ILLINOIS

POLLUTION

CONTROL

BOARD

May

1980

C AT

~ I’

L LA R

‘F RACT OR

Ci)

Pet

L

onut,

)

 PCB 80—3

tLLINO

IS

ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent.

ORDCR

 OF THE BOARD

(by

Mr.

 Goodman):

Petitioner’s March

24,

 1980 Supplemental Motion to Stay

Permit Conditions,

 filed pursuant to the Board’s Order of

February

7,

 1980,

 enables decision on its January

 23, 1980 motion

for

stay

 of certain permit conditions pending appeal of those

COnd

i tions.

Put: i

ioner

rg

nus

t:hi

t:

the

~o~~rd

must:

qrrmnt:

stay

cur tam

cont:ested NPFM~3 permi L conditions

 t:o avoid

deprlving

 it of pro-

cedural

due

 process of

 law.

It

 states that the USEPA

 is presently

required

 to grant

 stays when an NPDES permit

 is contested.

 However,

the State of Illinois has at least as much interest in waters of

this

 state as does

the

 federal

 government; potential harm to

waters

of

 this state must be considered before granting stays

of contested provisions

 of any permit.

Petitioner

 further states that there would he no environ-

mental harm occasioned by granting these stays because the

Agency had never imposed these exact conditions on any other

permittee.

 However,

 this

 argument

 is not controlling on the

issue of actual environmental harm,

 for conditions are presumed

imposed by the Agency under the circumstances relating specifi-

cally to a permittee’s situation and as they are deemed necessary

under the Illinois Environmental Protection Act.

The Agency’s February

4,

 1980 Objection to Petitioner’s

motion for stay does not precisely address the facts relevant

to its decision to impose the contested provisions.

 The Board,

therefore,

 will stay only those provisions which are both newly

imposed on the permittee and imposed by the exercise of the

Agency ‘s discretion.

—2--

Attachment

J3

 (Mass Effluent Limitations).

 Petitioner argues

that these conditions are new because, although contained

 in an

October,

 1977 USEPA NPDES permit,

 Petitioner’s appeal

 to USEPA

for a hearing regarding them negates considering them to be

included in that permit at this time.

 Even if such argument were

acceptable,

 it is true that Petitioner has been on notice since

1977 that

 it may be required to meet pollutant limitations

e~pressed

 in terms of concentrations or other types of

 levels

than mass levels.

 Nevertheless, all the mass limitations imposed

are new ones, with the exception of the 30—day oils,

 fats and

greases averages

 of 225

 lbs./day, because the numerical

limitations are not the same ones found in the prior permit.

Stay of

 the 30—day oils,

 fats and greases averages

 is denied.

(Petitioner’s argument that the other averages were calculated

without reference to hydraulic capacity of

 2.62 MGD or to

concentration limits specified in Chapter

 3 does not indicate by

itself

 that the resulting numerical

 limitations were new ones).

Petitioner pleads that imposition of the remaining

limitations was discretionary with the Agency.

 For purposes of

motions

 to stay NPDES permit conditions pending appeal,

 the term,

“discretionary” means the allowance of pollution

 in excess of

the

regulations

if,

 in the Agency’s view,

 such allowance is required

 to accomplish the purposes of the Act.

 (See Act,

 §39(b)).

The

limitations on chromium (tn)

 and iron

 (total)

 are exactly those

found

 in Rule

 408;

 therefore,

 no discretion appears

 to have been

exercised by the Agency

 (no matter what hydraulic capacity figure

it may have referred to).

 For this reason,

 no compelling reason

exists

 to allow stay of these two limitations.

 Stay,

 therefore,

is denied.

The chromium

 (hex),

 T3OD

 and TSS limitations, however,

are

not set out

 in Rule 404 and ãan therefore be deemed

discretionary.

 Stay of

 these three

 limitations

 is granted pending

appeal of

 the permit.

Attachment

B,

 Paragraph

6.

 This paragraph concerns

procedural requirements on reapplication for the permit presently

on appeal.

 Stay

 of these requirements

 is denied as unripe.

Noninclusion

 of Portions

of

Part

II.A.1.

 of Prior Permit.

This condition would have made new, different and increased

discharges due to daily or seasonal variations

 in production or

scheduling

 a violation of the permit if unauthorized.

Noninclusiori is arguably

 new.

 The noninclusion was an exercise

 of the Agency’s discretion

 inasmuch as no regulation requires the

noninclusion.

 The objected—to provision of Paragraph

 1 of

Attachment H

 is therefore stayed pending appeal

of

 the permit.

Attachment

H,

 Paragraph 13.

 This paragraph imposes require-

ments of Petitioner not provided for under the prior permit.

In

addition

 to being new permit conditions,

 they are discretionary

—3—

condi

tions

inasmuch

regulation

requires

them.

The

conditions

imposed

in

this

paragraph

are,

therefore,

stayed

pending

appeal

 of the permit..

Noninclusion

 of Part III.C.2. of Prior Permit.

 These

conditions would have allowed discharge of pollutants not

specified

 in the permit at issue

 in concentrations of up to those

specified in Board regulations and up

 to those specified in

USEPA—promulgated

 33 U.S.C.

 §1251,

et

 (Clean Water Act,

§307)

 toxics regulations.

 Noninclusion

 is arguably new.

However,

 Paragraph

 11 of Attachment H to the permit covers §307

discharges.

As

 to discharges

 of unspecified pollutants in

concentrations not to exceed Board regulations,

 a question of the

interpretation of §12(f)

 of the Act by the Agency is involved.

A

stay will be issued allowing permittee,

 pending appeal,

to

discharge unspecified pollutants now unregulated under §307 in

concentrations

up

 to those

 in applicable Board regulations.

ORDER

The following provisions

 of Petitioner’s NPDES

 Permit No.

IL

 0001732 are stayed pending

 this permit appeal:

1.

 Chromium

 (hex),

 BOD5,

 and TSS limitations

 of Attach-

ment B;

2.

 The provisions

 of Paragraph

 1 of Attachment H which

exclude portions of Part II.A.1.

 of Petitioner’s

prior permit;

3.

 The provisions

 of Paragraph

 13 of

 Attachment H which

were not included in Petitioner’s prior permit;

and

4.

 Limitations regarding pollutants now unregulated

under

 §307 of the Clean Water

 Act,

 33 U.S.C.

 §1251,

et

 and not regulated pursuant

 to Paragraph 11

of Attachment H.

ORDERED.

I,

 Christan L.

 Moffett,

Clerk

of

 the Illinois Pollution

Control Board,

 hereby certify that the above Order was adopted on

the

 day of

 1980 by a vote

of

cAstan4~io’~á~e

Illinois

Pollution

Control

Board