ILLINOIS POLLUTION CONTROL BOARD
January
21, 1982
REYNOLDS METALS COMPANY,
Petitioner,
v.
)
PCB 79—235
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
CLIFTON A. LAKE, ROOKS, PITTS, FULLAGAR AND POUST, APPEARED ON
BEHALF OF PETITIONER.
BARBARA A. CHASNOFF, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by
I.
Goodman):
This matter is before the Board upon the petition of
Reynolds Metals Company
(Reynolds)
for review of NPDES Permit
No. 1L0001341 issued by the Illinois Environmental Protection
Agency (Agency) on October
12,
1979.
A hearing was held on
this matter on Monday, June
3,
1981
at which the parties herein
presented a Stipulation of Fact
(Stipulation).
The Board has
received no public comment in this matter.
On September
3,
1981 the Agency filed its Brief and attached
thereto a Motion for Leave to supplement the record.
The supple—
rnent consists of Reynolds’ permit application.
Reynolds did not
object to the Motion and has referred to the document
in its
Briefs.
The Board will, therefore,
grant the Agency’s Motion
and accepts the permit application as part of the record herein.
According to the Stipulation,
Reynolds owns and operates
a facility for the fabrication of aluminum metal and aluminum
alloys located in McCook,
Illinois.
In connection with the opera-
tion of this facility, Reynolds generates,
treats as necessary,
and discharges waste waters to the Summit—Lyons ditch, which is
tributary to the Chicago Sanitary and Ship Canal.
Waste water
is discharged through two outfalls, one of which
is the treated
waste water discharge from Reynolds’
main waste water treatment
plant and the other, a combined sewer overflow which, when it
overflows, discharges a combination of untreated waste waters
and storm water runoff.
Reynolds’ original NPDES permit was issued by the United
States Environmental Protection Agency
(USEPA) on June
9,
1976.
45—99
2
October
12,
1979 the Agency reissued to Reynolds a NPDES permit
which differed in certain significant respects from the one pre-
viously issued by USEPA.
Although the parties have resolved
most of their differences with respect to the renewed permit,
the conditions
for the overflow outfall remain to be settled.
The
Reynolds
facility
is
designed
in
such
a
manner
that
during
a
precipitation
event
sufficient
to
cause
a
combined
sewer flow beyond the hydraulic capacity of the main waste
water treatment facility (1200 gpm),
a pumping station with
a
capacity of 15,000 gpm pumps the effluent into storage lagoons
with
a total capacity of
6 million gallons
of
waste water,
The
storage
lagoons
are
subsequently
pumped
down
through
the
main
waste
water
treatment
plant
utilizing
its
excess
dry—weather
capacity.
As
it is now constituted, Reynolds combined sewer
overflow meets the requirements of Paragraphs
1,
2 and
3 of
Rule 602(c)
of
the
Board’s Rules and Regulations; Chapter 3~
Water Pollution (Water Rules).
The
original
NPDES
permit,
as
issued
by
USEPA,
permitted
direct discharge under excess flow conditions
in order to avoid
flooding out the main waste water treatment plant since
it
im-
posed no express effluent limitation on that discharge.
It did,
however,
require the storage lagoons be emptied as quickly as
possible
in order to provide retention capacity for subsequent
rainfalls.
The federal NPDES permit was certified by the Agency
under Section
401(d) of the Clean Water Act when it was issued.
However,
in
reissuing
Reynolds’
NPDES
permit,
the
Agency
has
im-
posed
additional
express requiret~entsthat effluent discharges
froir~ the combined waste water outfall comply with the effluent
limitations
for
pH and oils,
fats, and grease contained
in Rule
408(a)
of
the
Water
Rules.
The
issue
is, therefore, whether as
a matter
of
law
the
Agency
may
impose
Rule
408(a)
Effluent Limitations on overflow
discharges in the NPDES permit where applicants have complied
with
the
requirements
of Rule 602(c).
It is the Agency’s posi-
tion that
it
is
within
its
discretion
to
impose
Rule
408(a)
Ef-
fluent
Limitations
on
discharges notwithstanding the provisions
of Rule 602(c),
Reynolds,
of
course,
argues
that
Rule
408(a)
limitations
are
inapplicable
when
the
requirements
of
Rule
602(c)
are
met.
The Stipulation presents the foregoing as the sole legal
issue
in question
in
this matter and states that there exists no
factual dispute
in connection with the case.
Notwithstanding the parties’
attempt to reduce this case to
one legal
issue, the Board perceives three issues that it must
address.
These issues are:
I)
whether combined sewer systems
in compliance with Rule 602(c) performance criteria are still
subject to Rule
408(a) effluent limitations;
2)
whether the
Agency has authority to impose Rule 408(a) effluent limitations
as
a
condition
to
a NPDES permit; and 3)
if
so,
whether
the
Agency
should
have
done
so
in
this case.
45—100
3
The threshold issue is whether the Agency is authorized to
impose Rule 408(a)
limitations in the face of the provisions of
Rule 602(c) and Reynolds’ compliance therewith.
Part VI of the
Water Rules is entitled “Performance Criteria” and contains spe-
cific requirements concerning existing and potential sources of
water pollution that,
in the Board’s opinion, merit special con-
sideration.
Rule 602(c) specifically addresses the problem of
existing combined sewers which are at the mercy of the vagaries
of rainfall in the area.
In adopting Rule 602(c), the Board
acknowledged that treatment sufficient to assure that the waste
water overflow from existing combined sewers complies with Rule
408(a)
limitations
is technologically infeasible or economically
unreasonable.
Therefore, combined sewer systems in compliance
with with Rule 602(c)(l) and
(2) performance criteria are not also
subject to Rule 408(a)’s limitations.
If they were,
there would
be no need
for Rule 602(c)(3), which authorizes the Agency to
require additional treatment to prevent the accumulation of sludge
deposits,
depression
of
oxygen
levels,
or
for
removal
of
floating
debris
and
solids,
Although the effluent limitations set out in Rule 408(a) are
normally not applicable to combined sewer systems which satisfy
Rule
602(c)
performance
criteria,
the
Agency
has
the
authority
to make them applicable when necessary to protect water quality,
pursuant to Rule 9l0(a)(6).
This authority was affirmed by the
Second District Appellate Court
in U.S.
Steel Corporation v.
Illinois Pollution Control Board,
52 Ill.App.3d 1,
9 Ill.Dec.893,
367 N.E.2nd 327
(1977), which determined that Rule 9l0(a)(6)
constitutes a directive, not a delegation, from the Board to
the Agency which is consistent with the Agency’s authority under
Section 39(b) of the Illinois Environmental Protection Act
(Act)
to issue NPDES permits with those conditions necessary to accom-
plish the purposes of the Act
(c.f. Peabody Coal Company v.
Illinois Pollution Control Board,
36 Ill.App.3d
5,
344 N.E.2d
279 5th District, 1976,
and Illinois Power v. Illinois Pollution
Control Board et al.,
No.
81—34,
Appellate Court of Illinois,
3rd
District,
Sept.
30, 1981).
That court did not limit the type
of
condition the Agency may impose, more than to say it must be
necessary to carry out the provisions of the Act “prior to promul-
gation by the Administrator of the U.S. Environmental Protection
Agency of applicable effluent standards and limitations pursuant
to Sections 301,
302,
306 and 307 of the FWPCA,” U.S.S. Corp.
v.
Illinois Pollution Control Board,
367 N.E.2d at 335.
In turn,
the Board would not preclude the Agency from imposing conditions
just because the particular conditions are not regulations
normally applicable to the permittee.
Having upheld the Agency’s authority to impose such condi-
tions,
the Board will now address the issue of equitable estoppel
based upon prior Agency actions.
Reynolds argues that the Agency
is estopped from imposing the 408(a) restrictions in its reissued
discharge permit because it had previously granted the construction
and operating permit for the facility with which Reynolds achieved
compliance with Rule 602(c), and that permit made no attempt to
45—101
4
require Reynolds
to
eliminate the overflow discharges or sub~ec~
the discharge
to
the effluent limitations of Rule 408(a),
Although
the Board acknowledges that the doctrine of equitable estoppel
is
applicable
to State administrative agencies, we find
that
it does
not lie
in
this
case.
The
Agency did
not, and indeed,
could not
relieve Reynolds from the impact of any conditions pursuant ~o the
Act and the Boardvs
regulations when
it issued the construction and
operating
permit on
October
4,
1974,
since
it
has
no such authority.
Even if the Agency should issue such a construction permit which
subsequently imposes a threat to the health and welfare
of the
people
of the State of Illinois,
it
is the Board~sopinion
that the
Agency
would not he estopped from its primary duty to protect the
environment through the remainder of the NPDES permitting process.
The
Board finds that in this
case the Agency is not estopped from
imposing
conditions premised
on Rule 408(a)
limitations
on Reynolds
combined sewer outflow,
Having
found that the
Agency has
the authority
to impose
conditions
based on Rule
408(a)
limits
and is
in
no way barred
from doing
so, the Board
will now address
the
issue of whether or
not the
limitations
imposed are shown as necessary in this case.
The data presented in the Stipulation is the
basis for the impo-
sition of limitations by the Agency on Reynolds.
It indicates
that
Petitioner~streatment complies with Rule 602(c) and overflow
discharges have occurred approximately three times per year
on an
annual
average basis,
Review
of
the
results of the grab samples
taken during the discharges,
corrected for grab sample analysis,
indicate only two excursions
of the oil and grease limitations
of Rule 408(a)
during the four years
for which samples are avail-
able.
Considering
the
infrequent occurrences
of discharge, and
considering the
even
less
frequent excursions over the limitations,
and considering the type of discharge and the high rate of dilution
that necessarily attends the discharge,
the Board finds the proba-
bility of harm to the environment is deminimus.
Since the effects
of the
discharges
on
the
environment are derninimus,
the
Board
finds
that
the conditions based
on 408(a)
limits imposed by the
Agency on
Reynolds~
reissued NPDES permit are not necessary in
this case and shall he deleted from the reissued permit.
This Opinion constitutes the finding of facts and the con-
clusions of
law of the Board in this matter.
ORDER
NPDES Permit No. IL000l34l
issued by the Illinois Environ-
mental
Protection Agency on October
12,
1979 to Reynolds Metals
Company for
its
facility located in McCook,
Illinois
is
hereby
remanded to the Agency
for further consideration consistent
with
the Opinion herein.
Mrs.
Anderson and Mr. Anderson concurred.
45—102
5
IT
IS
SO
ORDERED.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board, hereb~certify that
the above Opinion and Order were adopted
on
the
~
day of
~
1982
by
a
vote
of
~
Christan
L,
Moffet41
~erk
Illinois Pollution ~Qóitrol Board
45—103