ILLINOIS POLLUTION CONTROL BOARD
June
17,
1993
CITIZENS UTILITIES COMPANY
)
OF ILLINOIS,
Petitioner,
PCB 85—140
v.
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by J.
Anderson):
On November
18,
1992,
Citizens
Utilities Company of Illinois
(Citizens)
filed a motion for rehearing and reconsideration.
On
April 30,
1993,
the Illinois Environmental Protection Agency
(Agency)
filed its response.~ On Nay
3,
1993, Citizens filed a
motion for leave to file a reply to the Agency’s response
instanter.
The Agency has not filed a response to the motion.
35 Ill.
Adm. Code 101.241(c) provides that a party shall not
have the right to reply except as permitted by the Board to
prevent material prejudice.
Citizens,
in its motion, asserts
that it will be prejudiced if not allowed to file its reply.
Because the Agency has not objected to the motion, the Board
grants Citizens’ motion for leave to file its reply.
The Board
also grants the motion for reconsideration but,
as discussed
below, declines to grant rehearing.
In its motion for rehearing and reconsideration,
Citizens
requests the Board to reconsider its October
16,
1992 order on
remand.
In that order,
the Board determined that the Agency’s
imposition of a condition in Citizens’
NPDES permit limiting the
amount of ammonia-nitrogen in the effluent from Citizens’ West
Suburban Wastewater Treatment Plant No.
2
(i.e.,
a 4.0 mg/i
“winter” ammonia-nitrogen effluent limit and a 1.5 mg/i effluent
limit for the remaining months when the water quality standard
downstream of the outfall
is exceeded) was “necessary to achieve
compliance with the Act and regulations.”
1The Agency filed three motions for extensions of time to file
its
response
to
Citizens’
motion
(i.e.
on
December
4,
1992,
February 4,
1993, and April 21,
1993).
In each motion, the Agency
represented that Citizens did not object to the motions.
The Board
granted the Agency’s motions
for
extension
so that the parties
could engage
in settlement negotiations.
(see December 17,
1992,
February 4,
1993,
and April 22,
1993 Board orders).
0
I
t~3-O
2
In support of its motion, Citizens states that it seeks
rehearing to bring to the Board’s attention certain facts which,
on reconsideration,
should cause the Board to remove the disputed
permit condition.
First, Citizens asserts that the Board applied
an overly stringent burden of proof in that it has required
Citizens to prove
its case “beyond a reasonable doubt” rather
than by a “preponderance of the evidence” and has required
Citizens to show the condition has no “rational basis”.
Citizen’s next argues that the Agency has failed to explain
the evidentiary basis for the condition as is required by Section
40(a) (1)
of the Act.
Citizens also argues that the Agency failed
to present any scientific evidence as to how it arrived at the
effluent limits or from what Board regulations such limits were
derived.
More specifically,
Citizens notes that the Board’s
regulations have never contained the
1.5
mg/l
limit and that the
Board’s regulations no longer contain the 4.0 mg/l limit.
Finally, Citizens asserts that the condition is an illegal
attempt by the Agency to establish effluent limitations because
the Act gives only the Board the authority to establish effluent
limitations and because the effluent limitations are not in the
Act, Board regulations,
or Federal Water Pollution Control Act as
required by Section 39(b)
of the Act.
Citizens further argues that the permit condition is
unnecessary
in that the Agency has admitted that the condition is
unnecessary for the summer months.
As for the winter months,
Citizens notes that the Agency used a “worse—case scenario” to
determine possible non—compliance that is inconsistent with the
Board’s averaging rules at
35
Ill.Adin. Code 304.104.
Citizens also claims that the permit condition is
unreasonable.
Specifically, Citizens argues that the Board erred
in considering only the necessity of the condition rather than
the reasonableness of the condition in violation of the Act
(Section 33(c)(2)
and
(4)), Board regulations
(35 Iii. Adm. Code
105.102(10)), and case law.
Citizens also claims that the Board
did not consider the economic impact of the condition as required
by Section 27(b)
of the Act and case law.
Finally, Citizens argues that the Board failed to comply
with the appellate court’s remand order.
Specifically,
Citizens
asserts that,
although the Board admitted new evidence into the
record as directed by the court,
it failed to give it due
consideration and make findings based on the additional
documentation as ordered by the court.
At the outset,
the Board rejects Citizens’ argument
regarding the Board’s misapplication of the “preponderance of the
evidence” standard.
The Board will not review its position on
this matter
in this order because it has already addressed the
argument in its October 16,
1992 order and because Citizens’
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13050
3
arguments in its motion raise nothing new.
As for Citizens’
contention that the Board failed to explain pursuant to Section
40(a)
of the Act, the Board notes that the language relied on by
Citizens was added to the Act over five years after the Agency
issued the permit and after the permit expired.
In addition
Section 40(a) (1)
of the Act applies to toxics criteria derived by
the Agency under the authority of the Board’s R88-22 toxics
regulations.
Such toxics regulations did not exist at the time
the permit was issued.
As for Citizens contention that the Board failed to review
the reasonableness of the condition at issue,
the Board has
repeatedly pointed out that Section 39(a)
of the Act provides,
“the Agency may impose such conditions as may be necessary to
accomplish the purposes of
the
Act....”.
Accordingly, the
“reasonableness” of
a condition is not at issue.
We also
disagree with Citizens’ contention that the Board’s review of
permit conditions
is governed by Section 33(c)
of the Act.
Section 33 on its face applies to enforcement actions.
The Board also rejects the argument that the “winter”
limitation should not be placed
in the permit because the
limitation is no longer
in the regulations.
As the Agency
correctly points out in its response, even though the effluent
limitation is no longer is effect,
the limitation was in effect
at the time the condition was initially placed in Citizens’
permit.
In fact,
the effluent limitation and the permit are
being kept alive by this litigation.
The Agency will be able to
act on Citizens’ application for permit renewal and reissue a
permit that reflects current law,
and thus may alleviate
Citizens’ concerns, once this litigation ends.
The Board also notes that it specifically determined that
the condition at issue was necessary to accomplish the purposes
of the Act and that Citizens,
in its motion, raises nothing new
with regard to its argument.
The Board has stated that “winter”
standard is an application of
a Board regulation.
As for the
“summer” standard, the Board reviewed the record and determined
that the limitation was a proper exercise of the Agency’s
permitting authority and necessary pursuant to Section 39(b)
of
the Act.
Finally,
as to Citizens’ accusation that the Board
failed to comply with the appellate court’s mandate, the Board
notes that,
in its October 16,
1992 opinion,
it discussed
information that was contained in the stipulation and expressly
stated in the accompanying order that the condition was proper
in
light of the evidence submitted after remand.
Accordingly, for the foregoing reasons, the Board grants
Citizens’ motion to for leave to file a reply.
The Board also
grants reconsideration but declines to grant the requested
relief.
OIL~.3-U
151
4
IT IS
SO ORDERED
Section 41 of the Environmental Protection Act,
415 ILCS
5/41
(1992), provides for the appeal of final orders of the Board
within 35 days.
The rules of the Supreme Court of Illinois
establish filing requirements.
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that t
above order was adopted on the
____________
day of
_________________,
1993,
by a vote of
-1—6
0
143052
Illinois4
llution Control Board