ILLINOIS POLLUTION CONTROL BOARD
December 15,
1988
VILLAGE OF SAUGET,
)
)
Petitioner,
)
v.
)
PCB 86—57
PCB 86—62
ILLINOIS ENVIRONMENTAL
)
(Consølidated)
PROTECTION AGENCY,
)
)
Respondent.
MONSANTO COMPANY,
)
Petitioner,
v.
)
PCB 86—58
PCB 86—63
ILLINOIS ENVIRONMENTAL
)
(Consolidated)
PROTECTION AGENCY,
)
Respondent.
MR. RICHARD J. KISSEL AND MS. SUSAN M. FRANZETTI, OF GARDNER,
CARTON
& DOUGLAS, AND MR. HAROLD G. BAKER, JR., VILLAGE ATTORNEY,
APPEARED ON BEHALF OF PETITIONER, THE VILLAGE OF SAUGET;
MR. PETER H. SMITH APPEARED ON BEHALF OF PETITIONER, MONSANTO
COMPANY;
MR. RICHARD
C. W~RRINGTON, JR., APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by R.
C.
Flemal):
This matter comes before the Board upon petitions
to appeal
certain permit conditions
filed by the Village of Sauget
(“Sauget”)
and Monsanto Company
(“Monsanto”).
The sep9ate
appeals were consolidated by the Board
on July 11,
1986
1 Briefs of the Petitioners were filed with the Board by Sauget
with filings
in concurrence by Monsanto.
In view of Monsanto’s
concurrence,
references
to Sauget’s arguments are also references
to those of Monsanto.
94—07
—2--
PROCEDURAL HISTORY
In August
1980 Sauget requested that the Illinois
Environmental Protection Agency (“Agency”)
revise the permit for
its Physical/Chemical Plant
(“P/C Plant).
On October
24,
1984,
while negotiations involving the
P/c
Plant continued, Sauget
filed a permit application
for a new plant,
the American Bottoms
Regional Wastewater Treatment Facility
(“AB Plant”).
At that
time,
the AB Plant was under construction to provide treatment of
flows from the pre—existing P/C Plant as well as the wastewater
flows from East St.
Louis, Cahokia and the Commonfields of
Cahokia.
The Agency subsequently consolidated the permitting
procedures
for the P/C Plant and the AB Plant.
After a series of draft permits and comments received by the
Agency from Sauget, Monsanto,
and the United States Environmental
Protection Agency
(“USEPA”),
the Agency issued its seventh
tentative determination for the P/C Plant,
a second tentative
determination for the AB Plant and consolidated draft permit on
October
2,
1985
(Resp. Grp.
Ex.
1,
ex.
15)
.
On November
4,
1985, Sauget commented
in response to this latest draft
(Resp.
Grp.
Ex.
1,
ex.
12).
On November
12,
1985,
USEPA informed the
Agency by letter that
it was requesting
its “full 90—day review
period”
(Resp.
Grp.
Ex.
1,
ex.
11).
USEPA sent two draft comment
letters
on January 17 and 27,
1986,
and sent its final comment
letter on February
14,
1986
(Resp.
Grp.
Ex.
1,
exs.
7,
4,
5).
The USEPA
final comment letter was received by the Agency
approximately 135 days after
the issuance of the October
2, 1985
consolidated draft permit.
Sauget received a copy
of the final
comment letter from the Agency at a March 10, 1986 meeting.
On
March 21,
1986,
the Agency issued NPDES Permits No.
IL0065145 and
No. 1L0021407
for the AB Plant and P/C Plant,
respectively.
Sauget objected to certain conditions within those permits,
and
these appeals followed.
Board hearings were held
in this matter on August
2,
3 and
4,
1988
in Sauget,
Illinois;
no members
of the public were
present.
DUE PROCESS
Section 13(b)
of the Environmental Protection Act
(Il1.Rev.Stat.1987,
cl-i.
1111/2,
par.
1013(b);
“Act”) mandated the
Board adopt
a program which would enable the State to implement
2 Respondent’s Group Exhibit
1
is
a duplicate
of the Agency
record
in this proceeding.
The documents contained within the
record
each have their
own exhibit number and will
be cited
thusly:
“Resp. Grp.
Ex.
_____,
ex.
_____
94—08
—3—
and participate
in the NPDES program pursuant to the Federal
Water Pollution Control Act
(“FWPCA”).
This
the Board has done
(See,
In the Matter
of: National Pollutant Discharge Elimination
System Regulations,
14 PCB 661
(R73—ll,12; Dec.
5,
1974).
Federal approval to conduct a State permit program was granted
and
a Memorandum of Agreement
(“MOA”)
between the State and USEPA
was approved by the USEPA Administrator on May 12,
1977.
Procedural requirements for the NPDES permitting program are
contained in 35
Ill. Adm. Code 309 as derived from the Code
of
Federal Regulations and the MOA.
As a threshold matter, Sauget raises some procedural due
process issues.
In general, Sauget claims that the Agency failed
to follow proper permitting and issuance procedures contained in
the Board
rules,
the MOA,
and the federal NPDES rules.
Sauget
claims this failure of the Agency deprived Sauget of its due
process rights because
it was not afforded the opportunity
to
review and comment upon certain conditions added
to the permits
prior
to issuance.
Sauget further claims that it was
in substantial agreement
with the Agency’s October
2,
1985 determination, and that the
subsequent final permits were issued incorporating conditions
contained in the February 14,
1986 comment letter
of USEPA,
concerning biomonitoring, toxicity limits,
a mixing zone study,
chemical monitoring,
total organic carbon monitoring,
internal
limits
for the P/C Plant,
effluent limits
for cadmium and
chromium,
and revised mercury effluent limits.
Inclusion of
these conditions
is the basis of Sauget’s objection
to the
permits.
Sauget objects
to the Agency’s consideration
of the
USEPA comment letter because it was received after comment
deadlines contained
in the MOA and Board regulations had
passed.
Sauget therefore asks that the Board vacate the
contested permit conditions as
a matter of law due
to these
alleged procedural deficiencies related
to due process.
The Agency denies that it failed
to comply with the
applicable procedures.
The Agency argues that USEPA
is not part
of the “public” by delegation of ,the permit program,
but retains
its position as
an
“oversight authority”.
The Agency reasons
therefore that the 30—day public comment provision of 35
Ill.
Adm. Code 309.109 would not apply.
The record indicates that
USEPA believed the 90 day review provision contained
in the MOA
and federal
regulations was applicable
to
it, or
it would not
have requested “its full 90—day review period”
(Resp. Grp. Ex.
1,
ex.
11).
In any event,
since the USEPA comment letter was received
approximately 135 days after
issuance of
the seventh tentative
determination and draft permit,
it
is apparent that the USEPA
comment letter was late whether one were
to apply the 30 day
public comment provision contained
in the Board regulations
or
90
94—09
—4—
day provisions contained in the MOA.
The Agency does not dispute
this fact.
The NPDES permitting procedures which Sauget claims the
Agency breached were created to ensure that due process
is
afforded an applicant.
The Board finds that whatever procedural
due process deficiencies may arguably have existed at the Agency
level in this proceeding are now corrected by the proceeding
before the Board.
The Board proceeding included adversarial
hearings including cross examination of all relevant information
relied upon by the Agency
in making its permi?ting decision.
To
remand this proceeding back to the Agency would prove useless
in
terms of
the inherent delay when due process has been afforded
through subsequent proceedings
at the Board level
(IEPA
V.
Pollution Control Board,
115 I1l.2d
65,
503 N.E.
2d 343 (1986);
138 Ill.
App.
3d 550,
486 N.E.
2d 293
(Third Dist.
1985).
The Board
is however compelled to note that it appears
that
many of Sauget’s objections
here could have been avoided had the
Agency allowed Sauget opportunity to comment on the alterations
to the permits prior
to final
issuance, particularly since there
were changes made which were
not previously discussed.
This
departed from Agency practice which allowed much opportunity
to
comment as
indicated by the number of previous tentative
determinations and draft permits and comments received thereon.
It could also have possibly avoided this appeal to the Board,
with
its attendant expense to both Sauget and the State and any
possible environmental harm which may have ensued during the
pendency of this appeal.
MERITS
—-
GENERAL MATTERS
When
a permitting decision is challenged by appeal to the
Board,
the Board must evaluate the correctness of the Agency’s
decision by examination of
the record according to the
appropriate standard
of review.
This would involve Board review
of the record,
consisting of the application and any
documentation included
in the Agency’s determination.
The Board
reviews the evidence
in the record de novo,
i.e., without
deference to the Agency’s decision,
and does not review the
Agency’s decision under a manifest weight standard
(IEPA
v.
Pollution Control Board,
Id.; City of East Moline
v.
IEPA,
(Slip
Op.
Sept.
8,
1988).
If the Agency has imposed special conditions
which the applicant desires
to contest,
the applicant must
demonstrate that the Agency’s decision was
in error because the
data submitted proved that no violation of the Act or Board
regulations would
occur if the permit were issued without the
special conditions
(City of East Moline,
Id.).
94—10
—5—
P/C Plant Permit
The P/C permit by its terms contains an April
20,
1986
effective date and a stipulated April 20,
1991 expiration date.
The effluent limitations contained on page two of the permit are
effec~iveuntil diversion or July 20, 1986, whichever occurs
first
.
Although
it
is unclear,
the requirements on page three
and following are presumably intended to extend for the duration
of the permit.
Although the focus of most of Sauget’s concerns centers on
the AB Plant’s permit,
several issues related
to the P/C Plant
permit are also raised.
These P/C issues present
a particular
problem for the Board,
in that the P/C Plant no longer operates
as an independent discharge for which any NPDES permit
is
required.
Board regulation 35
Ill. Mm.
Code 309.102 states that
an NPDES permit
is required for “the discharge of any contaminant
or pollutant by any person into waters
of the State” (emphasis
added).
Thus,
even
if the Board were
to sort out each and every
point of contention regarding the P/C permit, and order the
Agency to modify the permit according to the Board’s
instructions,
this permit would not apply
to any actual
discharge.
Such
a hollow endeavor would be incapable of
providing any environmental protection.
Neither would it be
justified
in terms of
the resources
it would consume.
The Board finds
the conditions of the prior permit are
sufficient for compliance with the Act and Board regulations
until diversion.
The Board believes that
it is more appropriate
under
the applicable NPDES rules
for regulation of the P/C Plant
subsequent
to diversion
to be accomplished through pretreatment
requirements and limitations applicable
to the P/C influent
wastestream to be contained
in the AB Plant NPDES permit.
This
would further eliminate any alleged inconsistencies between the
two permits.
Accordingly,
the Board directs that NPDES Permit No.
IL002l407,
as issued by the Agency
to the Sauget P/C Plant on
March 21,
1986,
is void.
The Agency
is directed
to either extend
the prior NPDES permit held by the P/C Plant or
to issue a new
permit with conditions commensurate with the prior permit,
with
said permit
to be effective until diversion of the P/C Plant’s
effluent to the AB Plant.
The Agency
is further directed
to
The record indicates that diversion occurred on or about
October 1987
(R. 436).
Information exists,
however, which
indicates that the actual date of diversion was November
4,
1987,
although
this information was obviously not before
the Agency at
the time
of permit issuance
Village
of Sauget
v.
IEPA, PCB 88—18
(Slip Op. September 8,
1988,
p.
9).
94—11
—6—
incorporate limits for the P/C component into the AB Plant NPDES
permit, effective subsequent
to diversion.
Internal Dates
A vexing problem for the Board regarding disposition of the
AB permit
is the selection of appropriate
internal dates.
In
many instances the internal dates within the AS Plant’s permit,
as issued on March 21,
1986,
are now in the past.
For most of
these,
it does not make sense
for this Board
to affirm these past
dates since Sauget is generally
incapable of carrying out an
action at
a time now gone.
On the other hand,
the record as
provided by the parties to this matter does not always provide
the Board with guidance sufficient
to mandate specific
alternative internal dates.
As
a case in point,
the record does
not allow the Board to determine whether Sauget has or has not
now accumulated some of the biomonitoring data for which the
permit originally allowed a specified time.
Accordingly,
unless another action
is specially directed,
the Board directs
that the Agency readjust all internal, dates
to
be consistent with the general findings articulated herein,
and
consistent with any measures that Sauget may have undertaken
between the time that Permit No. IL0065145 originally issued
arid
the time of
its modification as herein ordered.
Role of USEPA
Throughout this proceeding Sauget argues that the Agency
placed such weight on the USEPA comments that the decision of the
Agency was not its own, but rather USEPA’s.
The Board
finds this
argument unmeritorious.
Whatever weight the Agency may have
accorded the IJSEPA comments,
the decision was still that of the
Agency.
That the original conception for a condition may have
come through discourse with USEPA,
or with any other person for
that matter,
is simply irrelevant.
The whole comment process
is,
in fact, designed
to encourage
the Agency to solicit outside
perspectives.
That the Agency might later adopt some
of these as
its own
is
an implicit feature
of, the comment process.
Sauget also attemps
to impugn
the Agency’s exer~iseof
its
authority by pointing
to the testimony of Rick Lucas
,
wherein he
Mr. Lucas
is
an Agency employee with the title of municipal
unit manager,
responsible for the issuance of state construction
permits and NPDES permits;
the scope of his responsibilities
includes 1,500 municipal permits and approximately 2,000
construction permits
(R.
537—538).
He reports
to Thomas
McSwiggin,
the permit section manager,
over whose signature the
permit actually issues.
94—12
—7--
testified that he would or would not have imposed certain limits
if such decision had been solely his.
However, Sauget fails to
recognize that the decision of
the Agency
is a collective
decisionmaking process, with many individuals necessarily
involved.
That the Agency may have ultimately reached some
decision opposite to the opinion
of one of its in—house experts,
particularly
in
a matter as involved as the instant one,
is not
to be unexpected.
Mr. Lucas’s dissent therefore does not
establish any dereliction of Agency responsibility,
and such
weight as may be given to Mr. Lucas’
opinions goes solely to the
weight properly given to the opinions of any person with
expertise.
MERITS
--
SPECIFIC CONDITIONS
Stipulations
Sauget contested a number of conditions and provisions and
parts of conditions and provisions.
Prior
to hearing,
the
parties reached agreement on some of these contested matters and
entered into written stipulated agreements
(Joint Exs.
1 through
4).
These stipulations include provisions covering the
expiration dates
of the permits,
the wording of Special Condition
I regarding the 201 transfer sewer,
Special Condition 3 regarding
duplicate filings, overflow reporting,
pretreatment, and cross
references.
Sauget requests that the Board order
the Agency to
modify
the permits consistent with the stipulations.
The Board
will do so except
as those conditions relate to the P/C Plant
subsequent to diversion.
The Board directs that the Agency
incorporate
the stipulated changes regarding the P/C Plant
subsequent to diversion into the AB Plant NPDES permit.
As Sauget notes
in its reply brief, there are other
provisions to which Sauget objects which the Agency
in its brief
now indicates that
it accedes
to,
although no written
stipulations were entered
into.
These involve the provisions
regarding the outfall description, PCBs,
progress reports,
and
unclear wording regarding the usage of “Plant”
where “P/C Plant”
was intended.
The Board
finds
that although
no written
stipulations were entered into,
the Agency apparently now accedes
to the changes as suggested by Sauget, and the Board directs the
changes be made as so suggested; except those changes related to
the P/C Plant influent subsequent to diversion shall
be
incorporated into the AB Plant permit.
Effective Date
The effluent limitations which are set forth
in page two of
the AB Plant permit became effective on April 20,
1986,
the
effective date on page two of the permit.
Sauget first contends
that this date
is unattainable, stating that “the effective date
94—13
—8—
for compliance with the effluent limitations should have followed
the date when the AS Plant was reasonably expected
to attain
operational
levels”
(Sauget Brief at 28).
In support of
its
position, Sauget cites testimony of George Schillinger who stated
that the AB Plant could not have met the effluent limitations by
April
20, 1986 because at that point the plant would be
in the
early stages of physical start—up
(R.
140).
Schillinger also
stated that during the March 10, 1986 meeting between Sauget and
the Agency, Sauget presented the Agency with several plans and
further stated that it again informed the Agency that it would
take Sauget until June for the plant
to be opetating in order
to
meet the parameters indicated
(R. 141).
Sauget also points
to certain inconsistencies between the
April 20,
1986 effective date and the “operational date” of April
30,
1986 contained in Special Conditions
7 and 8.
The
“operational date”
is defined in those special conditions as
“compliance with limitations
on page
2 of
this permit” (Resp.
Grp.
Ex.
1,
ex.
1).
The Agency states that
it chose dates which limit the
discharge of
inadequately treated pollutants in the shortest
reasonable
time, pursuant
to 35
Ill. Mm. Code 309.148.
The
Agency also contends that Sauget did not formally amend the April
30,
1986 start—up date contained
in its application.
The Board
is hard pressed
to believe that the Agency and
Sauget could not come to some agreement on the effective date of
the effluent limitations.
The Board
finds the Agency’s April
20,
1986 date is clearly arbitrary, especially
in light of the
fact
that
it could not point
to any information in the record which
would support that date.
The Board
finds however, that no
alternative dates are here offered by Sauget.
There are a number
of dates which are
in the record including dates discussed with
the Agency at the March 10,
1986 meeting
(R. 102, Sauget Ex.
13),
and dates suggested by USEPA
in
its comment letter
(Resp.
Gr.
Ex.
1,
ex.
4).
The Board directs the Agency to modify the effective
date of the effluent limitations contained
in NPDES Permit No.
1L0065145 and to impose a date r~latedto attainment
of
operational levels.
Mercury
The effluent restrictions set forth on page two of the AB
permit include mercury limitations of 0.0005 mg/l monthly
average,
and 0.0010 mg/i daily maximum.
The 0.0005 mg/l
limitation
is identical
to the Board’s general effluent standard
for mercury,
as found at
35
Ill. Mm.
Code 304.126.
Sauget argues that the permit limitations should be
reflective of
35
Ill.
Adm.
Code 304.202 rather than 304.126.
Section 304.202
is a site—specific rule granted
to the chior—
94—14
—9—
alkali plant
in St. Clair County and to the Sauget treatment
works which receives discharges from that facility.
The site—
specific rule allows an average discharge of 0.25 lbs/day and a
maximum discharge of 0.5 lbs/day of mercury from the chior—alkali
facility.
Sauget argues that the calculated concentration limits
should therefore have been 0.0015 mg/l with a maximum of 0.0030
mg/i, based upon the averaging rule of
35
Iii. Mm. Code 304.104
(R.
107—108,
Sauget Ex. 14).
Sauget asks the Board
to vacate and
remand the mercury limitation contained
in the AB Plant permit
to
reflect the application of the site—specific
rule.
The Agency argues that the site—specific rule
304.202
applies only
to a facility currently operating chior—alkali cells
in St. Clair County.
As the rule states
in pertinent part:
The mercury discharge standards of Sections 304.124
and 307.103 shall not apply
to any manufacturing
facility which operates chlor—alkali cells,
is
located
in St.
Clair County and discharges directly
or indirectly into the Mississippi River; or
to any
publicly owned treatment works which receives such
a
manufacturing facility’s wastewater.
The Agency was informed by letter
that,
effective December
16,
1985,
the Monsanto W.G. Krummrich Plant would no longer
operate its mercury cell chior—alkali facility (Resp.
Grp.
Ex.
1,
ex. 10).
Moreover,
the record indicates that Monsanto did cease
to operate
its chior—alkali facility on or about that date.
Monsanto
is the only known plant
to have operated such facility
in St.
Clair County.
The Board finds that the Agency
is correct that Section
304.202 applies
to a facility which
is currently operating chlor—
alkali cells.
Since Monsanto
is
no longer operating such cells,
by its terms,
the site—specific rule no longer applies
to
Monsanto.
Thus,
there
is no continuing
justification for basing
the AB Plant’s mercury effluent limitation on the operation of
Monsanto’s chlor—alkali facility.
The site—specific rule, however,
not only applies to the
Monsanto facility, but also to “any publicly owned treatment
works which receives such
a manufacturing facility’s
wastewater”.
As Sauget points out, at the time of permit
issuance the waste stream
issuing from Monsanto’s operations may
still have contained some residual mercury left from the chlor—
alkali operations.
Mr. Stephen Smith of Monsanto testified that
all the wastewater
in the process
“goes through
a specific pre-
treatment
facility which was built as
a result and
in agreement
with the site—specific standard change,
and this pre—treatment
facility worked hand—in—hand with
the process facility
in making
sure that the wastewater met the appropriate mercury
limits.”
He
further stated
that
to the best
of his knowledge,
the pre—
94—15
—10—
treatment facility and collection systems were operating on March
21,
1986,
the time of permit issuance
(R.
at 128—9).
It
is therefore reasonable
to conclude that although
the
site—specific rule no longer applies by virtue of the shutting
down of Monsanto’s operation,
it continued to apply to the
“publicly owned treatment works” until that works ceased
receiving the process wastewater.
On March 21,
1986,
the time of
permit issuance, the publicly owned treatment works which
received Monsanto’s wastewater was the P/C Plant.
It
is
in fact
to be noted that the P/C permit was drafted
to continue the
previous effluent limit of 0.0035 mg/l for mercury discharges for
the P/C Plant until diversion.
Sauget indicated no objection to
this.
In view of the Board’s action regarding the P/C permit as
explained elsewhere
in this Opinion, the question now becomes
would the residual mercury be flushed through the system by the
time of diversion
to the
AB Plant such that the AB Plant cannot
be said
to be receiving wastewater from the chlor—alkali
operation.
Sauget only claims that “Monsanto’s operation will carry
mercury residuals for some period of time after the cells
themselves
cease being operated”
(Sauget Brief
at 31), but gives
no other
indication, based upon the record,
of the duration of
that time period.
Moreover, Sauget presents no argument that the
flushing would
in any way require
an extraordinary time, or that
such time should
in fact extend beyond the time that the
diversion of the P/C Plant actually took place.
In conducting
its own review of the record,
the Board also finds nothing which
would indicate the mercury limitation as suggested by Sauget is
more appropriate for the AB Plant than the contested limit
contained in the permit.
Thus,
the record falls far short of
providing the information the Board
legitimately would need
to
find with Sauget on this matter.
The Board therefore finds that
Sauget has not persuasively shown that there is basis
in the
record to conclude that an extraordinary mercury effluent
limitation
is required or justified for
the AB Plant, yet alone
that such extraordinary limitation should apply
for the full
duration of
the AB Plant’s permit.
Given these circumstances,
the Board
finds
that, at
a minimum,
the residual mercury should
be flushed
through the system by the time diversion from the P/C
Plant to the AB Plant
takes place.
In conclusion,
the Board
finds
that Sauget has not shown
that sufficient information exists
in the record to demonstrate
compliance with the Act and Board regulations will result absent
the contested mercury limits.
The Board therefore finds that the
Agency appropriately applied
the general effluent standard for
mercury and directs the Agency to issue NPDES Permit No.
IL0065145 with
the mercury limitations
as specified
in the March
21,
1986 permit.
94—16
—11—
Cadmium and Chromium
The AS permit includes effluent limitations and requirements
for monitoring of cadmium and chromium.
Sauget claims that these
limits and requirements are unjustified.
In support of its
position Sauget submitted data showing the average monthly
cadmium and chromium discharges from July 1979 to December
1985
from the P/C Plant.
The data indicate that chromium averaged
0.0
of the daily limit contained
in the permit for hexavalent
chromium and 0.02
for trivalent chromium; cadmium averaged 8.8
of the daily
limit.
There
is further evidencé that from April
1984 to March
1986 cadmium averaged 11.9
of the daily
limit and
chromium averaged
1.4
of the daily limit
(Sauget Exs.
18 and
15).
The Agency argues that the limits for chromium arid cadmium
are necessary because the data indicate that the effluent of the
P/C Plant
(which is now influent
to the AS Plant)
is close to the
ambient water quality standards
for these constituents.
‘~he
proper applicable standards are the General Use standards
,
which
specify limits of 0.05 mg/l for hexavalent chromium,
l..0 mg/l for
trivalent chromium,
and 0.05 mg/I for cadmium
(35 Ill. Mm. Code
302.208).
The Board disagrees with the Agency that regarding these
constituents the
P/c
effluent was close to the ambient water
quality standards.
The data presented indicates otherwise.
However,
the permit application for the AB Plant presents certain
information on other industrial loadings
to that plant, some of
which indeed contain chromium and/or cadmium at concentrations
well above the General Use standards,
i.e.:
Cr~6
Cr~3
Cd
Facility
Date
(mg/l)
(mg/i)
(mg/i)
Amax Zinc
10/4/79
.190
Amax Zinc
10/5/79
.110
Cerro Copper
8/31/79
.100
.350
Cerro Copper
10/2/79
.072
Midwest Rubber
9/10/79
.080
1.20
.120
Midwest Rubber
10/2/79
1.36
Musick Plating
11/13/79
*
1.10
Musick Plating
11/13/79
150.
Musick Plating
11/14/79
1.50
The Board notes
that the Agency
in its brief compares the P/C
Plant effluent to the cadmium and chromium standards for Public
and Food Processing Water Supply,
rather than to the appropriate
General Use standards.
94—17
—12—
Musick Plating
11/14/79
l70.*
*
Pfizer,
Inc.
12/18/79
1.20k
Pfizer,
Inc.
12/19/79
*
1.40
Total Chromium
(Resp. Grp. Ex.
1,
ex.
24).
There is no positive evidence in the record that all the
industries mentioned
in the application are
influerit to the P/C
Plant, such that these constituents would be primarily removed
prior
to reaching the AS Plant; although
for some industries this
may be true (See,
Sauget Ex.
1 at 11).
The testimony of Mr. Clement Vath,
a consultant
to Sauget,
indicates that,
in general, biological treatment processes are
expected to remove between 35
to 80 percent of
a particular
metal, depending on conditions.
He also stated that he would be
very concerned about monitoring and control of heavy metals
in
the influent and treatment process
(R.
at 444—6).
The Board
finds that Sauget has not shown that sufficient
information exists in the record to conclude that compliance with
the Act
arid Board regulations will result absent the contested
limits and monitoring requirements for cadmium and chromium.
This is especially so since the AB Plant was not yet operational
at the time of establishment of the Agency’s record,
and that
monitoring data regarding the Plant was obviously unavailable.
Given the nature of the influent to the AB Plant,
the Board
believes that the Agency was correct to require the limitations
and monitoring requirements as set forth
in the permit with
allowances
to reopen according to proper State and federal
procedures should the monitoring results indicate that no problem
exists.
The
Board
finds
that
no
changes
to
the
cadmium
and
chromium
effluent limitations as contained
in NPDES permit No. IL0065145
are necessary.
The Agency
is accordingly directed to issue
the
NPDES permit No. IL0065145 with no changes
to these
limits.
Total Organic Carbon
(TOC)
A requirement for continuous monitoring of the AS Plant’s
effluent for TOC
is set out on page
2 of the AS Plant’s permit;
rio load limits or concentration limits are specified.
Sauget contends that
a continuous TOC record
is
of little or
no usefulness,
is not necessary to ensure compliance with the Act
or Board regulations, and
is expensive
to obtain.
Sauget
therefore requests
that this provision be stricken.
The Agency counters that a continuous TOC record
is “useful
at
industrial treatment plants
to determine spills and activate
by—pass systems”
(Agency Brief,
p.
11),
and that
it allows
“a
check
on design efficiency”
(Id.,
p.
10).
94—18
—13—
The Board can find no legitimate justification for
imposition of the continuous TOC monitoring condition.
The
record clearly indicates that a continuous
TOC
record has been
shown
to be useful
in managing complex influents to wastewater
treatment plants, but there is nothing
in the record
to indicate
that it has significant use in the characterization of
effluents.
The Board finds that the continuous TOC monitoring
requirement is not necessary to ensure compliance, with the Act
and Board regulations.
The Agency is accordingly directed
to
modify NPDES permit No.
IL0065l45, striking the requirement for
continuous monitoring of TOC.
Internal Discharge Limits
The AS and P/C permits at page three contain limits on the
internal discharge from the P/C Plant to the AS Plant.
Sauget
argues that there is
no legal basis to impose such limits and,
that even
if there were,
the limits were improperly determined.
The Agency believes these limits are necessary for use as an
enforcement tool and
for protection of the biomass.
The
IJSEPA
comment requested that internal
limits be imposed “to ensure
proper operation of the Sauget P/C Plant once
it ceases to
discharge directly
to
the Mississippi River”, and further stated
that these conditions should be added
“in accordance with 40 CFR
122.45(h)”
(Resp.
Grp. Ex.
1,
ex.
4).
That regulation reads:
(h)
Internal Waste Streams.
(1) When permit effluent
limitation or standards imposed at the point of
discharge are impractical or infeasible, effluent
limitations
or standards for discharges of pollutants
may be imposed on internal waste streams before
mixing with other waste streams
or cooling water
streams.
In those
instances,
the monitoring required
by
122.44(i)
shall also be applied
to the internal
waste streams.
(2)
Limits on internal waste streams will be imposed
only when the fact sheet under
124.56 sets forth the
exceptional circumstances which make such limitations
necessary, such
as when the final discharge point
is
inaccessible
(for example, under
10 meters of water),
the wastes at the point of discharge are so diluted
as
to make monitoring impracticable,
or the
interferences among pollutants at the point of
discharge would make detection or analysis
impracticable.
(40 CFR 122.45(h)
(1987).
The Board
finds that Sauget
is correct that 40 CFR
l22.45(h)(2) does not support the imposition of internal
discharge limits
in this instance.
The Board believes that under
general principles
of statutory construction, Sauget gives the
94—19
—14—
correct interpretation that the exceptional. circumstances of 40
CFR 122.45(h)(2)
are limited
to those which relate to difficulty
in measuring the concentrations of the contaminants at the point
of discharge.
The record does not indicate that there would be
any difficulty measuring the P/C Plant influent to the AS Plant.
However, due to the nature of the industrial influent to the
P/C Plant and the possibility of harm to the AB Plant system,
the
Board “believes the Agency was correct to require the internal
limits and monitoring
as set out
in the permit.
The internal
limits are necessary to ensure compliance with the Act and Board
regulations,
including but not limited
to 35
Ill. Adm.
Code
307.102.
This is consistent with 35
Ill. Adm. Code 309.l4l(d)(l)
which allows for more stringent standards than federal standards
when necessary to comply with Illinois
law.
The Board
finds that the internal discharge limits as
currently set forth
in the AS Plant permit are necessary to
ensure compliance with the Act and Board regulations.
The Agency
is directed to issue NPDES permit No.
IL0065l45 with the internal
limitations
as currently included.
pH Sampling
Sauget also objects to
internal monitoring
for pH
for
essentially the same reasons as noted above
for internal
monitoring of other constituents.
However, Sauget further
objects
to the alleged inconsistency of the requirement that
influent from the P/C to the AB Plant be monitored daily for pH
while the AS Plant permit requires that the discharge from the
Sauget P/C Plant to the AB Plant be monitored for pH only twice
weekly.
The Board agrees with the Agency regarding the requirement
for internal monitoring and discharge limits
for the reasons
Stated above.
However, the Board
finds no reason
in the record
that the requirement of daily monitoring rather than monitoring
twice weekly
is necessary
to prevent violations of the Act and
Board regulations.
The two requirements are inconsistent.
The
Board finds that no modifications
to the P/C Plant permit are
necessary, having found that permit void.
The Board further
finds that no modifications
to NPDES permit No. 1L0065145 for pH
sampling are necessary since said permit contains the correct
requirement.
Additional Pollutants
Special Condition 10
of the AS Plant permit contains
language specifying that no additional pollutant may be
discharged “which contributes or threatens to cause
a violation
of,
any applicable federal or
state water quality standard,
effluent standard, guideline or other
limitation, promulgated
94—20
—15—
pursuant
to the Clean Water Act or the Act, unless limitation for
such pollutant has been set forth in an applicable NPDES permit.”
Sauget objects
to this condition as imprecisely drafted,
stating that although this provision is contained in the Board
rules at 35
Ill. kdm. Code 309.141(f)
formerly
Rule
410(b),
it
was declared invalid by the Fifth District in Peabody Coal v.
PCB,
3 Ill. App.
3d
5
(1976).
Sauget offers alternative language
that the permittee “may discharge pollutants not specifically
limited
in the permit
at levels that are not prohibited by state
or federal law.”
As the Agency points out,
the Second District
in U.S. Steel
Corporation v. PCB, 52
Ill. App.
3d
1
(1977)
upheld the validity
of the rule.
The Board in Caterpillar Tractor Co.
v.
IEPA, 42
PCB
7
(June 10,
1981) recognized
the differing authorities and
discussed the purposes and
intent of the Rule.
Underlying
this dispute is
a question as
to whether,
in
the absence of any conditions
to the contrary,
an
NPDES
permit
authorizes
the
discharge
of
contaminants
for which
there
is no effluent standard or
limitation.
Caterpillar argues that USEPA
regulations contemplate that an NPDES permit based
exclusively on federal law would
in general authorize
the discharge of other contaminants
40
CFR
122.13(a)
and
122.61;
45 Fed. Reg.
33,428, 33,311,
33,448
Rule 410(b)
is somewhat different from the USEPA
interpretation.
A permit would authorize the
disharge only where the discharges did not violate
any Board or federal standards.
The Board finds
that
Caterpillar’s
proposed
permit
condition
is
essentially
a
restatement
of
Rule
410(b).
If the NPDES permit were construed as actually
Prohibiting
the discharge of everything not mentioned
in the permit,
it would be impossible to comply with
it.
Because of the broad definition of contaminant,
it
is
possible
for
discharges
to
contain
an
indefinite
number
of
contaminants.
It
could
be
impossible for
a discharger to ensure that nothing
Other than what
is permitted by the permit were
discharged.
The general policy that the permit
Should state with certainty the discharger’s duty
would
not
be
satisfied.
94—21
—16—
the
language of Rule 410(b)
.
.
.
authorizes
the
discharges
of
other
parameters
which
do not violate
state or federal standards.
The
Agency
is
required
to
include
effluent
limitations
and
other
requirements
established
by
Board
regulations
or
USEPA
regulations
(citations
omitted).
The
Agency
must
include
more
stringent
state
requirements.
The
interpretation
of
the
effluent limitations given by Rule 410(b). is more
stringent than the USEPA interpretation which
authorizes other discharges even if they violate
Board regulations or USEPA standards.
The Agency is
therefore required
to include a permit condition
based
on
Rule
410(b).
(42
PCB
8—10)
The Board respectfully maintains its disagreement with the
Peabody
finding that former Rule 410(b) was generally invalid.
The Board further notes that the construction which
the Board has
given the rule on an
“as applied” basis
in the Caterpillar case
is
not
dissimilar
from
the
alternative
language
suggested
by
Sauget.
The Board accordingly finds that the Agency’s inclusion
of Special Condition 10 as currently worded
is necessary to
ensure compliance with the Act and Board regulations.
The Board
further finds
that no modificaton of Special Condition 10 of
NPDES permit No. IL0065l45 is necessary.
Reopeners
The AS Plant permit contains conditions which may be
reopened after review of certain documentation (e.g., monitoring
results); Sauget objects to these reopeners.
The Board notes
that Sauget’s main concern here is evidently not whether the
Agency or Sauget has authority to reopen a permit condition, but
rather whether the due process safeguards which accompany such
reopeners under applicable State or
federal law should also be
included
in the permit.
The Board agrees with the Agency that whatever due process
safeguards are
of concern to Sauget,
such safeguards exist
and
are applicable whether or not explicitly stated in
a given
permit.
The Board believes that it is unnecessary for the Agency
to modify
a permit
to include such safeguards
in the same way
it
is unnecessary for the Agency
to add the general due process
guarantees
of the State or Federal Constitutions.
The Board
further
notes that the last sentence of Special Condition 20
states
that “(any
permit modification is subject
to formal due
process procedures pursuant
to State and Federal law and
regulation.”
This the Board
finds sufficient.
Therefore no
modifications
to the reopener clauses contained
in NPDES permit
No.
IL0065l45 are necessary.
94—22
—17—
Whole—Effluent Toxicity
Special Condition 16 of the
AS Plans permit imposes
an acute
whole—effluent toxicity limit of
1.0 TUa
on the effluent from
the AB Plant,
subject to provisions that the limitation becomes
effective one year after diversion of the P/C Plant’s effluent
to
the AS Plant or
on April
30,
1987, which ever
is earlier,
and
that “if,
after
2 years of monitoring,
the effluent
is not
found
to be
toxic,
then the permit may be modified and the
frequency of biomonitoring used
to determine compliance with the
TUa limit reduced”.
Bioassays are
to be done quarterly.
There
is apparently no disagreement between the parties that
toxicity testing on the AS Plant’s effluent
is appropriate.
Rather,
the disagreement
is whether
a toxicity limit should be
in
place prior
to an actual demonstration that the AB Plant’s
effluent will be
toxic.
There
is further disagreement as
to the
nature of the toxicity limit,
if such limit
is
to be applied.
In
support of their respective positions, both Sauget and
the Agency rely
in part
on guidance provided
in the USEPA
document Technical Support Do9ument
for Water Quality—based
Toxics Control, Sauget
Ex.
17
.
This document provides
for two
approaches,
a
“direct” approach via which
a whole—effluent
toxicity limit
is applied without
or prior
to effluent
characterization for toxicity,
and
a “tiered” approach via which
effluent characterization occurs
prior
to and and
is utilized
in
determining
an appropriate whole—effluent toxicity limit (Sauget
Ex.
17 at 14).
The Agency applied
the “direct” approach
in
issuing the AB Plant permit;
Sauget contends that the “tiered”
approach
is the correct approach.
Aside
from the guidance provided
in the USEPA guidelines,
the Board initially notes
that application of the “direct”
approach has foundation
in Illinois
law.
35 Ill. Mm.
Code
302.210 establishes
a water quality standard for substances
toxic
6 TUa
(acute toxicity unit)
is the reciprocal of the effluent
concentration, expressed as
a fraction, which causes the
specified mortality.
Thus
a
1.0 TUa effluent
is an effluent
which
at 100
concentration causes
50
mortality over
the test
period,
a 2.0 TUa effluent causes this mortality at
50
concentration,
etc.
Thus,
the greater the TUa value,
the greater
the toxicity of the effluent.
Sauget
Ex.
17 was submitted at hearing
(R.
202—203)
by Sauget
and without objection from the Agency.
Additionally, because
it
was published
in September
1985,
it may be said
to have been
reasonably available
to the Agency at the
time the Agency issued
its permit decision
in this matter.
94—23
—18—
to aquatic
life.
Furthermore,
35
Ill. Adm. Code 304.105 requires
that no effluent shall
cause a violation of any applicable water
quality standard, and authorizes
the Agency, pursuant
to Section
39
of
the
Act,
to
impose
whatever
effluent
limits
are
necessary
to ensure compliance with the water quality standard.
These two
sections, when taken together, provide clear authority for the
imposition of
an effluent toxicity limit whenever such limit
is
necessary
to ensure compliance with the Board’s water quality
standard for toxicity.
These observations not withstanding,
the Board
finds that
the terms
of Special Condition 16 are arbitrary as here
applied.
Calculation of
a sound whole—effluent toxicity limit
using
the direct method is dependent upon the ability to factor
in dilution and mixing
(R.
at 206—209,
215—220; Sauget Ex.
17 at
10—11),
a consideration which has not been taken
into account by
the Agency.
Based on overwhelming testimony
in support of the tiered
approach
(R.
at 205—209, 220—221, 309—311, 316—318,
321—322, 325—
336) plus the USEPA’S own analysis of
the advantanges and
disadvantages of the two approaches
(Sauget Ex.
17 at 14),
the
Board
is persuaded that the tiered approach is best applied
in
the instant matter.
Accordingly, the Agency
is directed to
modify permit No.
IL0065l45 with changes
to Special Condition
16
consistent with applying a tiered approach to whole—effluent
toxicity characterization and limitation.
Biomonitoring
Special Condition 17 of the AB permit requires
a
biomonitoring program consisting of testing for acute and chronic
toxicity as well as human health concerns.
Testing
is to
commence after
the AB Plant attains full operational level
(January 20, 1987)
and is
to be conducted for one year.
Special
Condition 18
of the AB permit further specifies that the Agency
“will modify this permit during its term to incorporate
additional requirements or
limitations based on the results of
the biomonitoring program, should
a review of the results of the
biomonitoring identify toxicity concerns”.
Based on the arguments presented
in the briefs,
there
is
less disagreement over this issue than appears
in earlier
documents.
Sauget does not contest the imposition of
a
biomonitoring requirement per se.
Rather,
it opines that an
earlier biomonitoring program, referred
to as the “Park
Proposal”,
as offered by the Agency, contains provisions which
are more appropriate than the program included in the AB permit
as
issued.
The Agency’s position is that the biomonitoring
condition as
identified
in Special Condition
17 is being read too
narrowly by Sauget:
94—24
—19—
It is important
to note that the contested
permit condition calls for
a biomonitoring Plan to be
produced by the discharger,
rather than specifying
every detail of the program.
By allowing such
flexibility the Agency intended the actual
biomonitoring activity be a mutual decision.
Consequently, Petitioner’s concern about appropriate
Ames tests,
suggested duckweed use, and mixing zone
studies are issues that are resolvable in the process
of submitting and approving
a plan.
They are not
unreasonable as setting forth the essential concerns
of human health,
testing for aquatic plant toxicity,
and documentation of the actual dilution capacity of
the Mississippi River.
(Agency Brief,
p.
19;
emphasis
in original)
Notwithstanding
the Agency’s intentions to have
the
biomonitoring program be “flexible” and
to be
a
“mutual
decision”, Sauget has
a legitimate point that the actual language
included
in Condition 17
is not reflective of these intentions.
Accordingly,
the Board directs the Agency to modify Special
Condition 17 of NPDES permit No.
IL0065145 to be reflective of
the intentions of the Agency as
identified
in the quotation
above.
The Board finds these changes are necessary to ensure
compliance with
the Act and Board regulations.
Mixing Zone Studies
Special Condition 19 of the AB Plant permit requires the
permittee to submit documentation,
in conjunction with the plan
for biomonitoring, of the actual mixing patterns of the discharge
from the AB Plant with the Mississippi River.
Sauget objects to the condition because it believes the
provision fails
to clearly identify the purpose of the mixing
zone study,
fails
to properly interrelate this requirement to
other conditions
in the permit,
and fails
to allow
a reasonable
length of
time to complete and submit the mixing zone study to
the Agency.
Sauget further objects to the condition because it
does not set forth what type of mixing zone study
is to be done.
The Board notes that Sauget’s objections here are
essentially the same as those
to the biomonitoring condition.
For
the same reasons as stated above regarding biomonitoring, the
Board directs that the Agency modify Special Condition 19
of
NPDES permit No. 1L0065145 to be reflective of the intentions of
the Agency,
and to identify what type of mixing
zone study
is
necessary for the information desired.
94—2.5
—20—
Chemical Monitoring and Identification
Condition 20 of the AS Plant permit contains requirements
for chemical monitoring and identification for
a list
of
chemicals contained
in the permit.
The monitoring
is required
for P/C Plant effluent,
AB Plant treated flow prior
to confluence
with the P/C Plant effluent and any recycle streams,
the AS Plant
effluent, and the AB Plant secondary sludge.
The condition also
contains reporting requirements.
Sauget does not object to testing for and reporting priority
pollutants, but believes that the list of chemicals for which
Sauget would be required to test is too exhaustive and
unnecessary to prevent violations of the applicable
regulations.
Sauget’s other objections
to this condition involve
internal dates,
inability to comply with the dates set forth in
the permit,
and
the testing methods required.
The Agency asserts
that given
the lack of specificity
in the
application regarding industrial contributions to the AB Plant
wastestreams, testing for the chemicals noted in the permit is
necessary
to ensure compliance with the Act and Board
regulations.
The Board agrees.
The Board notes that there
is some flexibility in the
testing methods,
as
indicated by the Agency in its brief and
noted
in the USEPA comment letter
(Resp. Grp. Ex.
1,
ex.
4).
The
permit also contains some reference to this flexibility.
The
paragraph which discusses the testing methods for priority and
non—priority pollutants also contains language which indicates
flexibility
(i.e,
“identification shall
be attempted.”).
However, the
intention
of
the
Agency
and
USEPA
to
work
with
Sauget
in the development of
a plan based on testing results
should be clarified
in the permit as well as any necessary
information contained
in the the USEPA comment regarding testing
protocols.
The permit should state with clarity the discharger’s
duty (Caterpillar Tractor Company
v.
IEPA, 42 PCB 7,
June 10,
1981).
The Board refers
to a prior section of this Opinion for
its findings on the internal dates
issue.
The Agency
is directed
to modify Special Condition 19 of
NPDES permit No.
IL0065145 to be reflective of the intentions of
the Agency and
to notify
the perrnittee with clarity what
it is
expected
to report.
Anticipated Bypass
Special Condition 9(A)(i)
of the AS Plant permit contains
language concerning anticipated bypasses.
Sauget claims that the
language
is vague8.
The condition states:
94—26
—21—
If the permittee knows sufficiently
in advance of the
need
for
a bypass,
it shall request
a variance from
the Illinois Pollution Control Board, submit prior
notice,
if this is not possible,
then at least ten
days before the date of the bypass the Agency shall
be notified.
Sauget specifically questions the meaning of the phrases
“sufficiently
in advance” and “submit prior to notice”.
The
Agency
states
that
this language
is standard language in
all permits.
The Agency further
states
that
the
“sufficiently
in
advance” question has historically been resolved by the Board in
enforcement
cases.
However, the Agency cites
no authority for
that
belief.
There
is
testimony
in
the
record
that
Agency
permit
writers
believed
the
language
was
not
clear
(R.
697—8).
As stated above
in the section covering chemical monitoring,
the Board believes that permit conditions should be stated
clearly,
in order for a permittee to know what its specific
duties are.
This
is especially necessary when the consequences
of non—compliance include enforcement actions.
The Board
believes that Sauget is correct that the above quoted language is
vague and should be redrafted.
The Agency is directed
to modify
Special Condition 9(A)(i)
of NPDES permit No. IL0065145
to
include language which
is
clear and continues
to reflect the
Agency’s intent.
The Board finds that all findings and directives contained
in this Opinion are necessary
to ensure compliance with the Act
and Board regulations.
This Opinion constitutes the Board’s
findings of fact and conclusions of law in this matter.
ORDER
The
Illinois
Environmental
Protection
Agency
is
hereby
ordered
to
modify NDPES Permit No. 1L0065145 consistent with the
Board’s
findings
and
directives
in
the
accompanying
Opinion.
Section
41
of
the
Environmental Protection Act,
Ill.
Rev.
Stat.
1987
ch.
111
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.
8
In its brief Sauget only objected to this language
in condition
8(A)(i)
of the P/C Plant permit.
However the identical language
occurs
in Condition
9 of the AB permit.
It
is assumed that if
Sauget objects
to the language
in one permit,
it would object
to
it
in both.
94—27
—22—
IT IS SO ORDERED.
B. Forcade dissented.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Opinion and Order was
adopted on the
/ñ~Z
day of
~
,
1988,
by a
vote of
~
S
Control Board
94—28
