ILLINOIS POLLUTION CONTROL BOARD
June
2,
1988
VILLAGE OF SAUGET,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
PCB 86—58
____________________________________
(Consolidated with
PCB 86—63)
MONSANTO COMPANY,
Petitioner,
‘1.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
INTERIM ORDER OF THE BOARD
(by R.
C. Flemal):
On April
28,
1988 the Village of Sauget
(“Sauget”)
filed
a
Motion
to Extend Stay,
requesting
that enforcement
of the
conditions of Sauget’s NPDES permit #IL00655145
for
its American
Bottoms Regional Wastewater Treatment plant
(“AB plant”)
be
stayed until
a final determination
is made by the Board
in the
instant matter
or until September
19, 1988.
Alternatively,
Sauget requests that the Board determine that
an automatic stay
is
in place pursuant
to Section 16(b)
of the Illinois
Administrative Procedure Act
(“APA”).
On May 13,
1988 the Illinois Environmental Protection Agency
(“Agency”) filed
an Objection
(“Objection”)
to Sauget’s motion,
and on May 17,
1988 Sauget filed
a Reply (“Reply”)
to the
Agency’s Objection.
Both Objection and Reply were filed with an
accompanying Motion for Leave
to File.
Filing of neither
the
Objection or Reply was made pursuant
to the Board’s procedural
rules governing such matters.
However,
in view of the substance
of the issues which the Board
is here asked
to address,
the Board
hereby grants both Motions for Leave
to File and thereby accepts
both Objection and Reply.
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—2—
FACTS
On April
18, 1986
Sauget filed
an appeal of certain
conditions of NPDES Permit #IL00655145 dated March 21,
1986
relating
to the AB plant.
At
that time the AB plant was under
construction and not yet operational.
Permit *1L00655145 was the
first NPDES permit issued to the AB plant.
The AB plant was designed
to replace
two primary treatment
plants,
the East St. Louis and Metro East Sanitary District
(Cahokia)
treatment plants, plus
to receive and further treat the
effluent produced
by Sauget’s physical/chemical plant
(“P/C
plant”).
The AB plant first received complete diversion
of all
flows on November
4,
1987.
On July
11, 1986
Sauget filed
a motion to stay enforcement
of the contested conditions
of NPDES Permit #ILD0655l45,
similar
to that of
the instant request.
That motion was granted by Board
Order
of July 31,
1986, with grant
of stay effective through
January
21,
1987.
No request
to extend the stay beyond January
21,
1987,
other
than
the instant request, has been filed.
In granting the initial stay (to January 21,
1987),
the
Board weighed Sauget’s assertion that grant of the stay would
have minimal environmental impact because the AB plant would not
be operational
until
after expiration of
the stay.
The Board
also specifically noted that the Agency had made no response to
Sauget’s motion for
the stay.
AUTOMATIC STAY
The threshold issue here present
is whether the APA,
as
applied
to the particular circumstances of this case,
confers an
automatic
stay.
Should such prove
to be the case,
the remaining
arguments
regarding the merits of granting Sauget’s request are
moot.
In pertinent part, the APA specifies at 127 Ill.
Rev.
Stat.
Section 1016(b):
When
a licensee has made timely and sufficient
application for the renewal of
a license or
a new
license with reference
to any activity of
a
continuing
nature,
the existing license shall
continue
in full force and effect until the final
agency decision on the application has been made
unless
a later date
is fixed
by order
of a reviewing
court.
It
is uncontested
that the licensee, Sauget,
has made timely
and sufficient application for
a license
(i.e.,
the NPDES
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—3—
permit).
It
is contested,
however,
(a) whether Sauget’s
application
is
for “renewal”
of
a
license;
(b) whether
the sought
after
license
is
for
an “activity of
a continuing nature”; and
(c) what,
if
any,
constitutes the “existing license”?
Sauget contends that because
it has held prior NPDES permits
for operation of
a waste treatment facility (albeit, not the same
facility as the
AB plant and not the identical influent waste
stream), Sauget’s application constitutes
a renewal action as
well
as an application for
an activity of
a continuing
nature.
Under
this
interpretation,
Sauget contends that
the prior NPDES
permits constitute
the existing license.
Conversely,
the Agency contends that because
the AB plant
has held no prior permit,
Sauget’s application can not properly
be considered to be
a license renewal
or
to refer
to an activity
of
a continuing
nature.
Under
this interpretation,
there
is no
“existing license”.
Central
to the resolution
of each of
these issues
is the
matter
of who or what
is licensed
in the NPDES process.
The
Board
believes that
it
is patently apparent that it
is the
discharges
of
a particular facility which are licensed.
As
illustration thereto,
an NPDES permit
is defined
as
a permit
which
is issued
to a treatment works pursuant
to section
402 of
the Clean Water Act (EPA Effluent Limitations Guidelines,
40 CFR
403.3(1)
(1987)) and the Environmental Protection Act refers to
NPDES permits
in such phrases as
“...
a facility for which an
NPDES permit has been
issued
...“
(Ill.
Rev.
Stat. 111—1/2,
Section 1013(b)).
Inherent
in this interpretation
is that
it
is
not the operator of the facility who
is licensed,
and that
therefore
it
is of
no weight in the matter
at hand that Sauget
has held,
and even continues
to hold,
an NPDES permit for another
and separate wastewater
treatment facility (i.e., Sauget P/C).
The Board notes
that,
although an NPDES permit may be issued
to
a
person,
it
is nonetheless
a permit particular
to,
and a licensing
of,
a facility.
It
is the capabilities
of the particular
facility upon which the decision to grant
a license must
turn.
Similarly,
there
is no basis
in the NPDES permitting process
to allow an interpretation
that an NPDES permit attaches
to
a
particular influent waste stream.
Thus,
the fact that Sauget may
have held
responsibility for treating a portion of the AB plant’s
influent
at times previous
is of no weight.
In fact,
the
influent received
by the AB plant
is not the same influent
received at any previous time or place either by Sauget or by any
other previous
or prior holder
of any NPDES permit.
Neither
is
the AB plant’s treatment process
the same
as that practiced
at
Sauget’s P/C plant or
any of the predecessor plants.
It
is thus
difficult
to conceive of
the AB plant’s treatment process as
constituting
a
“continuing activity”
in other
than the simplest
generic sense of
it being
a sewage treatment process.
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—4—
Based on the above,
the Board
finds that .Sauget’s
application for NPDES permit #1L00655145 does
not constitute
application
for
renewal of
a license
in the context of Section
1016(b)
of the APA;
that Sauget’s application for NPDES permit
#IL00655l45 does not constitute
an application
for
a new license
for
an activity of
a continuing nature
in the context
of Section
1016(b)
of the APA; and that
a consequence of the foregoing,
there exists
no license which
is currently
in force and effect
in
the context of Section 1016(b)
of the
PA.
Accordingly,
the
Board
finds
that the APA does not confer an automatic stay under
the circumstances at hand.
DISCRETIONARY STAY
In granting the earlier stay
(to January 21,
1987), Sauget
argued and the Board accepted that minimum or
no environmental
harm would be caused because the stay would
be
in effect only
prior
to the time
the AB plant was operational.
The Board was
further persuaded
to grant
the earlier stay based on Sauget’s
assertions that resolution of the contested permit conditions was
imminent.
Although Sauget contends that
the instant stay request
should be granted
for the same reasons that the prior stay was
granted
(Motion
at par.
2),
the Board notes
that
the reasons for
granting the prior stay no longer apply.
Not only has resolution
of the contested conditions not proven imminent,
but the AB plant
is now operational and
the Agency strongly contests whether
it
is
operating without environmental harm.
Sauget further
identifies
its purpose
for seeking
the stay
as “to protect itself from prosecution for violations of permit
conditions where such conditions have been improperly imposed”
(Reply at par.
2).
At the same time Sauget has not taken full
steps
to demonstrate before this Board that the conditions
actually have
in fact been “improperly imposed” as
is
its burden
under
the permit appeal process.
In spite of the vintage of this
matter, the parties have yet to come
to hearing;
neither have the
parties presented
the Board with any evidence that they have come
to an understanding on any of the
issues
in this matter.
Accordingly,
the Board believes that there has been
presented no sufficient justification for grant of the requested
stay.
The Motion for Stay is denied.
DIRECTIVE TO HEARING OFFICER
In the reading of
the full record
in this matter occasioned
by the instant motion,
the Board cannot help but have its
attention recalled to the slow pace of
this proceeding.
The
original filing
in this matter
is over
two years old.
Nevertheless,
despite repeated assertions
by both parties that
90—08
—5--
they desire rapid resolution
of this matter,
there
is nothing
in
the record which convinces
the Board that the parties are
3iligently pursuing
a resolution.
The Board further
observes
that the Illinois Environmental Protection Act
(“Act”)
contemplates
rapid disposition
of permit appeals pursuant
to
concomitant needs to expeditiously resolve disputes and assure
environmental protection.
Moreover,
the Board notes
that certain portions of the
pleadings filed with the instant motion raise reasonable question
as
to whether
the AB plant
is being operated
in accordance with
the Illinois Environmental Protection Act.
The Board
is not
certain what light may be cast on these circumstances by
resolution of the permit appeal issues.
However,
it
is clear
that progress towards
unraveling
this entire matter must be made
somewhere,
and that resolution of
the permit matters
is
a logical
point.
For
these reasons
the Board believes that the public good
requires expeditious resolution
of
the instant matter.
Accordingly,
the Board hereby directs the Hearing Officer
to
schedule
a hearing
in this matter at some convenient time no
later than August
15, 1988 and take all reasonable efforts to
expeditiously conclude this proceeding.
IT
IS SO ORDERED.
I,
Dorothy
NI.
Gunn,
Clerk
of
the Illinois Pollution Control
Board, hereby certify that the above Interim Order was adopted on
the
2”
day of
____________________,
1988,
by
a vote
of
~.-O
~
~
Dorothy
NI. Gunn, Clerk
Illinois Pollution Control Board
90—09