ILLINOIS POLLUTION CONTROL BOARD
February
1,
1996
IBP, INC.,
)
)
Petitioner,
)
)
V.
)
PCB 93-179
)
(Permit
Appeal-NPDES)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
CHARLES M. CHADD, OF ROSS AND HARDIES, APPEARED ON BEHALF OF
PETITIONER.
MARGARET P. HOWARD, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by G. T.
Girard):
On September 30, 1993, petitioner, IBP, Inc. (IBP), filed a petition for review of
conditions imposed by respondent, the Illinois Environmental Protection Agency (Agency),
on a
National Pollutant Discharge Elimination System (NPDES) permit issued August 26,
1993.
IBP
filed an amended petition on November 22,
1993.
IBP is seeking renewal ofa NPDES permit for
IBP’s beefprocessing and tannery facility in Joslin, Rock Island County,
Illinois.
The discharge is
to the Rock River in Illinois.
Hearing was held before the Board’s Hearing Officer Deborah Frank on January
9,
1995,
in Rock Island, Illinois.
No members ofthe public were present.
On January 27,
1995, IBP filed
its briefand on March 3,
1995,
the Agency filed a brief.
IBP filed a reply briefon March 10,
1995. According to statements by the petitioner at hearing and thebriefs, the only issue remaining
relates to the daily maximum sulfate effluent limit set forth in the NPDES permit.
The Board’s responsibility in this matter arises from Section 40 ofthe Environmental
Protection Act (Act).
415
IIJCS
5/40
(1994).
The Board is charged, by the Act, with a broad
range ofadjudicatory duties.
Among these is adjudication of contested decisions made pursuant
to thepermit
process.
More generally, the Board’s
functions are based on the series ofchecks
and
balances integral to Illinois’ environmental system:
theBoard has responsibility for rulemaking
and principal adjudicatory functions,
whilethe Agency is responsible for carrying out the principal
administrative duties, inspections,
and permitting.
2
PRELIMINARY MATTERS
Before proceeding with a discussion of the merits ofthe case, the Board must first address
whether certain evidence offered at hearing by petitioner should be admitted.
At hearing,
petitioner offered evidence regarding daily maximum sulfate effluent data readings through April
1994.
(Tr.
at 8-20.)’
The Agency objected to theadmission ofthose documents and the hearing
officer sustained the objection.
(Tr.
at 8-20.)
Therefore, petitioner’s Exhibit
9 and data collected
after August 26,
1993,
in Exhibit
18 were not admitted.
(Tr. at
172.)
The hearing officer allowed
offers ofproofon those exhibits.
The petitioner argues to theBoard that the excluded information offered in Exhibits
9 and
18 and the testimony included in the offers ofproof should be admitted under the doctrine “set
forth in City ofEast Moline v. PCB,
188 Ill. App. 3d
349 (Ill. App.
3
Dist.
sic
1989),
cert.
den.,
129111. 2d
562, 550 N.E.2d
554
(1990) and Dean Foods
Co.
v.
PCB,
143
Ill. App. 3d
322, 492
N.E.2d 1344 (Ill. App.
2 Dist.
sic
(1986))”.
(Pet. Br. at 9.)
The petitioner asserts that the
informationis “relevant to demonstrate that IBP’s existing effluent quality is higher than the
Agency determined, and is also relevant to proving that no violation oftheAct orBoard
regulations will occur ifthe permit condition is removed”.
(Pet. Br. at 9.)
The Agency points out that theBoard’s procedural rules provide that with regard to a
disputed issue offact, the Board hearingwill be
d1e
novo
in nature.
(Ag. Br.
at 6; 35
111.
Adm.
Code 105. 102(b)(8).)
However, theAgency argues that Dean Foods does not create an “open
door” for IBP to present any evidence it so desires.
(Ag. Br.
at 6.)
The Agency argues that the
“issue before the Board is whether the permittee has demonstrated that a violation ofthe Act or
regulations would not occur if the Agency used the highest extremes ofdaily maximum values for
sulfate”.
(Ag. Br. at 6.)
Therefore, all values which occurred after issuance ofthepermit are
irrelevant according to the Agency.
(Ag. Br. at 9.)
The Board is persuaded that the cases cited to the Board by petitioner do allow the
admission ofthe additional daily maximum sulfate effluent values in this NPDES
permit appeal.
The Board will therefore,
overrulethe hearing officer and allow the information into the record.
The Board notes that the issue ofrelevance was not clearly stated at hearing and the parties did
not filly present the arguments on the issue to the hearing officer.
Thus, the hearing officer’s
ruling was based on incomplete information.
‘
The petitioner’s briefwill be cited as ‘Pet. Br.
at
_“;
the petitioner’s reply briefwill be cited as “Pet.
RBr. at
_“;
petitioner’s exhibits will be cited as “Pet. Exh. at
_“;
the Agency’s briefwill be cited as “Ag.
Br. at
_“;
the Agency’s record will be cited as “R. at
_“;
and theBoard hearingtranscript will be cited
as “Tr. at
_“;
respondent’s exhibits will be cited at “Resp. Exh. at
“.
3
ISSUE ON APPEAL
Framing ofIssue
The Agency’s writtenresponse to the permit application frames the issues on appeal from
that decision.
(Pulitzer Community Newspapers. Inc.
v.
Illinois Environmental Protection
Agency, PCB 90-142, at 6 (December 20,
1990); CentraliaEnvironmental Services. Inc.
v.
Illinois Environmental Protection Agency, PCB 89-170, at 6 (May
10,
1990); City ofMetropolis
y,
Illinois Environmental Protection Agency, P03 90-S (February 22,
1990).
Thus, the Agency’s
August 26,
1993, letter frames the issue on appeal.
The August 26,
1993, Agency letter issued
the instant NPDES permit with
15
special conditions.
(R. at 108-116.)
ISP stated at hearing that
there is only a single contested issue remaining in this NPDES permit appeal.
(Tr.
at4-6; Pet. Br.
at
1.)
ISP appeals the daily maximum effluent permit limit for sulfate which the Agency set at
1,529mg/I on August 26,
1993.
(K at 108,
111.)
The specific language ofthe Agency’s letterconcerning sulfate effluent limits reads:
3.
Sulfate permit limits recognize mixing forthis substance and were
determined by a statistical analysis ofthe effluent sulfate concentration.
Any substance present in an effluent and likely to exceed a WQ standard
must be regulated and that is the reason that sulfatelimits now appear in
the permit.
The statistical model of95th percentile concentration was
adopted from USEPA’s Technical Support Document for Water Quality
Based Toxics Control EPA/505/2-90-001.
The Agency document Illinois
Permitting Guidance forMixing Zones explains our utilization ofthis
method.
Under the procedures, we must adhere to EEQ when granting a
mixing zone as has been done for sulfate in this case.
(,~R.at
108.)
Burden ofProof
A petition for review ofpermit conditions
is authorized by Section 40(a)(l) ofthe Act
415
ILCS
5/40 (a)(1)
and 35
Ill. Adm.
Code Section
105.102(a).
The Board has long held that
in permit appeals the burden ofproofrests with the petitioner.
The petitioner bears the burden of
proving that the application, as submitted to the Agency, would not violate theAct or the Board’s
regulations.
This standard of reviewwas enunciated in Browning-Ferris Industries of Illinois,. Inc.
v.
Pollution Control Board,
179 Ill.
App. 3d
598,
534 N.E. 2d 616,
(Second District
1989) and
reiterated in John Sexton Contractors Company v.
Illinois (Sexton). PCB
88-139, February 23,
1989.
In Browning-Ferristhe appellate court held that a permit condition that is not necessary to
accomplish the purposes ofthe Act or Board regulations is arbitrary and unnecessary and must be
deleted from the permit.
In Sexton theBoard held:
4
.that the sole question before the Board is whetherthe applicant proves that the
application, as submitted to the Agency, demonstrated that no violations ofthe
Environmental Protection Act would have occurred iftherequested permit had
been
issued.
ISP is challenging the daily maximum sulfate effluent limit of 1,529 mg/I set by the
Agency in the contested NPDES permit.
(Pet. RBr. at 1.)
Therefore, ISP must establish to the
Board that theNPDES permit would not violatethe Act or theBoard’s rules ifthe requested
permit were issued by the Agency, either with a different daily maximum sulfate effluent limit, or
with no
daily
maximum sulfate effluent
limit.
REGULATORY
FRAMEWORK
SulfateEffluent Limit
The Board’s regulations do not directly specify an effluent limit for sulfate.
Instead,
dischargersare bound by Section 304.105,
which specifiesthat no effluent
shall
cause a violation
ofany applicable water quality standard (35111. Adm. code
304.105).
The water quality standard
forsulfate is 500 mg/I
(35
Ill.
Adm. Code 302.208(e))2.
Allowed
Mixing
Pursuant to 35
Ill. Adm. Code 304.105, a discharger is prohibited from causing or
contributingto
a violation ofany water quality standard.
Under this provision ofthe State’s
water quality regulations, a dischargeris prohibited from discharging any substance to thewaters
ofIllinois in such manner asto cause the water quality standard for that substance to be exceeded.
Although this is a very strong prohibition, there is
an
exception
to it
provided at 35
Ill.
Adm.
Code 302.102.
The exception provides that small portions ofthe waters ofIllinois may be used by
dischargers to effect mixing (commingling) ofeffluent with thewaters ofIllinois.
For these
waters where mixing is allowed, dischargers are exempt from the Section 304.105
prohibition
against causing or contributingto water quality violations; the exemption applies to all water
quality standards except acute
toxicity standards (see 35
Ill. Adm. Code 302.102(c)).
2
The Board notes that the water quality standard for sulfate has been raised to
1000 mg/I on
small stream segments
in Illinois pursuant to the adjusted standard process in
Section 28.1 ofthe
Act.
(See In theMatter of:
the Petition ofBorden Chemicals & Plastics Operating Limited
Partnership for an adjusted standard from
35
III. Adm.
Code 302.208.
AS 93-2, (November
18,
1993) and In theMatter of:
Petition ofRhone-Poulenc Basic Chemicals Company and Thorn
Creek Basin SanitaryDistrict for
an adjusted standard from 35
Ill.
Adm. Code
302.208 and
304.105, AS
94-7, (June 23,
1994).)
5
Although the ability to use portions ofthewaters ofIllinois to effect mixing of effluents is
a right under Illinois law, it is a limited right.
Foremostly, the right to allowed mixing may be
exercised only by dischargers who are already providing the best degree to treatment to their
effluent (see 35
III. Adm. Code 302.102(a) and 304.102 read together).
That is, allowed mixing is
never to be used as a substitute for technically feasible and economically reasonable treatment; or
put more colloquially, “in-stream dilution is not the solution to pollution”.
Additionally, the right to allowed mixing is
limited to only certain waters ofIllinois.
The
waters ofIllinois that are ~~gj
available for allowed mixing are spelled out at 35
III. Adm. Code
302.102(b) in a list of 12 limitations.
The philosophy behind this listwas summarized by the
Board at the time ofadoption ofthe list:
A principal provision ofsubsection (b) of
Section 302.102,
taken as a
whole,
is that the volume ofwaters used for allowed mixing must be as small as is
practical,
suchas to limit impact on aquatic life, human health, and recreation.
Further, it is incumbent upon any discharger desirous oftaking advantage ofthe
allowed mixing provision to assure that there is in place all reasonable engineering
structures and treatment methods as are necessary to reduce the volume ofwaters
needed for allowed mixing.
(In the Matter of: Amendments to Title 35,.
Subtitle C
(Toxics Control)R88-21, Docket A, January 25,
1990,
107 PCB 281.)
(HereinafterR88-2l.)
Mixing Zones
At
the time ofadoption ofthecurrent language regarding allowed mixing, it was
recognized that there would be times when it would be desirable or necessary to give formal
definition to that particular water ofIllinois
within which a particular discharger was exercising an
allowed mixing right.
Need for such formal definition might be necessary, for example, if there
was a question regarding the point where compliance monitoring is appropriate or whether one or
more ofthetwelve Section 302.102(b) limits was not being observed.
Such a formally defined
body ofwater within which mixing is allowed was named, in accord with prior practice, a “mixing
zone”.
In recognition that this formal mixing zone would be in effect an agreement between the
discharger and Illinois
as to where allowing mixing could be undertaken in compliance with all
regulations, the Board determined that mixing zone determinations are to be made as part ofthe
NPDES permitting process, and thereby subject to the range ofprocedures and safeguards
involved in the NPDES permitting process.
(See R88-21
at 107 PCB
285.)
FACTUAL BACKGROUND
ISP’s Joslin facility includes operations that butcher beefcarcasses into smaller units which
arepackaged for wholesale distribution.
(Tr. at
25.)
In addition, beefhides are tanned in a
process that involves a series ofdrums which hold the hides in the appropriate tanning solutions.
(Tr. at 139-140.)
The tannery operation contributes the most sulfate to the system.
(Tr. at 126-
6
127,
13 5-136.)
ISP
operates a wastewater treatment facility to process wastewaterfrom the
butchering and tanning operations, which discharges effluent to the Rock River.
(Tr. at
131-135.)
The wastewater treatment facility includes severalprocesses which treat for BOD
constituents, oil and grease, total suspended solids,
and fecal coliform matter.
(Tr. at 132-135; R.
at 176.) The facility’s wastewatertreatment system is not designed to treat for sulfate.
(Tr. at
136.)
The facilityhas automated samplers which pull specific size aliquots ofthe waste stream at
specific time intervals.
(Tr. at
94-95.)
The samples that are pulled are documented and follow a
chain ofcustody to the laboratory.
(Tr.
at
95,
102-103.)
The laboratory at ISP’s facility is an accredited facility which includes accreditationfor
sulfate analysis.
(Pet. Exh. at 7; Tr.
at 105-107.)
The laboratory follows a written analytical
procedure and runs several controls for confirming the analysis.
(Tr. at 97-104.)
The Agency had not previously set a sulfatelimit in any prior ISP NPDES permits.
(Tr.
at
22.)
Mr. Richard Pinneo, a permit reviewer forthe Agency testified that the sulfate discharge
levelsreported in the ISP permit application were ofconcernto him.
(Tr. at 146.)
He referred
the application to Mr. Bob Mosher, supervisor ofthe Agency’s standards unit, for farther review.
(Tr. at 30-34,
147.)
Mr. Mosher developed the sulfate effluent limits “based on water quality
criteria and the existing mixing zone procedures”.
(Tr. at 30,
147.)
The Agency followed procedures specified in the Agency document entitled,
“Illinois
PermittingGuidance for Mixing Zones”, to calculate a sulfate effluent limitfor ISP’s NPDES
permit.
(R.
at 108.)
The Agency’s first step was to determine the assimilative capacity ofthe
Rock River by performing a “mass balance” evaluation.
(Tr. at 4 1-42.)
The “mass balance”
evaluation is:
an equation that
allows us the
Agency
to determine the assimilative capacity of
the receiving stream with regard to the Board’s mixing zone regulationin reference
to a particular substance that discharger is discharging.
(Tr. at 41.)
As a result ofthis evaluation, the Agency determined that theRock River could assimilate an
effluent with a maximum sulfate concentration of 54,434
mg/I.
(Tr.
at 48; R. at 67.)
The Agency’s next step in determining the daily
maximum sulfate effluent permit limit was
to use the existing
effluent quality to limitthe effluent and establish the smallest possible mixing
zone.
(Tr. at
51.)
Agency employee, Mosher, testified that the process for establishing the
appropriate size fora mixing zone,
“keys on the highest bona fide value from the effluent”.
(Tr. at
156.)
After reviewing daily sulfate effluent discharge information supplied by ISP, Mr. Mosher
testified that he determined that the two highest values were outliers
and should not be considered
in establishing the effluent limits.
(Tr.
at 51-53, 60-61.)
ISP concedes that thehighest value of
2,377 mg/I was a result ofa mathematical error; however, ISP believes that the second highest
valueof 1,808 mg/I is an accurate reading.
(Tr. at 115; Pet. Br. at 4.)
According to the Agency,
7
Mr. Mosher used the third highest valueof 1,390 mg/i3
to set the daily maximum sulfate effluent
limit at 1,529 mg/i as a condition ofISP’s NPDES
permit.
(Tr.
at 75-76,
159-160; Pet. Br. at 4-
5.)
Mr.
Mother testified that he used Nalimov’stest to
determine that the effluent values he
rejected were statistical outliers.
(Tr. at 67,
76; Resp. Exh. at 4.)
Mr. Mosher described
Nalimov’s test as
“a statistical procedure to identify data points within a data set that are outliers
to that dataset.
In other words, they are so far away from the other numbers, that some suspicion
arises to various degrees ofwhy that number belongs in the data set”.
(Tr.
at 67.)
Mr. Mosher
stated that he assumed that the effluent numbers were the “result ofa routine operation ofa
treatment plant”.
(Tr. at 78.) Mr. Mosher farther testified that
a discharge reading which is
higher than 1,529
mg/I would be considered a permit violation ifthe
ISP NPDES
permit were
issued
with
a daily maximum sulfate effluent limit of
1,529
mgI.
(Tr.
at
79-80.)
Mr. Mosher also
usedNalimov’s evaluation to determine that the effluent discharge of 1,658 mg/I taken
by ISP
after August 26,
1993, was an outlier.
He fbrther testified that a sulfate discharge of 1,658
mg/i
would be a permit violation if the NPDES permit was in place with the daily sulfate maximum of
1,529 mg/I contained in thecontested permit condition,
(Tr.
at 66-67, 80.)
The Agency stated
that based on the daily maximum sulfate effluent values submitted by ISP for thetime period
November 1991 to August
1993 (177 samples), ISP would have only been in violation ofthe
1,529 mg/I daily maximum sulfate effluent limit in the contested NPDES permit on two
occasions.
(Ag.
Br. at 20.)
ARGUMENTS
ISP
first argues that theAgency has concluded that the daily maximum sulfate effluent
limit could be 54,434
mg/I in ISP’s permit and that the Agency’s imposition ofa limit that is only
3
ofthat
maximum
(1,529
mg/I) is arbitrary, unreasonable, manifestly unfair, and unnecessary.
(Pet. Br.
at 3,
17.)
ISP maintains that mixing
should be used to set thepermit limit and that this
caserevolves around the application ofthe Board’s mixing rules.
(Pet. Br.
at 12.)
Specifically,
~
The Board’s reviewofthe record shows that the Agency originally calculated theNPDES
permit sulfate limits based on
152 daily maximum sulfate effluent values submitted by
JEW for the
time period November 1991 through August 1993.
(Ag. Br.
at 7-8.)
The highest recorded
sulfate value of2,377 mg/i was in this original data set.
During Agency discussionswith ISP,
several more sulfate data points recorded prior to issuance ofthe August 26,
1993, NPDES
permit were considered by the Agency (Tr. at 60) which brought the number ofdatapoints to a
total of177.
The next highest value of 1808
mg/I was in this data set.
When the sulfatevalues up
through
April
1994
were allowed into the record by the Board (see previous discussion under
Preliminary Matters) the total number of sulfate values in this record is 295.
The third highest
sulfate value of 1638 mg/I was recorded afterthe permit issuance date ofAugust 26,
1993.
Readers of this record
and the Board’s opinion need to keep in mindthat Agency testimony about
ranking
of sulfate values does not
recognize sulfate values recorded after August 26,
1993, which
includes thethird
highest recorded sulfate value of 1638 mg/i.
8
the disputes centers on the interpretation ofthe limitation that the
“area and volume in which
mixing occurs must be as small asis practicable under the limitations prescribed in this
subsection”.
(35 Ill. Adm. Code 302.102(b)(12).)
ISP maintains that Agency employee Mr.
Mosher and theAgency interpret Section 302. 102(b)(12) to mean “as small as possible” and as a
result used the existing effluent quality to determine the maximum daily effluent limitfor sulfate.
(Pet. Br. at
13; Tr.
at
51.)
ISP argues it is in “the unfair position ofbeing charged with violations
ofpermit limits for dischargesthat represent its existing effluent quality” because ofthe rigid
statistical approach utilized by the Agency in determiningexisting
effluent quality.
(Pet. Br. at 13;
Pet, Exh.
at 19
and 20.)
ISP maintains that the 1,808 mg/l
effluent reading Mr. Mosher disregarded as an outlier
should have been used to establish the daily maximum sulfateeffluent limitbecause the test results
are accurate and the Agency has no reason to question the accuracy ofthat sample value.
(Pet.
Br. at 6.)
ISP states that the sampling procedures are automated and thedocumented samples
follow a chain ofcustody which ensures the integrity ofthe sample.
(Pet. Br.
at 6.)
ISP operates
an accredited laboratory at the Joslin plant in which chemists follow a written procedure for
sulfate.
(Pet, Br.
at 6.)
ISP states, with regard to the
1,808
mg/i sample value:
“the chain of
custody for that sample contains no indication that
anything unusual occurred during the sampling
process (Pet. Exh. at
5,
Tr. at
104).
.
.
.
The percent recoveryfor that sample was within
acceptable limits and the blank analysis shows minimal residue (Tr.
at 109)..
.
.
ISP found no
evidence ofa spill (Tr.
at 141).”
(Pet. Br. at 7.)
ISP argues, citing to ESGWatts. Inc. v.
IEPA (PCB
92-54),
that
permit applications must
be judged in terms ofthe fUture impact ofthe permit conditions.
(Pet. Br. at
14.)
ISP maintains
that it cannot be “practicable” to set dischargelimits lower than sulfate readings that have already
occurred and are likely to occur again.
(Id.)
Further, ISP asserts that limits which are above the
daily maximum sulfate effluent limit of
1,529
mg/I would be a violationofthe permit condition.
(Id)
ISP also argues that the Agency has incorrectly analyzed theBoard’s regulations and
therefore theBoard should remove the condition based on Testor Corp.
v. IEPA (PCB 88-191).
(Pet. Br. at
14-15.)
Finally, ISP argues that the Board’s opinion in Fred E. Jurcak v. IEPA (PCB 88-137)
should be used in this case.
(Pet. Br. at
15.)
ISP states that the Board allowed the petitioner to
use his own treatment system because the “Clean Water Act required areawide plans only to the
extent practicable”.
(Pet. Br.
at
15.)
ISP maintains that “~the Board refUsed to translate a
requirement for practicability into rigid permit limitthat would prevent the permittee from
operating its own system”.
(Pet. Br,
at
15.)
The Agency argues that
in order for ISP to prevail, ISP must establish that
“no violation
ofthe Act or regulations would occur if the Agency used the highest extremes ofdaily maximum
effluent values for sulfate, as provided by
ISP’s NPDES permit renewal application”.
(Ag. Br.
at
11.)
The Agency argues that ISP
“did not sustain theirburden and prove” that a higher permit
limit “could reliably be set based on the daily maximum value of 1,808
mg/I”.
(Ag. Br, at
17.)
The Agency maintains that Mr. Mosher properly considered the sulfate effluent value of1,808
9
mg/i an outlier “based on thevalues around it, 569 mg/I and
538
mg/I”.
(Ag. Br.
at
15.)
The
Agency states that Mr. Mosher considered the daily maximum sulfate effluent fluctuations from
538 mg/i to
1,808 mg/I extreme fluctuations for which ISP offered no explanation.
Thus,
according to the Agency the sulfate effluent value of 1,808
mg/i is an outlier and should not be
considered in determining the maximum daily sulfate effluent dischargelevel.
The Agency discounts ISP’s assertion that Mr. Mosher and the Agency interpret
“practicable” as “possible”.
(Ag. Br. at 17.)
The Agency states that Mr. Mosher merely
interchanged thetwo words and Mr. Mosher in fact explained in great detail how he utilized the
Agency’s mixing
zone
guidance document to determine the size ofthe mixing zone,
(Ag. Br.
at
18.)
The Agency goes on to state:
“The Agency believes the guidance document provides set
factors to be consistently examined when determining a mixing zone for any applicant.
The Board
should disregard this attempt
to discredit the Agency’s process ofaccurately
determining
mixing
zones when no evidence offallibility has been offered.”
(Ag. Br. at
18.)
The Agency also challenges mFs reliance on Jurcak stating that the decision in that
case
did not turn on thedefinition ofthe term “practicable”.
(Ag. Br.
at 18.)
The Agency maintains
that the Board determined that the condition at issue in Jurcak was “not necessary to achieve
compliance with theAct or regulations and it was actually a condition ofconvenience”.
(Ag. Br.
at
19.)
Thus, Jurcak is not applicable in this case according to the Agency.
(Id.)
Finally, the Agency maintains that the definition of “practicable” offered by ISP does not
alter the Agency’s decision on the maximum daily sulfate effluent limit.
(Ag. Br. at 19.)
The
Agency maintains that the mixing zone allowed by the daily maximum sulfate effluent limit of
1,529 mg/i is practicable.
The Agency concedes that limits over 1,529 mg/i would be a violation.
However, based on
177 sulfate samples from November 1991 to August 1993, “ISP would have
only vioiated the 1,529
mg/i daily maximum limit for sulfate twice”.
(Ag. Br.
at 20.)
DISCUSSION
The Board first notes that the language in the Agency’s denial letterand the hearing
testimony ofAgency employee, Mr. Mosher, gives the impression that the concepts ofallowed
mixing
and mixing zones have been amalgamated in this case.
The Board Opinion in R88-21
(see
pages 13-23,
108 PCB 294-304) clearly delineatesthese two concepts.
The
Illinois Supreme
Court also understands the allowed mixing and mixing zone concepts (see Granite City Division
ofNational Steel Comnanv et al v.
The Illinois Pollution Control Board,
155
IlI.2d 149,
613
N.E.2d 719, 730-734,
184 Ill.Dec. 402 (1993)).
An example ofthe Agency’s mischaracterization
is seen in the Agency denial letter statement that
a
mixing
zone for sulfate has been granted in
this
case.
However, theBoard can find no evidence in the recordthat a mixing zone has been
delineated.
The Board’s regulations describe a mixing zone as a three-dimensional construct in a
body ofwater, subject to the twelve limitations ofSection 302.102.
The record only shows that
10
theAgency has recognized allowed mixing
in this case4, and has used theinternal Agency mixing
zone guidance document to calculate an effluent concentration limit for sulfate.
The Agency is
using the sulfate effluent concentration limit in the NPDES permit as an Agency
-
derived
surrogate instead ofdesignating a mixing zone.
As previously stated the burden ofproofin this permit appeal is on ISP to demonstrate
that thepermit, issued without the contested condition, will not violate the Act or theBoard’s
regulations.
The sole issue left for theBoard
in this case is whether the daily
maximum sulfate
effluent level set by the Agency is required to
insure compliance with the Board’s regulation that a
mixing zone be as small aspracticable.
To establish the daily maximumsulfate limit, theAgency
used the procedures outlined in the internal Agency mixing zone guidance document.
The
Agency’s procedures used the sulfate values provided by ISP and performed a statistical analysis
which indicated that some recorded discharge levels were outliers.
The Agency believes that
those outliers are numbers which do not reflect the actual sulfate levels in IBP’s discharge, and the
Agency then disregarded those outliers whencalculating ISP’s sulfate limit.
However, ISP
testified that no upset in normal operations occurred on thedays that the larger dischargeswere
reported.
ISP also established that there was no recognizable error in laboratory analysis in
arriving at the recorded sulfate discharge levels.
Therefore, ISP believes that the highest recorded
sulfate value of 1,808
mg/I, which was disregarded by the Agency as an outlier, should have been
used to establish the daily
maximum sulfate effluent valuein ISP’s NPDES permit.
The Board agrees with ISP that the daily maximum sulfate effluent value of 1808 mg/I
should be used to set the NPDES permit limit.
The Agency’s statistical analysis may in fact
support theproposition that
1808 mg/I may not represent the actual sulfatevalue in the effluent;
however, ISP has provided sufficient information to establish that the readings did occur in the
regular operation ofits facility and with appropriate analytical testing at the facility.
Thereis no
evidence ofan upset in the facility’s operations or error in the calculations which would explain
the higher recorded discharge levels.
ISP has established that ISP’s laboratory is certified and
runs appropriate procedures to validate the laboratory’s analytical procedures.
ISP presented
sufficient testimony that the readingof 1,808 mg/I occurred in the normal course ofbusiness.
Thus, theBoard finds that ISP has established that a daily maximum sulfate effluent discharge
concentration as high as
1,808 mg/I reflects the normal operations ofISP’s facility and appropriate
analytical testing procedures.
Having determinedthat a higher discharge level has been recorded during normal plant
operations and appropriate analytical procedures, the Board must now determine if ISP has
established that using that higher discharge level to set a maximum daily sulfate effluent limit will
violatethe Act or the Board’s regulations.
Specifically, willthe mixing zone be “as small as
practicable”?
“Practicable” is defined by the
AmericanHeritage
Dictionary
as “1.
Capable of
being effected, done, or executed; feasible.
2.
Capable ofbeing used for a specific purpose.”
~‘
“The opportunity to use allowed mixing does not, in the first instance, involve the Agency or its
discretion at all.”
(Granite City Division ofNational
Steel
Company,
155 Ill.2d
149, 613 N.E.2d
719,
732,
184 lll.Dec. 402 (1993).)
11
First,
theBoard again must qualif~j
this discussion by noting that the Agency has not established a
mixing zone in this case.
The Agency has instead apparently derived an effluent concentration
limitas a surrogate for a mixing zone.
The record in this case contains 295
daily maximum sulfate
effluent values for ISP’s facility for the time period November 1991
to April 1994.
Ifthe effluent
limit of 1,529 mg/i established by theAgency in ISP’s NPDES permit had been in effect, ISP
would have violated that permit condition twice in that time period.
Therefore, the
1,529 mg/i
daily maximum sulfate effluent limit is not
“capable ofbeing effected, done or executed”, since
that level would have been exceeded twice, and ISP would be subject to enforcement for those
exceedences as violations ofa permit condition pursuant to the Act and Board regulations.
Such
violations could result in penalties ofup to ten thousand dollars per occurrence.
(See Section 42
ofthe Act.)
Based on past operations it is not unreasonable to assume exceedences ofthe
1,529
mg/I daily maximum sulfate effluent limit could occur.5
Therefore, the Board finds that a daily
maximum sulfate effluent limit of 1,529 mg/I would result in an Agency
-
derived surrogate
mixing zone that
is smaller than practicable.
Accordingly, the Board will remandthis case to the
Agency with instructions to issue ISP’s NPDES permit with a daily maximum sulfate effluent limit
based on the 1,808 mg/i sulfate value recorded by
JBP.’
CONCLUSION
The Board finds that ISP has met its burden ofproofin this permit appeal by establishing
that a daily maximum sulfate discharge level as high as
1,808 mg/I reflects the normal operations
ofISP’s facility and appropriate analytical testing procedures.
The Board finds that
a daily
maximum sulfate effluent limit of 1,529 mg/I would result in an Agency
-
derived surrogate
mixing zone that is smaller than practicable.
Therefore, the Board will remand this case to the
Agency with instructions to issue ISP’s NPDES permit with a daily
maximum sulfate effluent limit
based on the 1,808 mg/i sulfate value recorded by ISP.
ORDER
The Board hereby remands this case to the Agency with instructions to issue ISP’s
NPDES permit with a daily maximum sulfate effluent limit based on the 1,808 mg/I sulfatevalue
recorded by ISP.
~
Even restricting the review to the 177 sulfate values recordedin theNovember
1991 to
August 1993
time period before the NPDES permit was issued on August 26,
1993, the
1,529
mg/I limit would have been violated once.
6
The Board notes that this Board decision will not change the 30-day average sulfate effluent
limit in ISP’s NPDES permit, which was revised upward at hearing from 1067
mg/i to 1,164
mg/i.
(Tr.at5.)
12
IT IS SO ORDERED.
Board Member Joseph Yi concurs.
Chairman Claire A. Manning and Board Member Marili McFawn dissent.
Section 41 ofthe EnvironmentalProtection Act (Ill. Rev.
Stat.
1991,
ch.
1111/2, par.
1041) provides for the appeal offinal Board orders within 35 days.
The Rules ofthe Supreme
Court ofIllinois establish filing requirements.
I, Dorothy M. Gunn, Clerk ofthe Illinois Pollution Contg~l
Board, hereby certify that the
above opinion and order was adopted on the/~
day of
~4-tc~~
~,
1996,
by
a vote of
5c?
Dorothy M79unn, Clerk
Illinois Poll.tItion Control Board
