ILLINOIS POLLUTION CONTROL BOARD

July 11,

1986

VILLAGE OF SAUGET,

)

Petitioner,

)

v.

)

PCB 86—58

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondents.

MONSANTO COMPANY,

Petitioner,

)

V.

)

PCB 86—63

)

ILLINOIS ENVIRONMENTAL

)

(Consolidated)

PROTECTION AGENCY,

Respondents.

ORDER OF THE BOARD

(by 3. Anderson):

PCB 86—58

is an appeal

filed April

18, 1986 by Sauget of

certain conditions of NPDES Permit No. 1L0065145 dated March 21,

1986 relating to the soon to be completed American Bottoms

regional wastewater treatment plant

(AB plant) which

is

intended

to receive flows from Sauget’s existing physical/chemical

wastewater treat plant as well

as from the East St. Louis and

Metro East Sanitary District (Cahokia) primary treatment

plants.

PCB 86—63

is an appeal filed April

18, 1986 by Monsanto

of

the same conditions

of the same permit.

By Orders entered April

24,

1986,

in each of

the cases the

Board,

inter alia, asked

the parties

to address whether whether

the Board1i~dauthority

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 whether

35 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.

Zd 2~8

(1W78).

¶~hesécthi~d is

whether,

if the rule is valid, Monsanto has fulfilled the

71-44

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—2—

preconditions

to acquire standing pursuant

to the rule’s terms.

In summary,

the Board

finds that Section l05.l02(b)(3)

is valid,

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—58.

The Board will, however, reaffirm its ruling

in Village of

Gilberts

v. Holiday Park Core.

and IEPA, PCB 85—96, A~igus?15,

1985,

t~hatthe vali~T~yof Ru~ielO5.Th2(b)(3) is not impaired by

the Landfill decision.

The Landfill case involved a challenge

to

two ~rthe

Board’s proceduraFrules, 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

complaints

to 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

71-45

---

—3—

review

on

either

substantive

or

technical

grounds

of

the Agency’s

grant

of

a

permit,*

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’ securement 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—ll

and

12,

In

The

Matter

of:

lutant

Discnar9eEllxTIlnatlon

~~sternRegulatföhs

Orders

~!

August

~añ~

Septembef 5,

1974,

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

*

The Board has historically reviewed conditions of permits

issued by the Agency,

and Section 40(a)(l) has since been amended

to so provide.

71.46

---

—4—

pursuant

to

the

terms

of

Part

123.

Notwithstanding, USEPA interpreted third party

appeals

as

being

an

essential portion

of

the

state RCRA authorization package,

so the Board

adopted

rules

giving such

rights,

see

R84—l0,

In

The

Matter

of

RCRA

and

UIC

Procedural

RuT~s, Order

51 December

20, 1~4, ~pfnforiof

January

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 relationsMp 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

T~5ñtemptàtes

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

71-47

---

—5—

in the development of terms and conditions for

NPDES permits.”

Finally,

the Board also notes

that,

in contrast to

the

situation in Landfill,

in this case there are

“provisions for

Board review on..

.

substantive or 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

applicant who 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

Krumnirich 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

71-48

---

—6—

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.

Intervention

is not an option available to Monsanto as the

Board adheres

to its previous determination that Landfill, Inc.,

supra, bars intervention in permit appeal actions.

Wáste

Mani~ementv. Illinois Environmental Protection Agen~ (~ites),

the Board cannot find that Monsanto has complied with 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

in light of its status

as

81

contributor of flows

to the Sauget plant constitutes

substantial compliance with the requirements of Section

105.l02(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—58

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 certify

hat the above Order was

adopted on

the ~

day of

-

,

1986, by a vote

of

~

/

~orothy M.~3nn, Clerk

Illinois Pollution Control Board