BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF
)
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ED
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CLERK’S
OFFICE
PROPOSED AMENDMENTS TO PART 309
)
JUN
162003
SUBPART A
-
35
Iii. Adm.
Code 309.105,
)
R03-19
309.7.
309.8, 309.117, 309.119, 309.143
)
STATEOFILLINOIS
309.147; AND PROPOSED
35
Ill.
Adm. Code
)
Pollution
Control Board
309.120
through 122 —NPDES PERMITS AND
)
PERMITTING PROCEDURES
)
NOTICE OF FILING
PLEASE TAKE NOTICE that on this
date, June
16, 2003, I filed with Dorothy Gunn,
Clerk of the Illinois Pollution Control
Board, James R. Thompson Center,
100 West Randolph,
Suite 11-500, Chicago, IL 60601, the enclosed Petitioners’ Post-Hearing Comments
of
Environmental Law
and Policy Center, Prairie Rivers Network and Sierra Club.
Albert F. Ettinger
Environmental Law and Policy Center
35 East Wacker Drive,
Suite 1300
Chicago, IL 60601
(312) 795-3707
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
INTHEMATFEROF:
)
PROPOSED AMENDMENTS TO:
)
R~-W~~
PART3O9SUBPARTA-
)
JUN
i
35 Ill. Adm. Code
309.105,
309.7, 309.8
)
309.117, 309.119, 309.143, 309.147; and
)
STATE OF
ILLINOIS
PROPOSED 35
Ill. Adm. Code 309.120 through
)
Pollution
Control
Board
122
-
NPDES PERMITS AND PERMITTiNG
)
PROCEDURES
-
-
PETITIONERS’ POST-HEARING COMMENTS
Petitioners Environmental Law and Policy Center ofthe Midwest, Illinois Chapter
ofthe SierraClub
and Prairie Rivers Network (collectively “Petitioners”) hereby present
post-hearing comments in support oftheir petition, offer revised proposals based on
discussions held by petitioners with the Illinois Environmental Protection Agency
(“Agency” or “JEPA”) and various business interests, and respondto various conunents
that have been made in oppositionto the petition.
I.
Post-Hearing Develonments
After the March 17 and April 2, 2003 hearings, the Agency, Petitioners, and
industrial and municipal dischargers held a series ofdiscussions on this matter.
As to a
number ofPetitioners’ proposals, the Agency fashioned alternative language that it found
acceptable.
These discussions and Agency alternative proposals led to an April
18
meeting in Chicago at which the Agency reached its currentposition on the petition after
receiving input from Petitioners and representatives ofindustrial and municipal NPDES
permit holders. At that meeting, Petitioners, seeking to reach as muchagreement as
1
possible with the Agency and the dischargers, agreed to alter portions oftheirproposal.
As to several ofPetitioners’ proposals, however, it was not possible to reach agreements.
Accordingly, the Board now has before it proposed regulatory language for
Sections 309.107(c), 309.108(c) and (e), 309.109(b),
309.113(a)(5)-
(8), 309.114(c),
309.119,
309.121, 3O9.143 (a) and 309.146(a)(2) and (d) that Petitioners
and the Agency
agree should be adopted. This language is discussed in the Agency’s Comments, filed
April 29, 2003,
and is presented in large print in Exhibit A to these comments.
Representatives ofindustrial and municipal permit holders had considerable impact in
shaping the language that
is now contained in the Agency/Petitioner proposal.
The Board also has before it language proposed by Petitioners to
which the
Agency has not agreed.
This language is proposed as provisions to be adopted as
309.105 (f) and(g), 309.112,
309.113(5),
309.119 and 309.120 ad
appears inExhibitA
to these comments in large, bold print.
While most ofthis language
appeared in the
original petition as filed in January, some ofit was rewritten after the hearings to meet
objections posed by the Agency and representatives ofmunicipal and industrial NPDES
permit holders.
Petitioners believethat the Agency’s unwillingness to
agree to this
language is largely the result ofthe Agency’s failure to appreciate fuily the potential
constraints that the existing rules place on its discretion to take steps it deems necessary
to allow public comment and comply with the Clean Water Act.
LI.
The Board
should adopt language requiring that the public have a
fair chance to comment on all substantial terms of a permit and
that
the procedures used be consistent with federal law.
The Board should adopt Petitioners’ proposal for new subsections 309.105 (f) and
(g) that would state that no NPDES permit maybe issued in any case in which:
2
f) Thepublic has not had a fair opportunity to commenton
all substantial terms ofthe permit.
g) The permit. permit conditions or procedures used to draft
or issue the permit are not consistent with any applicable
federal law.
Petitioners’ purpose in offering this language is to create catch-all
language
to
ensure that Board regulations require that NPDES permits may be issued only after there
has been a fair opportunity to comment on all substantial terms ofthe permit and only in
compliance with federal law.
-
Petitioners offer this language in response to
decisions ofthe Board and the
Appellate Court regarding the appeal by the Prairie Rivers Network ofthe Agency’s
decision to grant a certainNPDES permit to theBlack Beauty Coal Company (“Black
Beauty decisions”).
Prior to the Black Beauty decisions, Petitioners had thought it clear
that the existing IPCB rules required that the public be given a fairopportunity to
comment on all substantive terms ofa permit and that the Agency comply with federal
rules in issuing permits.
The Black Beauty decisions, however, canbe read to state that it
really does not matter if the procedures used in issuing a pennit were unfairor violated
federal law as long as they comply withthe IPCB rules.
Inparticular, the Appellate
Court made clear that if PrairieRivers did not think the Board rules were fair orproperly
incorporated federal procedural requirements, it should takethe matterup with the Board
(or U.S. EPA).
Prairie Rivers Network v. Illinois Pollution Control Board, 335 Ill. App.
3d 391, 403, 406-07, 781 N.E. 2d 372
(4th
Dist. 2002).
Following the Appellate Court’s suggestion,
Petitioners have proposed language
to the Board that both addresses the specific questions that arose with regard to the Black
Beauty permit and the general problem ofassuring public participation rights and
3
compliance with federal law.
Petitioners do not believe that these provisions if adopted
by the Board, will affect manypermits, but they provide a safety net against improper
issuance ofNPDES permits occurring as a result ofprocedural mishaps that have not
been specifically anticipated in the rules.
The use ofbroad, general provisions to supplement specific regulatory language
in particular circumstances is not unusual.
In fact, unless
a drafter is confident that he or
she has anticipated all ofthe issues that may arise regarding a particular subject, there is
hardly any alternative to combining general language with specific provisions that cover
issues that are expected to arise.
Ifthis approach is a bad way to draft laws, thenthe
drafters ofthe U.S. Constitution have been overrated.
See ~
U.S. Constitution, Art. I
Sec. 8 (listing ofspecific powers ofCongress supplemented with “necessary and proper”
clause).
I
Indeed, recognizing that it cannot set down specific provisions to govern all
necessary procedures and permit provisions, the Board has frequently set forth rules that
provide general principles along with specific procedures for addressing particular issues.
For example, Section 309.109 supplements its numerous particularpublic notice
requirements with the general provision that notice should meet “any other requirements
necessary to meet the requirements ofthe Environmental
Protection
Act and the Clean
Water Act”.
Similarly, Section 309.146 provideê the Agency with the authority to
require permit holders to supply particular types ofinformation and to “provide such
other information as may be reasonably required.”
No party to this proceeding has argued that permits should be issued even if the
public did not have a fair opportunity to comment on all substantial terms ofthe permit or
4
ifthe permit orthe procedures used to
draft the permit violate federal law. The objections
to Petitioner’s proposals for 309.105 (f) and (g) that havebeen argued are not well
grounded.
A.
The Agency’s objections to Proposed 309.105
(1) and (g) are
apparently due to its
failure to appreciate fully the current
state of
Illinois and
federal law.
1.
The Agency does not fully appreciate the implications ofthe Black
Beauty decisions.
The Agency’s first objection, made in its April 29 Comments, to Petitioners’
proposal for Section 309.105,
is essentially that the Petitioners’ proposal is unnecessary
because it has the inherent authority to ensure that opportunities forpublic participation
are adequate.
In particular, the Agency claims that, “the proper remedy for a case where
thepublic participation was not adequate is to reopen the public comment period.”
(Agency’s Comments p. 4).
The Agency’s suggestion reflects a misunderstanding ofthe state ofIllinois law
after the Black Beauty decisions. Given those decisions, unless Petitioners’ 309.105(f)
proposal, orsomething else to similar effect, is adopted, the Agency and the Board are
arguably withoutpower to redress any failures in the public participationprocess unless
the failure resulted from a violation ofa Board rule.
Therefore, the Agency should not
assume that it has the inherent authority to reopen public comment in a case where it may
be necessary to ensure the public a fair opportunity to comment.
The Agency,
however, has apparently not yet managed to process the implications
ofits
“victory” in the Black Beauty case.
For example, in rejecting Petitioners’
309.105(f) proposal, the Agency is proceeding on the assumption that it does have
5
inherent authority that Black Beauty and similar dischargers-wouidcertainly deny the
Agency has. At the May 17 hearing in this case, Mr. Frevert testified:
I believe we have the authority, the right, to go back, do another round ofpublic
commenting, another round ofpublic hearing. I’m hoping that’s not what the
debate is over. I thought the debate was over under what circumstances we have
an obligation to
exercise that authority and the extent to which determination of
that it’s the discretion ofmy director. (Tr. 76-77)
The Agency took a similar position during the Black Beauty proceedings.
For
example,
during the hearing on the permit, counsel for Black Beauty asked IEPA’s Toby
Frevert:
Q.
And so to the extent Prairie Rivers wants another public hearing and another
comment period like the one they had on the draft permit, they’re asking for
something that is not authorizedby the applicable process, right?
Frevert Answered:
A.
There may be an occasional circumstance in operating a permit program with
over 3,000 registered permits that one could envision a scenario where some
issue
—
some unique issue orsome other circumstance came-up-that may
justify the agencygoing to a second hearing. It’s not a matter ofpractice. I
don’t believe that is a prohibition against our having a second hearing, but as a
matter ofnormal operationwe do not do that.
(Ex. B)
Agreeing with the Frevert on this point, Prairie Rivers argued in its appeal that
IEPA abused its discretion in not holding a second hearing in that case. Black Beauty’s
reply was:
PRN cites no authority for the proposition that the State Regulations
merely establish a floor for IEPA permitting procedures and that the
agency has the inherent authority to afford the public an opportunity to
participate in the processing of any particular NPDES permit application
in any way it deems necessary, reasonable, appropriate or otherwise
desirable.
...
EPA would have acted illegally under Illinois law had it
conducted the second round ofpublic comments sou~ht
by PRN. (BBCC
Answer to Petition for Leave to Appeal p.
11, Ex. C)
‘The Illinois
Enviromnental Regulatory Group in its amicus brs-essentially-supportedis-positinn.
6
While the Board and the Appellate Court did not adopt all ofBlack Beauty’s
reasoning in their opinions, those opinions can be read to hold that the Agency does not
have any inherent authority or other discretion that is not spelled out in the Board rules.
Ofcourse, it might be possible to persuade the Illinois courts that theBlack Beauty
decisions should be interpreted narrowly, limited,
or overruled.
Still, it would be
extremely unwise forthe Agency or the Board to assume that the Agency now has any
discretion to remedy failures in the public participation process no matterhow severe and
no matter how necessary the Agency feels it is to do so, unless that discretion is explicitly
provided in a Board rule.
In addition, whilethe specific rule proposed forSection 309.121 by the Agency
and Petitioners addresses a few potential failures in the public participation process, the
Agency may not be free to exercise discretion to address any otherproblems that may
develop.
It would be reckless to presume there are no other ways that problems could
arise that are not currently provided for specifically in the rules or the proposedrules.
For example, what if the Agency does everything in its powerto conduct a fair hearing
but a mob or an act of Godprevents any pennit opponeifts from testifying?
Or, what if
due to a mailroom error or other problem the Agency officials deciding on the pennit are
never made aware ofpublic comments or testimony?
While one could argue that the
issuance ofa permit after such a mishap is improperunder current rules, it is far from
clear that such an argument would prevail.
Under the Black Beauty decisions, the
Agency arguably would have no
inherent discretion to remedy those problems unless it is
provided for in the IPCB rules.
7
The pointhere is not that any particular unforeseen problem in the pennitting
process is
likely to happen, but rather that there is no way to
foresee every potential
problem.
It is no more sensible to try to provide for each specific type ofpotential
breakdown in the permitting process than it is to try to specify every kind ofinformation
than it might be “reasonably necessary” for EPA to require NPDES permit holders to
provide or to try to spell out in advance everyway that a police search might be
unreasonable.
Therefore, the Board should adopt 309.105(f) in part to give the Agency
the discretion that it thinks that it has to fix unforeseen problems in the rare case in which
it is necessary.
2.
The Agency is wrong to suggest that a fair opportunity to comment on
all substantive permit terms is not required by the Clean Water Act.
The Agency notes that federal law does not require verbatim adoption ofthe
precise language offered by Petitioners for309.105(f).
Petitionei~s
have never suggested
otherwise.
The Agency is incorrect, however, if it means to suggest that granting the
public the opportunity to comment on all substantial terms is optional for a state wishing
to maintain a delegated NPDES program.
Numerous cases have held that the public is entitled to an opportunity
tO
comment
on all substantial terms ofa permit.
In addition to the authority cited in Petitioners’
Statement ofReasons (pp. 2-4), two new cases decided since the filing ofthe petition
make clear that it is simply not permissible under federal law to allow discharges of
pollutants unless the public has been given an opportunity to comment on all the
substantial terms ofthe permit to
discharge.
In Environmental Defense Center. Inc.
V.
U.S.
Environmental Protection Agençy, 319 F.3d 398,
427
(9tl~
Cir. 2003), the U.S. Court
ofAppeals held that discharges ofmunicipal stormwater could not be permitted unless
8
the public was allowed an opportunity to comment on the Notices ofIntent (NOIs) that
contained key terms that governed the discharges.
The Ninth Circuit struck down rules
that would have allowed the NOIs to be effective without an opportunity forpublic
comment stating:
The
Clean Water Act requires
that
“a
copy ofeach permit
application
and
each
permit
issued
under
the
NPDES
permitting
program
shall
be
available
to
the
public,”
33
US.C.
§
1342(j),
and
that
the
public
shall
have
an
opportunity
for
a
hearing
before
a
permit
application
is
approved,
33
US.C.
§
1342(a)(1).
Congress
identified
public participation rights
as a critical means ofadvancing
the
goals
of the
Clean
Water
Act**70
in
its
primary
statement of the
Act’s approach
and
philosophy.
See
33
US.C.
§
1251(e);
see also
Costle v. Pac~flc
Legal Found.,
445 US. 198, 216, 63
L. Ed.
2d 329,
100 S.
Ct. 1095 (1980)
(noting
the
“general
policy
of
encouraging
public
participation
is
applicable
to
the
administration
of
the
NPDES
permit
program”).
EPA
has
acknowledged
that
technical issues relating to the issuance of NPDES
permits
should
be
decided
in
“the
most
open,
accessible
forum
possible, and at a stage where the pennitting
authority
has
the greatest flexibility to make appropriatemodifications to
the permit.”
44 Fed. Reg. 32,854,
32,885
(Jun. 7,
1979).
As we noted above, under the Phase II Rule it is the NOIs,
and
not the general
permits,
that
contain the
substantive
information about how
the operator of a
small
MS4
will
reduce
discharges
to
the
maximum
extent
practicable.
Under the Phase II Rule,
NOI5
are functionally equivalent
to
the
permit
applications
Congress
envisioned
when
it
created the Clean Water Act’s public
availability and public
hearing requirements.
Thus,
if the Phase
H Rule does not
make NOIs
“available to
the public,”
and does**7l
not
provide
for
public
hearings
on
NOIs,
the
Phase II
Rule
violates the clear intent of Congress. EPA’s first argument--
that
NOIs
are
not
subject
to
the
public
availability
and
public
hearings
requirements
of the
Clean
Water
Act--
therefore fails.
Similarly,
it
was
held
in
Minnesota
Center
for
-
Environmental
Advocacy
v.
Minnesota Pollution Control Agency. 660 N.W. 2d 427 (Minn. Ct. App. 2003), that under
9
the Clean Water Act the public has to
be
allowed to
comment on the
substantive
terms.
governing permitted discharges.
-
In any
event, whether or not proposed subsection 309.105(f) or something
like it
is federally required, the Board should adopt the proposed language because it is the right
thing to do.
3.
To administer the delegated NPDES program. Illinois and the Agency
must comply with federal substantive and procedural reQuirements.
The Agency makes a handful ofobjections to Petitioners’ proposed Section
309.105(g).
First, the Agency states, moreor less correctly, that existing Section
309.141
already requires that Illinois NPDES permits have terms and conditions that comply with
federal law.
(Agency’s Comments p.4)
The factthat the proposed Section 309.105(g) is
in some part redundant ofexisting Section 309.141
does not sho*, however, that it
should not be adopted.
For example, existing 309.105 (a) through (d) are redundant in
some sense but serve to make clear certain circumstances-in-which an NPDES permit
should not be issued. That a permit should not be issued if it would conflict with federal
law should also be spelled out in this sectioncontaining prohibitions on issuance of
permits under certain general circumstances.
Next, the Agency suggests that federal law does not set forth any procedural
requirements, which apparently would lead to the conclusion that proposed Section
309.105(g) is unnecessary.
(Agency’s Comments p.4) In making this suggestion, the
Agency improperly leaps from the fact that federal law does not prescribe specific
language to the conclusion that there are no federal rules that must be followed. In doing
this, the Agency cites a case, N.R.D.C. v. U.S. EPA, 859 F.2d 156 (D.C. Cir.
1988), that
-
10
actually has to do with the procedures applicable to enforcement actions brought against
permit violators in state courts; rather than the permitting process.
Contraryto the Agency’s contention, there are a host of federal procedural
requirements that are set forth in the Code of Federal Regulations.
~
40 C.F.R. part
123 and part
124
passim.
In addition, federal law establishes a number ofgeneral
principles that must be applied by the states, while allowing the states to
decide the
specifics ofhow they will incorporate these principles into theirNPDES programs. As
has been seen, one ofthese principles is a requirement that the public be allowed to
comment on the terms ofNPDES permits.2
In fact, the Board in drafting the existing rules to some extent has already found
merit in incorporating federal procedural requirements by reference.
For example,
Section 309.109(a)(2)(D) provides that public notice shall be givcn as “necessary to meet
the requirements ofthe Act and the CWA.”
Petitioners proposed 309.105(g) simply
incorporates other federal procedural requirements into Illinois rules by reference.
The Agency’s other scruples against proposed 309.105(g) are very difficult to
understand. The Agency complains that language is borrowed from Section 28.1 ofthe
Act, which has “no
direct bearing” on permit issuance, and states that this will create
“confusion and incompatibility.” It is not at all apparent from whence suchconfusion
would arise and it is not suggested by the Agency~thatthe numerous other references to
federal law in the rules have created confusion or incompatibility.
2
Iflaw relevant to the procedures regarding enforcement actions
in
state
forums
is relevant in
this
case,
it
may
be noted that failure ofa stateto allow public participation in settlements ofstate enforcement-
actions
can result in
citizens
suits not
being
precluded under
33 U.S.C.
§1365(b).
McAbee v.
City
of
Fort
Payne,
318
F.3d
1248 (1
1th
Cir.
2003).
11
Finally, the Agency somewhat cryptically states that, “As the proposed
309.105(g)
section imposes a question oflaw, pursuant to the Illinois statutory scheme,
the Illinois PCB
and not the Illinois EPAmust determine it.” (Agency’s Comments
p. 4)
However, the rules in numerous places already impose on the Agency the duty in the first
instance ofacting in compliance with federal law.
~
~
35 Ill. Admin.
Code
§~
3b9.
105(c),
309.1 08(b)(2), 309.1 09(a)(2)(D), 309.11 3(a)(2)(c), 309.141 (a)-(f).
It is
incomprehensible why the Agency would have any more trouble following federal
law
-
(subject to
review by the Board) with regard to Petitioners’ proposal than it does with
regard to these numerous other provisions.
B.
The objections to proposed 309.105(f) and (g) made by certain
industrial and municipal interests
are
without merit.
It is difficult to know whether manyofthe objections made by some ofthe
industrial and municipal discharges that have participated in these proceedings are to be
taken seriously.
The Board has been told a tale that NTMBY environmental groups,
awash in grantmoney, arepoised to bring frivolous appeals ofNPDES permits to extort
unnecessary permit conditions from municipal dischargers and cause thewheels of
industry to grind to
a halt.
The reality is that EPA does not have enough resources to
assure that NPDES permits that will
harm
the environment are not granted.
In addition,
the individuals and groups concerned with water quality do not have the staff and other
resources
necessaryto review any more than a small fraction ofEPA’s
pôrmit
actions.
Objections are pressed to permits that are believed to violate the law and threaten the
environment only a handful oftimes
a year.
As shown by the Agency’s Comments (p.3),
there are few NPDES permit hearing a year. Further, to Petitioners’ knowledge, there
12
havebeen less than a halfdozen NPDES permit appeals to the Board by parties other
than the applicant in the historyofthe program.
Not counting the various slurs against Petitioners, the arguments made by the
municipal and industrial parties basically amount
to two claims. First, it is claimed that
the Petitioners’ proposed rules are vague and that this vagueness will make them
impossible for the Agency to
follow. Second,
it has been claimed that the existing rules
have served Illinois well and need no revisions.
1.
Petitioners’
proposed rules are not improperly vague.
-Proposed
309.105(1)
and (g) are designed to be general and cover a broad range of
potential problems that cannot be anticipated with specific rules. There is nothingwrong
with this.
Terms like “unreasonable,” “significant,” “substantial” and “fair,” although
they are general and necessarily imprecise, are used in the United States Constitution, the
Illinois Constitution and the Environmental Protection Act.
See U.S. Const. Amendment
4;
Ill. Const. Art. I Sect. 8.1, Art VI Sect. 15(g), Art. IX Sec. 7;
415 ILCS
§40.1. The
Board itselfhas frequently used such terms in setting rules for the Agency.
~
~
35
Ill. Adm. Code 309.103(a)(1), 309~113(a)(2)(C),309.115(a)(l), (d), 309.117,309.119,
309.146(a)(5), (b)(5).
Similarly, as seen above, the Environmental Protection Act and
JPCB rules have frequently incorporated federal substantive and procedural requirem~ents
by reference. This was not thoughtunworkable or..improper until it was proposed by
Petitioners.
IEPA officials have to make judgment calls as to
what is “fair,” “reasonable” and
in compliance with federal
law all the time.
IfLuddites and NIMBY groups were
planning to
use Board rules containing such terms to bring frivolous appeals attacking
13
$
Agency decisions applying such terms, they have had more than enough ammunition at
least since the statute allowing third party appeals became-effective in July 1997.
Moreover, the Board is
fully
capable ofdismissing frivolous appeals and appeals,
frivolous ornot, do not delay the effectiveness ofAgency issued permits.
Petitioners believe that the wording ofproposed 309.105(1) and (g) will
accomplish the intendedpurpose ofgiving the IEPA and, if
necessary
the Board, the
opportunity to deny a permits if the permit applicant insists on a decision despite the fact
that there have been severe problems in allowing public participation or compliance with
federal law.3
Alternative wordings of309.105(f) and (g) are naturally possible, but
language addressing the problems they address should be adopted.
2.
The Rules arebroken and need to be fixed.
Many elements ofthe discharger community are undoubt~dly
happy with the
status
quo but that does not mean that there is no problem. Permit applicants
naturally
are
focused on obtaining permits to discharge as quickly and easily as possible, although the
Clean Water Act established as a national goal the elimination ofdischarges by
1985.
33
U.S. C.
§1251(a)(1).
Ease
and speed ofpermit issuance does not trump allowing public
participation in the permitting process. 33
U.S. C.
§1251(e).
Although it disagrees with
some ofPetitioners’ proposals, Petitioners and the Agency agree that a number ofrules
need to be amended.
The existing rules, while almost thirty years old, had not been tested regarding
their ability to ensure public participation until recently. Whether one thinks that the
3The Agency need not, of course, deny a permit ifthe applicant is
willing to allow the Agency to correct
the problem. Under current law, however,
it
appears the Agency may have no discretion to
take
action
it
thinks
is necessary to allow public participation orcompliance
with
federal procedural requirements unless
there has been a violationof a Board rule.
-
14
Black Beauty permit was good or bad, it is clear that the Board and Appellate Court
decisions regarding that permit revealed at least the potential for serious unfairness in the
currentpermitting process. Moreover, comparison ofmandatory U.S. EPA regulations
with the current Board 309 rules reveals that there are a numberoffederally required
safeguards that are not fully reflected in the current Board rules. Accordingly, Petitioners
proposed specific rules to address areas in which the current Board rules need reform and
general rules to assure the right ofpublic participation and compliance with federal law.
III.
The Board should adopt the proposed changes to Sections 309.107-09
offered by the Agency and
Petitioners.
-
In the original petition, Petitioners offered numerous proposals for changes to
Sections 309.107-10, offering language that was in large partborrowed from federal
guidance or taken verbatim from federal requirements. Theseproposals were designed to
assure adequate notice to the public, to eliminate language that suggested that the public
commentperiod could never be more than 30 days long, and to require thepreparation of
a reviewable record showing that any permit was issued only after “proofby the
applicant” that the permit “will not cause a violation ofthis Environmental
Protection
Act
or the regulations hereunder.”
415 ILCS
5/39(a).
Anumber ofparties to this proceeding did not like the wording ofPetitioners’
proposed language for these sections and the Agency proposed alternative language.
Petitioners believe that the language now proposed will have approximately the same
effect as the language Petitioners originally proposed. We do not know the extent ofthe
opposition to the currently proposed language for Sections 309.107-09, but urge the
Board to adopt it.
With the revised proposed language, no change is now proposed to 309.110.
15
IV.
The Board should adopt the changes proposed to 309.112, 309.113,
309.114 and 309.119 that are proposed by Petitioners and those
proposed by both the Agency and Petitioners.
The Agency and Petitioners agree on certain changes that should be m-ade to
Sections 309.113, 309.114
and 309.119. Petitioners proposed furtherthat certain changes
be made to
Section 309.112 and believe words should be added to
Sections 309.113 and
309.119
that the Agency believes should not be changed.
309.112— Petitioners believe that it adds clarity to add the words “Subject to
Section 309.120 and 309.121” to thebeginning ofSection 309.112. Addition ofthis
phase would make clear that the Agency should not immediately decide on the permit if
the circumstances are suchthat therecord shouldb~
reopened.4
309.113
—
With
one exception, Petitioners and the Agency have come to an
agreement on the information that should be added to the fact sheets. The difference of
-
opinion relates to 309.113(5) as to which the Agency does not agree that it should briefly
summarize any changes in reissued permits.
Illinois NPDBS permits aregenerally issued for
5
years.
If during
the
5
years the
permit lasts it is necessary to modif~y
the permit (generally to allow a greater or different
discharge), the Agency gives public notice and an opportunity to comment on-the
proposed changes. In the public notice now for proposed modifications, the Agency
generally makes clear what modifications are
being proposed
so that the public does not
think that the whole permit is at issue.
When a permit is reissued after they end at theend ofthe five-year period, the
terms ofthe reissued permit are often identical to the terms ofthe permit for the earlier
4The Agency does not agree that Petitioner’ proposed Section 309.120 should
be adopted.
16
permit. Sometimes, however, there are substantial changes despite the fact that “reissued”
makes it sound as though nothing has changed.
It is rare that members ofthe public will have any interest in the re-issuance ofa
permit without change, but it will frequently be the case that the public will be interested
in changes in the terms of a re-issued permit.
Petitioners believe then that it will save
everyone time and possible confusion for the Agency to
flag any changes in reissued
permits.
This will save the public the time ofhaving to go through draft permits where
there is no change and will save the Agency the trouble ofhaving to respond to
comments and questions in circumstances in which the commenter or questioner is
simply confused that there are changes proposed.
-
309.114(c)
—
Although this issue has not been discussed, Petitioners presume
everyone agrees on the spelling ofthe word “navigable.”
-
-
309.119
-
As with Petitioners’ proposed change to 309.112, it is proposed to add
the words “Subject to Sections 309.120 and 309.121” to the beginning ofSection
-
309.119. This proposed language is more critical for clarity as to 309.119 because the
existing wording of309.119 was read in the Black Beauty decisions to preclude the
Agency from ever allowing additional public comment after hearing.
While language
now proposed by the Agency and Petitioners
for 309.12 1 that mandates allowing
additional public comment in
some circumstance shouldbe read by the courts to override
the implication that was drawn for 309.119 in the Black Beauty decisions, there does not
seem to be any reason to risk confusion when the risk could be eliminated by adding the
proposed language.5
~Of
course,
the
Board
should only add “Subject to
Section 309.121” ifit chooses
to reject Petitioners’
proposal as to 309.120.
17
During the April 18 meeting ofrepresentatives ofthe Agency, Petitioners and
various discharger interests, it was pointed out by one ofthe discharger representatives
that the current language regarding the time that permits become effective should be
modified to add the terms “unless a different date is specified in the permit.” This would
take account ofcircumstances in which the permit holder needs some time after issuance
to be ready to comply with the permit. Petitioners believe that everyone agrees to this
change and that the Agency’s failure to mention it in its comments was an oversight.
VI.
The Board should adopt Petitioners revised proposal for
a new
Section 309.120.
-
The Agency does not agree with Petitioners proposal for a Section 309.120, either
as originally proposed or as revised by Petitioners in an unsuccessful effort to reach
a
compromise.
It is clear, however, that the Agency’s opposition is in large part based on
its failure to
understand Petitioners’ proposal and the new landscape created by the Black
Beauty decisions.
The Agency objects to Petitioners’ revised proposed 309.120, as it was presented
in April, because the Agency believes it would preclude putting the Agency’s
responsiveness summary and response to citizen comments in the record. (Agency’s
Comments
p. 8) The original wording ofPetitioners’ April proposal was not intendedto
do that (and actually did not do that if read naturally). However, to make more clear that
the Agency itself can add materials to the record after the close ofthe public comment
period, the parenthetical “(other than the Agency)” is added to Petitioners’ revised
309.120 proposal.
The balance ofthe Agency’s objection to Petitioners’ revised 309.120 proposal
reflects its inability to
appreciate the implications ofthe Black Beauty decisions.
The
18
Agency claims that the rule as proposed would “stifle the Agency ability to communicate
with the applicant and a concerned citizen” after the close ofthe comment period.
-
(Agency’s Comments p. 8)
But where is the authority in the current rules for the Agency
to deny a permit based on information submitted after the comment period?
One may be
certain that at least some permit applicants are not going to accept a permit denial based
on informationprivately obtained from a concerned citizen after the close ofthe public
comment period and, citing the Black Beauty decisions,’will argue that the Agency does
not have discretion to do such a thing.6
The current language ofSections
309.112 and 309.119 both speak ofthe Agency having to make decisions following the
close ofthe public comment period or public hearing. Neither section contemplates that
the Agency is to have private discussions with either the applicant or concerned citizens.
Given the Black Beauty decisions, it appears that if theAgency wants discretion
to take testimony or receive other materials-following the public comment period,
a
rule
allowing such discretion needs to be written into the Board rules.
Petitioners have
proposed
a
fair way to do this, to
allow the Agency discretion to reopen the recordif it
feels that doing so would-assist the Agency to make an appropriate decision.
This puts
everything out in the open.
If, however, the Board feels that the Agency should be
allowed to receive materials from the applicant or concerned citizens after the close ofthe
comment period without extending or reopening the comment period,
a
sentence should
be added to
the rules providing that the Agency may do this.
VII.
The Board
shouLd
adopt Section 309.121
as proposed by the Agency
and
Petitioners.
6The Agency
under
309.109(b) does have
authority
to reopen the comment period, but it is hardto see how
this provision allows
the Agency to take
testimony from concerned
citizens
without reopening the comment
period generally.
19
The language oftheproposal for 309.121 was drafted by the Agency and is meant
to summarize the case law requiring administrative agencies to
allow additional comment
under some circumstances. The Agency’s proposed language was refined during the
April
18 meeting with the comments oflawyers for Petitioners and various dischargers.
Petitioners believe that the proposed language addresses an important problem, which
will arise infrequently but be very important whenever it arises.
VIII.
The Board should adopt Petitioners’ proposals,-as modified by the
A2ency, for 309.143 and 309.146.
The proposed language for 309.143 and 309.146 is taken from federal
requirements and guidance.
The Agency and Petitioners agree on the language as now
proposed by the Agency.
Basically a wordingchange is made by the Agency to
Petitioners’ proposal for 309.146(a)(2) and the Agency moves the placement of
Petitioners’ language (taken verbatim from
a
federal requirement) to create a new
309.146(d).
CONCLUSION
-
The Board should adoptthe Petitioners’ proposed language as it has been shaped
through the post-hearing discussions, including the provisions now proposedby the
Agency and Petitioners and Petitioners proposals as modified.
Respectfully submitted,
Albert F. Ettinger
Counselfor Pelitioners ELPC, Prairie
-
Rivers Network and Sierra Club
Dated:_______
20
-
Section 309.105
Authority to Deny
NPDES
Permits
No NPDES Permit may be issued in any case in which:
a)
The permit would authorize the discharge of a radiological,
chemical or
biological warfare agent or high-level radioactive waste;
b)
-
The discharge would,
in thejudgment of the Secretary ofthe Army
acting through the Chief of Engineers, result in the substantial
impairment of anchorage and navigation;
c)
The proposed permit is objected to in writing by the Administrator of the
U.S.
Environmental Protection Agency pursuant to any right to object
given to the Administrator under Section 402(d) of the CWA;
d)
The permit would authorize a discharge from
a
point source which is
in
conflict with a plan approved under Section 208(b)
of the CWA;
or
e)
The applicant has not provided proofto the Agency that he will meet any
schedule of compliance which may be established, in accordance with the
Act and regulations,
as
a
condition of his permit.
~i~Z1
Petitioners
-
Section 309.107
Distribution of Applications
When the Agency
determines that an application for an NPDES
Permit
is complete, it
shall:
a)
Unless otherwise agreed, send a copy of the application to the District
Engineer ofthe appropriate district of the U.S.
Corps of Engineers with
a letter requesting that the District Engineer provide,
within 30 days or
as otherwise stated in the Agency’s letter, his evaluation
of the impact of
the discharge on anchorage and
navigation.
Ifthe
District Engineer
responds that anchorage and navigation of any
of
the navigation waters
EXHIBIT
A
would be substantially impaired by the granting of a permit,
the permit
will be denied and the Agency shall notify the applicant.
If the District
Engineer informs
the Agency that the imposition of specified conditions
upon the NPDES Permit is necessary to avoid
any substantial impairment
of
any ofthe navigable waters,
the Agency shall include in the permit
those conditions specified by the District Engineer.
b)
Send
two copies of the application to the Regional Administrator of the
U.S.
Environmental
Protection Agency with a letter stating that the
application is complete.
c)
~
~c~fflnoisem~i~rces
Agency
and Petitioners
Section
309.108
Tentative Determination and Draft Permit
Following
the receipt ofa complete application for an NPDES Permit,
the Agency shall
prepare a tentative determination.
Such determination shall include at least the
following:
a)
A Statement regarding whether an NPDES Permit
is to be issued or
denied; and
b)
If the determination is to
issue the permit, a draft permit containing:
1)
Proposed effluent limitations,
consistent with federal and state
requirements;
2)
A proposed schedule ofcompliance,
if the applicant is not in
compliance with applicable requirements, including interim dates
and requirements
consistent with the CWA and applicable
regulations,
for meeting the proposed effluent limitations;
3)
A brief description of any
other proposed special conditions
which will have a significant impact upon the discharge.
c)
~1$-~
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Agency
and
Petitioners)
~i)
Upon
tentative determination to
issue or deny
an NPDES Permit:
1)
If the
determination
is to
issue the permit the Agency shall notify
the applicant in writing of the content ofthe tentative
determination and draft permit and of its intent to
circulate public
notice of issuance in accordance with Sections 309.108 through
309. 112;
2)
If the determination is to deny the permit, the Agency shall notify
the applicant in writing of the tentative determination and of its
intent to circulate public notice of denial,
in accordance with
Sections 309.108 through 309.112.
In the case of denial, notice
to the applicant shall include a statement of the reasons for denial,
as required by Section 39(a) of the Act.
Section 309.109
Public Notice
-
a)
Upon tentative determination to issue
or deny an NPDES Permit,
completion of the draft permit, if any and not earlier than 10
days
following notice to the applicant pursuant to Section 309.108(d), the
Agency shall circulate public notice of the completed application for an
NPDES Permit in a manner designed to
inform interested and potentially
interested persons of the discharge or proposed discharge and of the
proposed determination to issue or deny an NPDES Permit for the
discharge or proposed discharge.
Procedures for the circulation of
public
notice shall include at least the following concurrent actions:
Agency
and
Petitioners)
1)
Notice
shall be
mailed
to the applicant;
2)
Notice shall be circulated within the geographical area ofthe
proposed discharge; such circulation may include
any
or all of the
following:
A)
Posting in the post office
and
public places of the
municipality nearest the premises ofthe
applicant in which
the effluent source is located;
B)
Posting near the entrance to the applicant’s
premises
and
in
nearby places;
C)
Publishing in local newspapers
and periodicals, or, if
appropriate,
in a daily newspaper of general circulation;
and
D)
Any other notice requirements necessary to meet the
requirements ofthe Act
and the CWA;
3)
Notice shall be mailed to any person or group upon request;
4)
The Agency shall
add the name
of
any
person or group upon
request to a
mailing
list to receive copies of notices for
all
NPDES
applications
within
the State Of Illinois or
within
a
certain
geographical area.
b)
The
Agency shall provide a period of not less
than
30 days following the
date of
first
publication ofthe public notice during which
time interested
persons may submit their written views on the tentative determinations
with respect to the NPDES application.
All comments shall be submitted
to the Agenc~’and to the applicant.
All written comments submitted
during the
B)~
comment period shall be retained by the Agency
and
considered in the formulation of
its
final
determinations with respect to
the
NPDES application.
The
period for comment may be extended at the
discretion of the Agency by publication as provided in Section 309.109.
Agency
and
Petitioners)
Section 309.110
Contents of Public Notice of Application
The contents ofpublic notice of applications for NPDES Permits shall include at least
the following:
a)
Name,
address, and telephone number of the Agency;
b)
Name
and
iddress ofthe applicant;
c)
-
Briefdescription of the
applicant’s
activities or operations which result
in the discharge described in the
NPDES
application (e.g.,
municipal
waste
treatment
plant,
steel manufacturing, drainage from mine
activities);
d)
Name, if any, of the waterway to which the discharge is made and a
short description of the location of the discharge indicating whether it
is
a new or an existing discharge including the latitude
and longitude of the
outfalls as well as the river mile of the outfall;
e)
A statement of the tentative determination to issue or deny an NPDES
Permit for the discharge described in the application;
f)
Address and telephone number of Agency premises at
which interested
persons
may obtain further
information, request a copy of the fact sheet,
and
inspect
and
copy NPDES
forms and related documents.
Petitioners
have withdrawn their proposal for changes to
this section
Section 309.112
Agency
Action
After Comment
Period
________________________________________
if,
after the comment period
provided, no public
hearing is
held with respect to the permit, the Agency shall, after
evaluation
of
any comments which
may
have
been
received,
either issue or deny
the
permit.
Petltioners
Section 309.113
Fact Sheets
a)
For every discharge which
has a total volume
of more
than 500,000
gallons
(1.9 megaliters) on
any
day of the
year,
the Agency shall prepare
and,
following public
notice,
shall send upon request to
any
person a fact
sheet with
respect to the application described in the public notice.
The
contents of such fact sheets
shall include
at
least
the following
information:
1)
A sketch or detailed description of the location ofthe discharge
described in
the application;
2)
A quantitative description of the proposed discharge described in
the application which includes at least the following:
A)
The rate or frequency of the proposed discharge; if
the
discharge is continuous, the average daily
flow;
B)
For thermal discharges subject to limitation under the Act,
the average monthly temperatures for the discharge;
C)
The average daily mass discharged and average
concentration
in milligrams per liter, or other applicable
units of measurement, of any contaminants which are
present in
significant quantities or which are subject to
limitations
or prohibitions under applicable provisions of
the CWA or the Act or regulations adopted
thereunder;
3)
The tentative determinations required under Section 309.108;
4)
A brief citation,
including an identification of the uses
for which
the receiving waters have been classified,
‘of
the water quality
standards and effluent standards and limitations
applicable to the
proposed discharge;
-
(Agency and Petitioners)
7)
A more detailed description of the procedures for the formulation of
final determinations than that given in the public notice,
including:
Agency
and
Petitioners except for
“and
-reissued”
(Agency
and Petitioners)
B)
Procedures
for requesting a public hearing and the nature
thereof; and
C)
Any other procedures by which the public may participate
in the formulation of the fmal determination and
Agency
and
Petitioners)
b)
The Agency
shall add the name ofany
person or group, upon request, to
a
mailing list to receive copies of fact sheets.
Section 309.114 Notice
to Other
Governmental Agencies
At the time ofissuance ofpublic notice pursuant to Sections 309.109 through 309.112,
the Agency shall:
a)
Send a fact sheet, if one has been prepared, to any
other States whose
waters may be affected by. the issuance ofthe proposed permit and, upon
request, provide such States with a copy ofthe application and-a copy of
the draft permit.
Each affected State shall be afforded an opportunity
to
submit written recommendations within a
stated number ofdays to the
Agency and to the Regional Administrator ofthe U.S.
Environmental
Protection Agency,
which the Agency may incorporate into the permit if
issued.
Should the Agency decline to incorporate any written
recommendations thus received, it
shall
provide to the
affected State
or
States (and
to the Regional Administrator)
a
written explanation
of
its
reasons
for declining to accept
any
ofthe
written recommendations.
b)
Following the -procedure set
forth ii (a)
above, notify and receive
recommendations from
any interstate agency having water quality control
authority over waters which may be affected by the permit.
c)
Unless otherwise agreed, in accordance with 40 CFR 124.34(c),
send a
copy ofthe fact sheet, if one
has
been prepared, to the appropriate
District Engineer of the Army Co~sofEngineers for discharges (other
than
minor
discharges) into
navig~ble
waters.
Agency
and
Petitioners)
-
d)
Upon request, send a copy of the public
notice
and a copy of the fact
sheet for NPDES Permit applications to
any
other Federal,
state, or local
agency, or any
affected country, and provide such agencies
an
opportunity
to respond, comment, or request a public hearing pursuant to
Sections 309.115-309.119.
Such agencies shall include at least the
following:
-
1)
The agency responsible for
the preparation of an approved plan
pursuant to
Section
208(b) of the CWA;
and
2)
The State or interstate-agency responsible for the preparation of a
plan pursuant to
an approved
continuous planning process under
Section 303(e) of the CWA.
e)
Send notice to,
and coordinate with,
appropriate public health agencies
for the purpose of assisting the applicant in integrating the relevant
provisions of the CWA with any applicable requirements
of such public
health agencies.
Section
309.117
Agency Hearing
The applicant or any
person shall be
permitted
to
submit oral or written statements and’
data concerning
the proposed permit
or group of
permits.
The Chairman
shall have
authority to fix reasonable
limits
upon
the time allowed for oral statements,
and may
require statements in writing
Section 309.119
Agency Action After Hearing
___________________________
following
the public hearing, the
Agency may make such modifications
in the terms and conditions ofproposed permits
as
may be
appropriate and
shall transmit to the Regional
Administrator
for
his approval
a copy of the permit proposed to
be issued unless the Regional Administrator has
waived his right to receive and review permits of
its class.
The Agency
shall provide
a
notice of such
transmission to the
applicant,
to
any
person who participates in the
public hearing, to any person who requested a public hearing, and
to appropriate
persons on the mailing list established under Sections 309. 109 through 309.112.
Such
notice shall briefly indicate any significant changes
which
were made from
terms and
conditions set
forth in the draft
ermit.
All
ermits
become effective when issued
-
I..I~~I~I!uIIr.
r.
(“Subject to Sections 309.120 and
309.121” Petitioners. The
“unless a different date is
specified in the permit”
language
is proposed by the Agency
and
Petitioners.)
r~(
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m~ssuesi
Petitioners
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___
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I
Agency
and Petitioners)
SUBPART A:
NPDES PERMITS
Section
309.143 Effluent
Limitations
It,
b)
In the application of effluent standards and limitations,
water quality
standards and
other applicable requirements,
the Agency shall, for
each
permit, specify average
and
maximum daily quantitative limitations for
the level of pollutants in the authorized discharge in terms of weight
(except pH,
temperature,
radiation, and any other pollutants not
appropriately expressed by weight, and except
for discharges whose’
constituents cannot be appropriately expressed by weight).
The Agency
may, in its
discretion,
in addition to
specification
of daily quantitative
limitations
by weight,
specify other limitations, such as average or
maximum concentration limits,
for the level ofpollutants
in the
authorized discharge.
Effluent
limitations
for multiproduct operations
I
~q~1
shall
provide for appropriate waste variations from such plants.
Where a
schedule of compliance is included
as a condition in a
permit, effluent
limitations shall be included for the
interim period as
well as for the
period following the final compliance date.
Section
309.146
Authority to
Establish
Recording, Reporting, Monitoring
and
Sampling Requirements
a)
The Agency shall require every holder of an ,NPDES Permit,
as a
condition of the NPDES Permit issued to the holder, to:
1)
Establish,
maintain
and
retain records;
2)
Make
reports
_______
(Agency
and Petitioners)
3)
Install,
calibrate, use and maintain monitoring equipment
or
methods (including where appropriate biological monitoring
methods);
4)
Take samples of effluents (in accordance
with such methods, at
such locations, at such
intervals,
and in
such a
manner as
may be
prescribed; and
~
Provide such other information as
may
reasonably
be required.
b)
The Agency may require every holder ofan NPDES Permit for a
publicly owned and publicly regulated treatment
works, as a condition of
the
NPDES Permit,
to require
industrial
users
of such a treatment
works
to:
1)
Establish, maintain and
retain
records;
2)
Make
reports;
3)
Install, calibrate,
use and
maintain monitoring equipment or
methods
(including where appropriate biological monitoring
methods);
4)
Take samples ofeffluents (in
accordance
with such methods,
at
sUch
locations,
at such intervals,
and
in such a
manner as
may be
prescribed); and
5)
Provide such other information as may reasonably be required.
c)
All such requirements shall be included as conditions ofthe NPDES
Permit
issued to
the discharger,
and
shall be at least as stringent as those
required by applicable federal regulations when these become effective.
_____
_____
~
(Agency
and Petitioners)
1
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
3
IN THE MATTER OF:
4
PRAIRIE RIVERS NETWORK,
5
Petitioner,
6
-vs-
)
PCB 01-112
7
)VOLUMEI
ILLINOIS ENVIRONMENTAL
8
PROTECTION AGENCY P~ND
BLACK BEAUTY COAL COMRANY,
9
Respondents.
10
1.
12
13
-
The following is the transcript of a hearing
14
held in the above-entitled matter, taken stenographically
by Jennifer E. Johnson,
CSR, before John Knittle, Hearing
15
Officer,
at
6 North Vermilion Road,
2nd Floor Conference
Room, Danville,
Illinois, on the 1st day of May,
2001
16
A.D.,
commencing at the hour of approximately 9:28 a.m.
-
17
-
18
19
20
‘
21
-
22
23
24
2
EXHIBIT B
1
INDEX
PAGE
2
ROBERT MOORE
3
Direct Examination by ‘Mr. Ettinger
12
4
Voir Dire Examination by Mr. Blanton
23
Cont’d. Direct Exam by Mr. Ettinger
26
5
Cross-Examination by Mr.
Sof at
43
Cross-Examination by Mr. Blanton
45
6
Redirect Examination by Mr. Ettinger
81
Recross-Examination by Mr.
Sofat
82
7
ROSA ELLIS
8
Direct Examination by Mr. Ettinger
85
9
Cross-Examination by Mr. Blanton
90
Redirect Examination by Mr. Ettinger
91
10
TOBY
FREVERT
11
Direct Examination by Mr.
Sofat
94
12
Cross-Examination by Mr. Blanton
111
Cross-Examination by Mr. Ettinger
134
13
Redirect Examination by Mr.
Sofat
189
Recross-Examination by Mr. Blantpn
197
14
Recross-Examination by Mr. Ettinger
228
Recross-Examination by Mr. Blanton
231
15
Recross-Examination by Mr. Ettinger
232
16
17
18
19
20
-
21
22
23
24
4
6
permit had been issued and they had a chance to
7
participate in that;
they have essentially asked for a
8
further review and like
--
they want a further
--
as
I
9
understand their position, they want a further review of
10
the final permit
very
similar to the one that they had on
11
the draft permit.
12
A.
Isn’t that what we’re doing today?
13
Q.
Well,
that’s
--
-
14
A.
I’m
sorry.
I’m not supposed to ask
15
questions.
16
Q.
You
explained
the process in response to
17
Mr.
Sofat that the regulations and the applicable
law for
18
the processing of these permits in Illinois provides for
19
public hearing after a draft
permit
is iss~ued,
right?
20
A.
That’s correct.
21
-
Q.
And
it does not provide for public hearing in
22
the same sense after the final permit is issued,
does it?
23
A.
It provides an appeal process,
not an
24
additional review process; that is correct.
-
129
1
Q.
And
so to the extent Prairie Rivers wants
2
another public hearing and another comment period like
3
the one they had on the draft permit,
they’re asking for
4
something that is not authorized by the applicable
5
process,
right?
6
A.
There may be an occasional circumstance in
7
operating a permit program with over 3,000 registered
8
permits that one could envision a scenario where some
9
issue
--
some unique issue or some other circumstance
10
came up that may justify the agency going to a second
11
hearing.
It’s not a matter of practice.
I don’t believe
12
there is
a prohibition against our having a second
13
hearing,
but as
a matter of normal operation we do not do
14
that.
We review the process,
as
I explained it earlier.
15
Q.
And
Prairie Rivers’
remedy is what we’re
16
doing today?
17
A.
I don’t know if it’s Prairie Rivers’
remedy
18
or if it’s the remedy that’s created by the procedural
19
rules or our regulatory process.
20
Q.
As
I understand what you described as
a joint
21
permit between the state and federal authorities and what
22
you’ve said about your role
as coordinating,
as
I
23
understand
it,
there are numerous agencies who have
24
agreed to the terms of this and related permits so those
130
1
permits could all be issued at the same time,
at the end
2
of
2000,
right?
3
A.
That is correct.
4
Q.
Who are the agencies,
federal and state, who
5
have agreed
to the terms of this and related permits?
6
-
A.
There may be a number of them.
The specific
Petitioner,
Respondents.
)
Petition for Leave to Appeal
)
From
the Appellate Court of
)
Illinois, Fourth District,
)
No. 4-01-0801
)
)
)
There Heard on Appeal of an
)
Order of the Illinois Pollution Control
)
BoardinPCBOl-112
)
INTHE
-
-~
SUPREME COURT OF ILLINOIS
-
-
-
—
--~
.,
)
-
-
BLACK BEAUTY COAL COMPANY’S
ANSWER
TO
PRAIRIE
RIVERS NETWORK’S
PETITION FOR LEAVE TO
APPEAL
-
-
W
C
Blanton
BLACKWELL
SANDERS
PEPER MARTIN LLP
2300
Mam Street,
Suite
1000
Kansas
City, MO
64108
Telephone
(816) 983-8151
Facsimile
(816) 983-8080
FOR RESPONDENT BLACK BEAUTY COAL
COMPANY
--
EXHIBIT C
PRAIRIE RIVERS NETWORK,
v.
ILLINOIS POLLUTION CONTROL
BOARD, ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and
BLACK BEAUTY COAL COMPANY,
shall briefly indicate any
significant changes
which
were made
from
terms
and
conditions
set
forth in the draft permit.”
Id
§
309.119 (emphasis added).
It did so.
(R. at
000557)
PRN
cites no
authority
for the proposition that
the
State Regulations
merely
establish
a
floor for IEPA permitting procedures and that the agency has the inherent authority to
afford the
public
the
opportunity
to
participate
in
the
processing
of
any
particular
NPDES
permit
application
any
way
if deems
necessary,
reasonable,
appropriate,
or
otherwise
desirable.
In
contrast, BBCC was entitled
to have IEPA process its Permit Application in accordance with the
duly promulgated procedural rules that
establish uniform, consistent processes for the agency’s
consideration of every permit
application.
Panhandle Eastern Pipe
Line Co.,
314
Ill.
App. 3d
296,
734
N.E.2d at
24
(“Administrative
agencies
are required
to
apply their rules
as
written,
without making ad
hoc exceptions in adjudication.”); Mattoon Community Unit Sch.
Dist. No.
2
v.
Illinois
Educ.
Labor
Relations
Bd.,
193
Ill.
App.
3d
875,
550
N.E.2d
610,
614
(4th
Dist.
1990).
Consequently, IEPA would have acted unlawfully under Illinois law had
it conducted the
second round ofpublic comments sought by PRN.
B.
Illinois Case Law Does
Not Compel a Second Round of Comments.
PRN cites Village of Sauget v. Illinois Pollution Control Board, 207 Ill. App. 3d 974,
566
N.E.2d 724
(5th
Dist.
1990),
(“Sauget”)
in
support
of its
contention
that
the
Permit
must
be
remanded to
IEPA.
Sauget, however,
is inapposite here.
In Sauget, the Village
applied
for an
NPDES
permit
for its
AB
Facility.
IEPA issued a
final
permit
and
the
Village
appealed,
as
did
Monsanto
Company,
whose
plant
was a
major
industrial
facility
served
by
the
AB
Facility.
Id.
at
726.
Village
of
Sauget
v.
Illinois
Environmental
Protection
Agency,
PCB
90-181,
at
2
(Ill.
Pol.
Control
Bd.,
Jan.
24,
1991).
USEPA commented on the revised draft permit
after the close of the public comment period.
In
its
final comment
letter dated
February
14,
1986,
USEPA stated that it would
not object
to
the
KC.1038876-2
11
CERTIFICATE OF SERVICE
I, Albert F. Ettinger, certify that I have filed the above Notice of Filing together with an
original and
11
copies ofthe Petitioner’s Post-Hearing Comments,
on recycled paper, with the
Illinois Pollution Control
Board, James R. Thompson Center,
100 West Randolph, Suite 11-500,
Chicago, IL 60601, and served all the parties on the attached Service List by depositing a copy in
a properly addressed, sealed envelope with the U.S. Post Office, Chicago, Illinois, with proper
postage prepaid on June
16, 2003.
Albert F. Ettinge
Albert F. Ettinger, Senior Attorney
Environmental
Law and Policy Center
-
35
East Wacker Drive, Suite 1300
Chicago, IL 60601
-
1:/Wild
& Natural Places/Black Beauty Coal/certificate of service 6-16-03
Prairie RiverslBlack Beauty Coal
R03-19 Service List
June 16, 2003
Connie Tonsor
Joel Sternstein
Marie Tipsord
Charles Wesseihoft
Blackwell Sanders Peper Martin
LLP
Downers Grove Sanitary District
Thorn Creek Sanitary District
City ofGeneva
Assistant Attorney General
Attorney, Illinois Pollution Control Board
Ross & Hardies
2300 Main, Ste
1000
2710 Curtiss Street
700 West End Ave.
1800 South Street
35
E. Wacker Dr., Ste
1300
8000
Sears Tower
250
E. DevonAve. Ste 239
100 W.Randolph, Ste
11-500
150 N. Michigan, Ste 2500
191 N. Wacker Dr.,
Ste 3700
100 E.Erie
3150 Roland Ave., P0 Box 5776
415 N. Gilbert St.,
P0 Box
12
1979 Johns Dr., P0
Box 688
223
Grey Ave.
215 East Adams St.
6001
W.
Pershing Rd.
10
S. LaSalle, Ste 2600
100 E.Erie
~00 N. Water Works Dr.
2105 NE Jefferson St.
1031 N. Grand Ave. East
188 W. Randolph St.,
20th
Fl.
100 W. Randolph, Suite 11-500
150 N. Michigan Ave., Ste 2500
Kansas City MO
64108
Downers Grove, IL
60515
Chicago Heights, IL
60411
Geneva, IL
60134
-
Chicago, IL
60601-2110
Chicago, IL
60606
Des Plaines, IL
60018
Chicago, IL
60601
Chicago, IL
60601
Chicago, IL
60606
Chicago, IL
60611
Springfield,
IL
62705-5776
Danville, IL
61834-0012
Glenview, IL
60025-0688
Evanston, IL
60202
Springfield, IL
62701
Cicero, IL
60650
Chicago, IL
60603
Chicago, IL
60611
Belleville, L
62223-9040
Peoria, IL
61603
Springfield,
IL
62794-9276
Chicago, IL
60601
Chicago, IL
60601
Chicago, IL
60601
I:\Wild & Natural Places/Black Beauty Coal/Service List
W. C. Blanton
Larry Cox
James Daugherty
John Donahue
Albert Ettinger
Environmental Law & Policy Center
Susan M.
Frarizetti
Sonnenschein Nath & Rosenthal
LisaM. Frede
Chemical Industry Council
Dorothy Gunn
Clerk, Illinois Pollution Control Board
James T.
Hathngton
Ross & Hardies
Roy M. Harsch
Gardner, Carton & Douglas
Ron Hill
Metropolitan Water Reclamation District
Katherine Hodge
Hodge Dwyer Zeman
FredL. Hubbard
Attorney at Law
Frederick D.
Keady
Vermilion Coal Company
Vicky McKinley
Evanston Environment Board
Robert Messina
Illinois Environmental Regulatory Group
Irwin Polls
Metropolitan Water Reclamation District
Erika K. Powers
Barnes & Thornburg
Michael G. Rosenberg Metropolitan Water Reclamation District
Sue A.
Schulz
General & Associate Corporate Counsel
Mary G. Sullivan
Illinois-American Water Company
Sanjay Sofat
Illinois Environmental Protection Agency’
1
tL~I~ 1
