedural prerequisites for the imposition of such
conditions,
and
the only question which remains is whether
IPC
has demonstrated that the contested conditions are not necessary
to accomplish
the purposes
of the Illinois Environmental
Protection Act or
are inconsistent with Board regulations.
Chlorine Concentration Curves
IPC contested the requirement
of Special Condition
2 that
Total Residual Chlorine
(TRC)
concentration curves
be prepared
weekly.
IPC has proposed that
it prepare quarterly concentration
curves, monitor one half of the unit condensor at two minute
intervals when peak TRC concentrations are predicted by the
quarterly curves,
rotating weekly the unit half
to be monitored,
and report
the weekly maximum TRC value on Discharge Monitoring
Reports
(DMR’s).
(Reply at 3).
The Agency now states that it
would agree with
IPC’s proposal with two modifications:
“that
the
time frames
for the weekly sampling be specified
in •the permit as
five to fifteen minutes
for the
first
twelve months
...
and
second, that all results
be recorded and reported on the
DMR’s.”
(Response
at
13).
The Agency also states that “it would
consider deleting the quarterly concentration curves after one
full year”
and that “less sampling may subsequently be required
during the weekly monitoring.”
(id).
In turn,
IPC states that
“although
the evidence does not warrant the modifications
requested by
IEPA, IPC could accept the modified proposal
if
the Permit affirmatively states that the required weekly
sampling frequency and
the requirement
to prepare a curve will
be
reduced
and expire, respectively, one year
after the revised
permit
is issued
if warranted by the data collected over that
year.”
(Reply at
4).
Given
the Agency’s express willingness
to consider
the
reduction and elimination of the requirement regarding sampling
and preparation
of the curves,
IPC’s testimony regarding the cost
and lack of necessity of such conditions,
and the Agency’s
failure
to present any evidence rebutting IPC’s evidence, the
77-38
—4—
Board will require
the Agency to modify the TRC condition in
accordance with IPC’s suggested language on pages
5
and
6 of its
Reply.
Ash Line Drain
Special Condition
5 establishes sampling requirements and
limitations
for Total Suspended Solids
(TSS)
and Net Oil and
Grease
for Outfall
004,
an intermittent discharge
from
the ash
line drain.
The Agency has agreed with IPC that the existing
condition should be modified
to require three grab samples at
periodic intervals during the time of discharge,
to limit TSS to
30 mg/i and Net Oil and Grease
to 20 mg/i.
(Response
at 15).
IPC agrees with this modification, except that
it contends that
only
a single grab sample should be required.
(Reply at 6—7).
IPC argues that under
the Agency’s language sampling would take
a
minimum
of
45 minutes while
the discharges
to be sampled “last
as
briefly as fifteen minutes,” thereby precluding
full compliance
with the condition.
The Agency interprets
its proposed condition
differently,
contending that “at least three grab sample aliquots
may easily be obtained during
a discharge period
as brief
as
fifteen minutes.”
(Response
at
16).
The Board
can certainly understand
the differences
in
interpretation regarding the sampling provision since
it cannot
understand which interpretation is correct.
However,
it
is
clearly the Agency’s intent that three or more samples may be
taken within
a fifteen minute interval.
Since IPC’s only basis
for disagreeing with the Agency’s proposed language
is the timing
question,
the Board
finds that IPC has failed
to demonstrate that
the Agency’s proposed language
is not reasonably necessary to
accomplish
the purposes
of the Act.
Therefore, the Board will
order
the Agency to modify Special Condition
5
in accordance with
the language set forth
in
its Response
at page
15, except that
the language shall
be further modified
to clarify that
at least
three samples may be taken within
a fifteen minute period.
Ash Pond Outfalls
Outfall 002
is the discharge from Ash Lagoon No.
1,
003
is
the discharge
from Ash Lagoons Nos.
2 and
4,
and 005
is the
discharge from Ash Lagoon No.
3.
IPC has not objected
to the
parameters regulated or
the effluent limitations imposed upon
these discharges by the permit,
but has objected on the basis
that the requirement
for
a twenty—four hour composite sample
fails
to recognize the
real difficulties of compliance which
maybe caused by severe weather.
These problems may result from
“malfunctioning of battery operated composite samplers due
to
freezing temperatures and the danger posed
to plant personnel who
must venture out
to collect the composited samples
or
to perform
manual sampling.”
(Response
at
16).
77-39
—5—
The Agency now believes that “the personal
risk factor
cannot be disregarded or dismissed
...
and
since the Agency
would
tend to agree with the discussions on the integrity of the
data (Brief at
47—8; Exhibit A at 9),
the Agency would agree
to
impose
a special
condition applicable specifically to outfalis
002, 001, and 005
to the effect that
a
single grab sample will be
accepted
in lieu of
a 24—hour composite
‘only if inclement
weather prohibited access
to all of the outfalls
for seven
consecutive days.’
(Brief at
47).”
(Response
at 16—17).
In
response,
IPC points out that the facility personnel responsible
for this sampling work five day weeks
and requests the special
condition
to provide that “if
inclement weather prohibits the
collection of
a
24 hour composite sample
for
five consecutive
days,
sampling shall consist
of
a grab sample.”
(Response at 8).
While
the record
is unclear regarding
the work week of the
responsible personnel
or the possibility of using other personnel
on the remaining two days of the week,
the Board
finds
it
to be
highly unlikely that the integrity of the data would
be
significantly jeopardized
by a five day rather
than
a seven day
provision.
Further,
it is not unreasonable
to presume
a
standard
five day work week.
Therefore,
the Board will order
the Agency
to add
a special condition
in accordance with
IPC’s request at
page
8 of
its Reply.
Signature Requirement
IPC objects
to Standard Condition 11
regarding who has
authority to sign NPDES permit applications
11(a)
and reports
submitted under
the NPDES permit program
11(b).
The Agency
cannot, of course,
impose conditions less stringent than Board
rules, and there
is no evidence
in this record
to support any
rule more stringent than the Board
rule.
Therefore,
Standard
Condition 11(a)
should
be rewritten
to simply set forth
the
requirement of Section 309.222(a) which delimits who can sign
NPDES permit applications.
Since
the Board
has no regulation
regarding who can sign reports, and since both parties agree that
40 C.F.R.
Section 122.22(b)
sets forth
a reasonable standard,
11(b) should be rewritten
in conformance with the
federal rule.
Internal Waste Streams
IPC contests the effluent limitations and monitoring
requirements imposed
at Outfalls 001(a),
001(c)
and 005(a)
in
that they constitute
internal discharge points and are,
therefore,
subject
to 40 C.F.R.
Section 122.45(h).
As the Agency
states,
it had
erroneously maintained
that certain
of
IPC’s
Hennepin
Plant
waste
streams
were
not
internal
waste
streams
despite
the
comments
and
other
protestations
of
Petitioner.
~ith
77-40
—6--
this admittedly mistaken view,
the Agency did
not
then
believe
that
it
was
bound
by
the
procedural
requirements
to
40
C.F.R.
122.45(h)
to
set
forth
the
exceptional
circumstances
which
would
justify
limits
on
internal
waste
streams.
Regrettably,
the
Agency
had
not
revised
its
thinking
on
the
issue
at
the
time
the
present
permit
was
issued
in
1986.
Therefore, not only does the
document containing the Agency’s responses to
Petitioner’s
comments
fail
to
set
forth
any
justification
for
the regulation of
internal
waste
streams,
but
also
a
further
step back
was
not
taken.
In
order
to
comply
with
40
C.F.R.
122.45(h),
35
Ill.
Adm.
Code 309.108,
40 C.F.R.
124.56,
40 C.F.R.
124.10,
and other
similar
requirements,
the
Agency
must
also
issue
a new
fact
sheet and draft permit upon
which Petitioner may then comment.
(Response
at
4).
The Board
finds the use of the word “regrettably”
to be
a
bit weak.
The Agency has known since
at least August
13,
1985,
when Hennepin
II was filed,
that IPC contended
that these
outfalls were internal thereby requiring an Agency showing of
exceptional circumstances.
“Regrettably,”
a year later,
following the reissuance
of a permit which contained no such
showing, the Agency “revised”
its thinking.
The Agency explains
this by stating that “in August 1986 the Agency was unaware of
any caselaw
in any jurisdiction which provided
a
definition of
the phrase
‘internal waste stream’.”
(Response at 6).
What
caused
the Agency’s sudden enlightenment
in late
1986
is left
to
speculation.
As
a result,
it
is “deja vu all over again.”
IPC states
that “this matter must be remanded to IEPA with instructions
to
satisfy the clear prerequisites of Section 122.45(h)
if
it
desires
to impose any monitoring requirements
...
IPC requests
in
this proceeding
that the Board make
a finding
that IEPA failed
to
comply with the procedures contained
in Section 122.45(h) and
instruct IEPA to comply with that Section
if
it imposes
conditions
on internal waste streams when reissuing the permit
for this facility.”
(Brief at
13).
The Agency does not disagree
with
those requests.
(Response at 6).
In accordance with the Agency’s request the Board
finds that
Outfalls
001(a)
,
001(c)
and 005(a)
are from internal waste
streams and
that the Agency failed
to satisfy the procedural
requirements
of
40 C.F.R.
122.45(h)
in imposing conditions on
those outfalls.
This stops
short
of the complete relief
requested by
IPC.
IPC argues that
it has demonstrated that there
are
no exceptional circumstances which could
justify the
77.41
—7—
imposition of conditions
on the
internal waste streams,
and
presumably,
that the Board should order those conditions deleted
from the permit.
This argument
is very similar
to the argument advanced
by
IPC and rejected by the Board
in Hennepin II,
and the Board once
again declines
to reach the merits of whether the Agency’s
conditions can be upheld.
Due
to the Agency’s presumably good
faith,
though perhaps
less than understandable, prior belief that
these conditions were being applied
to non—internal waste
streams, the Agency had
no reason to set forth exceptional
circumstances.
Given that the parties now agree that internal
waste streams are involved
(now that the Agency has “revised its
thinking”)
the exceptional circumstances which should have been
listed by the Agency should
serve to frame
the factual
issues
regarding the propriety of the imposed conditions.
However,
since no such circumstances are
set forth,
those issues have not
been properly framed.
Therefore,
for the Board
to rule on
whether
such circumstances exist would be
to speculatively
prejudge what the Agency’s rationale may be
for the imposition of
the conditions.
IPC has attempted
to do precisely that and believes that
it
has demonstrated that there can be no basis
for finding that
exceptional circumstances exist.
As such,
it has essentially
attempted
to prove
a negative.
It believes that since
it has
offered
some evidence that no exceptional circumstances exist and
the Agency has presented
no contrary evidence,
it must prevail.
However,
as the Agency points out, “it
is one thing
to argue that
the Agency has. not justified
a permit condition;
it
is something
else entirely to contend that the Agency cannot do so.”
(Response
at 7).
Since
the Agency has not yet determined what,
if
any, exceptional circumstances exist,
it
is difficult to
conceive what evidence IPC would have had the Agency present in
support of those conclusions.
The Board cannot find on
the basis
of the
record before
it that IPC has demonstrated that there
is
no possibility that exceptional circumstances exist
regarding the
internal waste streams at issue which would justify the
imposition of conditions.
Furthermore,
as
in Hennepin
II,
if the Board were to reach
the merits of this question,
its procedural holding that the
Agency must follow 40 C.F.R.
122.45(h) would
be relegated
to the
level
of dicta
in that by reaching the merits,
the Board would
in
practical effect
be ruling that the procedural failure
is
harmless error.
In asking
for
a ruling
on the merits,
IPC must
concede that
if the Agency had
been able
to demonstrate
exceptional circumstances at hearing,
the Board could properly
affirm the Agency’s action,
despite the procedural
flaws.
The
Board
finds
this position inconsistent with its remand request.
Such
a holding
by
the
Board would
be
to give the Agency free
reign
to ignore the demonstration of exceptional
circumstances
77.42
—8—
until
the appeal hearing before
the Board,
and
in
fact might well
encourage the Agency
to do so.
If the Agency were free to wait
until hearing,
it would
stand only to lose by stating its
rationale earlier,
since IPC would be given greater notice and
opportunity
to develop rebuttal
testimony,
thus totally
emasculating Section 122.45(h).
It appears, however, that IPC believes that once it has been
determined that the Agency’s position that a waste stream
is not
internal,
is incorrect,
the Agency cannot prevail regarding
conditions imposed upon that waste
stream,
but
if IPC presents
sufficient evidence that no exceptional circumstances could
exist,
it can prevail.
This
is the process which
the Board has
referred to as “having its cake and eating
it too,” which will
not be allowed.
In holding
that on remand
the Agency may consider
the
imposition of conditions
on the internal waste streams following
the procedures of Section
122.45(h),
the Board realizes that
it
is only adding
to IPC’s well—founded frustration with the
permitting
of
its Hennepin facility.
The Board shares
in that
frustration;
it has no desire
to consider Hennepin IV, although
it
is fully cognizant
that today’s ruling may result
in just
that.
The Agency cannot be
allowed
to forever frustrate the
ability
of an applicant
to receive
a
final determination on its
permit application through
a series
of procedural errors.
At
some point
the Board must step
in and
say that this proceeding
has now come
to an
end.
This proceeding
is perilously close to
that point.
The Board
fails
to understand
the last minute
revision
in thinking by the Agency that has necessitated this
remand.
In two proceedings now the Agency has presented no
evidence at hearing and rather
has admitted error prior
to even
hearing IPC’s evidence.
While
the Board may have inadvertently
encouraged
the Agency
in maintaining that posture through its
ruling
in Hennepin
II,
the Board cannot, and will not, allow
the
Agency
to continue
to use
its own procedural errors to shield
itself from
the necessity of fulfilling
its proper permitting
function.
If the Agency continues to avoid
its responsibility,
the Board
will be forced
to act
for
it.
At
a minimum the Agency
has shown
an inability to take timely and appropriate actions
regarding
the permitting
of
the Hennepin facility which borders
on
a demonstration of bad faith
in
the permitting process.
Such
delay fails
to serve the
interests of the parties,
the Board,
the
public,
or
the environmental program of this State.
The Board,
therefore, will reluctantly order
IPC’s permit
remanded to the Agency
for
further
action consistent with state
and federal law and not inconsistent with this opinion.
The
Board does not believe that
it
is necessary to set forth the
state
and federal requirements
in that the Agency now appears
to
understand
them,
except
for Section 16(c)
of the Administrative
Procedure Act
(APA),
the applicability
of which
the Agency
still
77-43
—9—
disputes.
(Response
at 18—20).
At best,
it
is disingenuous of
the Agency to contend that Section 16(c)
of the APA is
inapplicable because IPC does not have
a valid permit.
It
appears that IPC had
a valid permit
as
of 1979 and that the only
reason
it has not been renewed
is that the Agency has been unable
for
the last seven years
to properly issue one.
Under
the
reasoning
of Borg—Warner
v.
Mauzy,
100
Ill. App.
3d 862,
427
N.E.2d
415
(3d Dist.
1981),
IPC’s last valid permit remains in
effect.
Therefore,
the Board concludes that Section 16(c)
is
applicable.
This Opinion constitutes the Board’s findings of fact and
conclusions
of law
in this matter.
ORDER
The Board hereby orders that NPDES Permit No.
IL000l554
be
remanded
to the Agency
for further action
as set
forth below:
1.
The Total Residual Chlorine condition
(Special
Condition
3)
shall be modified
in accordance with the
following language:
3.
Chlorine may not be discharged from each unit’s
main cooling condensors
for more than
two hours
a
day.
A.
A concentration curve
shall
be generated
quarterly using grab samples with sample
frequency of two minutes or less over the
exposure
time for each half of each unit’s
condensor.
The exposure
time
is defined
to
be from the point of first detectable
measurement
to the point of the last
detectable measurement
of total residual
chlorine
(“TRC”).
The concentration curves
prepared quarterly shall
be submitted with
the Discharge Monitoring Reports.
This
requirement
to generate quarterly
concentration curves shall expire one year
from the effective date of the modification
if the quarterly curves submitted indicate
maximum TRC concentration
to be occurring
between
five and
fifteen minutes after
chlorine injection.
B.
Weekly sampling shall
be conducted
in the
discharge
flume between five and fifteen
minutes after chlorine injection using grab
samples with
a sampling frequency of two
minutes at one half of
one condensor, with
the condensor unit half monitored rotated
each week.
All TRC values monitored shall
be
reported
on
the DMR.
If
the requirement
to
77.44
—10—
prepare quarterly concentration curve expires
pursuant to paragraph
(A) above,
the
requirement to monitor throughout the five
and fifteen minute interval shall
be reduced
to
a requirement to monitor weekly using
a
single grab sample at the predicted maximum
concentration time for each quarter.
C.
The frequency and duration of chlorine dosing
period plus the amount of chlorine applied
shall be reported on the Discharge Monitoring
Reports
in accordance with past practice.
2.
Special Condition
5
regarding the ash line drain
shall
be modified
in accordance with the following language:
5.
Sampling shall consist of
a minimum of three grab
sample aliquots of at least
100 milliliters
collected at periodic intervals during
the time of
discharge.
A.
Net Total Suspended Solids shall not exceed
30 mg/l on
a daily maximum basis.
B.
Net Oil and Grease
shall not exceed
20
nig/l
on
a daily maximum basis.
Additionally, the introductory language of this
condition shall
be
further modified
to clarify that
at
least three
samples may be taken within
a
15 minute
period.
3.
A special condition
shall
be added regarding Outfalls
002,
003 and 005 that provides as follows:
If
inclement weather
prohibits
the
collection
of
a
24
hour
composite
sample
for
five
consecutive
days,
sampling
shall
consist
of
a
grab
sample.
4.
Standard Condition 11(a)
shall
be rewritten
to simply
set forth the requirement of Section 309.222(a)
and
Standard Condition 11(b)
shall be rewritten
in
accordance with 40 C.F.R. Section 122.22(b).
5.
The Agency may consider the imposition of conditions on
Outfalls 001(a),
001(c) and 005(a).
Such conditions
may only be imposed
in
accordance with the procedures
of
40 C.F.R.
Section 122.45(h)
and other applicable
state and federal
law.
IT
IS
SO ORDERED.
Board Member
J.
Anderson concurs.
77.45
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
~
,
1987 by a vote
of
___________.
Dorothy
M.
Gunn,
Clerk
Illinois Pollution Control Board
77-46
