ILLINOIS POLLUTION CONTROL BOARD
June
5,
1986
VILLAGE OF SAUGET,
)
)
Petitioner,
)
)
v.
)
PCB 86-57
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY, AND UNITED
)
STATES ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondents.
)
VILLAGE OF SAUGET,
)
Petitioner,
)
)
v.
)
PCB 86-58
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY, AND UNITED
)
STATES ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondents.
)
~MONSANTOCOMPANY,
)
Petitioner,
)
)
v.
)
PCB 86-62
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY, AND UNITED
)
STATES ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondents.
MONSANTO COMPANY,
)
Petitioner,
)
)
v.
)
PCB 86-63
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
AND UNITED
)
STATES ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondents.
)
NOT CONSOLIDATED
70-138
-2-
ORDER OF THE BOARD
(by J. Anderson):
PCB 86-57 is an appeal filed April
18,
1986 by the Village
of Sauget of certain conditions of NPDES permit
No. 1L0021407
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.
PCB 86-58 is an appeal filed April
18,
1986 by Saugetof
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 the P/C 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.
The April
21 motions
of Ronald
T. Allen for leave to appear
on Monsanto’s behalf
in PCB 86-62 and PCB 86-63 are granted.
By Orders entered
in each of the four cases the Board asked
the parties
to address whether
1) USEPA was
a proper party in
these appeals,
2) whether the P/C plant appeals should be
consolidated with the AB plant appeals and
3) whether the Board
had authority to entertain the Monsanto third-party appeals.
USEPA and Sauget filed responses
to these queries on May 15,
as
did Monsanto on May 16.
Additional motions pending are
1)
Sauget’s motion of May 27 in the PCB 86-58 AB plant appeal for
modification of the Board’s April 24 scheduling Order, and 2)
the
Agency’s May
19,
1986 motions to dismiss each of Monsanto’s third
party appeals.
Dismissal of USEPA From These Proceedings
Sauget
(whose briefs Monsanto adopts by reference on this
point) argues that USEPA is
a necessary party in these appeals
“based on the central role it played
in drafting and requiring
the inclusion of various objectionable conditions”
in each of the
NPDES permits
at issue here.
Sauget asserts that by requiring
the Agency to include these conditions,
that USEPA has
“voluntarily submitted”
to the Board’s jurisdiction, and that for
jurisdiction purposes the acts
of the Agency must
be imputed to
USEPA, given the nature of the Memorandum of Agreement delegating
NPDES enforcement program to Illinois.
USEPA, however,
“neither
acknowledges nor agrees” that
it is subject to the Board’s
jurisdiction, asserting that:
“Under the doctrine of sovereign immunity, as well
as
the
jurisdictional
provisions
of
the
Federal
Water
Pollution Control
Act,
33
U.S.C.
51369(b)(1)(D)
and
70-139
-3-
(F),
USEPA may not
be
joined
as
a party
to Sauget’s
permit
appeal before
the
Board.
See
Arninoil U.S.A.,
Inc.
v.
California
State
Water
Resources
Control
Board,
674 F.2d 1227
(9th Cir.1982).”
In that case,
Arninoil sought review
in state court of
a decision
of the California State Water Resources Control Board
(State
Board) that the area in which Aininoil discharged its oil and gas
drilling waste was
a national wetlands and that Aminoil therefore
needed an NPDES permit.
Prior to the decision by the entire
State Board,
the Santa Ana Region (Regional Board)
of the State
Board had adopted the interpretation that the area was not
a
wetland,
and no permit was needed.
Irrespective of this determination, USEPA sent Aminoil
a
“finding of violation”
of prohibitions against discharging into
a
wetlands without an NPDES permit, and notified the State Board
that USEPA would take action if the State Board did not enforce
within 30 days.
The State Board thereafter sent USEPA
a draft
Order which it proposed to issue reversing the Regional Board;
the reversal order was
based on the identical record upon which
the Regional Board had made its decision.
Three days after its
receipt from USEPA of
a letter which “urged” the adoption of the
proposed order,
the State Board did so.
For this reason,
Aminoil
joined the USEPA Administrator as
a
“real party in interest” to
the state court
suit for review of the State Board action.
The
Administrator removed the suit to the federal district court.
The district court granted
a motion to dismiss on the grounds
that sovereign immunity barred the action
in state court.
The
9th Circuit Court of Appeals affirmed the dismissal over
Aminoil’s argument that it was seeking,
in
a single proceeding,
a
determination that would be binding on both the State Board and
the USEPA.
The Court stated that:
“The
doctrine
of
sovereign
immunity
and
the
allocation
of
judicial
authority
implicit
in
the
structure
of
the
Clean
Water
Act
preclude
the
states
from
exercising
jurisdiction
over
the
US
EPA.
This
allocation
of federal-state jurisdiction
follows
logically
from the
framework of
cooperative
federalism
created by the Act.***It is
not for
us
to
revise that congressional judgment merely because
it
may
place
private
litigants
to
the
unenviable
and
burdensome
position
of
being
required
to
litigate
their
liability
under
the
Act
in
two
separate
judicial
systern.***It
is
the
responsibility
of
Congress
to
correct
any
such
inconsistency
by
amending the
Act
to
allow the
US
EPA to
be
joined
in
state
court
actions
for
review
of
state
agency
NPDES permit decision.
We recognize...that
our holding does not comport well
with traditional motions
of judicial economy and the
10.140
—4—
principle
that
needlessly
duplicative
litigation
should
be
avoid.
We
emphasize,
therefore,
that
we
hold
only
that...nonfinal
US
EPA
action
is
not
reviewable
in the federal
courts by means of joining
the
US
EPA
as
a
party
to
a
state
court
action
seeking
review
of
a
state
NPDES
permit
decision.
Under
both
the
Act
and
Section
10
of
the
Administrative
Procedure
Act,
5
U.S.C.
§704,
review
of EPA action must await final Agency action and must
be
initiative
in
federal
court”
(citations
and
footnotes omitted) 674 F.2d at
1237.
The Aminoil fact situation
is virtually identical to that
presented to the Board in these four appeals.
As the Clean Water
Act has not been amended since that decision,
the Board is
compelled
to follow that precedent and to find that the Board may
not lawfully exercise jurisdiction over USEPA, and dismisses
it
as
a party
from all of the instant appeals.
In
so doing,
the
Board shares
the view of the Aminoil court that this leaves
the
petitioners
in an
“unenviable and burdensome position”,
but this
is
a position which the Board, like the Court, has no power to
correct.
Monsanto’s
Third Party NPDES Permit Appeals
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.
2d 258 (1978).
The second
is
whether,
if the rule is valid, Monsanto has fulfilled the
preconditions to acquire standing pursuant to the rule’s terms.
This latter issue is brought up, for the first
time,
in the
Agency’s May 19 motion to dismiss.
As Monsanto has not
as yet
addressed this issue,
the Board will not rule on either issue
today.
Monsanto
is directed to file
a response, including
a
description of
its participation, if
any, in the permitting
process at the Agency level, on or before June
16,
1986.
Consolidation
The parties have persuaded
the Board that it would not be
wise to consolidate
the P/C permit appeal with the AB appeal.
However,
the Board notes
its intention to consolidate the
Monsanto appeals with the respective Sauget appeals
in the event
that the Monsanto is found
to have standing to appeal.
Sauget Motion To Modify
On May 27, 1986,
Sauget filed
a motion to modify the Board’s
April
24, 1986, Order setting this matter for hearing.
Sauget
70-141
-5-
seeks to have the prior Order modified to allow full and complete
discovery.
The motion is denied
as unnecessary.
The Board’s April 24 Order required that hearing be
completed within 60 days, absent
a waiver.
Sauget provided a
waiver until January
21,
1987.
Consequently, under the terms of
the April
24 Order, the hearing officer is free to establish
a
scheduling order that allows ample time to complete discovery,
hold the necessary hearings,
and allow final briefs to be filed
for a Board decision in January, 1987.
The hearing officer’s
letter filed May 19, 1986,
indicates he is aware of the waiver
until January
21, 1987,
and that he intends to set
a
scheduling
order to meet that date.
Therefore,
the Board sees no reason to
modify the April
24 Order and denies Sauget’s motion.
The Board notes
that the prior
Sauget NPDES permit appeal
(PCB 79-87)
was filed on April
17, 1979 and finally disposed of
on July
19, 1984,
a period of over five years.
It is the Board’s
firm intention to see the present proceeding resolved more
quickly.
The Board
sees no reason why the present proceeding
cannot be concluded in time for
a Board decision in January,
1987, and anticipates that the hearing officer scheduling order
will
so provide.
IT IS SO ORDERED.
3.
D.
Dumelle concurred.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certif
that the above Order was adopted on
the ~
day of
I
,
1986, by a vote
of
7-0
.
/
Dorothy M. Gu~n,Clerk
Illinois Pollution Control
Board
70-142