ILLINOIS
POLLUTION
CONTROL
BOARD
February
17,
1982
OLIN
CORPORATION
)
(EAST
ALTON),
)
Petitioner,
v.
)
P~B 80—126
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
Respondent.
MSSRS. RANDALL
ROBERTSON
AND
ERIC
ROBERTSON,
LUEDEBS,
ROBERTSON,
AND KONZEN,
AND
NICHOLAS
C.
GLADDING,
ATTORNEY
AT
LAW,
APPEARED
ON
BEHALF
OF
PETITIONER;
MSSRS.
STEVE EWART AND GARY
P.
KING,
ATTORNEYS
AT
LAW,
APPEARED
ON BEHALF
OF
RESPONDENT.
OPINION AND ORDER OF
THE
BOARD
(by D. Anderson):
This matter comes before the Board upon a petition and
amended petition for review of conditions of an NPDES permit
filed by Olin Corporation
(Olin)
on July 3,
1980 and April 29,
1981.
The Illinois Environmental Protection Agency
(Agency)
filed the Agency Record on August
8,
1980, and an amended
summary on August 17, 1981.
Five public hearings were held
at Edwardsville on April
24, August 10, August 11, August 12
and August 20,
1981.
There is no indication of any public
participation.
This matter concerns NPDES Permit No. IL0000230, issued by
the Agency to Olin on June 4,
1980.
The
permit
authorizes
discharges from Olin’s East Alton facility to Wood River Creek,
a tributary of the Mississippi River.
The Board has recently
granted a variance which was related to an issue originally
subject to this appeal
(Olin
v. IEPA, P~B80—170,. Deôember 18,
1980, May 1, 1981).
The facility is described in the December
18, 1980 Opinion.
Among other things, it manufactures
anmiuni-
tion from brass and copper.
Also related to the original issues is
a proposal for a
site specific copper water quality rule for this facility
(R8l—24).
The original petition objected to several conditions of the
permit.
These have been resolved by the variance and agreement
of the parties.
The
permit in question expired June 30, 1981.
5— 45—389
—2—
The
remaining
issue
concerns
the
facility,
process
evalua-
tion
(FEE)
condition,
Special
Condition
5,
Attachment
G.
This
condition required Olin to
evaluate
its
process
areas
to
deter-
mine the. ~presenceor absence of any
of
129
toxic
pollutants.
Olin was ‘to identify:
those it knew tobe present; those it
knew, or had a strong reason to believe, to be absent; and,
those it was tznsure of.
Olin was to perform sampling and
analysis only for those it was unsure of.
This was to consist
of tb±eecomposite samples of influent and effluent to the
Zone
6 treatment plant.
Olin was then to identify the source
of toxics found to be present.
The
Agency
has
presented
evidence
in
this
case
of
the
presence
of
the
following
materials
in
Olin’s.
wastestream:
copper
lead
chloroform
1,1, 1-trichioroethane
dichiorobromomethàne
tn chloroethene
trinitroresorcinol
The first six are listed in Attachment G of the permit.
Trinitroresorcinol is the nitration product of resorcinol,
which is a hazardous waste listed for toxicity (S72l.l33).
Monitoring is required for copper and lead.
It is clear
that the Agency has sufficient reason to require monitoring
of the remaining material in the list.
However, the FPE
condition potentially required monitoring of 123 additional
materials.
There is no satisfactory explanation of why the
presence of seven materials gives the Agency reason to suspect
the presence of 123 with sufficient certainty to impose
monitoring.
Rule
905
of
Chapter
3
provides
in part as follows:
Following
receipt
of
the
complete application for an
NPDES permit, the Agency shall prepare a tentative
determination.
Such determination shall include at
least the following:
***
(b)
If
the
determination
is
to
issue
th~.
permit,
a
draft
permit
containing;
***
(3)
A brief description of any other proposed
conditions which. ‘will have a significant
impact upon the discharge;
45—390
—3-.
Cc)
A
statement
of
the
basis
‘for
each.
of
the permit
conditions
listed
in
Rule
905(bl.
The
‘Agency
issued
a
draft
permit
with
the
FPE
condition.
Eowever, at no time did it prepare or transmit to Olin a state-
ment of the basis of the FPE condition.
The ‘Agency instead
contends that the entire Agency redord was the ‘basis of the
condition and that the rule required only that it be “prepared”
not
transmitted
to
the
applicant.
The
Agency
has
not
argued
that
the
conditions
will
not
“have a significant impact upon the discharge.”
The Board adopted Rule 905 with the NPDES regulations
(R73—ll, R73—12,
14 PCB 661,672, December 5,
1974).
Writing
for the Board, Mr. Dumelle stated:
Rule 905, Tentative Determination in Draft Permit,
was enacted to be consistent with the Federal Require-
ment set forth in 40 CFR 124.31 and Section 39(a)
of
the Act.
Rule 905(c)
requires the Agency to prepare
a statement which substantiates the basis for the condi-
tions imposed in an NPDES Permit.
This statement
will provide
a useful reference in the event a permit
condition is challenged.
Rule 905(d) was included to
comply with §39(a) of the Act.
It is clear from the adopting Opinion that the statement
of basis is a separate document which must be prepared by the
Agency..*
It is not altogether certain whether the statement
*The comparable federal regulations are now found at 40 CFR
Sl24.7
and §124. 8(b) (4).
The Agency has proposed that the Board
adopt these in connection with the UIC permit program
(R8l-32,
6 Ill. Reg. lOll, January 29, 1982).
40 CFR S124.8(b) (4) pro-
vides as follows:
The fact sheet shall include, when applicable:
(4)’
A brief summary of the basis for the
draft
permit
conditions
including
references
to
applicable
statutory or regulatory provisions and appropriate
supporting references to the Administrative record.
The comparable federal regulations also specifically require
the statement of basis to be ‘sent to the applicant.
There ‘is no
language ‘whAtsoever limiting the conditions to thOse having a
significant impact.
AlthOugh ‘these federal regulations do not
control Illinois NPDES permits, they serve as
a useful guide in
interpreting state regulations which were intended to follow the
comparable federal rules.
45—391
—4—
of
basis
must
be
transmitted
to.
the
applicant,
althOugh
it
is
difficult
,to see how the rule
could
accomplish
the
stated
result if the statement of basis were not transmitted to the
applicant
Olin contends that it is entitled to a hearing de novo to
present
evidence
to
the.
‘Board
attacking
the
‘basis
of
the
condi-
tion.
The ‘Agency contends that the information is inadmissible
unless it was presented to the Agency as a part of the applica-
tion.
Olin contends that its difficulty stems from the fact
that it could not discern the ‘basis of the condition until after
the appeal was filed, affording it access to the Agency record
and discovery.
Procedural Rule 502(b) (8)
provides as follows:
The
hearings
before
the
Board
shall
extend
to
all
questions
of law and fact presented by the entire record.
The
Agency’s findings shall be prima facie true and correct.
If the Agency’s conclusions of fact are disputed by the
party or if issues of fact are raised in the review
proceeding,
the Board shall make its own determination
of fact based on the record.
If any party desires to
introduce evid-nce before the Board with respect to any
disputed issue of fact, the Board shall conduct a de novo
hearing with respect to such issue of fact.
The third and fourth sentences relate to findings of fact
by the Board.
The third sentence refers to a Board “determina-
tion of fact based on the record.”
This authorizes the Board
to make its own findings based on the Agency record.
The fourth sentence specifically refers to a “de novo
hearing with respect to such issue of fact.”
This sentence
governs factual issues at Board hearings.
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 issue of fact.”
This refers only to
an
Agency
factual
determination
which. ‘was disputed before the
Agency.
Olin
did
not
dispute
these
facts
at
the Agency level.
Howe’~rer,
the
cause
of
Olin’s
failure was the absence of any
Agency
factual
determinations
to
dispute.
45—392
‘-5—
Rad
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.
Accordingly, the Board will
reverse the ‘Agency concerning inclusion of Special Condition 5.
The permit
will
be remanded to the Agency for further action.
Olin sought to introduce ‘at the hearing exhibits which
were before the Board in PCB 73-509,
510, in which Olin sought
an adjudication that Wood River Creek was a secondary contact
water
(Rule 205 and 302).
This was resolved adversely to Olin
on procedural grounds.
The intent of these exhibits was to
demonstrate that Olin’s discharge had no effect on the receiving
stream.
The Agency objected to admission on the grounds that
these exhibits were not a part of the
Agency
record.
Although
the Agency would ordinarily take notice of previous permit
applications
and
Board
Orders
affecting
the
facility,
this
information
was
not
a
part
of
any
permit
application
and
the
Board
action
was
terminated
without
an
adjudication
of
the
facts.
The
Board
holds
that
the
Agency
was
under
no
obligation
to
take
notice
of
these
exhibits.
Had
Olin
wanted
this
material
in the Agency record, it should have referenced it
in
the
appli-
cation or its comments on the draft permit.
The motions concerni~igadmission of these exhibits were
outlined in an Order entered November 5, 1981,
at whIch ‘time
the Board reserved ruling.
Olin’s motions to admit into the
record of August 14 and October 15, 1981 are denied.
The
Agency’s August 17 motion to admit its brief in PCB 73-509, 510
is denied.
Olin’s August 27 motion to admit its earlier brief
is denied.
Olin’s October 15 motion for oral argument is denied.
This
Opinion
constitutes
the Board’s findings of fact and
conclusions
of
law
in
this
matter.
ORDER
The
permit
is
remanded
to
the
Illinois
Environmental
Protection
Agency
for
further
action
consistent
with.
‘this
Opinion.
IT IS SO ORDERED.
Mr.
Goodman
concurred.
45— 393
—6—
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control
Board,
hereby
certify
that.
the
above
Opinion
and
Order
were adopted on the
fl~”
day
of
~
,
1982
by
a
vote
of
4~o
.
C
ristan
L.
Mof
Clerk
Illinois Pollutio
Control Board
45—39 4