ILLINOIS POLLUTION CONTROL BOARD
    March
    14, 1974
    IN THE MATTER OF
    PROPOSED REGULATIONS FOR THE
    IMPLEMENTATION OF THE NATIONAL
    )
    PCB R73-ll, R73—12
    POLLUTANT DISCHARGE ELIMINATION
    SYSTEM
    )
    ORDER OF THE BOARD DENYING MOTION TO SUSPEND PROCEEDINGS
    (by Mr. Fenss)
    The Illinois Environmental Protection Agency submitted
    proposed regulations for the implementation of NPDES on October
    1,
    1973.
    Four hearings were held on the Agency’s original proposal.
    On January
    16, 1974
    the Director of the Illinois Environmental
    Protection Agency requested that this
    Board. “temporarily defer
    further action on the NPDES Regulations” pending review of the
    matter by the Agency.
    Subsequently,
    on January 30,
    1974 in
    light of certain comments and criticisms which had been made,
    the Agency submitted
    a second proposal.
    A fifth hearing was
    then scheduled in this proceeding for March
    13,
    1974.
    On the day of the hearing, March
    13,
    1974,
    the Illinois
    Environmental Protection Agency appeared and filed its Motion
    to Suspend Proceedings.
    The Motion
    specifically requests that
    this Board “suspend all further proceedings in this matter until
    September
    5,
    1974 and that the Board table the proposals made by
    the Agency to the Board in this proceeding for the implementation
    of an NPDES program in Illinoisv.
    Dr. Richard Briceland,
    Director
    of the Illinois EPA, testified
    that the Federal Agency had termed
    the January 30,
    1974 proposal ‘exceedingly cumbersome”.
    This
    criticism was one of the factors leading
    to the mOtion to suspend
    proceedings
    (R.
    801).
    The Motion to suspend proceedings and table the proposals is
    hereby denied.
    The Illinois Environmental Protection Act requires
    that we adopt Regulations which will enable the State of Illinois
    to implement the national pollutant discharge elimination system
    without creating a dual permit system for Illinois.
    Section 13(d)
    of the Act states:
    “for purposes of implementing an NPDES
    program, the Board shall adopt:
    recuirements, standards and
    procedures which together with other regulations adopted pursuant
    to this Section 13 are necessary or appropriate to enable the
    State of Illinois to implement and participate in the national
    Dollutant discharge elimination system pursuant to and under
    the Federal Water Pollution Control Act Amendments of 1972.’
    The Statute further provides “that it is in the interest of the
    People of the State of Illinois for the State to authorize such
    NPDES program and secure Federal approval thereof, and thereby to
    I I
    609

    —2—
    avoid the existence of duplicative, overlapping or
    conflicting
    State and Federal statutory permit systems”.
    EPA
    Section 11(a)
    We regard it as our duty to adopt regulations which will assist
    in implementing NPDES for Illinois, coordinate the appropriate
    regulations,
    and thereby avoid
    a dual permit system in this State.
    A suspension of these proceedings would thwart this purpose of the
    Governor and the Legislature.
    The testimony on March
    13, 1974 indicates that the United
    States Environmental Protection Agency, with the assistance of
    the Illinois Environmental Protection Agency, will now proceed
    to issue NPDES permits in Illinois.
    The intent of the two agencies
    is
    to issue the Federal permit even though the Administrator of the
    U.
    S.
    EPA has not yet approved a State program which will implement
    the provisions
    of the Federal Act in Illinois.
    All major dischargers
    in Illinois are to receive these Federal permits prior to December 31,
    1974.
    The issuance of Federal permits prior to Federal approval of
    the State program assures
    a dual system for Illinois and is
    precisely the thing the Legislature and Governor sought to avoid.
    Issuance of the Federal permit is apparently
    to be the cooper-
    ative effort of the State and Federal agencies.
    This is partly due
    to a Federal requirement that the State certify, prior to issuance
    of the Federal permit, that the conditions
    of the permit will, not
    later than July 1,
    1977, bring compliance with any State water
    quality standards,
    treatment standards,
    or schedules of compliance
    (emohasis supplied) which are more stringent than the Federal limi-
    tations.
    Federal
    Water Pollution Control Act Amendments of 1972,
    Section 401(a) (1);
    Section 301(b) (1) (C)
    Our Rule 951 presents
    some problems for such certification by the Illinois EPA,
    That Rule
    provides:
    “The Agency shall not approve any effluent discharge for
    the purposes of any Federal permit unless that discharge
    is in compliance with all provisions
    of the
    (Illinois
    Environmental Protection) Act and this Chapter, or has
    been granted
    a variance under Title IX of the Act.”
    Rule 951 existed at the time the Illinois legislature enacted
    P.A,
    78-862 which was passed in 1972 with the intention of qualifying
    Illinois to administer the NPDES program.
    To the extent that Rule
    951 conflicts with that legislative enactment the Rule is voided.
    It is obviously the intent of the Legislature to allow the Illinois
    EPA to issue Illinois NPDES permits without reference to the limi-
    tations of Rule 951 after the Illinois NPDES program comes into
    existence.
    EPA
    Section 39(b)
    However, we doubt that the Illinois
    Agency can certify its approval of discharges which are in vio1atior~
    of Illinois Standards prior to approval of an Illinois NPDES pro:~m.
    For one thing,
    it seems
    that the Legislature did not contemplate
    such a possibility, since the thrust of the legislation was
    for
    “one permit” system and not the dual and overlapping system
    whier
    will
    exist upon issuance of Federal permits alone.
    Second1y,~ sun
    ii
    ~61O

    —3—
    certification is not contemplated by the Federal law.
    On October
    1,
    1973 when the Illinois EPA filed its proposal, the Agency said:
    “Region V of the U.
    S. EPA has requested the Agency
    to propose to the Board the deletion of the present
    Rule 951 in its entirety so that the Agency may
    provide certification,
    as required by Section 401
    of the FWPCA,
    of proposed NPDES
    (U.S.) permits
    for
    discharges presently not in compliance with Chapter
    III effluentrequirements and~other standards.
    The
    Agency believes that even if Rule 951 were abolished,
    it would be unlawful to provid.e such certifications
    because the certification would state that the dis-
    charge would be in compliance with the provisions
    of Section 301(b) (1) (C)
    of the FWPCA when such would
    not be the case.”
    We think that the Agency was correct in October 1973.
    The
    Agency can hardly certify that an applicant for a Federal permit
    is meeting Illinois water quality standards,
    treatment standards or
    schedule of compliance unless the applicant is actually in compliance
    with Pollution Control Board standards or the terms of an Illinois
    NPDES permit.
    When the Illinois NPDES program is implemented, such
    schedules of compliance will be established by the Illinois Agency
    but will be subject to review and modification.
    Until this pro-
    cedure has been developed,
    certification of Federal permits by the
    Illinois Agency seemingly is prohibited by the Federal
    law as well
    as
    the Illinois
    law.
    We believe that the early implementation of an
    Illinois NPDES program
    is necessary in order to facilitate the
    issuance of Federal permits
    as well as Illinois permits.
    In order to avoid
    a dual permit system and the application of
    overlapping and conflicting regulations
    it will be necessary to
    implement an Illinois NPDES program for the issuance of Illinois
    NPDES permits.
    Under Section 39(b)
    of the Act an Illinois NPDES
    permit could “allow discharges beyond deadlines established by the
    Act or by Regulations of the Board without the requirement of a
    variance” from Illinois requirements.
    Operating permits need not
    be obtained for any facility for which an Illinois NPDES permit
    has been issued.
    EPA
    Section 13(b) (1)
    Compliance with the terms
    of an Illinois NPDES permit would then constitute compliance with all
    Illinois and Federal requirements except for the discharge of
    toxic
    pollutants injurious
    to human health.
    See:
    EPA Section 12(b)
    These benefits of the “one permit” system will not he available
    unless Illinois implements its NPDES program and it
    is approved by
    the Administrator of the U.
    S.
    EPA.
    The
    Deputy
    Director of the Illinois EPA testified that the
    Federal permits to be issued this year prior
    to the Administrator’s
    approval of an Illinois system will not protect the Illinois dis-
    charger from prosecution for substantive violations of Illinois
    effluent or water quality standards.
    In
    addition, operating permits
    will be required under existing Illinois
    law.
    See:
    EPA Section 39(b)
    An
    operating permit cannot be issued for a facility which will cause

    —4—
    a violation of the Illinois Regulations, unless
    a variance has been
    granted from those Regulations.
    In addition to its request that we table Illinois NPDES pro-
    posals, the Agency requested that we eliminate operating permits
    for
    those dischargers for which an NPDES permit
    is required.
    However,
    even if we did this the recipient of a Federal permit would still be
    subject to the Illinois effluent and water quality standards.
    A suspension of these proceedings then will assure a dual
    system in Illinois.
    In addition to compliance with the Federal
    NPDES permit an Illinois applicant would have to comply with
    Illinois requirements regarding standards and variances and unless
    we amend the regulations would also have to comply with Illinois
    requirements
    regarding operating permits.
    It is entirely possible
    that the applicant would be faced with two different compliance
    deadlines.
    These facts were understood by the Agency at the time
    it requested suspension
    of these proceedings.
    This is clear from
    the following testimony of the Deputy Director of the Illinois EPA:
    Q.
    I have about two or
    three.
    I would just like to
    ask a very few questions,
    since it
    is late in the day.
    I think it was brought out in answer to Mr. Marder’s
    question that dischargers in Illinois are subject to
    prosecution unless the permit is issued under
    a
    certified Illinois system.
    Would that be a correct statement of what
    I think
    Jeff said?
    A.
    Yes,
    it would be, except for~failureto have a
    permit.
    Q.
    Except for what?
    A.
    Except for failure to have
    a permit.
    Any other
    substantive violations other than failure to have a
    permit——because we are considering that their permit,
    if they have an application on file with USEPA,
    is
    pursuant to the amendments, the same as having an
    application on file with us.
    So we are just talking
    about substantive violations of effluent or water
    quality standards.
    A person would he subject to prosecution for
    those,
    yes.
    Q.
    Well,
    then,
    this request for suspension of the
    proceeding would to me mean that the permits which
    are issued this year would provide no protection
    from the Illinois statute to persons receiving that
    permit,
    and prosecution could be brought even though
    they are in compliance with the terms of the permit,
    would that be true?

    —5—
    A.
    That would be potentially possible.
    It would not
    be
    a result that we would look for; but it would be
    possible.
    Q.
    Would it not seem
    to be better,
    then,
    to act
    quickly to have a simple Illinois system so that
    those permits can be relied upon?
    A.
    Absolutely.
    The thing we would like to do is
    to proceed to get an approved Illinois program as
    quickly as possible.
    Q.
    Well,
    it sure would be nice to receive the
    information from the Agency that would make that
    possible,
    then, rather’than a motion to suspend.
    Are you saying that you cannot give us that kind of
    information?
    If so, what kind of a time schedule are
    you talking about?
    A.
    I don’t think anybody at all is certain exactly
    what that information is that not only will satisfy
    the Board but other people who have commented on
    the Regulations that will work the best for this Agency
    given the environmental effort that has gone on in the
    last three years.
    I think the problem that we have
    been having in drafting the regulation
    is simply we
    are trying to accomodate everyone and at the end
    accomodating really no one.
    Q.
    Well,
    I would say this procedure is sort of
    a
    trap to the person who gets
    a permit,
    in that he
    receives it and he thinks he is okay,
    and yet he
    has been misled, he can be prosecuted;
    and all of
    these people who have been getting these permits
    for the balance of this year——and that apparently
    includes all of the major dischargers, and a great
    number of-—the great majority of all dischargers in
    the state will be receiving this permit, and i
    assume they will be thinking that, well,
    they are
    okay,
    they have got a permit,
    all they have to do
    is
    comply with its terms; and what you are telling us
    is that they could still be prosecuted under the
    Illinois statute.
    Now,
    is
    there justice in that?
    A.
    Well,
    I am certainly hoping that should the
    procedure that we outlined be followed that no
    industry, municipality,
    or other discharger in
    the state would be misled--certainly not by the
    Agency or USEPA as to whether or not he would be
    subject to potential enforcement action by the
    EPA or
    a private citizen to enforce the substantive
    standards of the Pollution Control Board regulations

    —6—
    during that period of time that he is not on an
    Illinois permit, hut only on
    a federal or U.
    S.
    NPDES permit.
    As
    I indicated,
    though, we are not as inter-
    ested in hauling a lot of people before the
    Pollution Control Board or the Circuit Court as
    we are trying
    to act them on compliance programs
    to bring them into the system.
    That is the problem
    we
    have all the time that
    is addressed to some
    extent by our permit proqram and is supplemented
    through the variance program, and ultimately
    if we
    find that neither of those devices work through
    our enforcement program.
    But we are ultimately
    looking to bring
    a guy into compliance.
    Q.
    Riqht.
    A.
    And
    I hone we can communicate that to him and
    indicate without otherwise tying our hands
    that
    should we get a reasonable compliance program it
    is not our intention to prosecute him during that
    period of time,
    that he does not have protection
    aqainst an enforcement action by IEPA.
    Q.
    Others could prosecute, you accept that
    possibility?
    A.
    Oh, yes, and we are sure that the industries
    or municipalities that are getting permits during
    this neriod would understand that as well.”
    It is cur view that
    a suspension of these proceedings for
    the purpose of issuing NPDES permits without the approved par-
    ticipation of Illinois
    in the National Pollutant Discharge
    Elimination System would be in direct contravention of
    the
    Illinois statute.
    The Agency indicated that it might not file
    actions to enforce the Illinois requlations while a discharger
    was in compliance with the terms of his Federal permit.
    However,
    the Act makes it ~‘theduty of all State and local law enforcement
    officers
    to enforce such Act and Regulations’.
    EPA
    Section 44(a)
    Presumably,
    in the absence of Agency enforcement,
    civil or
    criminal actions would be filed by
    the Attorney General or by the
    various
    Stateb
    attorneys.
    We
    now
    have
    no
    alternative
    under
    the
    Statute
    but
    to
    proceed
    as
    expeditiously
    as
    we
    can
    toward
    promulgation
    of
    an
    NPDES
    regulation
    for
    the
    State
    of
    Illinois.

    —7—
    It is ordered that the Motion to Suspend Proceedings and
    Table the Proposals be denied.
    Mr. Seaman was not present for the vote.
    I, Christan L. Moffett, Clerk of the Illinois Pollution Control
    Board, hereby certify the above Order was adopted this
    14th
    day of
    March
    ,
    1974 by
    a vote of
    4
    to
    0
    _~JJ~
    11—615

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