ILLINOIS

POLLUTION CONTROL BOARD

October 25, 1984

DEAN

FOODS,

)

)

Petitioner,

)

v~

)

PCB 81—151

)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

)

Respondent.

ORDER

OF

THE

BOARD

(by B~

Forcade):

On

September 26, 1984,

Dean Foods

(“Deane) filed a Motion

for

Reconsideration,

with supporting memorandum, seeking,

in

essence,

a

complete

reversal of the Board~sAugust 22,

1984,

opinion and Order concerning

the sampling location in Dean’s

NPDES

permits

The Illinois

Environmental

Protection

Agency

(~Agency~)

moved

for leave

to respond to this motion instanter on

October

23,

1984,

which

motion is granted.

Dean

urges

reversal of the decision on four points:

1)

Section 3O4~1O2(a)

does

allow admixture of process and non—process

wastewater,

2)

de novo review of NPDES permits is required, 3~

Dean

is

providing

the best degree of treatment, and

4)

the Agency

jS

estopped

from

changing the sampling point.

Dean~s argument

that

the Board has, by a new interpretation,

substantially

and

incorrectly limited the admixture rule

ir~

the

August

22,

1984,

Opinion is simply incorrect.

The Board refused

to

expand that rule beyond

its plain language.

Section 304.102(a)(2)

states that best degree

of treatment decisions shall consider

~whether

individual process

wastewater streams shall be segregated

or eombined~ Dean can

prevail only if the Board determines that

language to mean

~whether individual process

and

non—process

wastewater streams

should be segregated or combined.~ The Board

was unwilling to add that underlined language, by interpretation,

to an already codified

rule when the language and intent are

clearly

otherwise,

While referring to along standing flexible

application given the

Dilution Rule by the Board,~’and,

~a

180

degree change of position in the

interpretation of the Dilution

~

Dean has cited

no case upholding admixture of process and

non~processwaste streams.

Illinois Nitrogen and Revere specifically

denied monitoring downstream

of admixture.

There has been no

change of position or interpretation by

the Board.~

Dean cites the

comments of a single Board Member at a

hearing prior to adoption

60-353

---

—2—

~

past

interpretation (Memorandum,

p.

4),

First, the

statement quoted by Dean

is at odds with subsequent statements by

that Board Member,

Second,

the

offhand comments

of an individual

Board Member are personal in nature and not actions

of the Board.

Illinois

Power

v. IPCB,

426 N.E.

2d 1258, 100 Ill. App.

3d 528

(Third District,

1981).

The Board’s interpretation of a regulation

is established by the

language of the regulation,

the Opinion

supporting it,

and

subsequent cases interpreting it,

Here that

precedent is unanimously

against Dean.

Dean~sarguments

regarding de novo hearing and best degree

of treatment do not

become an issue unless the Board adopts

Dean~sexpansive

interpretation of the Dilution Rule.

Since that

expansion has been

rejected, these arguments are rejected for the

reasons stated in

the original Opinion.

The arguments that the

Agency is estopped from

correcting an improper interpretation of

Board rules is also rejected

for reasons stated in the original

Opinion.

Dean~sMotion for

reconsideration is granted but modification

is denied.

IT IS SO

ORDERED.

I, Dorothy

M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order

was adopted on the

~

day of

~~tk’,

1984 by a vote of

~

~

Dorothy M. 4~inn, Clerk

Illinois Po~.1utionControl Board

~