ILLINOIS POLLUTION CONTROL BOARD

Tlarch

20,

1980

ARMAK COMPANY,

Petitioner,

v.

)

PCB 79—153

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY,

)

Respondent.

DISSENTING OPINION

(by Board Member Goodman):

A majority of the Board today found that a “ditch” was

a natural drainage way notwithstanding the fact that it

was

originally

constructed by

a farmer

to carry

away the discharge

of

a tiled agricultural field and must be periodically maintained

by redigging and removing vegetation.

The result of this

finding

is that the discharge from the field drainage tile to the “ditch”

must:

he treated by

Arrnak.

The irony of this situation

is that

since the “ditch” transports the field tile discharge and

little else,

it falls into a category of effluent limitations

designed for streams with less than

a one—to—one ratio of

flow

to discharge.

Thus,

the fact that the ditch carries

only effluent results

in limitations which are unduly

restrictive.

The Board in the

~r1St

has

recognized

the need for a

designation

of “industrial effluent ditch”,

first introduced

in Pllied Chemical Corporation

v.

EPA,

PCB 73—382,

11 PCB 379,

February

28,

1973.

1 prefer to call such

a ditch a conduit

which results

in its being a sewer according

to the definition

of

sewer contained

in Rule 104 of Chapter

3:

Water Pollution

Cont:rol Rules and Regulations.

“Sewer”

is defined as a pipe

or

conduit:

for carrying either waste water or

land runoff or

both.

It seems

to me that an artificial conduit

or ditch

constructed and maintained

for the purpose of carrying away

waste

from a tiled agricultural

field along with the possible

addition of a small amount of land runoff

fits this definition

precisely.

If

it

is indeed a sewer under the definition

of

Rule

104,

then

it is not a water of

the State and the entire

premise of the majority

of the Board

in this case fails.

The Board states in its Opinion that

“Arrnak has offered

no evidence as to whether aquatic

life exists

in the ditch.

The burden of

proof

is on Armak under Procedural Rule 502(b)

(8).

The Board therefore presumes that aquatic life worthy

of protection naturally exists

in the ditch.”

As

I read the

---

—2—

evidcnce presented

in this case,

the only thing running

in

this

conduit

is

the effluent

from the field and some

occasional runoff when it rains.

I fail

to see what other

evidence Arrnak must present in order

for the Board to

determine that

aquatic

life could not reasonable exist in

the ditch.

I do not agree that the Board can presume that

aquatic

life worthy of protection naturally exists

in this

conduit.

I would have found that the ditch in question was

indeed a conduit: as defined in Rule 104 of Chapter

3 and

that Armak was therefore responsible for effluent

limitations assigned

to the discharge of this conduit

to

Aux Sable Creek.

I must

therefore respectfully dissent.

I,

Christan L. Moffett,

Clerk of the Illinois Pollution

Control Board, hereby certify that the above Dissenting Opinion

was submitted on the

________

day of

_________________,

1980.

(~i

~i!

I

Christan L. Moffett,

Clerk of the Boafd