ILLINOIS POLLUTION CONTROL BOARD
March 27, 1986
ILLINOIS POWER COMPANY
)
(Hennepin Power Plant),
Petitioner,
v.
)
PCB 85~ll9
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
MR.
SHELDON
A.
ZABEL AND MS. MARILI MCFAWN, SHIFF HARDIN
& WAITE,
APPEARED ON BEHALF OF ILLINOIS POWER COMPANY.
MR.
THOMAS DAVIS, ATTORNEY AT LAW,
APPEARED ON BEHALF OF THE
ILLINOIS ENVRIONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by J.
D. Dumelle):
This matter comes before
the Board upon
an August 13, 1985
petition
for review of NPDES Permit No.
IL 0001554
filed
on
behalf of the Illinois Power Company
(IPC).
In its petition IPC
contested twelve conditions of the permit which was issued on
July 15,
1985.
IPC filed
a motion for summary judgment on
October
18,
1985 which was denied by Board Order
of November
7,
1985.
Hearing was held on November
21, 1985 at which the
parties,
but no members of the public, appeared.
IPC continues to urge the Board
to remand this matter
to the
Illinois Environmental Protection Agency (Agency)
“based on
IEPA’s blatant refusal
to obey state and federal law”
through its
failure
to adequately respond
to IPC’s comments during the
permitting process.
(IPC Brief,
p.
4).
In this regard IPC
reiterates
the arguments
it presented
in its motion for summary
judgment.
Since the board did not decide the merits of those
arguments
in denying
the motion,
it
is appropriate
to do
so
at
this
time.*
While the Agency has argued that IPC waived these
arguments through
its failure to allege them
in its petition for
review,
the Board
finds that they were raised
in the motion
for
summary judgment and were properly the subject
for hearing.
As
the Board stated
in its October
10, 1985 Order affirming
its
September
20, 1985 denial of summary judgment,
“since those
*
The motion was decided
on the basis that no decision could
be reached
in this matter absent hearing.
—2—
issues present questions of both law and fact,
they are best
decided after hearing.”
The sequence of events regarding response to comments on the
permit began on March
26, 1985, when IPC received pre—public
notice of
a draft permit.
(Rec.
no.
6).
IPC prepared written
comments on that draft permit which were received by the Agency
on April
12,
1985.
(Rec.
no.
5).
The Agency prepared notes
responding
to those comments.
(Rec.
no.
4).
The Agency then
issued
a public—notice draft permit, and IPC prepared written
comments on that draft permit which were received by the Agency
on July 1,
1985.
(Rec.
no.
3).
The Agency again prepared notes
in response.
(Rec.
no.
2).
The Agency’s notes were
in both
cases handwritten
and were not given to IPC at any time during
the permitting process.
However, following the Agency’s receipt
of both sets of comments phone conversations were held between
representative of the Agency and IPC during which the substance
of the Agency’s handwritten
notes were summarized.
(R.
56,
59—
60,
64,
and 70).
On July 15,
1985,
the Agency issued
the permit
at issue here without
any additional
response
to IPC’s
comments.
(Rec.
no.
1).
IPC argues that
this course of conduct demonstrates the
Agency’s “blatant refusal to obey state
and federal
law.”
(Brief
p.
4).
IPC contends that Board
rules
(particularly 35
Ill.
Adm.
Code 309.112 and 309.108),
the Administrative Procedure Act
APA;
especially Section
16(c)
,
and Board precedent
(IPC
v.
IEPA,
PCB
79—243,
39 PCB 508, October
2,
1980),
combine
to require the
Agency
to provide written responses
to comments of the permit
applicant during
the permitting process,
and that the Agency has
failed
to do so.
The Agency contends, however,
that
a later—
decided case
(IPC v.
IEPA,
PCB 79—61,
45 PCB
89, January 21,
1982) was decided
to
the contrary and only required
“that
the
Agency evaluate the comments and either issue or deny the
permit.
There
is no mandate that
the Agency respond
to comments
in writing or otherwise.”
(ID.
at
p.
5,
45 PCB 93).
(Response,
p.
2).
As
the permitting
(or licensing)
authority for the Illinois
NPDES program,
the Agency must comply with the APA.
Borg—warner
corp.
v.
Mauzy,
100 Ill.
App.
3d
862,
427 N.E.2d 415
(3d Dist.
1981).
Section
16(c)
of the APA provides that:
No agency shall
revoke,
suspend, annul,
withdraw, amend materially or
refuse
to renew
any valid license with~iitfirst giving
written notice
to the licensee of the facts
or conduct upon which the Agency will rely to
support its proposed action.
(emphasis
added).
IPC correctly points out that the NPDES permit at issue here
contains material amendments to the permit last issued
for
the
Hennepin facility on October
23,
1979, which was the subject of
—3--
IPC v.
IEPA, PCB 79—243,
39 PCB 508
and IPC
v.
IPCB,
100
Ill.
App.
3d
528,
462 N.E.2d 1258
(3d fist.
1981).
The only
conditions contested here which appeared
in
the prior permit and
were not appealed are those pertaining
to the TSS and oil and
grease
limitations on
the
internal waste streams at Outfalls
001(a)
and 001(c).
Since the remaining conditions constitute
material amendments,
Section 16(c)
of
the APA requires the Agency
to give written notice to IPC of
the facts
or conduct supporting
these changes, before reissuance of the permit.
The only
relevant documents given
to IPC prior
to that time, however, were
the proposed and draft permits and the two identical Fact Sheets
issued
in conjunction with those draft permits.
(See Attachments
to IPC Motion
to Supplement).
The draft permits set forth only
the “material amendments,”
and contain
no supporting
facts
or
description of conduct by IPC upon which
the Agency relied
in
proposing the contested changes.
Telephone conversations, of
course, do not
fulfill the “written notice” requirement.
Federal regulations
also require
a written response
to
comments.
40 CFR 124.17
(which
is specifically made applicable
to states such as Illinois which have permitting authority under
the NPDES program pursuant
to 40 CFR 123.25) provides that:
(a)
.
.
.
States
are only required
to issue
a
response
to comments when
a final permit
is issued.
This response shall:
*
*
*
(2)
briefly describe and respond
to
all significant comments on
the
draft permit
...
raised during the
public comment period,
or during
any hearing.
*
*
*
(c)
.
.
.The response
to comments shall
be
available to
the public.
The use
of the word “issue”
in connection with “response” under
Section 124.17(a)
as well
as the requirement
of Section 124.17(c)
that the response be available
to the public indicate that such
response
is to be
in writing.
The Agency has admitted
that no written document containing
responses to IPC’s comments was issued to IPC prior
to
reissuance.
(R.
56,
64 and 70).
Some personal notes were
prepared by Mr. Gary Cima,
the primary author of the Permit, but
Mr.
Cima stated
that he did not communicate
the totality
of his
written notes
to IPC’s representative other
by sending
a copy of
the notes or reading them over
the telephone.
(R.
94).
Making
notes
and summarizing them by telephone to IPC’s representative
does not satisfy
the requirements
of Section 124.17(a)
and
(c).
—4--
Finally,
35
Ill.
Adm.
Code 309.108
requires written
notification by the Agency of the basis
for certain permit
conditions.
Section 309.108 states:
Following the receipt of
a complete
application
for
an NPDES Permit,
the Agency
shall prepare
a tentative determination.
Such determination shall incluöe
at least
the
following:
-—
*
*
*
b)
If the determination
is to issue the
permit,
a draft permit containing:
1)
Proposed effluent limitations,
consistent with federal and
state
requirements;
2)
A proposed
schedule of compliance,
if the applicant
is not
in
compliance with applicable
requirements, including interim
dates and requirements consistent
with the CWA and applicable
regulations, for meeting the
proposed effluent limitations;
3)
A brief description of any other
proposed special conditions which
will have
a significant
impact
upon the discharge.
c)
A statement of the basis
for each of the
~èrmit conditions listed
in Section
309.108(b).
d)
Upon tentative determination to issue
or
deny an NPDES
Permit:
1)
If the determination
is
to issue
the permit
the Agency shall notify
the applicant
in writing
of the
content of the tentative
determination and draft permit and
of its intent
to circulate public
notice of issuance
in accordance
with Sections 309.108 through
309.112;
(emphasis
added).
Pursuant
to this rule the Agency was required
to notify IPC in
writing of the basis
for certain of
the permit conditions.
However,
in this case the Agency gave IPC written notification
only of
its intention
to grant
the permit and draft permit
(see
—5—
Attachments
to Motion
to Supplement)
and failed
to provide any
written basis
for
any of the conditions.
For all
of these reasons
the Board finds
that the Agency has
a duty to respond
in writing
to comments by the permit applicant
which are submitted in response to
a draft permit and that such
response should be made prior
to permit issuance.
Further,
the
Agency
is required
to prepare
a written statement of the basis
for
each permit condition listed
in Section 309.108(b).
The
Board further finds that the Agency has failed
to meet those
requirements
in the instant case.
These findings are consistent
with the Board’s decision
in IPC v EPA, PCB 79—243,
above, where
the Board
found
that federal
regulations
and Board
rules “require
a written response
to comments.”
(39 PCB 515).
Further,
these
findings are not necessarily inconsistent with IPC v.
IEPA, PCB
79—61,
where
the board
found simply that Rule 906(f)
(now 35
Ill.
Adm.
Code 309.112)
“demands only the Agency evaluate
the comments
and either
issue or deny the permit.
There
is no mandate that
the Agency respond
to the comments
in writing
or otherwise.”
(45
PCB 93).
To
the
extent that such finding
is limited
to an
analysis of Section 309.112,
it is correct.
To the extent that
it may be read
to indicate
that no state
or federal laws require
a written response
to comments,
it is not.
The question then becomes one of
the proper remedy for
the
Agency’s failure
to comply with state
and federal permitting
requirements.
In
the Illinois Power
case cited
above
(PCB 79—
243),
the Board considered
the merits of the substantive issues
despite
the procedural defects,
in that IPC conceded that there
was no appropriate remedy at that
stage of the proceeding.
IPC
now requests, however, that
the Board remand this proceeding
to
the Agency without consideration of the substantive
issues,
requiring proper procedures
to be followed.
In this case there would
be no reason
to remand
if that
decision were
to be based soley on the
fact that the substantive
issues have been fully argued
and are ready
to be decided.
However,
the Board believes that deciding
the substantive
issues
on their merits would be inappropriate.
The requirement of
written responses
to comments can serve
to expedite
the hearing
process and could provide the basis
for meaningful discussions
between
the Agency and the applicant prior
to final Agency action
which could
lead to the issuance of
a mutually agreeable permit
and avoid appeal.
Such action should
be strongly encouraged.
The Board,
therefore, concludes that NPDES permitting
requirements which
the Agency has failed
to meet in this matter
are mandatory,
that the permit was improperly issued
and that it
should
be remanded
to
the Agency for further
action consistent
with this Opinion.
The Board notes
that there
are other
cases presently pending
which may be
impacted considerably by this ruling.
The Board
presumes that the parties will take appropriate actions
to
minimize the administrative inefficiencies which could result
from this ruling.
—6—
minimize
the administrative inefficiencies which could result
from this ruling.
ORDER
The Illinois Environmental Protection Agency’s (Agency) July
15, 1985,
reissuance of NPDES permit
no. OL0001554
is hereby
vacated and
this matter
is remand
to
the Agency for further
action consistent with this Opinion and Order.
IT
IS
SO ORDERED.
I,
Dorothy
M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
~27~Z
day of
~777
~—~~-~--‘,
1986 by a vote
of
_________
~
Illinois Pollution Control Board