ILLINOIS POLLUTION CONTROL BOARD
    April 23,
    1992
    IBP,
    INC.,
    )
    Petitioner,
    )
    v.
    )
    PCB 88—98
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    RICHARD A. JOCHUM, APPEARED ON BEHALF OF PETITIONER;
    BOBELLA
    GLATZ,
    APPEARED
    ON
    BEHALF
    OF RESPONDENT.
    OPINION
    & ORDER OF THE
    BOARD
    (by B. Forcade):
    This matter comes before the Board on remand from the
    Illinois Appellate Court. IBP Inc.
    v. Illinois Pollution Control
    Board
    (1990),
    204 Ill.
    App.
    3d 797,
    563 N.E.2d 72.
    In its
    opinion, modified November 30,
    1990,
    the third district appellate
    court reversed and remanded the Board’s order of September 3,
    1989,
    which affirmed the conditions of the permit as issued by
    the Agency.
    The appellate court held that the Board should have
    considered the stipulation of facts submitted by the parties at
    the July 18,
    1989 hearing,
    in reviewing the permit conditions.
    The court further instructed the Board to hold a de novo hearing
    on the issue of whether the conditions of the final permit issued
    to IBP on May 5,
    1988, are necessary to accomplish the purpose of
    the Environmental Protection Act (Act).
    In its order of February 27,
    1991, the Board instructed the
    parties to conduct a hearing limited to the stipulation.
    This
    hearing was to be completed by August 2,
    1991.
    On September 25,
    1991,
    the parties filed a joint motion for continuance.
    The
    parties sought a continuance due to ongoing negotiations between
    IBP, USEPA and the Agency involving among other things, the
    conditions of the NPDES permit.
    IBP, IEPA and USEPA have
    primarily resolved the NPDES permit issues but the settlement has
    not been finalized and no timetable for completion has been
    presented to the Board.
    On September 26,
    1991, the Board denied
    the parties motion for continuance and ordered the parties to
    proceed with a hearing to be completed by November 15,
    1991,
    or
    the matter would be subject to dismissal for want of prosecution.
    A hearing was held on November 6,
    1991, in Rock Island,
    Illinois.
    At hearing,
    IBP argued that the stipulation and the
    draft permit demonstrate that the conditions of the NPDES permit
    were more stringent than necessary to meet state and federal
    requirements.
    IBP seeks an order from the Board instructing the
    133—115

    2
    Agency to issue a new permit with conditions consistent with the
    agreement reached between the parties.
    (Tr. at 3.)
    At hearing, the Agency did not present any witnesses or
    tender any evidence.
    Despite previous denials, the Agency simply
    repeated its request that the Board take no action until the
    negotiations between the parties on the federal level have been
    completed.
    (Tr. at 11.)
    Petitioner filed a post hearing brief on
    December 6,
    1991.
    The Agency did not file a post hearing brief.
    In short, the Agency failed to present any case whatsoever.
    IBP initially sought review of the chlorine residual limit,
    the ammonia nitrogen load limit and the imposition of a special
    condition that required IBP to conduct mixing zones study of the
    receiving stream to assess compliance with water quality
    standards.
    IBP contends that the only issue remaining before the
    Board is the imposition of a discharge load limit for ammonia
    nitrogen of 2700 lbs/day.
    (Pet. Brief 2.)
    IBP has the burden of
    proving by a preponderance of the evidence that no violation of
    the Act would occur if the permit was issued without the
    conditions imposed by the Agency.
    (Ill. Rev.
    Stat.
    1991,
    ch.
    111—1/2, par.
    39(a)).
    IBP argues that the Agency by the stipulation and by issuing
    subsequent draft permits to IBP with less stringent levels of
    ammonia nitrogen demonstrates that the ammonia nitrogen discharge
    condition of IBP’s permit is more stringent than necessary to
    satisfy the requirements of the Act.
    In the stipulation, the
    Agency acknowledges that less stringent conditions may be imposed
    upon IBP which in all respects, complies with Federal and State
    water pollution standards.
    Paragraph 6 of the stipulation reads
    as follows:
    The draft permit contains effluent limits based upon
    federal categorical standards as well as Illinois Water
    Quality Standards and in all respects is at least as
    stringent as required by 35 Illinois Administrative
    Code Section 309 for the combined meat processing and
    tanning facility.
    The permit issued to IBP on May 5,
    1988, contained a year-
    round ammonia nitrogen effluent limit of 2700 lbs/day.
    The
    modified settlement draft permits of December of 1988 and August
    of 1990 contained the following limitation on ammonia nitrogen:
    The combined effluent from Outfalls 001 and 002 shall not
    exceed the following daily maximum load limits for ammonia
    nitrogen:
    A.
    When daily river flow is less than or equal to 1306
    cfs, the load limit shall be 2340 lbs/day.
    133—116

    3
    B.
    When daily river flow
    (QR)
    is greater than 1306 Cf
    5
    but
    less than 1906 cfs, the load limit shall be computed as
    follows:
    NH3
    N (lbs/day)
    =
    2340
    +
    1.79 (Q~
    1306)
    Where QR
    =
    daily flow of Rock River in cfs.
    C.
    When daily river flow
    (QR)
    is greater than or equal to
    1906 cfs, the load limit shall be 3414 lbs/day.
    (Ex.
    1 at 10)
    The Agency has raised no objections to the stipulation or
    the permit conditions of the draft permit.
    The Agency presented
    no argument to discredit IBP’s interpretation of the stipulation
    and subsequent draft permit conditions.
    The Agency appeared at
    the hearing but failed to present any evidence.
    At the hearing,
    the Agency chose to readdress the prior motions for continuance
    which the Board had previously denied.
    The Agency’s failure to
    proceed to hearing as instructed by the Board, results in a
    default finding pursuant to Section 103.220 of the Board’s
    procedural rules.
    Section 103.220 reads:
    Failure of a party to appear on the date set for
    hearing or failure to proceed as ordered by the Board
    shall constitute a default.
    The Board shall thereafter
    enter such order as appropriate, as limited by the
    pleadings and based upon the evidence introduced at
    hearing.
    (See also Brian 3. Peter v. Geneva Meat and Fish Market,
    et.al.
    (March 22,
    1990),
    PCB 89—151,
    109 PCB 531.)
    The only evidence before the Board concerning the
    stipulation is the evidence presented at hearing by IBP.
    Because
    the Agency did not present any adverse evidence, IBP has
    satisfied its burden of proof by a preponderance of the evidence.
    The stipulation of facts between the Agency and IBP shows that
    the Act will not be violated if the permit is issued with the
    conditions imposed by the draft permit.
    Therefore, the requested
    modifications to the permit will issue by default.
    The Board notes the Agency’s assertion that if the Board
    orders the Agency to issue a new permit, the USEPA may not
    consider the permit valid and may assume authority to issue IBP’s
    NPDES permit.
    (Tr.
    11.)
    The Board is acting in direct response
    to an Illinois Appellate Court mandate issued to the Board in
    September of 1990.
    The Agency’s failure to follow Board orders
    and proceed to hearing has unduly prolonged disposition of this
    matter.
    Many of the unresolved issues between the USEPA and IBP
    are unrelated to this permit and outside the jurisdiction of the
    133—117

    4
    Board.
    The Board notes that the initial permit was issued in May
    of 1988 and will expire in January of 1993.
    As a result of the
    delays in proceeding on the review of this permit,
    a final permit
    pursuant to the Court Order has not been issued to IBP.
    This opinion constitutes the Board’s findings of facts and
    conclusions of law in this matter.
    ORDER
    This matter is remanded to the Agency with directions to
    reissue IBP’s NPDES permit, modifying the effluent discharge
    limit for ammonia nitrogen as per the stipulation of the parties
    and as contained in the draft permits of December 1988 and August
    1990.
    Section 41 of the Environmental Protection Act,
    Ill.
    Rev.
    Stat.
    1991 ch.
    111 1/2 par.
    1041, provides for appeal of final
    orders of the Board within 35 days.
    The Rules of the Supreme
    Court of Illinois establish filing requirements.
    IT IS SO ORDERED.
    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
    ,
    1992, by
    a vote of
    7—~~
    .
    7
    I
    Control Board
    133—118

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