ILLINOIS POLLUTION CONTROL BOARD
September 28, 1989
FRED E.
JURCAK,
)
Petitioner,
)
v.
)
PCB 85—137
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
MR. JOSEPH
S. WRIGHT,
ESQ.,
OF MARTIN,
CRAIG, CHESTER &
SONNENSCHEIN, APPEARED FOR PETITIONER;
MR. WAYNE
L. WIEMERSLAGE,
ESQ., APPEARED FOR RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by M. Nardulli):
This matter comes before the Board on a reversal and remand
by the Appellate Court of Illinois,
First District of the Board’s
Opinion and Order of December 20,
1985 in the above-captioned
matter.
(Jurcak v.
IEPA,
161 Ill. App.
3d 48,
513 N.E.2d 1007
(1st Dist.
1987).)
The facts of this cause have been
sufficiently addressed in the Board’s December 20, 1985 Opinion
and in the appellate court’s decision.
Therefore,
only those
facts necessary to understand the instant decision and those
matters which have occurred since the remand of this cause will
be addressed.
This matter concerns a dispute over an amendment to the
Illinois Water Quality Management Plan
(“Plan”)
and a condition
imposed by the Illinois Environmental Protection Agency
(“Agency”)
in petitioner Fred
E. Jurcak’s (“Jurcak”)
National
Pollutant Discharge Elimination System (“NPDES”)
permit.
The
Agency amended the Plan to include Jurcak’s Gateway Sewage
Treatment Plant
(“STP”), but also included the following four
factors:
a.
a sinking fund of $25,000 be established to
insure proper operation of the plant,
b.
a condominium development have control over the
Gateway STP,
c.
a sinking fund be a condition of any NPDES permit
for the plant,
and
1‘~3—5’I3
2
d.
the project be connected to Frankfort’s STP within
one year after the completion of the expansion of
Frankfort’s STP.
The Agency incorporated the above factors into special condition
No.
8 of Jurcak’s NPDES permit which in essence requires Jurcak
to shut-down his newly constructed STP within one year of
completion of the Village’s system.
Jurcak appealed the imposition of condition No.
8 to the
Board.
On December 20,
1985, the Board issued its Opinion and
Order affirming the imposition of this condition solely on the
basis that it lacked jurisdiction to review a condition in an
NPDES permit when that condition was required by the Plan.
Jurcak appealed the Board’s decision.
The appellate court
held that, while the Board had no authority to review the
Agency’s amendment of the Plan, the Board did have the duty to
review the imposition of permit conditions.
(Jurcak,
513 N.E.2d
at 1010,
citing,
Ill.
Rev.
Stat.
1985,
ch.
111
1/2, par.
l040(a)(l).)
The appellate court declined from considering the
propriety of the imposition of condition No.
8,
reversed the
Board’s decision and remanded the matter for a hearing before the
Board to consider whether there is a factual basis for the
imposition of condition No.
8.
ISSUES PRESENTED
At the June 15,
1988 hearing, Jurcak made continuing
objection to the Agency’s introduction of new facts.
This
evidence was directed toward establishing that the Village of
Frankfort
(“Village”) had completed the addition to its waste
treatment facility,
that the Village had been removed from
restricted status and that the Village would allow Jurcak to
connect to its sewer and water system.
Jurcak maintains that this new evidence may not be
considered by the Board in its permit review because such
evidence was not available at the time the Agency rendered its
permit decision.
The Agency asserts that this evidence may properly be
considered by the Board because the appellate court remanded this
matter to the Board for another hearing “to consider whether
1The Agency also imposed Special Condition No.
9 requiring
Jurcak to submit plans and specifications.
Special Condition No.
9 was apparently not appealed to the appellate court and,
therefore,
is no longer at issue.
(See,
Jurcak,
513 N.E.2d
1007.)
103-5’)4
3
there
is an adequate factual basis for the imposition of
condition 8.”
(Jurcak,
513 N.E.2d at loll.)
It is well established that, when a party contests the
imposition of a permit condition, the sole question before the
Board is whether the applicant proves that the application,
as
submitted to the Agency, demonstrated that no violation of the
Act would occur if the permit was issued without the imposition
of the special condition.
(City of East Moline v.
PCB,
No.
3-
88—0788, slip op.
at 5
(3d Dist. 1988); Joliet Sand and Gravel v.
~
163 Ill.
App.
3d 830,
516 N.E.2d 955,
958
(3d Dist.
1987).)
Recently, the appellate court addressed the issue of whether new
evidence may be introduced at a hearing before the Board in a
NPDES permit appeal.
(City of East Moline v.
PCB,
No. 3-88-
0788, slip op.
at 7—13
(3d Dist.
1989).)
Relying on Dean Foods
V.
PCB,
143 Ill. App.
3d 322, 492 N.W.2d 1344
(2d Dist.
1986),
the court concluded that new evidence which is relevant to the
determination of whether the applicant has demonstrated that no
violation of the Act would occur if the permit was granted
without the imposition of conditions may be considered by the
Board in a NPDES permit appeal.
(u.,
slip op.
at 11,
13.)
We conclude that the evidence which the Agency sought to
introduce at the June 15,
1988 hearing is irrelevant to the
inquiry of whether Jurcak has demonstrated that the imposition of
condition No.
8
is not necessary to achieve compliance with the
Act.
The Agency’s suggestion that the appellate court’s
remandment of this matter with the directive to hold a hearing
necessitates the introduction of this new evidence ignores the
fact that,
under City of East Moline,
only that new evidence
which
is relevant to the Board’s inquiry in a permit appeal may
be considered.
Simply because the appellate court
in this cause
declined to rule on the propriety of the imposition of condition
No.
8 and remanded the cause to the technically qualified Board
does not mean that ~
new evidence may be introduced.
Evidence
of the fact that the Village may now accommodate Jurcak’s water
treatment needs
is irrelevant to whether the imposition of
condition No.
8
is necessary to achieve compliance with the Act.
Therefore,
this evidence will not be considered by the Board in
its review of the instant matter.
The appellate court held that this Board has jurisdiction to
review the imposition of permit condition No.
8.
(Jurcak,
513
N.E.ed at 1010.)
Therefore, we reach the primary issue
in this
matter of whether Jurcak has demonstrated that the application,
as submitted to the Agency, demonstrated that no violation of the
Act would occur if the permit was issued without condition No.
8.
Condition No.
8 in essence allows Jurcak to construct the Gateway
STP but then requires that Jurcak cease operating the Gateway STP
and connect to the Village’s STP within one year after the
Village’s system removed from restricted status and becomes
operational.
1O3~5O5
4
Section 39(b)
of the Act regarding NPDES permits provides
that:
The Agency may include, among such
conditions, effluent limitations and other
requirements established under this Act,
Board regulations, the Federal Water
Pollution Control Act Amendments of 1972 and
regulations pursuant thereto,
and schedules
for achieving compliance therewith at the
earliest reasonable date.
(Ill.
Rev.
Stat.
1987,
ch. 111 1/2, par.
1039(b).)
Jurcak argues that the imposition of condition No.
8
is not
necessary to achieve compliance with the Act or Board regulations
because the condition does not relate in any way to effluent
limitations or the quality of the discharge.
In support of this
assertion Jurcak cites NRDC v.
EPA,
28 ERC 1410
(D.C.
Cir.
1988)
which held that permit conditions other than those relating to
the discharge itself may not be imposed in an NPDES permit.
The Board agrees with Jurcak’s interpretation of condition
No.
8.
Rather than imposing a condition necessary to achieve
compliance with the Act, the Agency has imposed a condition of
convenience.
To issue Jurcak an NPDES permit allowing him to
construct and operate the STP for a certain period, subject to
the condition that in the future he must cease operating the STP
and connect to the Village’s system,
is tantamount to an Agency
finding that Jurcak has demonstrated compliance with the Act and
Board regulations.
At no point does the Agency claim that the
required connection to the Village’s STP is necessary to assure a
proper discharge.
The Agency argues that the imposition of condition No.
8
is
necessary to comply with the Act which incorporates the Clean
Water Act
(“CWA”)
which, in turn, provides that,
“Eto
the extent
practicable, waste treatment management shall be on an areawide
basis
...
.“
(33 U.S.C. Sec.
201(c).)
The Agency interprets Section 201(c)
of the CWA as requiring
thatwaste treatment for Jurcak’s development be provided by the
Village.
We disagree and conclude that condition No.
8
is not
necessary to comply with the CWA.
While Section 201(c)
of the
CWA requires the states to develop waste treatment management
plans on an areawide basis,
it gives the states a great deal of
flexibility in developing the plans.
The states are allowed to
determine what
is meant by the term “areawide” and are also only
required to develop the plans on an areawide basis “to the extent
practicable.”
It cannot be said that,
but for the imposition of
condition No.
8,
Jurack would be out of compliance with the CWA.
Striking condition No.
8 does not necessarily result in
a
103-
506
5
violation of the
CWA.
The Board stands by its previous statement
that condition No.
8
may impose an onerous burden on the
petitioner by requiring him to abandon an otherwise properly
operating STP and connect to the Village’s
POTW
at a cost of
$250,000.
The imposition of a condition that would require this
type
of expenditure for no other reason than to comply with a
plan that the Agency has the power to modify is not
required
under the CWA.
We do not interpret the
CWA
as mandating the
imposition of condition No.
8
upon Jurcak.
Similarly, we do not
interpret the Act or Board regulations as mandating the
imposition of condition No.
8.
The Agency requests that,
if condition No.
8
is stricken,
the permit be remanded to the Agency to take such action as is
consistent with state and federal
law.
The Agency maintains that
this action would likely result in the Agency reconsidering the
issuance of the NPDES permit and “revoking”
sic
it until
issuance would be consistent with the Plan.
According to the
Agency, Jurcak would be given the opportunity to provide the
Agency information in a joint Section 208/NPDES hearing that
would show that connection to the Village’s STP is impracticable.
If he does,
the Agency would amend the Plan and reissue Jurcak an
NPDES permit.
If Jurcak disagrees with the Agency’s denial of a
revision of the Plan the Agency maintains he may appeal that to
the circuit court as he could have done the first time in 1985.
If Jurcak disagrees with the Agency’s denial of an NPDES permit,
he may appeal that to the Board.
The Agency asserts that,
in
either instance,
the Agency, circuit court and the Board would
have current,
fully developed facts before them to make a
decision.
The Agency sees this as necessary to avoid conflicts
between federal law and Board action.
In reversing the Board’s prior determination in this matter,
the appellate court recognized the potential for conflict between
the Plan and the NPDES permit.
(Jurcak,
513 N.E.2d 1010-11.)
The court noted that the Agency has sole authority to amend the
Plan.
(Id.)
However,
the court ruled that since the Agency
incorporated a provision of the Plan into Jurcak’s NPDES permit,
the Board must review that condition to determine if it
is
necessary to achieve compliance with the Act.
(~ç~.)According
to the court,
if the Board concludes that the condition
is not
necessary to comply with the Act,
the Agency is allowed to modify
the Plan in accordance with the Board’s decision.
While the
Board has no authority to modify the Plan,
it has a statutory
duty to review the imposition of permit conditions.
Here,
the
Board concludes that Jurcak has demonstrated condition No.
8
is
not necessary to achieve compliance with the Act.
Remandment to
the Agency for further proceedings
is not necessary.
CONCLUSION
103-
507
6
Based upon the permit review record and the relevant
information presented at the hearing ordered by the appellate
court, the Board finds that the imposition of condition No.
8 in
Jurcak’s NPDES permit is not necessary to achieve compliance with
the Act or Board regulations.
The Agency is therefore ordered to
strike condition No.
8 from Jurcak’s NPDES permit.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Within 30 days of the date of entry of this Order, the
Illinois Environmental Protection Agency is ordered to strike
condition No.
8 from the NPDES permit issued to petitioner on
July 31,
1985.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1985,
ch.
ill 1/2,
par.
1041, provides for appeal of final
Order of the Board within 35 days.
The rules of the Supreme
Court of Illinois established filing requirements.
I,
Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board hereby certi~g,jesthat the
bove Opinion and Order was
adopted on the ~Y~day
of
________________,
1989, by a vote of
~
/27,
Dorothy M(j~unn, Clerk
Illinois ~6llution
Control Board
103 -503