ILLINOIS POLLUTION CONTROL BOARD
March
9,
1989
CITIZENS UTILITIES COMPANY
)
OF ILLINOIS,
Petitioner,
v.
)
PCB 85—140
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by M.
Nardulli):
This matter comes before the Board upon
a motion for
rehearing
filed
on
February
2,
1989 on behalf of the Petitioner,
Citizens Utilities Company of Illinois (“Citizens”).
The movant
is seeking reconsideration and rehearing on the Board’s Order
of
January
5,
1989
in which
the Board upheld the Illinois
Environmental Protection Agency (Agency)
in imposing an NPDES
permit condition.
With this order,
the Board
reconsiders its
opinion and order of January
5,
1989
in this matter
and denies
the motion for rehearing.
On
February 14,
1989,
the Agency filed
its response to the
motion for rehearing.
Citizens filed
a reply to the Agency’s
response
to the motion for rehearing.
The Board’s procedural
rules do not make provisions
for
a reply by the movant to the
Agency’s response.
Because
the reply brief was filed more than
35 days from the date of the issuance of the opinion and order
and because
it was not accompanied by
a motion to file instanter
or
a motion
to amend
the motion
for reconsideration,
it cannot be
construed
as part of the original motion for reconsideration
and
rehearing.
As
a result,
the movant’s reply to the Agency’s
response will
not be considered
in this order.
In the underlying
case,
the Agency imposed
a permit
condition
in
a reissued NPDES permit applicable
to Citizen’s West
Suburban Wastewater Treatment Plant No.
2
(“Plant No.
2”).
The
condition requires Ci,tizens
to limit ammonia—nitrogen effluent
from the plant
to 1.5 mg/l
for
the months of April through
October
and 4.0 mg/i for the months of November through March,
when the daily maximum ammonia—nitrogen concentration
in the
stream does not meet the requirements set out
in 35
Ill.
Adm.
Code 302.212.
Citizens objected
to the condition arguing
that
the permit condition was not necessary to accomplish
the purpose
of the Act and because
the condition was imposed by the Agency
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unreasonably and without any evideritiary basis.
In the Motion for Rehearing,
Citizens argues that the
Board’s order
applies an overly stringent burden of proof
to
Citizens.
It
is undisputed that the petitioner has the burden
to
show, by
a preponderance of the evidence, that the permit
condition is
unreasonable and unnecessary.
This standard applies
to all civil proceedings.
Citizens maintains, however, that the
Board applied
a “criminal case standard” of “beyond all
reasonable doubt”.
On review, the Board maintains that
it
correctly applied the preponderance of the evidence standard.
The standard for burden of proof used by the Board in this
type of proceeding is that
the petitioner must show by a
preponderance of the evidence,
that the Agency’s decision was
in
error because the record before
the Agency shows that no
violation of
the Act or Board regulations would result
if the
permit condition were not imposed.
City of East Moline
V.
IEPA,
PC8 86—218
(Slip Op., September
8,
1988).
Section 302.212(a)
of
the Board’s regulations
states that “Ammonia—nitrogen shall
in on
case exceed
15 mg/l.
Therefore,
the burden on the petitioner
is
to show by
a preponderance of the evidence that there
are
no
circumstances under which the ammonia—nitrogen limit will
be
exceeded.
In applying this standard, the Board noted
the highly
probable,
and legally allowable,
scenario presented by the Agency
involving winter days when the composition of the water
in the
East Branch of the DuPage River comes predominately from the
effluent of sewage treatment plants and all
of the plants
upstream of Plant No.
2 are discharging at their allowable limit
for
ammonia—nitrogen.
The Agency argues
that under
these
conditions
it would be necessary for Plant No.
2
to comply with
the ammonia—nitrogen limitation
in the proposed condition to
avoid
a violation of 35
Ill. Mm.
Code 312.212(a)
and
(b).
The
petitioner maintained that the possibility that this scenario
would occur was unlikely and failed
to address how the ammonia—
nitrogen standard could
be maintained
if these conditions did
occur and
the permit condition was not
imposed.
In making
its determination
in this matter, the Roard held
that for
the petitioner
to show, by a preponderance of the
evidence, that the Board’s regulations would
not be violated, the
petitioner would have
to prove conclusively “that this situation
could
never occur”
or
in
the
alternative
“that
the water quality
standard could
still
be met without Citizens adhering
to the
condition proposed
by, the Agency.”
By failing
to alleviate
concerns about
what the Board perceived as
a realistic situation
under which
the Board’s regulations would be violated,
the
petitioner has failed
to meet its burden under
the preponderance
of the evidence standard.
There
is
no statement in
the January
5,
1989 Opinion and
Order
that implies that the Board
is
holding the petitioner
to
a
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standard other than the preponderance of the evidence standard.
The Board statements relied on by the movant
in claiming
a higher
standard was being employed clearly state that the Board was of
the opinion that the petitioner needed
to prove show that a
violation would not occur under
this one scenario presented
if it
were
to carry
its burden of proving, by a preponderance of the
evidence, that the condition was unnecessary or unreasonable.
Failing
to conclusively dismiss this scenario, the petitioner has
failed to meet its burden of proof.
The movant argues that
the disputed numerical effluent
limitation has no evidentiary basis and that the Agency has a
burden of proof to provide adequate evidentiary support
for the
condition.
As pointed out by the Agency in
its response
to the
motion, the
issue was fully addressed by the Agency
in its March
16,
1988 brief in opposition
to the permit appeal.
The Board
also discussed this
issue
in
its Opinion and Order
of January
5,
1989 on page
4.
The Board holds
that this issue has been fully
examined in its opinion and that the Agency has shown an
evideritiary basis
for
the numerical effluent limitation.
The next argument presented by the rnovant
is that the Board
failed
to make findings of fact as
to each issue because the
Board’s order did not find that the permit condition at issue
is
necessary and reasonable.
The January
5,
1989 Opinion and Order
clearly states that “based
on the record,
the Board
finds that
the condition was properly imposed by the Agency and may be
properly enforced against
a permittee.”
The Board stands by this
statement as its finding of fact as
to the
issue
in this matter.
The movant also continues the argument that
it presented in
the permit appeal that the permit condition
is not necessary.
To
support this argument Citizens presented new information,
not
previously available
in the record of this case.
The Board
cannot review this additional information
in this
reconsideration.
The scope
of the Board’s review
is limited
to the record as
it existed before
the Agency at the time of the Agency’s permit
decision.
The Board does not consider
information submitted
after
the permit application
is denied.
IEPA v.
IPCB, 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
Il.
2d 65,
503
N.E.
2d 343.
This new information becomes the province of a new
permit application.
Disregarding
the, additional
information supplied
in the
motion,
the Board
finds that
the movant has presented
no new
basis
for
a review of the necessity of the permit condition.
All
of his remaining arguments as to necessity have been amply
addressed
in the January
5,
1989 opinion and order.
Similarly,
the Board stands by its statements concerning the reasonableness
of the permit condition and
the reasons
it will not consider
evidence presented by Citizens concerning
the cost and hardship
97—91
—4—
of compliance with the disputed permit conditions.
The Board
notes that the Agency’s response states that
“...
the company has not met its statutory burden of proving that the
Agency’s decision
to impose the contested condition
is against
the manifest weight of the evidence.”
(Agency response at
6 and
7).
For
the record, the Board wishes to clarify that its
standard for review in NPDES permit appeal cases
is not
the
manifest weight standard of
a reviewing court, but the
preponderance of the evidence standard employed
in civil
litigations
for
a de novo hearing.
Under Sections
39(c)
and
40(a)(l) of the Act, the Agency is not required
to conduct
hearings with procedures that guarantee the applicant an
opportunity to challenge the validity of the information the
Agency relies on
in denying
the permit.
The hearing before
the
Board
is intended to safeguard the due process tights of the
applicant.
Therefore,
the Board,
not the Agency,
is the party
that determines whether
or not the permit
is issued.
IEPA
V.
IPCB,
(1986)
115 Ill.
2d 65,
503 N.E.
23
343,
345.
The Board
makes the decision by reviewing the record before
the Agency at
the time the Agency denied
the permit and allows the applicant to
attempt
to show, by a preponderance of the evidence,
that no
violation of the Act or
the Board regulations would result
if the
permit were
issued or
if the permit condition were not imposed.
Alton Packaging Corp.
v.
IPCB and
IEPA,
162 Ill. App.
3d
731,
516
N.E.
2d 275
(1987).
Based
on the preceding review,
the motion for
rehearing
is
hereby denied.
IT IS SO ORDERED.
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
Dorothy M.,4tinn, Cletk,
Illinois
P~94lutionControl
Board
97—92