ILLINOIS POLLUTION CONTROL BOARD
February 23, 1989
VILLAGE OF SAUGET,
)
Petitioner,
v.
)
PCB 86—57
PCB 86—62
ILLINOIS ENVIRONMENTAL
)
(Consolidated)
PROTECTION AGENCY,
Respondent.
MONSANTO COMPANY,
Petitioner,
v.
)
PCB 86—58
PCB 86—63
ILLINOIS ENVIRONMENTAJ
)
(Consolidated)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by R.
C.
Flernal):
This matter comes before
the Board
upon motions
for
reconsideration
filed January 19,
1989 by the Village of Sauget
(“Sauget”), Monsanto Company
(“Monsanto”),
and the Illinois
Environmental Protection Agency (“Agency”).
Sauget also moves
the Board
to grant
a stay of the contested conditions
of
its AB
plant permit.
Replies
to the motions were filed
by Sauget,
Monsanto,
and the Agency on February
2,
1989.
The Board grants reconsideration as requested
in the
motions.
Upon reconsideration,
the Board
finds some of
the
matters raised
in the motions merit
that changes
be made
in the
Board’s prior determination,
and that some do not.
The Board
will
first discuss
the motions as they request changes
to the due
process
and general merits
section of the Opinion, and then those
requests involving specific conditions.
Due Process
Both Sauget and Monsanto request reconsideration of the due
process determinations,
reiterating their main objection
that
96-137
—2—
insufficient
time
for notice and hearing1 were given by the
Agency prior
to permit issuance.
In
its Opinion of December
15,
1988,
the Board addressed
this objection by finding
that due
process can only be properly assessed
in the context
of the full
administrative continuum involving
the action before both the
Agency and the Board, pursuant
to the findings of the Third
District Appellate Court as affirmed by the Illinois Supreme
Court
in Illinois Environmental Protection Agency
v.
Illinois
Pollution Control Board
et al.
115
Ill.2d
65,
503 N.E.2d 343
(1986);
138 Iii.
App.
3d
550,
486 N.E.2d
293 ~(Third Dist.
1985)1
.
In IEPA v. IPCB,
the court found,
i;.~iter alia,
that the
safeguards
of
a due process hearing are absent until
a hearing
before
the Board.
The Board therefore found
that whatever
procedural deficiencies may arguably have existed
at the Agency
level were corrected
by the proceeding before the Board.
In
so
finding
the Board
had
no intention
of
implying
(as Sauget and
Monsanto would
apparently wish
to
read)
an actual finding that
actions
at
the Agency
level
had resulted
in due process
procedural deficiencies.
Thus,
the Board
finds
that
neither
Sauget or Monsanto have
raised arguments which convince
the Board
to alter
this previously articulated position.
The Board
further notes
that Sauget elected
to exercise
its
right
to appeal
the Agency’s permit decision immediately
to the
Board
rather than object before the Agency to the conditions
and
the circumstances under which the conditions were placed
in the
permit.
Sauget thereby chose
to forego
a refiling of
the permit
application and
to initiate further
informal dialogue with the
Agency,
electing
to
fall back on the due process
safeguards
provided
in
a hearing before the Board.
This notwithstanding,
the Board does
recognize,
as Sauget
must also,
that the
scope of hearing before the Board does have
limitations.
One limitation
is that the hearing is confined
to
the record before the Agency at the time
of the Agency’s permit
decision, which
is
a Board
and court holding
of long standing.
This
limitation
has been recently restated
by
a number
of courts
and forcefully upheld by the 5th District Appellate Court
in
Alton Packaging Corp.
v.
IPCB and IEPA,
162 Iii.
App.
3d 731,
516
N.E.2d 275
(1987),
and the Board
in City of East Moline
v.
IEPA
(PCB
86—218, September
8,
1988).
See also,
Illinois
Environmental Protection Agency
v.
Illinois Pollution Control
Board et
al..,
118 Ill.
App.
3d
772,
776—780
(1983);
IEPA
v.
IPCB,
138
Ill.
App.
3d
550,
486 N.E.2d 293
(1985);
IEPA v.
IPCB,
115
1 The Board notes
that
the Agency
is not required by either State
or
federal
law
to conduct
a hearing prior
to
its determination on
the issuance of
an NPDES permit; such hearing
is discretionary
with the Agency
(c..f.,
Borg—Warner Corporation
v. Mauzy
(1981),
100
Ill. App.
3d 862).
96—13F~~
—3—
Ill.
2d
65,
503 N.E.2d 343
(1986); Joliet Sand
& Gravel Co.
v.
IPCB,
163 Ill. App.
3d
830,
833,
516 N.E.2d 955,
(1987).
In
choosing to appeal to the Board,
Sauget therefore elected
to
effectively “freeze”
the record as
it existed before
the
Agency.
Sauget itself acknowledges
as much:
Sauget agrees that
the Board’s
role
in reviewing
permit appeals
is
limited to the record before the
Agency at the time of
its permitting decision.
(Sauget Response
to the Agency’s Motion for
Reconsideration,
p.
6).
Thus,
Sauget cannot now argue
that
it was prejudiced before the
Board by not being able
to add new information to the record,
an
action which
is precluded by the very act of filing
an appeal.
As
an additional
“due process” matter,
in its
~eply
to
the
Agency’s Motion for Reconsideration, Sauget alleges
that the
Agency has sent
a proposed permit
to
tJSEPA without making changes
as directed by the Board.
In
its
reply, Monsanto also makes
statements
regarding Agency action subsequent
to
the Board’s
December 15,
1988 Order.
This information was apparently
presented
to highlight alleged continued procedural deficiencies,
perhaps
to imply that
the Agency
is allegedly again not following
proper procedures.
The Board
finds
this information
is
irrelevant
to the instant
review.
Any allegations regarding the
Agency’s alleged failure
to comply with a Board Order
are more
properly brought
in
a separate action.
The instant permit appeal
concerns only the permit issued by the Agency on March
21,
1986.
The Board notes that on February 14, 1989 Sauget filed
a
Motion
to Vacate the proposed modified permit which was
apparently filed since
the Board’s December
15, 1989 Order.
The
Agency’s reply was filed
on January
21,
1989.
That motion will
be considered
in
a future Board Order.
P/C Plant Permit
Both
the Agency and Sauget request
the Board
to reconsider
its determination
to void the P/C Plant’s NPDES permit No.
1L0021407 because
it contains provisions
for the discharge of
a
combined sewer overflow.
Both contend
that the Board’s directive
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 until diversion
to the AB Plant, would eliminate
the
ability of
the P/C Plant
to discharge
its combined sewer
overflows.
2 The Board
notes
that neither Sauget’s nor Monsanto’s Replies
alleging this new information was accompanied with
an affidavit.
96—139
—4—
The Board believes this problem can be
rectified by
requiring
that the combined overflow provisions
for the P/C Plant
discharge as contained
in NPDES permit No.
IL0O2l407 be
incorporated
into the AB Plant permit subsequent to diversion.
The Board modifies
its prior Opinion
and Order and directs that
such requirement be added
to the AB Plant permit.
Internal Dates
The Agency objects
to the Board’s
finding regarding the
adjustment
of int~rnaldates.
The internal dates which are of
concern to the Agency are contained
in Special Condition
8 of the
AB Plant permit and involve
a
schedule of compliance with
final
effluent limitations.
The Agency specifically states that
in
adjusting
the internal dates for construction
and operation of
the AB Plant pursuant
to the Board’s directive,
it
is constrained
by information available to
it at the time of permit
issuance.
The Agency further states that the purpose
of
the compliance or
implementation schedule
is
to define when compliance
is required,
and the earliest date supported by the record before the Agency
must be used.
Upon reconsideration,
the Board
finds that clarification of
its directive on the adjustment of internal dates regarding
Special Condition
8 of the AB Plant
(Schedule of Compliance with
Final Effluent Limitations)
is necessary here,
and
in so doing
modifies
in part
its previous directive.
In
its September
26,
1988 brief, Sauget asserts
that the
compliance schedule~contained
in Special Condition
8 was based
upon a January
20, 1986 completion of construction date.
Sauget
further
asserts
that
at the time of permit issuance
(March 26,
1986),
the Agency knew that construction completion was
unattainable
by January 20,
1986.
An updated construction
schedule was presented by Sauget at
its March
10,
1986 meeting
with
the Agency,
and was considered
by the Agency along with
dates presented
in USEPA comments
(R. 140—150;
685—690; Sauget
Ex.
13).
The dates presented by Sauget
(as contained
in Sauget
Exhibit
13
as well
as any other
information discussed on March
10,
1986) was therefore “information that was available
to
the
Agency
at the time of permit issuance”.
This leaves
the question
Board Note:
The Schedule
of Compliance with Final
Effluent
Limitations contained
in Special Condition
8 contains
a
construction
and operation schedule
for the
AB Plant
This
schedule
is
sometimes referred
to
in the record and briefs
as
“the construction and operation schedule”,
and also as
the
“implementation schedule”
in
the permit application.
96—1
!~
fl
—5--
of whether Sauget has met
its burden of proof
that the dates
contained
in the permit were dates which were unreasonable and
inconsistent with the purpose of the compliance schedule under
the Act and Board regulations.
The Agency apparently based
its determination of the
compliance schedule,
at least
in part, upon the construction
sched~lecontained
in Sauget’s permit application
for the AB
Plant
.
The permit application for the AB Plant contained the
f3)lowing “implementation schedule”:
End Construction
12/31/85
Beg in Discharge.
.
.
.
12/31/85
Operational
Level Attained
4/30/86
(Resp. Grp Ex.
1,
ex.
24).
Special Condition
8 contains the following schedule
items:
Complete Construction
1/20/86
Attain Operational Level*.
4/30/86
Complete diversion
of all flows
totheABPlant.
7/20/86
Attain full operational
level
1/20/87
*Operational
level means compliance with limitations
on Page
2 of this permit
Effluent
Limits, Monitoring
and Reporting.
Full operational level means
compliance with
the terms
of this permit.
(Resp.
Grp.
Ex.
1,
Ex.
1).
The schedule of compliance
in
the October
5,
1985 draft
permit contained
a one year and four month interval between the
completion of construction
and the attainment of operational
level
(January 20,
1986
to April
1,
1987).
It
is worth noting
that neither
the permit application
form nor the October
5,
1985
draft permit contained any distinction between “operational
level” and “full operational level”.
The Agency implies
in its Motion
for Reconsideration
(par.
13)
that
it also placed some weight on the
finding of the Board
in
an
old variance proceeding
(PCB 83—146, December
15, 1983;
Resp.
Grp
Ex.
1,
ex.
36)
that only a one year period
of time was necessary
between
the start
of discharge
to attainment
of
operational
levels at
the AB Plant.
However, because this variance
finding
substantially
predates
revised estimates provided
by Sauget
in
its
permit
application
and
subsesequent
representations
to
the
Agency,
the
Board
finds
that
it
is improper to place significant
weight
on
this old variance finding.
96—141
—6—
At hearing,
Mr. George Schillinger,
the AB Plant Manager and
Certified Class A Operator,
testified that he attended the
meeting with the Agency on March
10,
1986 where
he and others
presented several plans
to the Agency regarding
the start—up of
the facility (See Sauget
Ex.
13).
He
stated that
it would take
at least until June
1986
to have the plant operating with
primary treatment,
and he described characteristics
of the
facility which support his conclusions
(R.
at
141;
145—148
).
Mr.
Schillinger also testified that with starting th~equipment
on March
21,
1986,
he was confident that the effluen:~limitations
on page two of
the permit could be met
in
18 months
to two years
attainment
of operational
level
(R.
at
149).
As noted
above,
the above schedules and discussion
consist
of information available
to the Agency at the time of permit
issuance.
The Board believes that
it
is reasonable
for
a
treatment plant of
the size and complexity
of the AB Plant
to
experience construction
and other operational delays subsequent
to the time
of application
for a permit.
The Agency gave no
technical reasons
for
the compliance dates contained
in
the
permit and its reliance on the dates contained
in the application
is misplaced
in
light of
the fact that the time intervals are not
consistent.
The Board modifies
its prior directive
regarding
internal dates.
The Board directs
the Agency
to modify Special
Condition
8 of NPDES Permit No.
1L0065145
to contain
the
following
compliance schedule dates related
to completion
of
construction and attainment of operational
level, which are
supported by information available
to the Agency prior
to permit
issuance:
Complete Construction
1/20/86
Attain
Operational
Level
9/20/87
The Board further directs
that any other
internal dates contained
in Special Condition
8 be adjusted
to avoid inconsistencies.
Other
internal
dates
not related
to operational levels
or
construction are
to continue according
to Board directives
contained
in the December
15, 1988 Opinion
and Order.
Mercury
Monsanto
requested
that
the Board reconsider
its ruling on
the applicability of
35
Ill.
Adm. Code
304.202
to the Monsanto
facility.
The Board believes that
its interpretation
of Section
304.202
and
its disposition of the issues involving the contested
mercury condition
in
its Opinion
is correct
and declines
to
change
its determination.
The Board notes,
however,
that
although Monsanto and Sauget highlight the fact
that:
there
is
no
information
in the record regarding the length of time necessary
for residual mercury
to
flush from the pretreatment
system,
it
hopefully cannot be
expected that flushing would be required
in
96—142
perpetuity.
The Board emphasizes,
as was stated
in its Opinion,
that there
is also no evidence that such flushing would take an
extraordinary time.
Therefore
it
is reasonable
for the Agency,
and this Board upon review,
to conclude that the mercury would
be
flushed within the time provided for diversion from
the P/C
to
the AB Plant,
and
to impose limits
as required by applicable
regulations.
pH Sampling and
Internal Discharge Limits
The Agency requests the Board
to reconsider
its
determination
regarding
the
requirement
of
twice
weekly
pH
sampling.
The Board
finds
that the Agency has presented nothing
which would necessitate changing
its determination as stated
in
its Opinion.
In
fact,
the Agency does not even address
the
inconsistencies between
the daily requirement contained
in
the
P/C permit and
the twice
weekly
requirement
contained
in
the
AB
Plant permit
for
the same waste stream (discharge
from P/C which
is influent
to AB).
Sauget requests reconsideration of t~hepH sampling
requirement as
an
internal discharge limit
and to the placement
of internal discharge limits in
the
AB Permit
in general.
Sauget
has presented nothing which would convince the Board
to change
its prior determination.
However, the Board amends the citation
from 35
Ill. Adm. Code 307.102
to 307.1101
to reflect the recent
renumbering
of
that
Section.
Total Organic Carbon
(TOC)
The Agency requests
that the Board modify
its Opinion
because,
as written,
the Opinion goes beyond the Board’s
obligation
to decide the utility of the continuous TOC monitoring
limit
in this particular
case,
and
that
this may become an
adverse precedent
for cases where
indicators exist which would
show that continuous TOC monitoring
is desirable or necessary to
prevent violations of the Act or Regulations.
Sauget states
in
its Reply that
it would not object
to the Board limiting its
holding
to
the facts
as they exist at
the AB Plant.
In an
appeal
of conditions
to
a permit,
it
is
the Board’s
obligation
to determine whether
the conditions imposed are
necessary
to ensure compliance with the Act and Board
regulations.
The
Board
accordingly
reviewed
the
continuous
TOC
monitoring condition
for the AB permit and found
that
the
requirement
is not necessary to ensure compliance
with the Act
and Board
regulations.
It was not the Board’s
intent
to find
that there
are
no situations
in which
a continuous TOC monitoring
requirement
would
be
necessary.
The Board limits the holding as
stated
in
its Opinion and Order
of December
15,
1989
to the facts
as
they exist at the AB Plant.
96~—143
—8—
Chemical Monitoring and Identification
The Agency asks
the Board
to make
a distinction between
priority and extra—priority pollutants
in its directive regarding
mdification
of Condition
20, which requires chemical monitoring
of both priority and extra—priority pollutants.
The Agency
is
correct that Sauget has not objected to the testing for priority
pollutants or disputed
its ability
to chemically identify
priority pollutants.
The Board agrees that Sauget’s obligation
to
test and ~eport~for priority pollutants
as stated
in Special
Condition
20
should remain unchanged.
Request
for Stay
As a final matter, Sauget requests that the Board
“clarify
the status of the contested conditions from January
21,
1987
until
the issuance
of
the modified permit.”
Sauget suggests that
the “status of
the conditions” would be clarified
if
the Board
were
to extend
the stay previously granted
for the AB permit
which
the Board declined
to extend
in its June
2,
1988
Order.
The Board will address the matter
of the stay
in the Board’s
future Order
along with the Motion
to Vacate.
IT
IS SO ORDERED
B.
Forcade dissented
I,
Dorothy M.
Gunn, Clerk of
the
Illinois Pollution Control
Board,
hereby certify that the above Order was adopted on
the
~
day of
__________________,
1989,
by
a vote
of
~.-/
The Board
notes
that
its Opinion
of December
15,
l9C8
at
pag3
20
incorrectly
referenced
its directive on this
issue
as
pertaining
to Special Condition
19.
That error
is heraby
corrected.
Ill
Control
Board
96—144