ILLINOIS POLLUTION CONTROL BOARD
July 22,
1993
IN THE MATTER OF:
)
)
PETITION OF THE ILLINOIS-AMERICAN
)
WATER COMPANY FOR AN ADJUSTED
)
AS 91-12
STANDARD FROM 35 ILL. ADM. CODE 304.124
)
(Adjusted Standard)
(IRON
AND
TSS ONLY) FOR THE WATER
)
COMPANY’S CAIRO PUBLIC WATER
)
SUPPLY FACILITY
)
ORDER OF THE BOARD
(by R.C. Flemal):
On June
1,
1993 Illinois-American Water Company (Water
Company)
filed an amended petition in this matter.
The amended
petition was accompanied by
a motion wherein the Water Company
seeks summary judgment on three matters of dispute between it and
the Illinois Environmental Protection Agency
(Agency)’.
On June 22,
1992 the Agency countered with a motion to
dismiss,
in which
it contends that the natural consequence of a
ruling of summary judgment in its favor is dismissal of this
proceeding.
The Agency also filed
a reply to the motion for partial
summary judgment on July
1,
1993 and a motion to file attachment
#1 to its reply on July
2,
19932.
Only the first of the three matters of dispute will be
addçessed today.
That matter is whether the Water Company has
failed to state a claim upon which an adjusted standard can be
granted in that the Water Company does not discharge ~directly”
to the Ohio River.
The remaining two matters3 are either not
sufficiently developed or appropriate for summary judgment and
their consideration for summary judgment
is hereby denied.
1
The Agency stands as a party in this matter pursuant to
the adjusted standards procedures of the Environmental Protection
Act
(Act)
at 415 ILCS 5/28.1, 28.3.
2
The Board grants the unopposed motion to file attachment
#1 to the Agency’s reply.
~ These are whether the Water Company has failed to state a
claim upon which an adjusted standard can be granted in that the
Water Company is seeking
(1) purely contingent or prospective
relief and
(2)
relief based solely on economic considerations.
2
BACKGROUND
This proceeding was initiated under Section 28.3 of the Act.
Section 28.3 provides for a special adjusted standards procedure
applicable to the discharge of residues from certain water
purification processes.
The portion of Section 28.3 pertinent to the issues now
before the Board is found at Section 28.3(a):
Utilizing the provisions of Section 28.1 and this
Section, alternative requirements may be established by
the Board in an adjusted standards proceeding for the
direct discharcze of waste solids to the Mississippi or
Ohio Rivers from clarifier sludge and filter backwash
generated in the water purification process.
Any
public water supply utilizing the Mississippi or Ohio
Rivers as its raw water source may initiate such a
proceeding provided that its waste solids are generated
as described herein and it does not utilize lime
softening in the purification process.
emphasis
added
It is undisputed that the Water Company meets all of the
qualifying requirements set forth at Section 28.3(a)
except for
whether the Water Company’s discharge is
a “direct discharge”.
The matter
is confounded by the fact that the Water
Company’s discharge is associated with the operations of a second
discharger, the City of Cairo’s publicly owned treatment works
(Cairo POTW).
The Water Company observes that it “currently
discharges its public water supply treatment residual solids to
the Cairo
POTW
discharge line connected to the public water
supply plant”
(Amended Petition at ¶3).
Nevertheless, the Water
Company also observes that its “discharges are being bypassed
directly to the Ohio River without treatment”
(Amended Petition
at ¶8).
On this basis the Water Company contends that it is a
direct discharger.
The Water Company raises other arguments in support of its
“directed discharge” contention,
among which is the allegation
that the Agency has taken
a contrary position in an other pending
Section 28.3 petition.
The Board finds none of these arguments
relevant.
The Agency contends that because the Water Company
discharges “to the Cairo POTW’s sewer line”
(Agency Reply at p.
2)
the discharge is an “indirect’ rather than direct discharge.
The Agency further observes:
The Agency classifies the Water Company’s discharge as
an indirect discharge,
rather than being a direct
discharger as referred to in Section 28.3 of the Act.
3
Pursuant to the Clean Water Act
(“CWA”) an indirect
discharger is defined as “a non—domestic discharger
introducing ‘pollutants’ to a publicly owned treatment
works.”
(40 C.F.R.
122.2).
The Act does not define
indirect discharge, but 35
Ill. Adm. Code 310.110
defines it as “the introduction of pollutants into a
POTW from any non—domestic source regulated under
Section 307(b),
(C)
or
(d)
of the CWA
(33 U.S.C.
1317 (b),
(c) or
(d))”.
The Water Company is a non-
domestic source which is or would be regulated under
Section 307
of the CWA discharging to a POTW and
therefore should be defined as an indirect discharger.
(Agency Motion at ¶4.)
CONCLUSION
The Water Company’s motion for partial summary judgment
is
hereby denied.
There are too many unclear issues regarding the
relationship between the Water Company’s discharge and the Cairo
POTW for this Board to here find favor with the Water Company’s
contention that any or even
a part of its discharges are “direct”
in the sense of Section 28.3.
The Board assumes that the Water
Company and the Agency will fully expound upon this relationship,
including detailed physical layout of all relevant structures and
all legal consequences,
at the hearing or via written pleading.
The Agency’s motion to dismiss because the Water Company’s
discharge is not direct in the sense of Section 28.3
is also
denied.
The Water Company is clearly an “indirect discharger” as
envisioned under the pretreatment provisions of the Clean Water
Act and the pretreatment provisions of the Board’s water
pollution regulations.
What is not clear as yet
is whether the
Water Company’s asserted direct discharge falls within the
provisions of Section 28.3.
Lastly, the Board notes that the Agency also moves dismissal
of this proceeding on the basis that the Water Company’s petition
is deficient with respect to 35 Ill.
Adm. Code 106.705.
(See
Agency Motion at ¶9.)
Section 106.705 is that portion of the
Board’s procedural regulations that specifies the necessary
contents of a petition for an adjusted standard.
The Board finds
that the Agency’s pleading is deficient in that it fails to
specify how the Water Company petition fails to comply with
Section 106.705.
The Agency’s motion to dismiss on this basis
is
likewise denied.
4
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above order was adopted on the
~
day of
I
,
1993, by a vote of
7
C
/
I
~
,
~
-
Dorothy N.
Gu,nii, Clerk
Illinois Pol’lution Control Board