ILLINOIS POLLUTION CONTROL BOARD
June
10, 1981
CATERPILLAR TRACTOR CO.,
)
Petitioner,
v.
)
PCB 80—3
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by D.
Satchell):
On March 19,
1981 the Board agreed to reconsider its Opinion
and
Order of February
5,
1981.
Since that date the parties have
filed several memoranda and motions,oppositions and responses.
There are two issues remaining in this NPDES permit appeal.
Cater-
pillar Tractor Company
(Caterpillar) objects to the Board’s refusal
to order a requested condition concerning authorization to dis-
charge other contaminants.
The Illinois Environmental Protection
Agency
(Agency)
objects to the Board’s decision to strike the
facility process evaluation from the permit.
Pleadings fall into
two sets dealing with these two issues.
AUTHORIZATION TO DISCHARGE OTHER CONTAMINANTS
On March 12, 1981 Caterpillar filed a motion to reconsider
the Board’s February 5,
1981 decision which refused to order the
inclusion of a requested permit condition authorizing the discharge
of other contaminants.
On March 19, 1981 the Board agreed to recon-
sider.
On May 1,
1981 Caterpillar filed a memorandum in support of
its motion to reconsider.
On May 22, 1981 the Agency filed a re-
sponse to Caterpillar’s memorandum and a motion to strike exhibits
from the original motion for reconsideration.
In the February
5,
1981 Order the Board held:
As to the second issue presented by this appeal, the noninclu-
sian of a condition which the TJSEPA had included in Cater-
pillar’s prior NPDES permit, the Agency is not bound either
to include the substance of prior conditions or to word any
condition in a specific way.
The Board upholds the Agency’s
exclusion of the condition Caterpillar requested.
There is
no evidence that the wording of this condition
is required
to accomplish the purposes of the Act, the Board’s Regula-
tions or the Clean Water Act.
42—7
—2—
During the permit application process, Caterpillar requested
that the following specific language be inserted into its NPDES
permit:
The permittee shall not, during the period of this permit,
be authorized to discharge pollutants other than those
specified in Part
I herein, unless the concentrations of
those pollutants do not exceed the standards and limita-
tions of the Illinois Pollution Control Board’s Water
Pollution Regulations, Chapter 3,in force on the date of
any particular discharge of said pollutants; provided,
however, that the concentration of these pollutants shall
not exceed any standard or limitation promulgated by the
United States Environmental Protection Agency under Sec-
tion 307(a) of the Federal Water Pollution Control Act,
PL 92-500.
At any time after compliance monitoring by
the Illinois Environmental Protection Agency, the permittee
upon written request of the Illinois Environmental Protec-
tion Agency may demonstrate that any pollutant not speci-
fied in Part
I herein as in compliance with the effluent
limitation of this paragraph.
This permit condition was included in the previous permit
issued Caterpillar by USEPA and was specifically requested by
Caterpillar in the new permit.
Caterpillar requests one of two alternative dispositions by
the Board, that it either order the permit condition included in
the language of the NPDES permit or hold that the requirements of
state and federal law are in substance identical with the proposed
language so that it is unnecessary to include the language in the
permit.
Underlying this dispute is a question
as to whether, in the
absence of any conditions to the contrary, an NPDES permit author-
izes the discharge of contaminants for which there is no effluent
standard or limitation.
Caterpillar argues that USEPA regulations
contemplate that an NPDES permit based exclusively on federal law
would in general authorize the discharge of other contamiants
40
CFR §122.13(a)
and §122.61; 45 Fed.
Reg.
33,428, 33,311, 33,448.
Caterpillar has attached to its motion a policy memorandum
from Jeffrey
G. Miller, Deputy Assistant Administrator for water
enforcement of USEPA.
This memorandum concluded that USEPA pro-
vides for a general authorization to discharge subject only to the
conditions and limitations of the permit,
in agreement with Cater-
pillar’s position.
This policy memorandum is found in EPA Policy
Book, Permits Division, which compiles all of USEPA permit memoranda
since 1973.
Because it is
a published policy statement by USEPA
the Board does not require that this memorandum be presented as
42—8
—3-.
evidence in a hearing.
The Agency’s May 22,
1981 motion to strike
the exhibits from the motion for reconsideration is denied.
It is not necessary that the Board decide the effect of a USEPA
permit since Board regulations
can modify this aspect of the NPDES
permit.
The Board has provided in Rule 410(b)
the following:
No person may discharge any pollutant subject to, or which
contributes to or threatens to cause a violation of any
applicable federal or state water quality standard, efflu-
ent standard, guideline or other limitation, promulgated
pursuant to the FWPCA or the Act, unless limitation for
such pollutant has been set forth in an applicable NPDES
permit.
Rule 410(b)
has been the subject of two conflicting appellate
court cases:
Peabody Coal Company v. PCB,
36
Ill. App.
3d
5,
344
NE 2d,
279
(Fifth District, 1976)
and U.S. Steel Corporation v.
PCB,
Ill. App.
3d 1;
367 NE 2d 327
(Second District,
1977).
Pea-
~6~y held Rule 410(b)
invalid while U.S. Steel upheld the rule.
The Fifth District based its finding upon Section 27 of the Act
which directs the Board to take into account the factors of techni-
cal feasibility and economic reasonableness in promulgating a regu-
lation.
The court found the Board had failed to do so.
The second
District, however, upheld the rule against all challenges. The
Board regards Rule 410(b)
as valid.
Rule 410(b)
is somewhat different from the USEPA interpreta-
tion.
A permit would authorize the discharge only where the dis-
charges did not violate any Board or federal standards.
The Board
finds that Caterpillar’s proposed permit condition is essentially
a restatement of Rule 410(b).
If the NPDES permit were construed as actually prohibiting
the discharge of everything not mentioned in the permit, it would
be impossible to comply with it,
Because of the broad definition
of contaminant,
it
is possible for discharges to contain an indef-
inite number of contaminants,
It
could be impossible for a dis-
charger to ensure that nothing other than what is permitted by the
permit were discharged.
The general policy that the permit should
state with certainty the dischargert~duty would not be satisfied.
The permit as written is ambiguous as to which of three possi-
ble interpretations of the meaning of its effluent limitations is
applicable:
USEPA rules which would authorize the discharge of
anything not mentioned in the permit; the language of the permit
which apparently prohibits the discharge of anything not:~ment±oned
42—9
—4—
in the permit;
or, the language of Rule 410(b)
which authorizes
the discharges of other parameters which do not violate state or
federal standards.
The Agency is required to include effluent limitations and
other requirements established by Board regulations or USEPA regu-
lations
(Section 39(b), Rule 910(a)
and Section 301(b) (1) (C)
of
the Clean Water Act).
The Agency must include more stringent
state requirements.
The interpretation of the effluent limitations
given by Rule 410(b)
is more stringent than the USEPA interpreta-
tion which authorizes other discharges even if they violate Board
regulations or USEPA standards.
The Agency i~therefore required
to include a permit condition based on Rule 410(b).
The Agency
has not contended that Caterpillar’s proposed condition is incon-
sistent with Rule. 410(b)
or any applicable USEPA regulations.
The Opinion and Order of February 5, 1981 is modified with
respect to the other contaminants provision.
The matter will be
remanded to the Agency for inclusion of the requested condition.
FACILITY PROCESS EVALUATION
On March
9, 1981 the Agency filed a motion to reconsider that
portion of the Board’s Opinion and Order of February 5,
1981 which
struck from this NPDES permit the condition requiring Caterpillar
to complete a facility process evaluation prior to reapplying upon
expiration of its permit.
On
March
19, 1981 the Board agreed to
reconsider.
On March 27,
1981 Caterpillar filed an opposition to
the motion.
On May 1, 1981 the Agency filed a memorandum in sup-
port of its motion for reconsideration.
On May 12, 1981 Cater-
pillar filed a response in opposition.
With respect to the facility process evaluation, the Board
found, for a number of reasons, that the facility process review
was required to accomplish the purposes of the Act within the
meaning of the second paragraph of Section 39(b).
However, the
Board found:
ITihat the condition relates to what is required when
Caterpillar if ever reapplies for an
NPDES
permit.
The
Agency lacks authority under the Act to expand the re-
quirements of an application for an NPDES permit which
are set forth in Chapter
3, Rule 902.
The Agency’s
decision to include this provision
is therefore reversed.
The Agency contends that
it could have accomplished the same
result in two ways:
It could have required that the same informa-
tion be submitted during the term of the permit at
a date not tied
42—b
—5—
to the expiration date;
or,
it could wait for the reapplication
and deny the permit for failure to demonstrate that toxic pollut-
ants do not cause a violation of regulations.
The Agency, however,
did neither in this case.
Its motion to reconsider is denied.
The Opinion and Order is modified pursuant to Caterpillar’s
motion.
The Agency’s motion is denied.
The permit is remanded
to the Agency for issuance of
a modified permit.
IT IS SO
ORDERED.
I,
Christan
L.
Noffett,
Clerk
of
the
Illinois
Pollution
Control
Bo~d,
hereby
c
rtify
that
the
above
Order
wa~ adopted
on
the
/0
day
of
_________
1981
by
a
vote
of
~/..
Q
Christan
L.
Mo~f
r,/’~i.erk
Illinois
Pollution
~4ntrol
Board
42—11