ILLINOIS POLLUTION CONTROL BOARD
July 11, 1986
VILLAGE OF SAUGET,
)
Petitioner,
v
)
PCB 86—57
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondents.
MOt~ANTO
COMPANY,
)
-
Petitioner,
v.
)
PCB 86—62
)
ILLINOIS ENVIRONMENTAL
)
(Consolidated)
PROTECTION AGENCY,
)
Respondents.
ORDER OF THE BOARD
(by
1. Anderson):
PCB 86—57
is an appeal
filed April
18,
1986 by the Village
of Sauget of certain conditions
of NPDES permit No~.IL0021407
dated March
21, 1986 relating
to Sauget’s existing physical!
chemical wastewater treatment plant
(P/C plant).
PCB 86—62
is
a
third party appeal
filed April
21, 1986 of the same conditions of
the same permit filed by Monsanto Company,
a discharger into that
plant.
By Orders entered April
24, 1986,
in each
of the cases
the
Board,
inter
alia,
asked
the parties
to address whether whether
the Board hadàuthority to entertain the Monsanto third—party
appeals.
Monsanto filed
a response on on May 16.
On May 19,
1986,
the Agency filed
a motion
to dismiss Monsanto’s third party
appeals.
Pursuant
to leave
of the Board, Monsanto filed a
response on July 1,
1986.
There are two issues
for Board consideration here.
The
first is s~hether35 Ill. Adm. Code Section 105.102(b)(3)
authorizing
third party appeals of NPDES permits
is invalid
pursuant
to the holding of Landfill,
Inc.
v. Pollution Control
Board,
74
Ill. 2d. 541, 387 N.E~
2d
25~(l978).
Th~
second
is
whether,
if the rule is valid, Monsanto has fulfilled the
preconditions
to acquire standing pursuant
to the rule’s terms.
In summary,
the Board finds that Section 105.102(b)(3)
is valid,
71-38
—2—
that Monsanto has standing
to appeal.
The Agency’s motion to
dismiss
is denied.
Monsanto’s appeal may therefore proceed, and
is being consolidated with PCB 86—57.
The Board will,
however, reaffirm its ruling in Village of
Gilberts
v.
Holida~
Park Cor~.and IEPA, PCB 85—96, August 15~
T985,
tWat tff~validi?yof Ru1~T~3.T~2(b)(3)
is not impaired by
the Landfill decision.
The Landfill case involved a challenge to
two of the Board’s procedural
ñIIiS,
Rule 205(K) which provided
for appeals
of issued permits by “any person adversely affected”
and Rule 503(a) providing for the filing by any person of
z~omplaintsto revoke
a permit on the ground that
“it was issued
by the Agency in violation of the Act,
or the Regulations or of a
Board Order”.
The Illinois Supreme Court determined that these
rules were “unauthorized administrative extensions”
of the
Board’s authority to hear citizen complaints conferred by Section
31(b)
since “prosecution under the Act...is against polluters,
not the Agency”,
and as well as
of
its authority,
conferred by
Section 40
of the Act,
to entertain appeals by the applicant of
permit denials.
In reaching
these conclusions,
the Court noted that under
the Act,
the role of the Board is
to determine, define and
implement environmental control standards,
the role of the Agency
is, among other
things,
to administer permit systems,
and that of
private persons
is
to
“effect the Act’s purpose
of restoring,
protecting and enhancing the environment.
An interaction of
these
roles...occurs in the enforcement provisions of
the Act”,
rather than in the permitting provisions.
387 N.E.
2d at 263.
The Court further found
that:
“If
the
Board were
to
become
involved
as
the
overseer
of
the
Agency’s
decision—making
process
through
evaluation
of
challenges
to
permits,
it
would
become
the
permit—granting
authority,
a
function
not
delegated
to
the
Board by the Act.
The
one
statutory
exception
to
the
Board’s
quasi—legislative
role
in
relation
to
permits
is
in instances in which
the Agency has denied
a permit.
Explicit procedural
requisites are
established
for
Board
review
of
permit
denials, and Agency appearance at such permit—
denial
hearings
is
mandated.
The
Agency
is
also
required
to
transmit
to
the applicant
a
detailed
statement
as
to
the
reasons
the
permit application
was
denied.
There
are
no
comparable
statutory
provisions
for
Board
review
on
either
substantive
or
technical
grounds
of
the
Agency’s
grant
of
a
permit,*
71-39
—3—
thus
indicating
a
legislative
intent
not
to
provide for such a proceeding.”
(Citations and
footnotes omitted).
Id. at 264.
The Act does not explicitly provide for third party appeals
of NPDES permits.
However,
as noted by the Board
in Gilberts,
Section 11(a)
recites the legislative findings of the desir—
ability of Illinois’ secureinent
of NPDES enforcement primacy.
Section 11(b) “authorize(s), empower(s),
and direct(s) the Board
to adopt such regulations....as will enable
the State to secure
federal approval
to
issue NPDES permits...”.
The Board went on
to state
that:
“The
regulations
at
issue
were
adopted
in
Docket
R73—1l
and
12,
In
The
Matter
of:
National
Pollutant
Discharge
Elimination
~
5f
Augi.i
29
and
September
~
and Opinion of December
5,
1974.
In
summary,
the Opinion
does
not
note
that
the
third
party
appeal
is
federally
required, although
it does note at some length
that
the
opportunity
for
public
hearings
at
the Agency level
is required prior
to issuance
or
denial
of
a permit.
(See
esp.
pp.
1,
4—
7).
The
Board has
also reviewed
the October
20,
1977,
USEPA/Illinois
Memorandum
of
Agreement
giving
the
State
NPDES
enforcement
primacy;
it
does
not
specifically
reference
permit
appeal
procedures,
although
these
procedures were part
of
the package
submitted
to secure
the NPDES program for the state.
40
CFR
Part
123
sets
forth
state
program
requirements
for
NPDES,
RCRA
and
other
programs, and Part 124, set out procedures for
decision—making
by
USEPA.
Section
124.91
provides
that
third
parties
may
appeal
NPDES
permit
decisions;
this
is
not
a
requirement
which has been made specifically applicable to
State programs
in Part 123.
However,
it should
also
be
noted that Section
124.19,
giving
third
party
appeal
rights
concerning
RCRA and UIC
permits,
is
also not
specifically
applicable
to
state
programs
pursuant
to
the
terms
of
Part
123.
Notwithstanding, USEPA interpreted third party
*
The Board has historically reviewed conditions of permits
issued by the Agency, and Section 40(a)(l) has since been amended
to
so provide.
71-40
—4—
appeals
as
being
an
essential
portion
of
the
state RCRA authorization package, so the Board
adopted
rules giving
such
rights,
see R84—lO,
In
The
Matter
o
RCRA
and
UIC
Procedural
~üiei, Order of t~ecembi~r20, 1~84,Opinion of
~anuary
10,
1985.
On
this
basis,
the
Board
believes USEPA,
if asked,
would
conclude that
third
party
appeal
rights
are
an
essential
part
of
the NPDES package.
If the Board does
not allow appeals of NPDES permits
to proceed,
the
State’s
NPDES
primacy
could
be
jeopardized.”
In
its motion to dismiss,
the Agency comments
on this ruling are
first that
it has no knowledge of any “USEPA intention to
question the sufficiency of State NPDES primacy on this issue”,
but that if “USEPA does advance the proposition that 3rd party
appeal rights have
to be provided for
in the Board Rules, such
amendments
to the Rules will have to be made in the context of
a
rulemaking proceeding.”
The thrust of these comments
is
misplaced.
Rules authorizing third party appeals of NPDES
permits are
in place;
it
is repeal of these
rules which would
require a rulemaking proceeding, and it
is repeal of these rules
or
a declaration of their
invalidity which the Board believes
could cause NPDES primacy problems.
Monsanto,
in its May
16 brief,
has aptly explained that the
rationale behind the Landfill result does not apply in the NPDES
situation,
as the relatioriihip between the Board,
the Agency, and
the public envisioned in the original Act has been in some
respects altered consistent with the legislative determination
that it is desirable for
the State to obtain and maintain NPDES
enforcement primacy.
As Monsanto states:
“The
Court
in
Landfill,
Inc.
v.
Pollution
Control
Board
state~
that
‘The
Act
contemplaEes
the
participation
of
private
persons
to
effect
the
Act’s
purpose
of
restoring,
protecting
and
enhancing
the
quality
of
the
environment
(cites
deleted).
An
interaction
of
the roles of
the Board,
the
Agency,
and
private
persons
occurs
in
the
enforcement provisions
of
the Act.’
74
Ill.2d
541,
555
(1978).
As indicated
above,
this
is
not correct insofar
as the Federal Clean Water
Act
(CWA)
and
NPDES
permit
program
are
concerned.
The
CWA
and
the
NPDES
permit
program
clearly
require
that
the public
be
given
an opportunity
to become
fully involved
in the development of terms and conditions
for
NPDES permits.”
71-41
—5—
Finally,
the Board also notes
that,
in contrast to the
situation in Landfill,
in this case there are “provisions for
Board
review Oñ~.substantiveor
technical grounds of the
Agency’s grant of a permit” embodied in the NPDES regulations.
Having determined that Section l05.102(b)(3)
is a valid
rule,
the Board must determine whether Monsanto has acquired
standing pursuant to
its terms,
which are that:
“Any person
other
than the applicantwho has
been
a
party
to
or
participant
at
an Agency
hearing with respect
to the issuance or denial
of
an
NPDES
Permit
by
the
Agency,
or
any
person
who
requested
such
a
hearing
in
accordance
with applicable
rules, may
contest
the Agency’s
final decision...”
Monsanto’s July
1 memorandum is accompanied by the affidavit
of its counsel who participated
in review of the various draft
permits
for Sauget’s facility issued
by the Agency prior
to
issuance of
the final permit.
Monsanto asserts that no public
hearing was held by the Agency,
but fails
to assert that it had
requested such a hearing.
Monsanto relates, however, that the
draft permits issued by the Agency for Sauget’s plant on May
8
and October
2,
1985, were reviewed by personnel from the
Krummrich plant
(which discharges into the plant) and from its
corporate headquarters,
that comments were prepared and discussed
with Sauget, and that these Monsanto comments were included in
those “official comments” submitted by Sauget to the Agency.
Monsanto asserts that receipt of
a USEPA letter, dated
February 14,
1986, or February,
1986 draft permit, and the
permits
issued March 21,
1986, caused Monsanto, Sauget and others
to go “into high gear,” because these contained unacceptable
conditions not present
in previous drafts,
but which were
included at USEPA’s direction without “comments,
discussion or
input from the affected parties.”
Monsanto asserts that the
permits were reviewed by its personnel,
and were the subject of
numerous meetings, including one with Sauget’s attorneys to
discuss appeal strategies.
Finally, Monsanto notes
that its situation
is not that of
any ordinary contributor and ratepayer to a sewage treatment
plant,
in that it contributes and pays for treatment of 81
of
the total flow
to the Sauget plant.
While not questioning the
ability
of counsel
for Sauget
to prosecute an appeal, Monsanto
submits that the interests of Sauget and Monsanto are “diverse
and not necessarily compatible
in all instances,” and gives two
examples of this diversity.
For these reasons, Monsanto requests
that,
if the Board should determine that Monsanto may not
prosecute an appeal
in its own right, that
it be granted leave
to
intervene
in the Sauget appeal.
71-42
—6—
Intervention
is not an option available to Monsanto,
as the
Board adheres
to its previous determination that Landfill, Inc.,
su~L,bars intervention
in permit appeal actions
t~aste
~na~ement
y. Illinois Environmental Protection Agency (cites),
the Boa~dcanñO~tfind that Monsanto ‘hascorii~liedwith the literal
requirements of Section l05.102(b)(3),
as no Agency hearing was
held
or requested by Monsanto.
However,
the Board finds that the
purpose
of these requirements is to prevent
an appeal by a
“stranger
to the permit,” that is,
a person who has provided no
input to the process prior
to issuance of the final permit.
The
Board finds that the level of Monsanto’s participation in the
permitting process
at the Agency level constitutes
substantial
compliance with the requirements of Section 105.102(b)(3).
The
Board will,
accordingly,
allow Monsanto’s appeal to proceed.
Finally,
as the Board indicated
it would
in its June
5,
1985, Order,
the
Board hereby consolidates this appeal with
Sauget appeal of this permit in docket PCB 86—57
in the interests
of administrative economy.
IT
IS SO ORDERED.
B. Forcade dissented.
I,
Dorothy M. Gunn,
Clerk
of the Illinois Pollution Control
Board, hereby certifi that the above Order was adopted on
the
//~-
day of
___
___________,
1986,
by
a vote
of
-_~L_~
(/
/
Dorothy M~~inn, Clerk
—____
Illinois Pollution Control Board
71-43