ILLINOIS POLLUTION CONTROL BOARD
January
19,
1989
VILLAGE OF SAUGET,
)
Petitioner,
)
)
v.
)
PCB 86—57
)
PCB 86—62
ILLINOIS ENVIRONMENTkL
)
(Consolidated)
PROTECTION AGENCY,
)
)
Respondent.
)
MONSANTO COMPANY,
)
)
Petitioner,
)
v.
)
PCB 86—58
PCB 86—63
ILLINOIS ENVIRONMENTAL
)
(Consolidated)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD (by R.
C. Flemal):
The Board issued
its Opinion and Order
in this matter on
December
15,
1988.
Pursuant to 35
Iii.
Adm. Code 103.240, the
35
day time period for the
filing of motions
for reconsideration
does not expire until after January
19,
1989.
On January
12,
1989 the Board received
a carbon copy
addressed
to
it of a letter written by USEPA to the Agency which,
among other things,
criticizes aspects of the Board’s decision
in
this matter.
There
is no indication
that this
letter was sent to
the other parties
in this case.
As this letter can be viewed as an ex parte communication,
in order
to cure any potential
taint
in the record of this
proceeding, the Board directs
its Clerk
to docket
this letter and
to place
it
in the record, and
to serve
a copy of the letter,
along with this Order,
to counsel for the parties in this case
and USEPA.
In accordance with
the usual practice of dealing with
communications of this type,
the Board will disregard
the
substance of this communication
in any further deliberations
which may arise
in this proceeding.
IT
IS SO ORDERED.
95—261
—2—
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby cert
y that the above Order was adopted
on
the
/~-~-
day of
_______________,
1989, by a vote of
7—c)
liii
llut
Control Board
95—262
~O
S~4’~
(JNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION
5
230 SOUTH
DEARBORN
ST.
CHICAGO, ILLINOIS 60604
REPLY
TO
THE ATrE~rtoN
OF
SRA-TtJB-8
10 JAN 1989
Bernard
P. Killian, Director
Illinois Environmental
Protection Agency
2200 Churchill
Road
P.O. Box
19276
Springfield, Illinois 62794—9276
Dear Mr. Killian:
This letter
is
to
inform you of the United States Environmental
Protection Agency’s
(U.S.
EPA) concerns with the Illinois Environmental
Protection Agency’s
(IEPA) and the Illinois Pollution Control
Board’s
(IPCB) administration of the Illinois National Pollutant Discharge
Elimination System (NPDES) program.
I am making these comments pursuant
to IJ•S~EPA’s
oversight authorities under Section 402 of the Clean Water
Act
(CWA)
and the Memorandum of Agreement between our two agencies.
These concerns involve the
TEPA’s
and
IPCB’s administration of individual
permits and of the NPDES regulatory program in
general. This letter
expands upon the concerns enumerated
in my May 12,
1987, letter
t.o
Governor Thompson.1
Many of the problems enumerated’in my May
12, 1987,
letter to Governor
Thompson
still
remain unresolved.
As demonstrated in the Sauget
decision, the Illinois Pollution Control Board
(IPCB or Board)
still
shows
little concern
for
Federal requirements, leaving
IEPA unable
to
implement
fully the federally mandated programs.
Furthermore, TEPA had agreed to represent U.S. EPA’s position on issues
affecting the administration and implementation of the NPDES
program to
the Board
in order to ensure that the IPCB does
not take
an action that
u.S. EPA would
later be
forced to veto.
Unfortunately, as was
demonstrated in
the Sauget hearing, TEPA has
not followed through
on that
promise.
To reiterate U.S. EPA’s recomendations
in my May
12, 1987,
letter:
1.
The authority to issue administrative orders and such other
equivalent
enforcement actions,
as set
forth
in
Section 309 of the
CWA, should be vested
in the IEPA.
I
“Final
Report
on
Issues Concerning the State of Illinois’
Administration of Federally Mandated Environmental
Programs.”
OF iLuNO~~
P~ttUT,O~
C~)NTR~)t
BC~P~
‘C
PROS
95—263
2
2.
The
IPCB should develop the necessary mechanisms to ensure
consistency with Federal requirements
in order to avoid conflicts
with U.S.
EPA.
3.
Illinois must develop rules for streamlining
its docket and
comit to complete rulemaking actions within
12 months
of
initiation.
I
have not seen significant progress
in these areas, even though the
necessary legislation enabling Recomendation
No.
3 was passed
last
suniner.
On the specific matter of Sauget,
U.S. EPA has been,
and remains, highly
concerned with the effluent from the Village of Sauget, the most toxic
discharge in the six State area.
We have closely followed the permitting
of discharges from the Village of Sauget.
Outlined below are specific
deficiencies in the Board’s decision from our perspective.
I believe the
amount
of time
it has taken to resolve the Sauget permit
appeal
is
inexcusable,
as was also the time it took to reissue the permit for the
Physical/Chemical
(P/C)
plant.
Close to
3 years were needed in each
instance, and now the permit may
be modified based
on the Board’s
decision.
I
urge the IEPA to use all available mechanisms,
including
requests for reconsideration, appeal
rights, and remand authority, to
correct these
deficiencies.
1.
The Board
Decision
a.
Effective dates
Of primary concern resulting from the recent Board
decision
is
the vague character of
all effective dates.
With regard to the
P/C plant,
it
is unclear
if the P/C limits are voided
ab
initic,
or are voided as
of the date of the decision. ~ther
effective dates,
such as those for the limits
on the discharge
from the P/C
plant
to the American Bottoms (A/B)
plant,
are
linked
to attainment
of operational
levels.
U.S. EPA does
not
agree that compliance dates should
be
established for the convenience of the permittee.
Nor do we
believe this decision should excuse past non—compliance.
Instead,
compliance
dates
must
be
set
at
the
earliest
feasible
date.
The
Board order should not excuse, nor relieve,
a
compliance date unless the condition was clearly impossible
at
the time and
remains impossible today.
IEPA is hereby
on
notice that U.S. EPA will review any proposed permit
modification
and intends
to object to any change
of effective
dates
for conditions that were attainable by the
dat.e in the
original permit.
95—264
3
U.S. EPA further considers the Board’s direction, that the
dates be “related” to attainment
of operational
levels, to be
effective on
a parameter by parameter and condition by
condition basis.
In other words,
since some conditions were
technically attainable before others, the earliest
effective
date for each condition should apply.
IEPAshould consider
July
2,
1986, the date the A/B plant attained secondary
treatment levels
as
controlling.
b.
Whole Effluent Toxicity
Being “persuaded” that the tiered approach
to toxicity limits
should
be used at Sauget, the Board set aside the whole
effluent. toxicity limit.
The
Board did not base its decision
on the manifest weight
of the evidence, nor did
it. base its
reasoning on considerations of arbitrariness.
It appears
to
merely reflect
a preference
on
the part of the Board that
hardly warrants changing the permit.
Furthermore, the Board’s decision was based on
an improper
interpretation of U.S. EPA policy.2
Under
U.S. EPA policy, the
tiered approach
is applicable to situations where there
is
reasonable doubt
as to the toxicity
of
the discharge.
In
situations
in which
toxicity is
known and anticipated to
continue, the whole effluent
limit, not the tiered approach,
is
the required approach under U.S. EPA’s interpretation
of
Section
301 of the CWA when dealing with complex toxic
effluents.
Test results demonstrating the high toxicity levels
of the
Sauget
effluent were excluded from evidence
at the hearing.
Although
the
Board
did
not
hear
all
the
evidence,
U.S.
EPA
notes that the tests required by the tiered approach have
already been completed.
Since the Board expressly found that
IEPA has authority to
impose
a whole effluent toxicity
limit,3
and
since the Board upheld the reopener clauses which
allows
for
permit changes based on
this evidence, U.S. EPA does
not
read the Board decision to forbid retaining the same or
imposing
an even more stringent whole effluent toxicity
limit.
2
“Based on overwhelming testimony
in support of
the tiered
approach..,
plus the USEPA’s own analysis of
the advantages
and
disadvantages of the two approaches,
the Board
is persuaded that the
tiered approach
is best applied
in the instant matter.”
(emphasis
added)
Board decision at
18.
3
“These two sections, when taken together, provide clear authority
far the imposition
of
an effluent toxicity limit whenever such limit
is
necessary to ensure compliance with the Board’s water quality standard
for toxicity.”
Board decision
at
18.
95—265
4
Due to the known toxicity of Sauget’s effluent, U.S. EPA will
object
to
any
modified
permit
for
Sauget
that
does
not
contain
a whole effluent toxicity limit.
Furthermore, this subsequent
testing
fully supports the need for
a whole effluent toxicity
limit
in
the
permit
more
than
ever
before.
•As
a
result,
U.S.
EPA
believes
that
IEPA
should
address
this
issue
by
continuing
the present acute limit
in full
force and effect.
I
also
believe
that
such
a
decision
not
to
modify
the
permit
with
regard to the whole effluent toxicity limit
is
fully consistent
with the Board order.
Additionally, based
on the results
of
the above tests,
a chronic whole effluent
toxicity limit should
be added.
c.
Biomonitoring, Mixina Zone Studies, Chemical Monitoring and
Identification
The
Board
upheld
the
biomonitoring
requirement,
but
ordered
the
permit
to
be
re-written
to
reflect
more
explicit
directions
contained in the opinion.
Formal permit conditions
are not the
proper forum to resolve such technical disagreements.
A letter
from IEPA to Sauget explaining the Agency’s willingness
to be
flexible
on the specifics of plan development, rather than
permit
re—writing,
is all that
is necessary here.
A similar
clarification of
intent applies to the mixing zone condition
and
the chemical monitoring
and identification conditions.
2.
Hearing Preparation and Follow—up
U.S. EPA went to considerable time and expense to provide
witnesses
for
the
public
hearing
on the Sauget permits.
The
failure to file prehearing statements that our witnesses agreed
to prepare, as
well
as
an unwillingness to push the Board to
consider the true facts
in the case,
resulted in the exclusion
of U.S. EPA witnesses and their testimony, which would have
supported IEPA’s
defense
of
its own permit.
I believe proper
prehearing
preparation would have avoided this outcome and that
U.S. EPA’s testimony would have given the Board
a better
understanding of the rationale behind several of the critical
permitting decisions the State made.
Instead,
IEPA identified only two witnesses
in support
of the
permit.
One
of the two was unavailable during the hearing and
his deposition
was
all that was entered
in support
of the
critical
issues
of whole effluent toxicity
limits,
and
biomonitoring. This witness’
personal absence made rebuttal
testimony
impossible,
thus discounting
its
affect before the
Board.
The
other
IEPA
staff
member
testified
on
behalf
of
Sauget.
Furthermore,
IEPA’s
discovery
in preparation for
hearing
was
served
too
late
to
allow
for
deposition
of
Sauget’s
numerous expert witnesses.
Such lack
of hearing support and
inadequate
legal preparation are indicative
of
a program which
fails
to comply with the most basic requirements.
95—266
5
Finally,
1
believe
this
unfortunate
series
of
events
could
have
beep
avoided
if
the
State
had
lived
up
to
its
promise
to
fully
represent
U.S.
EPA’s
position
in Board proceedings.
Furthermore,
I believe that the
Board
has
been
slow
to
respond
to
the
concerns
I
outlined
in
my
May
12,
1987,
letter.
In
co~clusion, I
recommend
that
IEPA
utilize
its
own
process
to
correct
the
deficiencies
in
the
permit,
and
in
the
process,
cited
above.
IEPA
may
choose
to
petition
for
reconsideration,
appeal,
or
re-write
the
Sauget
permit.
Be
advised
that
U.S.
EPA
intends
to
object
to
any
permit
conditions
for
Sauget’s
highly
toxic
effluent
that
do
not
meet
u.S.
EPA’s
standards.
U.S. EPA will continue to oversee TEPA’s administration of
its
NPDES
duties.
Sincer
y
yours,
Valdas
V.
Adam~s
Regional
Admif~strator
cc:
John
Marlin,
Chairman,
Illinois
Pollution
Control
Board
Honorable James
R. Thompson, Governor of Illinois
95—267