ILLINOIS POLLUTION CONTROL BOARD
September
13,
1989
IBP, INC.,
)
Petitioner,
v.
)
PCB 88—98
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
RICHARD A. JOCHUM,
ESQ., APPEARED ON BEHALF OF PETITIONER; AND
KATHLEEN C.
BASSI, ESQ., APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by B. Forcade):
This matter comes before the Board upon
a June
6,
1988
petition for review filed by
IBP,
Inc.
(“IBP”).
That petition
seeks review of several conditions
imposed by the Illinois
Environmental Protection Agency (“Agency”)
in IBP’s NPDES permit
issued by the Agency on May
5,
1988.
Public hearing was held on
July 18, 1989 in Rock Island,
Illinois, and no member of the
public was present.
IBP filed a closing brief on August
3,
1989.
The Agency filed
a closing brief on August
22,
1989.
ISP owns and operates a beef slaughter and processing
facility located at Joslin,
Illinois.
Prior to May
5,
1988,
the
facility operated
a wastewater treatment plant
(“WWTP”) pursuant
to an NPDES permit issued by the Agency.
On April
1,
1987,
ISP
filed an application with the Agency for
a revised NPDES permit
based upon expansion
of
the facility to
include operations of
a
tannery.
On July
1,
1987,
the Agency issued
to IBP a
construction permit for the tannery addition
to the WWTP as
requested by ISP and as needed
to facilitate eventual intro-
duction of
the new waste stream flow to the WWTP.
On May
5,
1988,
the Agency issued a final NPDES permit
No. 1L0003913
to
IBP.
In its petition,
IBP requests that the Board review the
following actions
of the Agency
in issuing its final permit:
a)
Placing
a
discharge
concentration
limit
for
chlorine
residual
at
Outfall
001
of
0.75 mg/i as
a
30-day average;
b)
Placing
a
discharge
load
limit
for
ammonia
nitrogen at
Outfall
003
of
2700
lbs/day as a daily maximum; and
103—03
—2—
C)
Special
Condition
No.
7
—
the permittee
shall conduct
a mixing
zone study of the
receiving
stream
to
assess
compliance
with water quality standards.
Results of
this
study
shall
be
submitted
to
the
Agency
by November
1,
1988.
The Agency
shall
modify
the
permit
in
accordance
with the results of the study.
No other portion of the NPDES permit
is challenged.
ISP’s brief of August
3,
1989 describes at great length
events subsequent
to the Agency’s issuance of
its permit on May
5,
1988.
These events include settlement negotiations between
ISP and the Agency, the Agency’s subsequent issuance of a draft
permit and the United States Environmental Protection Agency’s
(“USEPA”) objection to that draft/proposed permit on April 14,
1989.
At this point,
IBP is requesting
that the Board order the
Agency to issue the “settlement permit” as a final permit.
IBP
also states that “since the relief
requested by IBP embraces only
the issuance of the settlement permit,
it
is not necessary to
dwell on the process followed by IEPA
in issuing the permit under
appeal.”
ISP Brief at
7.
The Agency’s brief of August 22,
1989 also for
the most part
addresses events subsequent to its issuance of
a permit on May
5,
1988.
The Agency asserts that it followed established procedures
in its attempt to issue the
“settlement permit.”
The Agency also
discusses the validity of USEPA’s objection to this settlement
permit.
Additionally,
in its August
22nd brief the Agency states
for the first
time that
it “has undertaken to begin writing
another proposed settlement permit.”
Although ISP’s and the Agency’s briefs have mostly discussed
these subsequent events,
the Board’s scope of review in a permit
appeal
is limited
to the record before the Agency at the time of
the Agency’s permitting decision.
Citizens Utilities Co.
v.
IEPA, PCB 85—140, March
9,
1989;
IEPA v.
IPCB et al.
(Waste
Management,
Inc),
104
Ill. Dec.
786,
503 N.E.2d
343
(111.
1986);
and IEPA v.
IPCB and Album,
Inc.,
455 N.E.2d 188
(1st Dist.,
1983).
Thus,
ISP’s assertion that the Board need not dwell
on
the process followed by IEPA in issuing the permit under appeal
escapes the true import of the Board’s review in this instance.
It
is precisely and solely the record before the Agency
in
issuing the permit under appeal that
is being reviewed by the
Board.
Therefore,
the issues discussed by ISP as to whether the
“settlement permit” was
a draft or proposed permit, whether
USEPA’s objection to that permit was valid and whether the
Agency’s failure to issue that permit entitles
ISP
to deem the
permit issued as
a matter of
law, are not issues properly before
the Board
in this proceeding.
103—04
—3—
IBP’s assertion that the Board enter an order effectuating
the settlement permit
is without merit for two additional
reasons.
First,
the permit issuing function is delegated to the
Agency under the Environmental Protection Act
(“Act”).
The
Agency has not issued the settlement permit and the Board has no
authority to issue
it.
The Board may not order the Agency to
issue an unissued permit.
Landfill Inc.
v. Pollution Control
Board,
387 N.E.2d 258,
262
(Iii.
S.
Ct.
1978).
Indeed,
if the
Agency had issued the permit
it would be considered a “voidable”
permit until
the original permit was dismissed.
Joliet Sand and
Gravel Co.
v.
IEPA, PCB 87—55,
(June 10, ~l987), citing
Caterpillar Tractor Co.
v.
IEPA, PCB 79—180
(July 14,
1983).
In
any event, the unissued draft permit
is not under review
in this
proceeding and the Board will not enter an order “effectuating”
it.
Secondly,
the Board points out that there are three
potential permits mentioned
in ISP’s petition, ISP’s brief and
the Agency’s brief.
All three are for the same facility,
the
same operations and under the same regulatory framework.
This
is
the potentially unending scenario depicted
in the Board’s
previous opinion
in Joliet Sand and Gravel Co.
v.
IEPA,
PCB 87-55
(June
10,
1987).
In Joliet Sand and Gravel,
the Board stated
that:
If
each
Agency
decision
were
reviewable,
an
applicant
could
have many
“permit
decisions”
under
review
by
the
Board,
the
appellate
courts
and
the
Supreme
Court.
This
could
encourage permit
applicants
to submit minimal
information
in
the
first
application
and
provide
more
information
in
each
subsequent
permit application until
the Agency
granted
a
permit
or
a
favorable decision was reached
by
one of the reviewing bodies on one of the many
“permit decisions.”
Id.
at
5.
Thus,
in Joliet Sand and Gravel,
the Board held that
it lacked
jurisdiction to review any permit decisions rendered subsequent
to the initial permit decision which was still under
review.
Id.
In this case,
for
the reasons discussed,
the Board also
declines to review the settlement permit as requested by ISP and
will only review the permit issued May
5,
1988 which
is the only
permit currently on appeal.
The
issue before
the Board is whether the petitioner can
prove that the conditions
in the permit
issued by the Agency are
not necessary to accomplish the purposes of
the Act and therefore
were imposed unreasonably.
City of
E. Moline
v.
IPCB,
No.
3-88—
0788 at
5 (3rd Dist.
August
31, 1989);
IEPA v.
IPCB and Album
103—05
—4—
Inc.,
118 Ill. App.
3d 772, 455 N.E.2d 188
(1st Dist., 1983).
As
stated above,
ISP has objected to three conditions
in the permit
issued by the Agency
—
the discharge concentration limit
for
chlorine residual, the discharge load limit
for ammonia nitrogen
and the required mixing zone study.
Pet. at par.~6.
IBP’s only
argument against these conditions are that they are
“inappropriate and unduly burdensome.”
ISP Brief at
3.
Neither
the Agency’s brief nor testimony at the hearing shed any more
light on the issue of the conditions in the first permit than
ISP’s brief
does.
However,
the burden of proof
in a permit appeal
rests
squarely on the petitioner.
Browning—Ferris Industries of
Illinois,
Inc.
v. Pollution Control Board,
534 N.E.2d 616 (Ill.
1989).
In this case,
ISP’s bald assertion that the conditions
imposed by the Agency are “inappropriate and unduly burdensome”
is not an adequate explanation as to why such conditions are not
necessary to accomplish the purposes of the Act and therefore
were imposed unreasonably.
IBP has failed
to carry its burden of
proof
that its permit application as submitted to the Agency
establishes
that the facility will not cause
a violation of the
Act, absent the contested conditions.
The Board will affirm the
Agency’s conditions
in its permit issued on May
5,
1988.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The conditions imposed by the Illinois Environmental
Protection Agency
in NPDES Permit No.
IL0003913, as issued
to ISP
Inc. on May 5,
1988, are hereby affirmed.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1987,
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.
Board Member J.
Anderson concurred.
I, Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the ab~ø~e
Opinion and Order was
adopted on the
/~-~dayof
~
,
1989,
by a
vote of
7~
.
~
~27.
Dorothy
M.
,i~tinn, Clerk
Illinois Pollution Control Board
103—06