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OLU
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Rf
0
92
110,1
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U
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t
01ev
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)
pr~79-2 ~
)
ILL N
$ dIJIRO.
‘As flu tUb
GENCY
)
)
Respondent.
EUGflE
I
BEELER AND S. KEITH COLLINS (MANGUM, BIcELER, SCHAD &
DIAMOND) APflARED ON BMIALF
o’
PbTI’ lONER, AND
E.
WILL
AM
9UII!’ON A
PE?R )
P
T-HALF
01!
PLE1ONDE\T
OPINICtI
At 0
ORDb1c
)P
‘HL
BO
RD
(by
I
Ande-scn).
his atercn~t~c
rt9°
a-i
n
-htOctober3
199
petit
on
for
revaw
of
‘ec
air
condttion~
t
NI DES
emit
to
tL0032132 filed by
‘I I
cheirical
Co
Mobil)
This
permi~
concerns discharges troir
c
outta 1’
10 ated at Mobil 5 De
Pue,
Bureau
‘
ity, ferti
zer
n Iacturtn~
“
a
s
t~
‘01.
Mobil c allenges 3ro
c..ti
r
~:
a 15
.g
1
.
a
~‘~r2
d°d
soTh.c~
(‘158
tt
r
cca
o
1
r
~
i
nri o
1c
k
r
r
cred
:
pcrsuart
to
Sectir
3
4
103*
‘orx.e
ly
Rulc.
4
L(a)
of
Chapter
3,
impos tion of a 6 0-9 0 p9
im-tation
a’
all time’,
fail’ xc 10
dertify a1 disc
rge constit
cit
strears, aid
a require’i&t of
semi—annual
monitoring
for
contairinarts
listed
in
Section
334.124
formerly
Rule
4
8
at
Cla~ter
3
and a pxo’nbitton ot disciarge
of
other
contaminants’
rot
listed
in
tie
permit.
As
to
Outfali
2,
tIooii
Ciallsngsb
the
choice
at
cater
quaLity
~ami ling
sOcattons
(on the basis that it dscharges into an in’strial ditch rather
than a ‘water of the
State’),
the failure to include a compliance
scheduse with interim standard~for thia outfall, and a prohibitios
of discharge of
‘other cont-nnants’
to
istcd in the perut
Pursuant to the Board’s Order ox Octobe
18, 1979, these conditions
have
been
stayed
during
tie
pendancy
of
this
appeal.
On
February
23,
1982
Mobil petitioned for variance from the
15.0 mg/l TSS standard for Outfall 001, and for interim effluent
limitations for Outfall 002.
On March 4, 1982 the Board denied
a motio4
to
co isoli
ate
thi°
perntt
appeal
tith
the
varianc.c
request.
The requested variance ‘caa granted in PCB 81-I?,
November
12,
1982,
which
Opinaon
will
he
referred
to
tereia
as
appropr
ate
*All section numbers reference 35 Ill. Mm. Code.
2
Hearings were held in this matter
on
February
26 and
March
12,
1982.*
At the brief first hearing,
at which no members of the
public were present,
the Agency presented the testimony of
Hele~-i
Lai and tendered its Group Exhibit
1,
a copy of its record,
and
Exhibit
2,
a topographical map.
At the March hearing,
at which
members of the public were present, Miss Lai was present for
cross examination and De Pue area residents Donald f3osnick,
Kathryn Zawacki and Eileen Baily presented testimony on behalf
of the Agency concerning the stream receiving Mobil’s discharge.
Mobil presented no evidence, but moved to continue the hearing
and made an offer of proof as
to what its witnesses
(not then
present) would testify.
The motion and offer were denied.
The Hearing Officer also ruled upon Mobil’s March
9 Motion
to Admit and to Exclude Materials from Agency Record.
Following
the arguments of counsel,
the motion was denied as
to all but
one document, and Agency Group Ex.
1 was admitted
(as was
Ex.
2).
Mobil did not file an opening brief.
In response to the
Agency’s May 24, 1982 brief,
Mobil sought review of various
Hearing Officer rulings and arguably for the first time raised
the issue of the Agency’s lack of compliance with Section 309.108
formerly
Rule 905 of Chapter 3,
citing Olin Cg~p~
v.
IEPA,
PCB 80—126, February 17,
1982.
Pursuant to leave granted by the
Board August 18,
1982,
the Agency’s supplemental brief was filed
September
1 and Mobil’s
September 13.
Prior to deciding the contested issues,
the
Board
notes
that
the
Agency
has
agreed
to
revise
the
“other
contaminants”
condition
concerning
each
outfall
in
accordance
with
the
Board’s
decision in Caterpillar Tractor Co.
v.
IEPA,
PCB 80-3,
February
5
and June 10,
1981.
THRESHOLD ISSUES
Agency Record As Filed
Agreement having been reached at hearing
as
to most items
specified in its March
9,
1982 motion,
Mobil contends that four
items should be
stricken from the Agency record.
The first
two
are letters of November
6,
1978 and January 19,
1979 indicating
that lime was being added to the cooling water stream.
These
were admitted, over relevancy as well as general objections
noted below.
The next
is a memorandum dated February 23,
March
23, and May 12,
1977 regarding an inspection of Mobil’s
facility and that of the New Jersey Zinc Corp.
This was excluded
as it predated Mobil’s application for the instant permit.
The
final
item is a list of names of persons present at a July 11,
*As the transcripts were not sequentially numbered, the
February hearing transcript is referred to as
“iR.”,
and the
March
are as “2R.”.
50.168
3
1979 meeting between Mobil and the Agency.
No specific ruling
was made as to this item.
Mobil’s general objections are that
1) existence of these items were not disclosed prior to permit
issuance,
2) there is no indication as to when specific items
were included in the Agency record,
and 3)
there
is no indication
of the extent to which the Agency relied on a particular document.
The Board has consistently stated that,
for its permit
review to be meaningful,
“the Agency record is
to include all
material
and relevant facts upon which the Agency relied in
making a determination” County~f
LaSalleetal,
v,
IEPA,etal.,
PCB 81—10,
March
4,
1981.
Error,
if any,
should be made on the
side of inclusion of materials, rather than exclusion of them.
The Board does not construe Section 105.102(b)(5)
formerly
Procedural Rule 502(a) (5)
or Section 309.109(a)
formerly
Rule
906(a)
of Chapter
3
as
a limitation of the items to be included
in the Agency’s record,
if relied upon;
rather these
rules
establish the minimum amount of information to be considered by
the Agency and presented to the Board.
If Mobil’s other arguments were
to be accepted,
and the
Agency were to be required in every case to state specifically
when (already dated)
items are included in a record,
to assign
each document some sort of rating for degree of reliance, and
then to disclose the entire file to
an applicant
prior to
permit
issuance,
an already cumbersome permitting process would become
a nightmare of useless bureaucratic paper shuffling.
The Board
finds that all of the above items were properly included in the
Agency record.
As to the relevancy of the 1977 inspection memo-
randum, the Board
finds that the historical overview presented
of the facility could properly have been relied upon.
Statement of Basis of Permit Conditions
After filing
its permit renewal application on October 20,
1978, Mobil neither objected to,
nor commented on the Agency’s
initial Proposed Draft Permit and Joint Public Notice/Fact Sheet
sent out on December 12,
1978.*
A second and quite different
Proposed Draft Permit and Joint Public Notice/Fact Sheet was
issued on April
6,
1979.
Mobil responded on May
4,
1979,. with
written objections as to certain conditions the Agency proposed
to include in the NPDES Permit, with inquiries as to why such
conditions were being included, and with factual information
supporting its objections (Agency Rec.
15).
Mobil thereupon
requested and the Agency agreed to an informal meeting involving
*Item
8 of the Agency’s Index entitled “Summary of Agency
Record
(Agency Rec.
8)
refers to this Proposed Draft Permit and
Joint Public Notice/Fact Sheet,
but this was omitted from the
Agency Record on appeal filed with the Board on November
6,
1979.
This should have been included in the Agency Record,
but the
Board finds that failure to do so does not ammount to prejudicial
error.
50-169
4
representatives
of
both
parties
in
order
to
discuss
and
attempt
to resolve these objections
(Id.
16).
This meeting occurred on
July 11,
1979 as reflected in the correspondence between the
parties
(Id. 17,
19);
further, certain statements were made based
upon this informal meeting regarding certain contested items,
specifically:
°pHwould be deleted as a parameter upon installation
by Mobil of the C.I.L, cooler to replace
existing
sulphuric acid cooling coil;
°theAgency opposed in principle allowing Mobil credit
for background
TSS concentrations in its outfall
001
which are present in the intake water drawn from the
Illinois River solely because of the presence of
non-process incidental plant streams in the non—contact
cooling water discharge irrespective of whether any
measurable amounts of TSS are contained in such streams;
°theAgency agreed to consider characterizing the
unnamed ditch so as to require that Mobil comply with
standards for purposes of its outfall
002, and to
characterize Negro Creek as the “receiving water” for
purposes of complying with applicable water quality
standards
(Id.
19).
The Agency then issued the final NPDES Permit on September 7,
1979
(Id.
2).
This did not include the modifications,
The permit
reflected the Agency’s subsequent determination that no quali-
fication for equipment replacement was to be made concerning pH,
that no TSS background credit should be given,
and that the
unnamed ditch should not be classified as an “industrial ditch”.
No accompanying statement for its actions was provided
regarding
these, or any other issues.
Section 309.108
(formerly Rule 905 of Chapter
3) provides
in
pertinent part that:
“Following the receipt of a complete application for an NPDES
Permit,
the Agency shall prepare a tentative determination.
Such
determination shall include at least the following:
a)
b)
If the determination is
to issue
the permit,
a draft
permit
containing:
1—2)
3)
A
brief
description
of
any
other
proposed
special
conditions
which
will
have
a
significant
impact
upon
the
discharge.
50-170
5
c)
A statement of the basis
for each of the permit
conditions listed in Section 309.108(b),***”
As noted, the Agency has provided no ~uch statement of basis
for any condition contained in the permit.
Mobil therefore
argues that this action should be remanded based on Olin, ~p~ra.
Olin involved a permit condition requiring a facility process
evaluation to determine the presence or absence of any of 129
toxic pollutants.
Olin contended that it could not determine the
basis of the condition until after the appeal was filed, affording
it access to the Agency Record and discovery.
The Board found
that:
“Had the Agency included a statement of the basis of the
special conditions with the draft permit,
Olin could
have refuted the basis
in its comments
on.
the draft.
A proper record for Board review would have resulted.
The Board holds that Rule
905(c) required a statement
of basis of the FPE condition in this draft permit”
(Id at 5).
The permit was therefore remanded.
The Agency argues that Olin is distinguishable,
in that here
a)
a “statement of basis” was provided by information contained
either in the Joint Public Notice/Fact Sheets or at the July 11
meeting,
and b) because of this, Mobil had opportunity to submit
any relevant inf9rmation challenging
these conditions prior to
permit issuance.
(The Agency reviewed each of the contested
conditions
in its brief, which discussion will not be set forth
here.
See Agency Supp.
Br. of Sept.
1,
1982 at 4-6).
The Board
finds that the intent,
if not the letter, of
Section 309.108 was satisfied in this case, that the record
before the Board has not been adversely affected, and that Mobil
has suffered no prejudice.
Accordingly remand of this action
on this ground would not be
in the interests of administrative
economy.
‘Mobil also cites federal NPDES permit regulations
found
at 40 CFR §124.17(a).
In summary this requires states issuing a
final permit decision to state reasons for change between draft
permits and final permits, and to respond to significant comments
on draft permits.
The federal regulation has no direct analog
in Board regulations,
and so is not controlling.
2The Board also notes that the lack of a statement of basis
was raised by Olin in its initial appeal for review, whereas Mobil
has raised this issue for the first time by way of response brief.
50-171
6
De novo Hearin~issues
Mobil
cites
35
Ill.
Adm.
Code
105.102(a)(8)
(formerly
Procedural
Rule
502(a)
(8)
and
Borg-Warner
Corp.
v.
Mauzy,
427
N.E.2d 423,
100
Ill.
App.3d
962
(5th
Dist.
1981)
in support of
the proposition that it should receive a de
novo
adjudicatory—
type
hearing
at
which
“to submit additional
evidence,
including
test
data,
engineering
investigations
and
reports,
and
further
witness
testimony
and
exhibits
which
were
not
previously
submitted
at
the
Agency
level
and,
indeed,
which
were
not
available
or
had
not
been
developed
until
after
the
Agency’s
‘final’
permit
was
issued
on
September
7,
1979
(2R.
34—40)”
(Pet.
Br.
at
5).
Borg—Warner
does
not
support
this
contention,
as
it
does
not
f~cus on
the
de
novo
vs.
review
of
the
Agency
record
issue,
Olin,
however,
does
interpret
Section
105.102(a)
(8):
“The
hearing
de
novo
provisions
must
be
construed
narrowly;
otherwise
permit
applicants
will
be
tempted
to
withhold
facts
at
the
Agency
level
in
hopes
of
a
more
friendly
reception
before
the
Board.
This
would
encourage
appeals
and
would
place
the
Board in a
position
of
being
the
first
agency
to
evaluate
the
factual
submissions.
This
would
distort
the
separation
of
functions
in
the
Act.
The
fourth
sentence
allows
a
hearing
de
novo
only
with
respect
to
‘any
disputed
issues
of
fact.’
This
refers
only
to
an
Agency
factual
determination
which
was
disputed
before
the
Agency”
(p.
4).
No
issues
of
fact,
as
opposed
to
issues
of
law,
were
disputed
at
the
Agency
level.
Failure
to
submit
data
does
not
amount
to
a factual dispute.
Therefore the Board
finds that Mobil
is not
entitled
to
a
de
nova
hearing.
THE
CONDITIONS
Outfall
001
Section
304.103
and
TSS
Background
Credit
Section
304.103
“Background
Concentrations”
states
that
“Because
the
effluent
standards
in
this
Part
are
based
upon concentrations achievable with conventional
treat-
ment
technology
which
is
largely
unaffected
by
ordinary
levels
of
contaminants
in
intake
water,
they
are
absolute
standards
that
must
be
met
without
subtracting
background
concentrations.
However,
it
is
not
the
50-172
7
intent of these regulations to require users to clean
up
contamination caused essentially by upstream sources or
to require treatment when only traces of contaminants
are added to the background.
Compliance with the
numerical effluent standards
is therefore not required
when effluent concentrations in excess of the standards
result entirely from influent contamination, evaporation,
and/or the incidental addition of traces of materials
not utilized or produced in the activity that is the
source of the waste.”
In the second draft permit,
the Agency did not provide
background credit for TSS as it did for fluoride and ammonia.
Mobil’s permit data showed influent concentrations of 59.2 mg/i,
but effluent concentrations of 39.7 mg/i based on monthly grab
samples
(Agency Rec.
4,
p.
11—6).
At the July 11,
1979 meeting
the Agency indicated that its disallowance of background credit
was based on the addition of internal plant waste streams to
non—contact cooling water (Agency Rec.
19,
p.
2).
Mobil argues,
first, that the Board must define “traces”, and then that Mobil
must be allowed to submit evidence of the quantity of TSS
involved
in each added waste
stream.
The Agency cites a few cases involving background credit
rulings:
two in which background credit was denied,
East
St. Louis and Interurban Water Co. and Alton Water Co.
v.
IEPA,
PCB 76—297,
298
(consolidated), February 17,
1977 and Texaco,
Inc.
v.
IEPA,
PCB 77—154, December
8,
1977, and one in which background
credit was allowed even though materials were being added to
cooling water Central Illinois Public Service
v.
IEPA,
PCB 74—145,
148,
149
(consolidated).
The Agency argues that CIPS should be
abandoned,
for reasons not entirely clear.
The Agency further argues that
it would,
in any case, have
been unable to make a determination based on the information
provided by Mobil
as
a)
no evidence was presented indicating
the
amount of suspended solids added relative to background levels,
and
b)
it has questions concerning the sampling methodology used
in producing the influent/effluent concentrations provided.
The Board need not reach the questions of further defining
“traces”, or of repudiating CIPS.
Based on the lack of infor-
mation at the time of permit issuance, the Agency’s denia1 of
background credit was proper.
(The Board notes that much of the
lacking data was provided in PCB 82-18,
p.
2—5,
in which a TSS
variance was granted.)
ph
Limitation
The pH limitation itself is that requested by Mobil.
As
it
relates to the operation at the time of application,
Mobil
is
apparently concerned about the “limited at all times”
language,
50-173
8
but does not explain the source
of
its
problem.
The
Agency
notes
that
Mobil
did not oblect to
inclusion
of
this
language
in
its
draft
permit.
It
‘further
notes
the
words
“as
follows”
appear
after
the
limitation
language,
and
that
“as
follows”
refers
to
specific
limitations
and
the
sampling
frequencies
by
which
compliance
is judged.
It
would
appear
then
that;
Mobil ‘s
concern
relates
to
Agency
failure
to
provide
for
deletion
of
the
parameter
upon
installation
by
Mobil
of the CiL
cooler
to
replace
existing
sulphuric
acid
cooling
coil
(Agency
Rec.
19).
While
deletion
of
the
Chapter
3—
based
parameter
would
he
a
proper
subject
of
a
permit
modification
once
replacement
actually
occurred,
the
Board
finds
that
the
Agency
was
justified
in
including
the
condition
as
it related to
existing
equipment.
Omi
S 51
on
of
Names of Waste
St reams
Contribu~4~_~oProcess
Stream
Mobil
does
not,
address
this,
while
the
Agency
agrees
that
the
request
to
add
names
has
merit,
It
notes
that
this
does
not,
however,
effect
the
validity
of
the
permit
as
issued.
The
omission
is
upheld~ as the Agency
is
technically
correct,
although
the
omission
should
he
remedied.
Semi—Annual Contaminant
Monitorinq
The
condition,
requiring
monitoring
for
contaminants
listed
in
Section
304.
:L24,
was imposed
as
to both
outfails,
and
was
contained
in
the draft permit.
Mobil
commented
that
many
of
these contaminants were not characteristic of its
discharge,
but
provided no sampling data
in support
of
the
claim.
The Agency supports the conditions
on
the basis of its
authority under §39(b)
of
the
Act
to
impose
conditions
as
“may
be required to accomplish the purposes and provisions of this Act”.
It argues that such access to continuing monitoring data allows
it to verify information
in
the permit application concerning the
nature of the discharge,
and to determine whether
the
nature of
the discharge changes.
As this condition lies within the Agency’s
authority,
and
as
Mobil
did
not
avail
itself
of
an
opportunity
to support its general objection with data,
the condition is
sustained.
Outfall
002
Unnamed Pri
buta~2~a
Creek
Ground seepage from Mobil’s gypsum pond flows into an unnamed
ditch
‘tributary
to
Negro
Creek,
which
is
‘tributary
to
the Illinois
River
(see PCB
82—18.. p.5).
Were this ditch
found to be an
industrial
ditch, effluent limits and hence sampling points would
be established at the point where the ditch enters Negro Creek,
50-174
9
rather than at the point of Mobil’s discharge.
The unnamed ditch
does not join Negro Creek within the limits of Mobil’s property,
but instead flows past two homes about a mile downstream of
Mobil’s discharge before
flowing into the creek.
In determining whether a stream is an industrial ditch as
opposed to a “water of the State”,
the Board
looks to three
criteria,
as set out in IEPA v.
Jobe,
PCB 80—214,
January
7,
1982:
1.
Whether the stream or ditch is a natural depression
or waterway or is instead artificially constructed or maintained:
2.
Whether there is public acess to or use of the waters;
and
3.
Whether the waters support aquatic
life.
Mobil does not argue that the criteria are not satisfied, arguing
only
that
it had not been informed of the classification prior
to issuance.
The condition Is sustained (Citizen testimony
concerning the nature of the stream is set out
in PCB 82-18,
p.
7).
Compilance Schedule
No delayed compliance schedule concerning the gypsum pile
discharge was included, based on the Agency’s legal interpretation
that Section 309.148(f) prohibited it from doing
so.
The section
provides that:
“The Agency may establish schedules of compliance
in
NPDES Permits pursuant to applicable federal require-
ments which may be earlier or later than deadlines
established by otherwise applicable regulations
of the
Board, provided that all schedules of compliance shall
require compliance at the earliest reasonable date.
However, the Agency shall not issue an NPDES Permit
containing a schedule of compliance beyond July
1,
1977,
or any other compliance date established by federal
law,
to any applicant who is not in compliance with,
or who
has not obtained a variance from applicable Illinois
Water Pollution Regulations, or who has not been ordered
to apply for and obtain all necessary permits in an
appropriate Board enforcement action,
for which the
deadline for compliance occurred before the effective
date of these NPDES Regulations.”
Section 301(a)(1)(A) of the Federal Water Pollution Control
Act set forth a deadline of July 1,
1977 for compliance with the
BPT standard set forth in
40 CFR §418.10.
As this deadline had
passed prior to the October 24,
1977 effective date of the NPDES
regulations,
the Agency determined that variance relief was neces-
sary before a compliance schedule could issue, as no enforcement
order was outstanding.
50-175
10
Mobil
argues that a compliance schedule should have been
issued, based on extension of BAT compliance deadlines by 1977
amendments to the Federal Clean Water Act.
While Section 309.148 is admittedly turgid,
the Agency’s
interpretation is correct.
Failure to include a compliance plan
and interim standards was not in error.
(Grant of variance in
PCB 82—18 now allows
for inclusion of interim standards and a
compliance schedule.)
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board upholds the permitting decisions made by the
Agency
in granting NPDES Permit No.
1L0032182,
The permit is,
however,
remanded for modification as to the “other contaminants”
condition consistent with Cate~p~llarTractor Co.
v,
IEPA, PCB
80-3,
February
5,
and June
10,
1981, and as
to the conditions
affected by the variance granted
in Mobil Chemical
Co. v.IEPA,
PCB 82—18,
November 12,
1982.
IT IS SO ORDERED.
I,
Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify th~tthe above Opinion and Order
was ~adoptedon the
~
day of
~
,
1982 by a vote
of ~
i-I
C
Christan L.
Mofil~?,t,Clerk
Illinois Polluti5w”Control Board
50-176
