ILLINOIS POLLUTION CONTROL BOARD
December
20,
1985
FRED E.
JURCAK,
Petitioner,
v.
)
PCB 85—1)7
ILLINOIS Er~VIRONMENTAL
PROTECTION AGENCY,
Respondent.
MR.
ROY M.
RARSCH AND MR.
FREDERICK L. MOORE,
JR., MARTIN,
CRAiG,
~UESTER & SONNENSCHEIN, APPEARED FOR PETITIONER;
MR.
WAYNE
L. WIEMERSLAGE, APPEARED FOR RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.D. Dumelle):
This matter
comes before
the Board upon
a permit appeal
filed on behalf of Fred E. Jurcak
(Jurcak)
on September
4, 1985
which requests the Board
to reverse the Illinois Environmental
Protection Agency’s (Agency)
decision imposing Special Conditions
Nos.
8
&
9
in the NPDES permit issued
to Jurcak on July
31,
1985.
(Pet.
p.
5).
On February 17,
1983, Jurcak filed with
the
Agency an application
for Joint Construction and Operating Permit
and for Authorization
to Construct
a sewage treatment plant
(STP)
designed
to serve Gateway Development,
a 146—unit mobile home
park being deve1opt~1by ThUcdk,
The
Agency denied the
application on August
12, 1983~stating that
it could not issue
the construction permit
for
the proposed Gateway STP until Jurcak
obtained an NPDES permit
for the STP~sdischarge.
Jurcak
appealed this decision
to the Board on September
15,
1983.
(PCB
83—134).
Upon agreement of the parties,
the Hearing Officer
continued the permit appeal hearing without a date on January 12,
1984.
Jurcak
filed
an application
for
an NPDES permit for
a point
source discharge from the proposed Gateway STP on March
14,
1984.
P.fter
a public hearing
and comment period, the Agency
informed Jurcak
it would
not issue such a permit unless he
obtained
a modification of the Illinois water Quality Management
Plan
(IWQMP)
to add the new point source discharge
from the
proposed Gateway STP.
On November
21,
1984,
Jurcak filed
a
Petition
for Conflict Resolution with the Agency pursuant
to
35
Ill. Adm.
Code, Subtitle
C,
Chapter
II, Section 351.101 et seq.
requesting
an amendment
to the IWQMP
to reflect the addition of
a
n~w
point source.
67-83
On July
1,
1985,
the Agency rendered
its Final Decision
which provided for
the requested amendment but included four
conditions which were that
a)
a sinking
fund
of $25,000
be
established
to insure proper operation of the plant;
b)
a
condominium development have control
over the Gateway
STP;
c)
a
sinking fund be
a condition of any NPDES permit
for the plant;
and d)
the project
be connected to Frankfort’s
STP within one
year
after
the completion of the expansion of Frankfort’s
STP.
The Agency issued Jurcak an NPDES permit
for the proposed Gateway
STP on July
31, 1985, which incorporated
the above conditions
into Special Condition No,
8
of the permit and
included Special
Condition No.
9 which required Jurcak
to submit two complete sets
of plans
and specifications
for the proposed Gateway STP showing
compliance with conditions
1,
2,
5,
and 6 listed under Special
Condition No, 6~Authorization to Construct.
Briefs were filed
by Jurcak on December
3 and 12,
1985 and the Agency on December
9
and
17, with
a motion to strike objectional
testimony on December
13,
1985.
Jurcak
filed
a response
to the motion
to strike on
December
18, 1985.
The Agency~sDecember
13, 1985,
Motion
to Strike
is granted
in part and denied
in part~ At the hearing on November
19,
1985,
the Hearing Officer admitted testimony concerning conditions
imposed by the Agency in the July 1,
1985 amendment
to the IWQMP
which was incorporated into an NPDES permit condition, attempts
to sell the real estate
and other
facts
not presented
to the
Agency prior
to July 31,
1985.
The Board declines
to
strike
the
testimony concerning conditions imposed by the Agency
in
the
amendment
to
the
IWQMP.
Under
35 Ill,
Adm.
Code 103.204(b), when
the admissability of evidence depends on an arguable
interpretation of substantive law,
the Hearing Officer
shall
admit
the evidence,
The
issue of whether the Board can review
amendments
to
the 1WQMP when incorporated
into an NPDES permit
condition is one of
first impression before
the Board.
A related
issue was presented
in Village of Gilberts
v.
Holiday Park
Corporation, PCB 85—96, August
15,
1985.
At issue was whether
the Board could review IWQMP amendments prior
to any NPDES permit
issuing.
The Board
held it lacked
the statutory authority
to
neview such an amendment,
However,
in the instant case,
the
Board
is given
the authority under
the Environmental Protection
Act
to review conditions imposed
in
an NPDES permit
to determine
whether
the condition(s)
imposed accomplish
the purpose and
provisions of the Act,
Thus,
the admissability is clearly
arguable
and
the hearing officer~sdecision to allow testimony
concerning amendments
to the IWQMP
is upheld.
The testimony
concerning attempts
to sell the
real estate and other
facts not
presented
to the Agency prior
to July 31,
1985 will
be stricken
as
the Board
finds that
such testimony concerns facts not
presented
to the Agency prior
to the Agency issuing Jurcak
an
NPDES permit
for
the proposed Gateway STP.
The proposed Gateway STP is located outside the Village of
Frankfort’s limits
in Will County on U.S.
Route 45, approximately
1.5 miles south of U.S.
30.
The proposed plant is
to have
a
67-94
design
average
flow
of
34,000 gallons per day or
three hundred
and
forty
population
equivalents.
The
plant
is
to
discharge
into
an
unnamed creek which
is
a
tributary
to
Jackson
Creek.
Jackson
Creek
h.ts
a
seven—days
ten—year
low
flow
of
zero
cubic
feet
per
second
and
is
classified
as
a
general
use
water.
(Pet.
p.
1—2).
At
the
outset
the
Board
notes
that
this
is
only
an
appeal
of
Special
Condition
Nos.
8
and
9
which
were
imposed
by
the
Agency
in
Jurcak~s
NPDES
permit.
Although
Jurcak
argues
in
his
briefs
that
he
is
contesting
the
imposition
of
Conditions
1,2,5
and
6
listed
undeL
Special
Condition No,
6: Authorization
to
Construct,
that
is
certainly
not sttted
in
the petition, nor was
any attempt made
to
amend the petition
to include such
request.
Furthermore,
the fact that evidence was presented
regarding
those
conditions
is insufficient to demonstrate that they were being
contested
in that such evidence
is clearly relevant
to the
issue
of
the propriety of Condition 9 which was contested.
Finally,
requesting such relief
in closing briefs
is clearly untimely.
Therefore,
the only
issue before
the Board
is whether
the
imposition of Special Condition Nos.
8
&
9 accomplishes
the
purpose
and provisions of the Environmental Protection Act
(Act),
For the following reasons,
the Board affirms the
imposition of Special Condition Nos,
8
&
9
in Jurcak’s NPDES
permit.
SPECIAL CONDITION NO.
8
On March
28,
:L980, Governor Thompson certified the adoption
of
the areawide water quality management plan
for
the counties of
Cook,
DuPage, Kane, Lake, McHenry and Will
as part
of the
official Water Quality Management Plan
for
Illinois,
This plan
ilentifies,
among other
things, points of authorized sewage
discharge.
Under Section 208(e)
of the Clean Water Act and 35
Ill.
Adrn.
Code 309.105(d),
no NPDES permit shall be
issued which
is
in conflict with
an adopted Water Quality Management
Plan.
Since
the IWQMP did
not
contain the proposed Gateway STP
discharge, Jurcak had to seek an amendment
to
the plan
to include
such discharge which the Agency granted, subject
to conditions,
on July 1,
1985.
Special Condition No.
8 of Jurcak’s
NIPDES
permit
incorporated those conditions
into the permit.
Jurcak
only objects
to the requirement that the Gateway Development be
connected
to
the Village of Frankfort~sSTP one year after
the
plant’s expansion
is completed.
Frankfort expects the expansion
to
be completed
in 1988,
thereby giving Jurcak until 1989
to
connect the Gateway Development
to the Frankfort STP.
(Pet.
p.
4).
In support of his appeal, Jurcak argues
that the imposition
of Special Condition No,
8
is unreasonable.
Specifically, Jurcak
argues that Special Condition No,
8 will require Jurcak,
or any
other future owner,
to dismantle
the entire Gateway STP and
connect Gateway~ssanitary sewer
system to the Frankfort
treatment plant
at:
a cost
of $250,000.
(Pet,
Brief
p.
10).
Moreover,
Jurcak
asserts
that by imposing Special Condition No.
87-95
~3,
the
Agency
has
effectively
p~ohibited
construction
of
th~
Gateway Development.
Jurcak
argues
that
he
has
been
unable
to
obtain
financing
to
construct
the
Gateway
STP
and
two
potential
purchasers
have
declined
to
purchase
the
property
because
of
Special
Condition
NO.
8.
Id.
Lastly,
Jurcak
argues
that
since
the
Agency
has
stipulated
that.
if
the
proposed
STP
is
operated
and
built
in
compliance
with
the
application
and
conditions
imposed
in the permit,
the
facility
will not violate effluent
standards and
there
will
be
no
adverse
impact on
the receiving
stream,
and
to
require
him
to
disconnect
from
a
properly
operating
STP
is
not only impractical,
it is technologically and
economically
impossible
and
lacks any rational basis
whatsoever.
(Pot:..
Brief
pp.
11—12),
Notwithstanding
these arguments,
the Board
finds that
it
lacks
the
authority
to
review
Special
Condition No,
8,
Jurcak
argues
that
Special
Condit:Loni
No,
8
is
a
condition imposed
in
a
permit which
the
Board,
indisputably,
has
the authority
to
review.
However~ this
argument
does
not
go
far
enough.
To
request the
BoaEd
to
strike
Special
Condition No,
8 would
be
asking
the
Board
to
effectively
amend
the
IWQMP
which
the
Board
lacks
the authoL~~n~
to
do
Vil1a~of_Giloertsv
Holldal
Park
Co~~ation
and
Illinois
Environmental
ProtectionAgency, PCB
85—96, August
15,
1985,
Under
35
Ill.
Adm,
Code 351.402,
the
Agency
has
the
authority
to
make
a
final
decision
on
proposed
revisions
to
the
IWQMP,
This
11final
decision”
may
be
appealed
to
the
U.S.
Environmental
Protection
Agency
or
to
the
circuit
court,
(35
Ill,
Adrn,
Code
351,403),
Jurcak
had his
opportunity
to
appeal
the
Agency~s ~‘fina1
determination”
via
this
route
but
failed
to
do
so.
The Board,
therefore,
cannot
review
the
Agency’s
decision
to
amend
the
IWQMP
since
it
lacks
the statutory
power
to do
so.
This
position
is
consistent with the holding
in
National
Marine Service
v,
Illinois Environmental Protection
~g~ncy, 120 111. App, 3d 198,
458 N.E.
2d 551
(1983),
in ~hIch
the Fourth
District
Appellate
Court,
citing
~~~dCoa1ço.v.
Pollution Control
Board,
49
Ill.
App.
3d 252,
364 N.E.
2d 929
(1977),
stated
that~
“We read
2d~ as
holding
that
where
a
Federal
permit
system
is
at
hand,
the
PCB,
absent
a
statutory grant of
power,
is
without
authority
to
become
involved
in
the
state
certification
process
which
must be followed
before
a
Federal
permit
may
issue,
This
reading
is
consistent
with
the
restrictive
view
of
the
PCB’s
authority to oversee the IEPA’s activities which was
noted by our Supreme Court
in Landfill,
Inc.
v.
Pollution Control Board,
74
Iii,
2d 541,
387
N.E.
2d
258.”
However,
the
Board
sympathizes
with
Jurcak’
s
argument
that
Special
Condition
No,
8
may
impose
an
onerous
burden
on
him
by
requiring
him
to
abandon
an
otherwise
properly
operating
STP
and.
connect
to
Frankfort~ s
STP
at
a
cost
of
approximately
~2OrOOO,
me
Board
recognizes
that
the
Agency
has
effect:Lvey
insulated
Special
Condition
No,
8
from
review
by
the
Board
through
the
permit
appeal
process
by
couching
the
terms
of
Special
Condition
No.
8
in
an
amendment
to
the
IWQMP
which
the
Board
lacks
the
authority
to
review pursuant
to
VLJlage
of Gilberts
v. Holiday Park
ç9~P9LhL1~1~?~
Environmental Protection Agency,
PCB 85—96, August
15~~
1985.
However, as noted above, Jurcak
had the opportunity
to
appeal
that condition to USEPA or the
Circuit Court
and f~i1ed
to
do
so,
SPECIAL CONDITION
No.
9
Special
Condition NO,
9
In
Jurcak~a
NPDES permit
requires
the
submission
of
two
complete
sets
of
plans
and
specifications
for
the
proposed
Gateway
STP
showing
compliance
with
Conditions
1,
2,
5
and
6 listed
under
Special
Condition
No.
6:
Authorization
to
COnstruct,*
The
Board hereby
declines
to
strike
Special
Condition No.
9 from
Jurcak’s NPDES
permit
firidin
that
it
is necessary
to
accomplish the
purpose
and provis:ions of the Act.
The
Agency
argues
that: Special
Condition No.
9
is
required to
assure
that
adverse effects upon the environment
are
fully
considered
and
to assure
a thorough assessment of
the
potential
adverse
environmental
effects,
Moreover,
the
Agency argues
that
the
additional plans and specifications
are needed because compliance with conditions
1,
5 and 6 was
not assured through the
plans
already submitted to
it.
(Rep.
Brief
p’
9),
Jurcak responds by arguing that the
requirements of Special Condition No,
9
are economically
unreasonable
and unnecessary
to
assure compliance with
acceptable
permit
conditions,
and, in
fact,
the Agency
already possesses multiple complete sets of plans and
specifications
(Pet.
BrIef
pp.
7’-8).The Board does not
agree.
Compliance
with conditions
1,
5
and 6 will require
changes
of design
in
the
plant.
Consequently, new “as
built”
plans are
needed.
Therefore,
the
Board
affirms
the
Agency’s
imposition
of
Special
Condition
No.
9
in
Jurcak’
s
NPDES
permit,
This
opinion
constitut.es
the
Board’s
findings of fact
and
conclusions
of
law
in
this
matter.
ORDER
The
Board
hereby
affirms
the
Agency’s
July
31,
1985
imposition
of
Special
Condition
Nos,
8
&
9
in
Fred
E.
Jurcak’s NPDES
permit,
IT
IS SO
ORDEREI),
*
The
parties
stipulated
at.
hearing
that
condition
#2
had
been
satisfied.
(Rep.
Brief
p.
~).
67~~97
—6—
Board Member
.3.
Anderson concurred,
I,
Dorothy
IL
Gunn, Clerk
of the Illinois Pollution
Control Board, hereby
certify
that
the
above
Opinion
and
Order
was
adopted
on
the
~
day of
~
1985
by
a
vote
of
r~-—o
Illinois
Pollution
Control
Board
87-98