ILLINOIS POLLUTION CONTROL BOARD
March 14, 1986
WARNER ELECTRIC BRAKE &
CLUTCH COMPANY,
Petitioner,
v.
)
PCB 85—35
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, NICK MIGLIORE,
AUDRY MIGLIORE, JAMES SCHUMAKER,
DONALD HOARD, RONALD VELMERS,
HENRY ATWOOD, STANLEY CAMPBELL,
JEANNETTE USSERY, CAROLYN
O1KEEFE, ROBERT WEZYK and
BRYAN DISHNER,
Respondents.
MR. MICHAEL F. DOLAN, SEYFARTH, SHAW, FAIRWEATHER AND GERALDSON,
APPEARED FOR PETITIONER.
MR. THOMAS E. DAVIS, ATTORNEY—AT-LAW, APPEARED FOR RESPONDENT THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.
MR. STANLEY E. CAMPBELL, APPEARED FOR SINNISSIPPI ALLIANCE FOR
THE ENVIRONMENT AND FOR HIMSELF.
MR. JAMES SCHUMAKER APPEARED FOR HIMSELF.
MR. HENRY ATWOOD APPEARED FOR HIMSELF.
OPINION AND ORDER OF THE BOARD (by B. Forcade):
This matter comes to the Board on a March 22, 1985, Petition
for Review of NPDES Permit filed by Warner Electric Brake &
Clutch Company (“Warner”). The Petition named as Respondents the
Illinois Environmental Protection Agency (“Agency”) and eleven
named individuals who requested and participated in a hearing
before the Agency prior to permit issuance. The Board’s public
hearing in this matter was held July 9, 1985 in Rockford. No
witnesses were presented by Warner or the Agency, no exhibits
were introduced. Several Citizen Respondents made brief
statements urging stringent pollution control. Warner and the
Agency filed briefs outlining their arguments.
Warner owns and operates a facility located in Roscoe,
Illinois. The facility manufactures electric brakes and clutches
for automobiles and industrial and agricultural equipment. As a
result of the manufacturing operations, Warner discharges
sanitary wastewater, plant processing wastewater, and storm water
—2—
runoff. Each of these three discharges is treated separately and
after appropriate sampling and testing is discharged through a
common outfall into North Kinnikinnick Creek which flows into the
Rock River.
The permit process under review here began in August 1983
when Warner submitted a renewal application (Agency Record,
Exhibit 8); additional information was submitted on February 9,
1984 (Agency Record, Exhibit 9). On May 25, 1984, the Agency,
issued a proposed NPDES permit for Warner. From March 26 through
June 25, 1984, the Agency received six public responses
commenting on the proposed permit or requesting a public
hearing. In June 1984, the Agency received comments from Warner
on the proposed permit including a Contingency Plan for spill
prevention control and an “Agreement” between Warner and the
People of the State of Illinois represented by the Attorney
General and relating to environmental contamination by
trichloroethylene in the ground water (Agency Record, Exhibits
12, 13).
On August 15, 1984, a four member Agency hearing Board
conducted a public hearing in Rockford. Six persons testified in
the 100 page transcript. The record remained open for any
comment with a post mark on or before September 15, 1984. Over
40 exhibits, comments or notices comprise the docket sheet. On
February 7, 1985, the Hearing Board Report and Recommendation was
entered. On February 22, 1985, the Final NPDES permit for Warner
was issued. On March 22, 1985, Warner appealed to this Board.
Warner’s petition for review places three matters at issue:
1. Whether the Agency’s 27 part per billion (“ppb”)
effluent limitation on Trichloroethylene (“TCE”) is
valid.
2. Whether certain organic chemical monitoring requirements
imposed by the Agency are valid.
3. Whether conditions allowing the Agency to subsequently
modify the permit to include additional monitoring or
effluent limitations are valid.
The burden is on Warner to prove that the challenged conditions
“are not necessary to accomplish the purposes of the Act and,
therefore, were imposed unreasonably,” IEPA v. PCB and Album
Inc., 455 N.E.2d 188 at 194 (1983). Each of these issues must be
addressed separately.
TCE Limitation
The May 25, 1984 proposed NPDES permit did not contain a TCE
effluent limitation. The final NPDES permit contained a
limitation of 27 ppb applicable to the process wastewater
discharged through Outfall OO1B (Process Wastewater) and to that
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portion of Outfall OO1A Alternate (Combined Process and Sanitary
Wastewater) which derives from process wastewater. The Agency
asserts there is adequate factual and legal support for the 27
ppb limitation. Warner does not dispute any of the factual
information contained in the Agency Record.* Nor does Warner
dispute the technical feasibility or economic reasonableness of
compliance with 27 ppb for TCE. However, Warner asserts that the
Agency’s legal theory is unfounded and that when the correct
legal theory is applied to the relevant facts an effluent
limitation of 4,070 ppb for TCE is appropriate.
The documentary information in the record pertaining to TCE
falls into two categories: environmental effects and discharge
information. Regarding environmental effects the record contains
two documents of special relevance: Ambient Water Quality
Criteria for Trichloroethylene (USEPA, 1980) (“the Criteria
Document”), and An Analysis of Contaminated Well Water and Health
Effects in Woburn, Massachusetts (Harvard School of Public
Health, November, 1984) (“the Woburn Study”).
The Criteria Document provides a rationale for its recom-
mendations:
“Trichloroethylene is suspected of being a human
carcinogen. Because there is no recognized safe
concentration for a human carcinogen, the
recommended concentration of trichioroethylene
in water for maximum protection of human health
is zero. Because attaining a zero concentration
level may be infeasible in some cases, and in
order to assist the Agency and the states in the
possible future development of water quality
regulations,
the
concentrations
of
trichloroethylene corresponding to several
incremental lifetime cancer risk levels have
been estimated. A cancer risk level provides an
estimate of the additional sic incidence of
cancer that may be expected in an exposed
population. A risk of l0~, for example,
indicates a probability of one additional case
of cancer fgr every 100,000 people exposed, a
risk of l0 indicates one additional case of
*
Warner has not challenged the accuracy of the Agency factual
basis with evidence available from the record. However, Warner
has attempted to provide the Board with new information.
Warner’s Reply Brief contains a 42—page scientific document that
was not before the Agency, nor produced at hearing. The issue in
a Section 40 permit appeal is whether the Agency made a correct
decision based on facts before the Agency at decision time IEPA v
IPCB
86 Ill.2d 390 (1981), Oscar Ma~erv IEPA 30 PCB 397
(1978). The 42 page document is stricken.
—4—
cancer for every million people exposed, and so
forth.”
The Criteria Document provides a water quality 9iterion of
27 ppb for TCE at a lifetime cancer risk level of 10
.
This
value is predicated on a life—time exposure to 2 liters of
drinking water per day and consumption of 6.5 grams of fish and
shellfish per day.
The Woburn Study evaluated the potential connection between
access to drinking water from two contaminated wells and adverse
health effects in eastern Woburn Mass. The only analytical
results on the drinking water are:
Trichloroethylene
267 ppb
Tetrachloroethylene
21 ppb
Chloroform
12 ppb
Trichlorotrifluoroethane
22 ppb
Dichioroethylene
28 ppb
The Woburn Study found a statistically significant positive
association between access to this water and the incidence of:
childhood leukemia
perinatal deaths
certain congenital anomalies, and
certain childhood disorders
The Woburn Study also found that after closure of the
contaminated wells the elevated incidence of perinatal deaths and
certain congenital disorders declined to levels comparable to the
rest of Woburn.
Warner’s discharge information data shows effluent TCE
concentrations from 405 ppb (Ex. 8, Permit Application, Form 2—C,
Outfall 001, page V—5) to 550 ppb (Ex. 8, Permit Application,
Form 2—C, Outfall 001—B, page V—5) in early 1983. Analyses on
November 16, 1983 showed levels of 54 ppb, 24 ppb, and 49 ppb
from Outfall 001, domestic sewage effluent, and industrial
wastewater/cooling water discharge, respectively (Ex. 29,
attached IEPA labsheets).
At the hearing before the Hearing Board, it was established
that fishing and swimming occur in North Kinnikinnick Creek river
(Tr. 49), and that water skiing occurs downstream in the Rock
River (Tr. 46).
After reviewing the record, the Hearing Board recommended
inclusion of a 27 ppb limitation for TCE:
The draft NPDES Permit will be changed to
include an effluent limit for trichloroethylene
designed to protect aquatic life and human
health in the receiving stream. The proposed
—5—
standard is based on the USEPA Water Quality
Criteria document for trichloroethylene, and is
27 micrograms/liter (ppb). This value cor-
responds to a cancer risk level of l0~ and
assumes a lifetime exposure of 2 liters of
drinking water per day and consumption of 6.5
grams of fish and shellfish per day. As the
stream is not a public water supply and is not
considered to be significant fishery even for
area residents, the actual risk level is far
lower. Additionally, a standard at this value
is technologically feasible. (Exhibit 1, p.
25).
In final briefs, Warner argues that 35 Ill. Adm. code
302.210 is controlling. In relevant part, it establishes water
quality standards as follows:
Any substance toxic to aquatic life shall not
exceed one—tenth of the 96—hour median tolerance
limit (96—hr TLm) for native fish or essential
fish food organisms...
Warner claims that this regulation is the exclusive method for
setting limitations, and that, when applied to aquatic toxicity
information in the Criteria Document, leads to a valid effluent
limitation of 4.07 mg/l for TCE (4,070 ppb).
The Agency argues that the 27 ppb TCE limitation is
supported by three legal theories. First, Section 39(b) of the
Act which authorizes the Agency to issue NPDES permits containing
those conditions which may be required to accomplish the purposes
and provisions of the Act. Second, the Agency argues that
Section 302.105 “nondegradation” justifies the limitation. That
section provides:
Waters whose existing quality is better than the
established standards at the date of their
adoption will be maintained in their present
high quality. Such waters will not be lowered
in quality unless and until it is affirmatively
demonstrated that such change will not interfere
with or become injurious to any appropriate
beneficial uses made of, or presently possible
in, such waters and that such change is justifi-
able as a result of necessary economic or social
development.
Third, the Agency argues the limitation is supported by Section
302.203 which provides:
Waters of the State shall be free from unnatural
sludge or bottom deposits, floating debris,
visible oil, odor, unnatural plant or algal
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growth, unnatural color or turbidity, or matter
of other than natural origin in concentration or
combinations toxic or harmful to human, animal,
plant or aquatic life.
Both parties to the proceeding concede that lowflow
conditions in the receiving stream require an effluent limitation
equivalent to the water quality limitation. Also, the Agency
agrees that Section 302.210 provides one mechanism for
establishing limitations. Thus, the questions for Board review
are whether provisions other than Section 302.210 may be used to
set limitations and, if so, whether the Agency limitation of 27
ppb TCE is factually supported.
First, the Board rejects the theory that Section 302.210
provides the exclusive basis for setting toxic chemical
limitations. Such an interpretation would render Sections
302.105 and 302.203 a nullity. The Board need not address what
authority the Agency possesses under Section 39(b) of the Act as
the existing regulatory framework provides ample structure for
resolving the existing controversy. The Board holds that where
sufficient factual bases exist the provisions of Sections 302.203
and 302.105 allow the Agency to establish numerical limitations
for chemicals in general use waters so as to protect present and
possible beneficial uses and ensure no concentration of toxic
material harmful to human, animal or aquatic life, even where
those numerical limitations are not directly supported by the
calculation in Section 302.210. This leaves the validity of the
27 pph TCE limitation resting exclusively on its factual
underpin ings.
The Board finds the Agency’s conclusions regarding
carcinogenic potential of TCE to be amply supported by the record
below. Additionally, the Board finds that the actual numerical
limit of 27 ppb is derived from the Criteria Document alone, and
premised on a lifetime exposure to two liters of water
consumption and 6.5 grams of fish and shellfish per day. If the
record contained information demonstrating actual or potential
drinking water usage of the receiving stream by even one
individual, the 27 ppb limitation would be supportable. However,
the only relevant statements are that the stream is not a public
water supply nor a significant fishery, but occasional swinuning
and fishing does occur. Consequently, the Board must reject the
27 ppb limitation as too stringent for facts contained
iii
the
record. No information is provided in the record regarding the
potential of downstream locations for public or individual
drinking water supply, significant fisheries or the impact of
such concentrations on fish and wildlife, so the Board cannot
speculate on what multiple of the 27 ppb limitation might protect
potential downstream uses.
The Agency also asserts that the 27 ppb TCE limitation is
supported by the language of Section 302.105 “nondegradation.”
The focus of this regulation is impairment of an actual or
—7—
potential beneficial use downstream of the discharge. The record
before the Board does support a value of 27 ppb TCE for a
lifetime drinking water supply. However, the record does not
support the conclusion that North Kinnikinnick Creek is an actual
or potential lifetime drinking water supply for anyone.
Consequently, the 27 ppb effluent limitation cannot be factually
supported under this theory.
As the Board rejects the legal theory argued by Warner and
the factual support for 27 ppb presented by the Agency, the Board
must remand the TCE numerical limitation to the Agency for
further proceedings consistent with this Opinion.
Monitoring
The second permit condition challenged by Warner pertains to
monitoring. Warner asserts this condition imposes an unnecessary
expense for Warner and gives the Agency carte blanche to require
endless data submissions. Warner does not reference any evidence
in the record regarding the expense of monitoring nor does it
point to any specific language in the permit as requiring endless
data submissions.
First, the Board notes that the Agency needs sufficient
discretion to impose monitoring conditions where such information
is essential to an environmental control program that is both
protective of the environment and not unduly burdensome to the
regulated community. Second, the Board notes that Warner’s
application for a permit, including broad organic monitoring
under form 2—C, was submitted in August, 1983 (Rec. Ex. 8).
Subsequently, Warner ceased using Trichioroethylene and began
using l,l,1—Trichloroethane as a vapor degreaser around April,
1984. Also, the “Agreement” between the State of Illinois and
Warner requires Warner to make certain structural modifications
in its plant and to the lagoons (Rec.
Ex.
13, p. 10).
Consequently, the Agency may have legitimately concluded that the
information on file may not accurately reflect Warner’s present
and future potential discharges. In such circumstances
comprehensive monitoring is quite appropriate. The Board notes
that Warner has no objection to the toxic organic management plan
or certain routine compliance monitoring (Reply Brief, p. 9).
The Board finds that the monitoring conditions imposed in the
permit are appropriate and adequately supported by the record.
Mod ification
The last issue raised by Warner for review is permit
modification. Warner asserts that the permit allows unilateral
Agency modification in violation of Illinois Power v. IPCB, 100
Ill.App.3d 528, 426 N.E.2d 1258, 1262 (3rd Dist., 1981). The
Board must review each modification provision of Special
Condition No. 4 in evaluating this issue.
—8—
The first modification provision is Condition No. 4(A)
“total Organic Pollutant Management Plan” which provides:
Within 90 days after the effective date of this
permit, the permittee shall submit to the
Illinois Environmental Protection Agency a toxic
organic pollutant management plan. the plan
shall specify the toxic organic chemicals used;
the method of disposal used instead of dumping,
such as reclamation, contract hauling, or
incineration; and procedures for ensuring that
toxic organic pollutants do not spill or
routinely leak into process wastewaters, non—
contact cooling water, groundwater, storm
waters, or other surface waters. Upon review
and approval of the plan, the IEPA will modify
this permit to include the plan as a provision
of the permit.
The Board notes that Warner has no objection to the plan
(Reply Brief, p. 9) and such plans appear to be a federally
required part of any state issued NPDES permit for toxic
chemical control. See 40 CFR Part 125, Subpart K. Consequently,
the Board will not strike this provision.
Two provisions of Condition No. 4 (Permit, p. 8) allow the
Agency to modify monitoring requirements. One allows the Agency
to add monitoring requirements based on the Total Organic
Monitoring Plan. The other allows the Agency to delete
monitoring requirements if monitoring data shows that parameter
is no longer of concern. Warner’s arguments appear focused on
permit modifications that “demand more stringent effluent
limitations.” Consequently, the Board will not strike these
requirements.
Warner’s primary objection appears to focus on the last
paragraph of page 8, which states:
In the event that the sampling indicates that
these pollutants are discharged at a level
greater than the level which can be achieved by
the technology—based treatment requirements
appropriate to the permittee under 125.3(c);
this permit shall be promptly modified to
include a compliance schedule and effluent
limitations on these parameters.
This portion of Special Condition No. 4 is virtually a
verbatim incorporation of 40 C.F.R. l22.62(a)(ll)l984 which
requires permit modification:
(11) Non—limited pollutants. When the level
of discharge of any pollutant which is not
limited in the permit exceeds the level which
—9—
can be achieved by the technology—based
treatment requirements appropriate to the
permittee under Section 125.3(c).
Under 40 C.F.R. 123.25, “all states programs” must have the
authority to impose these permit modifications.
The Board finds no conflict between this provision and
Illinois Power, which is quoted, in pertinent part, below:
Next, petitioner challenges the Board’s
refusal to allow it to add a clause to Condition
27 of the NPDES permit. Petitioner attacked
Condition 27, among others, since it claimed
they gave the Agency a license to adopt and
demand more stringent effluent limitations,
thereby modifying the permit, without allowing
it to seek review of such new restraints. With
respect to Condition 27, petitioner argues, the
Agency’s imposition of new requirements it deems
applicable is, in effect, a substantive
regulation, which is an invasion of the rule
making authority of the Board. The Board denied
petitioner’s proposal.
The question petitioner conceives as
requiring resolution has been inconsistently
answered by Illinois Appellate Courts (cf.
Peabody Coal Company v. Pollution Control Board
(1976), 36 I11.App.3d 5, 20, 344 N.E.2d 279,
with United States Steel v. Pollution Control
Board (1977), 52 Ill.App.3d 1, 11, 9 Ill.Dec.
893, 367 N.E.2d 327). Since the record does not
reflect the issue as Illinois Power presents it,
we will not attempt to reconcile these two
precedents on the facts in this case.
Condition 27 only becomes operable where
the Board has failed to promulgate certain
standards, or no federal regulations exist
concerning particular effluent limitations.
Then, Rule 9l0(a)(6) of the Board allows the
Agency to impose a restriction if it deems it
necessary. Such could be a more stringent
control than those existing on the permit
already issued. In such an instance, setting
the standard of the condition is left to the
Agency’s selection. However, as the Board
noted:
****
****
The permit conditions (including
Standard Condition No. 27) relate to
—10—
exercise (sic) of the Agency’s
authority to impose effluent
limitations pursuant to Rule 910(a)(6)
of Chapter 3. If this authority is
exercised, it will be by way of permit
modification.
Illinois Power may
challenge that authority by way of
appeal of the modified permit.
********
The Board has clearly stated that petitioner can
attack the exercise of the Agency’s authority to
impose limitations under Rule 9l0(a)(6), if the
Agency invokes such authority.
This also
includes the manner in which such power is
exercised. But the Agency has not invoked such
power or indicated it intent to do so in the
immediate future.
Therefore, to allow a
challenge to the Board Rule, at this time, would
be premature. The Board has acknowledged the
petitioner’s right to review any such
modification in the permit. This preserves all
Illinois Power’s right to review such conditions
and therefore its proposal to Condition 27 is
extraneous. (Id. 1262—63)
The Board again finds that such a change could only be
effectuated by a permit modification which would be appealable to
this Board. Consequently, the Board will affirm the contested
language.
In summary, the Board remands the TCE effluent limitation to
the Agency for further consideration consistent with this Opinion
and affirms the Agency permit on the monitoring and modification
issues. This Opinion constitutes the Board’s findings of fact
and conclusions of law on this matter.
ORDER
1. The Agency permit effluent limitation of 27 ppb is reversed
and remanded to the Agency for further consideration
consistent with this Opinion.
2. The Agency permit monitoring requirements in Special
Conditions 3 and 4 are affirmed.
3. The Agency permit modification requirements in Special
Condition No. 4 are affirmed.
IT IS SO ORDERED.
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Board Member J. Theodore Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certifies that the above Opinion and Order was
adopted on the /4t~day of
___________________,
1986, by a vote
of
__________
Dorothy M. G’~inn, Clerk
Illinois Pollution Control Board
