ILLINOIS POLLUTION CONTROL BOARD

September

8, 1988

CITY OF EAST t4OLINE,

Petitioner,

v.

)

PCB 86—218

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

MR. ROY M.

HARSCH OF GARDNER, CARTON AND DOUGLAS APPEARED ON

BEHALF OF PETITIONER;

MR.

E. WILLIAM

HUTTOt’~OF IEPA APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by J.D.

Dumelle):

This matter comes before the Board upon Petitioner’s

December

19,

1986, Petition To Appeal Permit Denial regarding

35

Ill.

Adm. Code 304.124.

Discovery having been conducted,

this

matter was sent

to hearing on August 28, 1987.

Only two weeks

previous,

on August 14, .1987, Petitioner

filed

a Petition For

Variance,

docketed as PCB 87—127 and requested

a continuance

in

this matter.

Briefs were ordered and submitted on December

10,

1987 and January 11,

1988.

This matter

is ripe for

final

adjudication.

MOTION TO CONTINUE

On August

14, 1987, Petitioner

filed

a Motion To Continue

This Proceeding Pending The Outcome Of Petitioner’s Petition For

Variance PCB 87—127.

Basically,

Petitioner’s justification

is as

follows:

“East

Moline

retained

a

consultant,

Huff

&

Huff,

Inc.,

to

study

the

effect

of

the

discharge

from

the

water

plant

on

the

receiving

stream

in

the

Mississippi

River.

Allowing East Moline’s motion for continuance

would

have

allowed

the

record

from

the

variance

hearing

regarding

this

issue

to

be

incorporated

in

this

record.

Mr.

Huff

will

testify

at

the

variance

hearing

and

explain

and supplement

the results of study which East

Moline

attempted

to

introduce

at

the hearing

in this matter.”

Pet.

Br.

at

7.

92—21

---

—2—

The Motion To Continue

is denied.

This docket was initiated on

December

19,

1986.

The Petition For Variance was filed

on August

14,

1987, only two weeks prior

to the scheduled hearing.

Pursuant

to statute,

notice of the hearing was published

——

although the record indicates

that the public did not

participate.

Discovery was complete and the matter was ripe for

adjudication.

A scheduled hearing should not be continued indefinitely

because an expert who

is retained

to speak

in a collateral matter

might say something favorable to Petitioner

in that collateral

matter.

This docket is

a permit appeal

——

not

a variance

petition.

A permit appeal involves different issues and proofs

than

a variance petition.

Additionally, no one has explained why

the experts from the variance petition could not testify

in this

permit

appeal.

To the extent that

a scheduling problem

is

involved,

the problem

is

of Petitioner’s making.

Petitioner had

eight months

in which

to file

a motion ~or continuance and this

was not done.

The Hearing Officer’s Order denying the motion

to

continue

is affirmed.

EVIDENTIARY MATTERS

At hearing, Petitioner sought to introduce three

items of

evidence which were not made available

to the Illinois

Environmental Protection Agency (Agency) when reviewing

Petitioner’s permit application.

The hearing officer

disallowed

the proffered evidence, holding that because the data was not

provided

to the Agency at the time of making

its decision, the

evidence was beyond

the scope of review,

and

therefore,

inadmissible.

It

is well settled

that the burden is on

an

applicant

to justify issuance of

a permit;

the Agency reviews

documents provided by the applicant and then determines whether

the application and supporting documents demonstrate that the

Environmental Protection Act (Act) will not be violated

if the

requested permit

is issued.

Pursuant

to this ~chenie,the’sole

issue at

a permit

(denial) appeal hearing

is whether the

application package submitted to the Agency demonstrated

compliance

(with

the Act)

at the time it was submitted

to the

Agency.

Ill.

Rev.

Stat.

1986,

ch.

111

1/2, par. 1039(a); IEPA v.

IPCB,

(1984)

118 Ill. App.

3d 772,

455 N.E.2d

189.

The burden on

a petitioner who contests the IEPA’s denial

of an NPDES permit

is

no different;

the applicant must show that the data provided

to

the Agency was sufficient

to demonstrate that the Environmental

Protection Act would not be violated

if the requested

permit were

issued.

Petitioner

has argued

that in an NPDES permit appeal

it may

introduce data not made available

to the Agency when reviewing

the permit application.

Petitioner

is mistaken.

This Board’s

review

of an Agency decision

to deny an NPDES permit

is

no

different in scope than other routine permit appeals.

90—22

---

—3—

When

a permit

(denial)

appeal

is taken,

this Board sits

in

review

of that Agency decision.

The

issue at hearing

is whether

the Agency decision was correct, given

the data provided

by

Petitioner

in the application.

If the Agency has imposed special

permit conditions which

the applicant desires

to contest,

this

Board sits

in review of

the Agency’s special permit conditions.

In both cases

the applicant must demonstrate that the Agency’s

decision

is

in error because the data submitted proved that no

violation

of the Act would

occur

if,

(1),

the permit were issued,

or,

(2),

if the permit were issued without the special

conditions.

The hearing to contest permit denials,

or

to contest special

permit conditions,

is

an adversarial hearing, providing for

discovery, motions, cross—examination of

adverse witnesses,

argument,

and briefs.

It

is this hearing which protects the due

process rights of

the applicant within the context

of the

Agency’s decision

to deny

a permit or impose special permit

conditions.

But

it must be remembered that

it

is the Agency’s

action which

is being appealed;

and, consequently,

the

framework

for,

and scope of review

of that Agency action

is established at

the moment the Agency’s action occurs.

The relative burdens of

the parties at

a permit appeal

(non

NPDES) are well established:

A Petitioner

...

must persuade the Board

that the activity

in question will not cause

a

violation of the Act or Board

regulations.

In

response,

the Agency may

contest

the

facts

in

the application or

it may choose

to do either

or

it may choose

to present nothing.

...

the

issue

is

simply

whether

or

not,

in

the

sole

judgement

of

the

Board,

the

applicant

has

submitted proof

that

if the permit

is issued,

no

violation

of

the

act

or

regulations

will

result.

the

propriety of

this

...

procedure

was

reviewed

and

upheld

by

the

Appellate

Court, Third District in SCA Services,

Inc.

v.

IPCB

&EPA,

71

Ill.

App.

3d

715,

389

N.E.2d

953.”

EPA v.

Allaert Rendering,

Inc.,

PCB 76—

80, September

6,

1979.

In

a similar case the Board held

as follows:

“Under

the

statute,

all

the

Board

has

authority

to

do

in

a

permit

appeal

hearing

is

to

decide

after

a

hearing

...

whether

or

not,

based

upon

the

facts

of

the

application,

the

applicant has provided proof

that the activity in question will not cause a

violation

of

the

Act

or

the

regulations.”

92—23

---

—4--

Oscar

Mayer

&

Co.

v.

EPA,

PCB

78—14,

June

8,

1978.

Clearly,

the burden

is

on the applicant;

and

at hearing the

applicant’s burden

is

to demonstrate

that the Agency’s denial of

a requested permit

(or

imposition of special conditions)

is

simply not justified given

the data provided by the applicant.

At a hearing before

the Board to contest denial

of

a permit

application,

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 Environmental

Protection Act would have occurred

if the requested permit had

been

issued.

IEPA v.

IPCB,

(1984)

118 Ill. App.

3d 772,

455

N.E.2d

189; Joliet Sand

& Gravel Company

v. IEPA

&

IPCB,

(1987)

163 Ill.

App.

3d

830,

516 N.E.2d 955

(3rd Dist.

1987).

In reviewing the Agency’s permitting decisions,

the Board

considers

the data submitted with the application package.

But,

because the Board’s role

is one

of reviewing the Agency’s action,

the Board does not consider new facts and circumstances which

change after

the date of decision;

nor does the Board consider

data submitted

to the Agency after

the permit application

is

denied

(this

is the province of

a new permit

application).

The

Board’s duty is

to review the Agency’s decision within

the

context

of the data provided by the Petitioner

in its permit

application,

and determine whether

this decision was correct or

incorrect.

The Illinois Supreme Court has held that the Agency’s

permitting decisions are not presumptively correct upon review by

this Board.

IEPA v.

IPCB

(1986)

115

Ill.

2d 65, 503 N.E.2d

343.

Thus,

by placing itself in the Agency’s position

—-

equipped

with

the same application data possessed by the Agency when the

decision was made

-—

this technically qualified Pollution Control

Board decides whether

the permit application should have been

granted.

If the answer

to this

is

yes,

the Board can either

order

the permit issued or unilaterally strike the improper

special

permit conditions.

The Board,

by placing

itself

in the

Agency’s position, decides anew whether the permit should have

been

issued.

In this sense,

the Board

is making

its

determination anew;

afresh;

a second

time; de novo.

Black’s Law

Dictionary.

4th Edition.

In practical terms,

all

this really

means

is that the Board does not recognize the Agency’s decision

as presumptively correct.

The Board does not grant deference

to

the Agency’s decision.

In this context the Board

is making

a new,

fresh,

de novo

determination regarding the Agency’s decision concerning

the

sufficiency of

the permit application package:

The question

is,

did

it

justify issuance of

a permit?

The Board does not review

Petitioner’s permit application;

the Board reviews

the Agency’s

decision denying

the permit application.

Continuing

the de novo

metaphor,

the Board considers anew whether the application

92—24

---

—5—

package submitted to

the Agency demonstrated compliance with the

Act and regulations.

If the Board were reviewing the permit

(rather than the Agency’s decision)

data would be submitted

directly

to the Board

——

not via the record from hearing.

The Board does not, however, conduct

a de novo review in the

sense

that it considers new evidence not previously presented

to

the Agency during its deliberation.

Doing so would usurp the

distinct function

of the IEPA as

the

state permitting

agency.

Ill.

Rev.

Stat.

1987 ch 111 1/2 par.

1004 and 1039(a)

IEPA

V.

IPCB (1986)

115 Ill.

2d 65,

503 N.E.2d

343.

The Board’s general procedural

rule governing NPDES permit

appeals provides as follows:

TITLE

35:

ENVIRONMENTAL PROTECTION

SUBTITLE

A:

GENERAL PROVISIONS

CHAPTER

I:

POLLUTION CONTROL BOARD

PART 105:

PERMITS

SECTION 105.102:

PERMIT APPEALS

b)

NPDES Permit Appeals

*

*

*

*

8)

The hearings

before

the

Board

shall

extend

to

all

questions

of

law

and

fact

presented

by

the

entire

record.

The

Agency’s

findings

and

conclusions

on

questions

of

fact

shall

be

prima

facie

true

and

correct.

If

the

Agency’s

conclusions

of

fact are disputed by

the

party

or

if

issues

of

fact

are

raised

in the review proceeding,

the

Board may make

its own determination

of fact based on

the

record.

1f any

party

desires

to

introduce evidence

before

the Board with respect

to any

disputed

issue

of

fact,

the

Board

shall

conduct

a de novo hearing

and

receive

evidence

with

respect

to

such

issue

of

fact.”

35

Ill.

Adm.

Code l05.102(b)(8).

Petitioner argues that this provision of the Board’s

procedural rules constitutes authority

to submit new data to this

Board, data which was not submitted

to IEPA with the application

package.

Petitioner

is mistaken.

As

a

threshold matter

it should be noted

that the Pollution

Control Board

is not the permit issuing agency of

the State

of

92—25

---

—6—

Illinois;

this task belongs

to the Illinois Environmental

Protection Agency.

Ill.

Rev.

Stat.

1986 ch 111 1/2 par.

1004,

1039.

There is nothing

in the Act to indicate that the General

Assembly intended

to assign this task to

the Board

in the single

category

of cases involving NPDES permit appeals.

Petitioner’s

suggested interpretation of

the above—quoted rule

is inconsistent

with the statutory authority conferred on the IEPA

to issue

permits.

When the Board adopts substantive

regulations

it also issues

an opinion explaining

the regulations,

the intent and

its

anticipated scope.

On August 29 and September

5,

1974 the Board

adopted the regulations set forth

in R73—ll and R73—12,

In RE:

NPDES Regulations.

On December

5, 1974,

the Board

issued

its

opinio~explaining

the rules,

their intent and anticipated

scope.

In explaining the sections concerning NPDES permit

appeals,

the Board

explained the Rule’s intent at pages

3,4

&

5

of

the December

5, 1974 Opinion.

A review of

the Board’s Opinion demonstrates that the Board

did not intend

to create an exception

to the General Assembly’s

separation of functions,

nor did the Board believe

it was doing

so:

“...

the

NPDES

Regulation,

as

adopted,

reflects the Board’s determination to continue

the basic

fundamentals

of

the existing

permit

system

...

the

NPDES

Program

does

not

represent

a

radical departure from past permit

practices.”

R73—ll/R73—l2, December

5,

1974,

at

p.

4.

The Board went on to discuss the tension between the federal

scheme and Illinois’ separation of functions into two agencies:

the Pollution Control Board and

the Illinois Environmental

Protection Agency.

In specifically addressing

the question

of

NPDES permit appeals

the Board posited

as follows:

“During

the

consideration

of

the

NPDES

Regulations

three

problems

surfaced.

These

three

problem

areas

were

1)

What

should

be

the

nature

of

the

Board

review

concerning

Agency

issuance

or

denial

of

NPDES

Permits?,

2) What should

be

the

form

of

any hearing at

the Agency

level?,

and

3)

...“

R73—ll/73—l2,

12/5/74

at p.

5.

1

In 1974 the

Board utilized a

different nuithering system in indexing Board

regulations.

However,

the

changes

in

numbering

systems

do

not

alter

the

substance of the regulations:

current Rule l05.l02(a)(8)

is

identical in

substance to former rule 502(b)(8), which was adopted in rulemaking Dockets

R73—ll

and

R73—12.

92—26

---

—7--

During

the Board’s consideration of

the

(then) proposed

rules on NPDES permits,

the IEPA had sought to alter

the system

concerning permit appeals.

During

the negotiations on the

regulation,

the Agency sought to establish

a system whereby the

Board would

not consider

a permit denial anew in an NPDES permit

appeal.

The Agency sought to have

its permitting decisions

afforded

a presumption of correctness, upon appeal

to the

Board:

“...

the Agency’s amended and original proposals provided

for less than de novo review at the Board

level

of the Agency’s

decision.”

Op.

December

5,

1974,

p.

5.

Consequently,

the Agency

sought

to change

the Board’s role into one of reviewing the

Agency’s decision

(to deny

or impose special permit conditions)

according

to

a higher

standard of review,

thereby establishing

the Agency’s position as presumptively correct

in NPDES permit

appeals

——

as noted

above this was the position advocated by the

Agency during that rulemaking proceeding.

In rejecting the Agency’s proposal the Board retained the

same standard of review for NPDES Permit Appeals as for most

permit appeals:

“The Board interprets the Act

to require

a

complete de novo review of all contested provisions of

the

Agency’s decision

to issue

or deny an NPDES Permit.

Op. 12/5/74

p.

5.

Twelve years later this position was echoed

by the

Illinois Supreme Court IEPA

v.

IPCB,

1986,

115 Ill.

2d 65,

503

N.E.2d

343.

The Board may review the Agency action de novo

——

but it does not render

a decision on

a new permit application

package.

Also contrary

to the language

of 35

Ill. Mm.

Code

l05.102(b)(8),

the Board may not afford Agency findings

of fact

a

prima fade presumption of correctness.

The use

of the term

‘de novo’

in the regulation and directly

above

is most unfortunate.

‘De novo’

is

a term of art and

in the

administrative law area

it connotes

a particularized concept:

a

new and fresh decision on the merits.

However,

as seen above,

the term de novo

(or anew) merely describes the Board’s lack of

deference on the IEPA’s technical/engineering, conclusions

regarding the sufficiency

of

a permit application and whether

that application demonstrates compliance with the Act and Board

regulations.

Allowing an applicant to introduce new data never

submitted

to the permitting agency would be contrary

to the

expressed intentions of the Board,

as set forth

above;

and doing

so would directly conflict with the General Assembly’s charging

IEPA with the duty to review, decide and issue

(or deny)

requested permits.

It

is fundamental that the source

of power or

authority of an administrative agency must be found

in the

statute creating it.

Village of Hillside v.

John Sexton Sand

&

Gravel Company,

105 Ill.

App.

3d

533, 434 N.E.2d

382

(1st Dist.

1982).

The Board

is not empowered

to usurp

the General

Assembly’s separation of functions.

92—27

---

—8—

Among its seven Members,

the Pollution Control Board

consists,

inter

alia,

of

a mechanical engineer, microbiologist,

entomologist, chemist and geologist.

The Pollution Control Board

currently retains a scientific and

technical staff

of two

persons.

The Pollution Control Board

is not

the State agency

charged with making initial permit decision.

The structure of

Pollution Control Board demonstrates that it was created

as

a

rulemaking body and adjudicating body sitting

in review.

It

is the Illinois Environmental Protection Agency with

its

legions of engineers and specialists who must make

an initial

determination as

to the sufficiency of

a permit application.

Nowhere

in

the Act

is

a permit applicant directed

to tender

application data

to the Board

for an initial determination of

sufficiency.

The Board’s function

is

to sit only

in review

of

Agency decisions based upon the record presented; thus evidence

not submitted

to the Agency

is not relevant

in

a permit appeal

hearing.

Petitioner cites Dean Foods Company

v.

PCB, 143

Ill.

App.

3d

322,

492 N.E.2d 1344

(2nd Dist.

1986)

for the proposition that at

an NPDES Permit Appeal Hearing,

Petitioner may submit data not

previously supplied

to the IEPA in the initial permit

application.

Clearly Dean Foods holds

that Petitioner may

do

so.

The Dean Foods decision

is

in error.

Without delving

into the facts giving rise to the Dean Foods

decision,

the Board notes that the Second District held that new

information regarding “Best Degree of Treatment” may be submitted

to the Pollution Control Board at an NPDES permit

(denial) appeal

——

even though this data was not originally provided

to the IEPA.

Notwithstanding

the language of 105.102(b)(8) concerning

“de

novo review”,

as indicated above,

the Board

is not the State’s

permitting agency and does not review applications for permits.

The structure

as created by the General Assembly establishes

the

Board

as

a technically qualified board of review.

“And

in

performing this task,

the Board considers all data provided

to

the Agency and decides afresh,

anew,

de novo, whether

the

application package and data submitted therewith

is sufficient to

demonstrate compliance with the Act.

If,

in the Board’s

qualified opinion the answer

is yes,

the Board orders the IEPA to

issue

the permit

(or strike unnecessary special conditions);

if

the Board decides the Agency was correct

——

the application

package did not demonstrate compliance with the Act and

regulation

——

the Board affirms the Agency

action.

In either case the Board

sits in review of the Agency’s

decision.

In so doing

the Board examines the data possessed by

the Agency at the time

it made

its decision

——

data not

in the

Agency’s possession

is not contained

in the Board’s

record

because

it

is immaterial

to

a review of the Agency’s decision.

92—28

---

—9—

In the case at issue,

Petitioner sought

to introduce

its

Exhibits No. ‘s

3,

4

&

5.

The Hearing Officer excluded these

exhibits because they were not provided

to the IEPA as part of

the regular permit application package.

R.

39,

47.

The Hearing

Officer was correct.

His ruling

is affirmed.

Documents not

provided

to the Agency are not admissible

in

a hearing where the

entire purpose

is

to review that very Agency decision.

Although

there may be heretofore unidentified exceptions

to this general

rule,

in

a case such as

this,

substantive evidence supporting the

application of

a Petitioner must be tendered

to the Agency

first.

Otherwise,

it

is immaterial

to this Board’s

review of

the

Agency’s decision

to deny the requested permit.

The Board’s

review of

an Agency decision to deny an NPDES permit

is

no

different

in scope than other routine permit appeals; and

the

scope of

review

is limited

to data provided

to the Agency at the

time of making

its decision.

BACKGROUND

The City

of East ~1olineis

a community

of approximately

22,000 residents and

100 businesses

in western Illinois.

East

Moline owns and operates

a public water supply treatment plant

(WTP)

located

in Rock Island County,

East Moline,

Illinois.

Raw

water

is withdrawn from the Mississippi

River

and

is treated via

chemical flocculation, sedimentation, filtration and

disinfection;

lime and alum are used as softening and

flocculation agents.

Solids generation averages approximately

7,000 lbs/day consisting of the following:

Aluminum Hydroxide

12

Calcium Carbonate

71

River Turbidity

17

Those solids which separate out in the sedimentation basin are

discharged several times per week

to

a drainage ditch.

Filter

backwash

is also discharged

to this same 16,000

ft.

drainage

ditch, which eventually

flows back to the Mississit~piRiver.

Treatment of the raw water begins

at the pumping station

where powdered activated carbon

is added

and

then pumped

to two

separate rapid—mix units and on the flocculation units.

Next the

water

is directed

to rectangular clarification basins where

settling occurs.

Treated water from the clarification units

is

combined.

The water

is then filtered in rapid sand filters and

directed

to

a clearwell where

it

is stored prior

to being pumped

into the distribution system.

Pet.

Ex. No.

2.

As noted

above,

filter backwash from the rapid sand filters

and sludge from

the clarification units

and drain lines from

various process units

is discharged from the water plant

into

a

drainage ditch.

The drainage ditch

flows into a storm sewer

which then flows

into the Mississippi River.

Pet.

Ex. No.

1.

92—29

---

—10—

Discharge from the water plant

is approximately 176,000

gallons/day, with suspended solids concentration limits

of 20,000

mg/l

——

but the average

is 10,000 mg/l.

Pet.

Ex.

Nos.

1

&

2.

Additional discharge from the water plant consists

of

backwash from the rapid sand filters.

These filters are

backwashed daily resulting in

a discharge of 3,800 gal/mm

for

30

minutes.

Sedimentation basins are flushed every other day which

results

in

a solids discharge of approximately 1,000 gal/mm.

The total suspended solid load to the Mississippi

River

is

approximately 7,000 lbs/day.

PERMIT DENIAL

Petitioner challenges

the Agency’s denial of

a NPDES permit

stating that the current regulation

is invalid

as applied

to

Petitioner because the regulations are arbitrary and

unreasonable.

35

Ill. Mm.

Code 304.124(a) prohibits discharge

of effluent

containing total suspended in excess

of 15 mg/i.

The

regulation

was promulgated

on December

24, 1981.

In applying for the desired permit, Petitioner tendered data

which demonstrated

that total suspended solids from Petitioner’s

treatment plant are between 10,000

and 20,000 mg/i.

Pet.

Ex.

1

&

2.

By

its explicit terms 35

Ill. Mm.

Code 304.124(a) prohibits

the discharge

of effluents in concentrations beyond those

enumerated

in Section 304.124(a)

35 Ill. Adm. Code 301.275

defines effluent,

inter alia,

as

a wastewater.

35 Ill.

Adm. Code

301.425 defines wastewater,

inter alia,

as an industrial waste.

And

35

Ill. Adm. Code 301.285 defines industrial waste

as

follows:

“Industrial

Wastes:

any

...

liquid

resulting from

...

the development, processing

or recovery

...

of any natural resource.”

The City of East Moline’s water treatment plant takes

raw water

from the Mississippi and treats this water

for use

in homes and

businesses.

Whether this processing

is called development or

processing,

or recovery, the fact remains that water from the

Mississippi

is

a natural resource and East Moline’s handling

of

this raw water

falls within 35

Ill. Adm. Code 301.285.

Thus, because

it

is processing

an industrial waste,

the City

of East Moline

is

regulated by the contaminant limits of

35

Ill.

Adm.

Code

304.124(a).

This

being

the

case

there

are

only

two

issues

to

be

addressed:

No.

1,

whether

Petitioner’s

application

package

demonstrated

that

its

plant

will

meet

the

standards

arid

92—30

---

—11—

No.

2

whether

the

Petition

may

succeed

in

obtaining

a

permit

by

alleging

that

the

regulation

is

invalid

as

applied

to

the

City

of

East

Moline.

The

Board

will

address

both

these issues serially, beginning

with

the

latter:

Whether

Petitioner

may

obtain

a

permit

from

this Board by alleging that

a regulation

is “invalid—as—applied”

to the City of East Moline.

There

is no cause of

action before this Board allowing for

challenging

a regulation

“as applied”

to an individual.

Merely

labelling an action as such does not create

a new cause of

action.

Petitioner argues that The Celotex Corporation

v.

IPCB,

1983,

94

Ill.

2d 107,

445 N.E.2d 752 stands

for the proposition

that

it

may

attack

a

regulation

as

applied.

Such

reliance

on

Celotex

is

misplaced.

A

thorough

reading

of

Celotex

makes

clear

that

a party

——

any party

——

does not waive

its

right to

challenge an administrative agency’s regulation as being

improperly

promulgated

simply

because

such

challenge

was

not

initiated within 35 days

of

the (purported) promulgation

of the

rule.

A regulation which is improperly promulgated

is not cured

of this defect by the passage of time and therefore should not be

enforced

by

administrative

agencies.

Petitioner’s

“as—applied”

language

does

not

exist

anywhere

in

the

court’s

opinion

in

Celotex.

To

the

extent

that

Petitioner

urges that Village of Cary v.

Pollution

Control

Board,

82

Ill.

App.

3d

793,

403

N.E.2d

83

(2nd

Dist.

1980),

creates

such

a

cause

of

action,

it

is

mistaken.

The

Cary case involved

a request for variance,

and the proper

issues

to be considered at such a hearing.

The Cary case did not

involve

a permit appeal

(as

is this case)

and nothing

in the

language

of Cary indicates this to be the case.

If Petitioner

seeks

to challenge the regulation pursuant to its request for

variance

(PCB 87—127)

the Board will address that Issue at that

time.

But in this proceeding

(PCB 86—218)

the sole

issue

is

whether

the

permit

application

package

demonstrated compliance

with

the

Act

and

Board regulations.

Citations supra.

Although

the

Cary

and

Celotex

cases

are

eight

and

five

years

old, challenges

to the validity of

regulations,

‘as

applied’

have

only recently arisen.

In addition to the above analysis

explaining Cary and Celotex the General Assembly has enacted

legislation precluding subsequent attacks on the validity of

a

regulation.

In specific on June

27,

1988

the General Assembly

passed HB—l834 which was signed by the Governor on July 14,

1988.

The

enacted

language

is

as

follows:

“Action

by

the

Board

in

adopting

any

regulation

for

which

judicial

review

could

92—3

1

---

—12—

have

been obtained

under

Section

41

of

this

Act

shall

not

be

subject

to

review

regarding

the

regulation’s

validity

or

application

in

any

subsequent

proceeding

under

Title

1111,

Title IX

or Section 40 of

this Act.”

This amendment, clearly seeking

to preclude subsequent “as

applied” challenges

to regulations,

is clear indicia that the

legislature never

intended the sort of proceeding now sought by

petitioner.

Subsequent enactments may

be used

to help determine

the legislature’s original

intent, particularly where

the

amendment

is enacted shortly after the interpretation of the

statute

it amends

comes into dispute.

Central Illinois Public

Service Company

v.

IPCB,

116 Ill.

2d

397,

507 N.E.2d

819

(1987).

In sum, Petitioner may not now challenge the validity of

the

regulation claiming that such

is invalid

as applied

to the City

of East Moline.

There

is no doubt

that Petitioner could timely seek

a

hearing

to determine the validity or applicability of the

regulation pursuant to Ill.

Rev.

Stat.

ch.

ill 1/2 par.

1029

which states

as follows:

“Any

person

adversely

affected

or

threatened

by

any

rule

or

regulation

of

the

Board

may

obtain

a

determination

of

the

validity

or

application

of

such

rule

or

regulation

by

petition

for

review

under

Section

41

of

this

Act.”

However, from the pleadings,

evidence and briefs

it

is

apparent that Petitioner

is not seeking

a declaration of the

validity

or applicability of

the statute; Petitioner

is seeking

to have the regulation declared invalid

as applied

to the City

of

East Moline.

Petitioner has argued

as follows:

“The 15 mg/l TSS standard contained

in Section

304.124(a)

of

the

Board’s

water

pollution

control

rules

is

invalid

as

applied

to

East

Moline’s water plant

because

the rule imposes

an arbitrary and unreasonable hardship on East

Moline.,”

Pet’s.

Br.

p.

11.

Petitioner has mistakenly pleaded the elements for the

request

of a variance

——

not

a permit appeal.

While the Board

notes that Petitioner

has filed

a Petition For Variance (PCB 87—

127)

that action

is not

a part

of this docket.

The

issue of

hardships

is

irrelevant

in this action.

Petitioner

chose

to

appeal

the Agency’s denial

of

a request for permit;

hence

this

92—32

---

—13—

permit appeal.

And

the sole issue before

the Board

in

a permit

appeal hearing

is whether

the applicant submitted data to

demonstrate compliance with

the Act Oscar Mayer

& Co.

v.

EPA,

PCB

78—14.

decided June

8,

1978,

IEPA

v.

IPCB,

(1984)

118 Ill.

App.

3d

772,

N.E.2d

189.

In answer

to the question whether Petitioner may obtain

a

permit by alleging that regulation

is invalid as applied,

the

answer

is no.

In order

to obtain

a permit,

the applicant must

demonstrate that issuance

of the requested permit will not

violate the Act.

Having held that there

is

no action before this Board

allowing for the challenge of

a regulation

“as applied”,

the

Board will now consider

the sufficiency of Petitioner’s case

in

chief.

Necessary threshold

issues

are whether

the regulation was

properly promulgated

and whether

the regulation governs the type

of activity engaged

in by Petitioner.

35

Ill. Mm. Code 304.124 provides as follows:

a)

“No

person

shall

cause

or

allow

the

concentration

of

the

following

constituents

in

any

effluent

to

exceed

the following levels

Total Suspended Solids

15.0 mg/l”

*

*

*

*

The Board adopted water quality standards

(of which Section

304.124,

supra,

is

a part)

on January

6,

1972 in an Opinion and

Order by (then) Chairman David Currie.

The rule was properly

promulgated and is,

thus,

valid.

The next question

is whether

the standard for total

suspended solids

(35 Ill.

Adm. Code 304.124) regulates

Petitioner’s activity.

This answer

is apparent:

The regulations

regulate total suspended solids by imposing an upper

limit

of

15

mg/i; Petitioner’s water treatment plant discharges water with an

average total suspended solid

count of 10,000 mg/i.

Obviously,

35

Ill. Mm.

Code 304.124, Total Suspended Solids,

applies

to

discharges from Petitioner’s water treatment plant.

Having found that the regulation was properly promulgated

and that

it regulates Petitioner’s discharges,

the Board now

turns

to the issue of whether Petitioner’s application package

and data demonstrates compliance with the Act.

As noted above,

if the application package demonstrated compliance with the Act,

then

the Agency decision

(to deny)

is

in error and the Board will

92—33

---

—14—

order

the

Agency

to

issue

the

permit.

If,

however,

the

application

package

did

not

demonstrate

compliance,

then

the

Agency

decision

was

correct

and

must

be

affirmed.

Based

upon

the

hearing

record

and

the

evidence submitted

Petitioner

has

failed

to

show

that

its

permit

application

package

demonstrates compliance with the Act.

On the contrary

Petitioner’s evidence

shows exactly the opposite.

Petitioner has

submitted data showing that

its

total suspended solids reach a

maximum of 20,000 mg/l with an average of 10,000 mg/i.

Pet.

Ex.

1,

p.

2.

The regulation set for at 304.124 sets

a maximum of

15

mg/I subject

to the averaging rules of

35

Ill. Adm. Code

304.104(a).

The permit from which Petitioner appeals imposed a

maximum of

30 mg/i.

Based upon the evidence presented,

Petitioner has failed

to show that its application and package

demonstrated compliance with the Act.

The Board has

no choice

but

to affirm the Agency’s decision.

Additionally, upon reviewing the data contained

in the three

Exhibits not admitted into evidence

(Petitioner’s Ex.

3,

4,

5)

the Board

finds that even if these documents were admitted into

evidence

(contrary

to the above explanation see pp.

3—15)

that

the Board’s

final decision would remain the same.

There

is

simply no evidence

in the record

or

in the offers

of evidence

which demonstrates compliance with the regulations setting

maximum concentration limits

for total suspended solids

(304.124).

The Agency decision denying the application for NPDES

permit is affirmed.

IT IS SO ORDERED.

I, Dorothy M.

Gunn,

Clerk

of the Illinois Pollution Control

Board,

hereby certify that the above Op

ion and Order was

adopted on the

______________

day of /~~~~l988

by a vote

Dorothy M. G,~n,Clerk

Illinois PoMution Control Board

92—34