1. NOTICE OF FILING
      2. AGENCY’S MOTION FOR SUMMARY JUDGMENT
      3. STATEMENT OF FACTS
      4. AGENCY’S MEMORANDUM OF LAW IN SUPPORT OF SUMMARYJUDGMENT
      5. MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT
      6. CONCLUSION
  1. STATE OF ILLINOIS )
      1. COUNTY OF SANGAMON
      2. PROOF OF SERVICE
&
RECEIVED
CLERK’S OFFICE
APR 26
2005
BOARD OF TRUSTEES OF SOUTHERN
ILLiNOIS UNIVERSITY GOVERNING
SOUTHERN ILLINOIS UNIVERSITY,
EDWARDSVILLE
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
)
)
STATE OF ILLINOIS
Pollution Control BOard
PCB 02-105
(NPDES Permit Appeal)
NOTICE OF FILING
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Ave. East
P.O. Box 19274
Springfield, IL 62794-9274
Joel A. Benoit
MOHAN, ALEWELT, PRILLAMAN & ADAMI
•First of America Center
1 N. Old Capitol Plaza, Ste.
325
Springfield,
IL 62701
Kim L.Kirn
Southern Illinois University Edwardsville
Office ofthe General Counsel
Rendleman Hall, Room 3311
Edwardsville, IL 62026-1019
PLEASE
TAKE
NOTICE
that
I
have
today
filed
with the
Office
of
the
Clerk
of the
Pollution
Control Board an original
and four (4) copies of the AGENCY’S
MOTION
FOR
AND
MEMORANDUM
OF
LAW
IN
SUPPORT
OF
SUMMARY
JUDGMENT
of
the
Illinois
Environmental Protection Agency, a copy of which is herewith served upon you.
ILLINOIS ENVIRONM
PROTECTION AGENCY
B
___________________
SanjayK.
Sofat, Assistant
ounsel
Division of Legal Counsel
Dated:
April
25,
2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
BEFORE
TIlE
ILLINOIS POLLUTION CONTROL BOARD
V.
)
)
)
)
)
)
)
)
)
Respondent.
THIS
FILING PRINTED ON RECYCLED PAPER
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOAR)
~~ED
BOARD OF
TRUSTEES
OF
SOUTHERN
)
APR
262005
ILLINOIS UNIVERSITY
GOVERNING
)
STATE
OF
ILLINOIS
SOUTHERN ILLINOIS UNIVERSITY,
)
Pollution
Control Board
ED
WARDSV1LLE
)
)
Petitioner,
)
)
V.
)
PCB 02-105
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
AGENCY’S MOTION FOR SUMMARY JUDGMENT
NOW COMES, the Respondent, Illinois Environmental Protection Agency
(“Illinois EPA” or “Agency”) by and through its attorney, Sanjay K. Sofat,
Assistant
Counsel and Special Assistant Attorney General, pursuant to 35 Iii. Adm. Code 101.516,
and 105.202,
105.204,
105.206,
and
105.212, hereby submits this Agency’s Motion For
and Memorandum of Law in
Support ofSummary Judgment to the Illinois Pollution
Control Board (“Illinois PCB”
or “Board”).
The Illinois EPA respectfully requests that
the Illinois PCB AFFIRM the Agency’s decision to grant a National Pollution Discharge
Elimination System
(“NPDES”) permit, 10075311 to the Southern Illinois University at
Edwardsville’s (“SIIJE” or “Petitioner”) to discharge non-contact cooling water into
Tower. Lake, and DISMISS the Petitioner’s petition filed, on May 6, 2002, asking for the
Board’s review ofthe Agency determination.
In support ofits Motion, the Illinois EPA
states as follows:
1
1.
On March 8, 2001,
the Agency received SIUE’s application for a once through
cooling water discharge from its
Heating & Refrigeration Plant into Tower Lake.
Agency Record at.
2.
SIIJE’s
application concerned an existing source that came into operation in
1965
to provide cooling water for refrigeration units.
S1UE
did
not seek an
NPDES
permit for the source until March 2001.
3.
SIIJE in its application requested that the monitoring and testing for BOD, TSS,
Oil and Grease,
COD, TOC, Ammonia (as N), and pH be waived.
Agency record
at
6.
4.
On July 19, 2001, the Agency sent a draft NPDES
permit to
SUE
for its review
and asked for comments within fifteen (15) days ofthe date of the letter.
Agency
Record at 21.
5.
The draft permit contained limits for flow and temperature.
Special Condition
1
is
a monitoring requirement
and
requires that the flow shall be reported as a
monthly. average and daily maximum.
Under the “sample type” colunm, the
permit specifies that a single reading for flow shall be reported to
the Agency.
AgencyRecord at 26.
6.
Special Condition 2:
Discharge ofwastewater from this facility must not alone or
in combination with other sources cause the receiving stream to violate the
following thermal limitations at the edge ofthe mixing zone which is defined by
Section 302.211, Illinois Administrative Code, Title 35, Chapter 1,
Subtitle C, as
amended:
A.
Maximum temperature rise above natural temperature must not exceed
5°F
(2.8°C)
2
B.
Water temperature at representative locations in the main river shall not exceed
the maximum limits in the following table during more than one percent ofthe
hours in the 12-month period ending with any month.
Moreover,
at no times shall
the water temperature at such locations exceed the maximum limits in the
following table by more than 3°F(1.7°C).(Main river temperatures are
temperatures ofthose portions ofthe river essentially similar to and following the
same thermal regime as the temperatures ofthe main flow ofthe river.)
Jan
Feb
Mar
April
May
June
July
Aug
Sept.
Oct
Nov
Dec
°F
60
60
60
90
90
90
90
90
90
90
90
60
°C
16
16
16
32
32
32
32
32
32
32
32
16
C.
The monthly maximum value shall be reported on the DMR form.
7.
SUE did not provide any comments during the 15-day notice period.
Agency
Record at 30.
8.
The Agency public notice the draftpermit on August
10, 2001
for thirty (30)
days.
No changes were made to
the draft permit prior to the public notice.
Agency Record at 39.
9.
On August 28, 2001, the Agency received the SUE’s
comments on the draft
permit.
Agency Record at 43.
SIIJE raised the following concerns:
i.
The permit appears to be drafter fordischarge into a stream.
Though the
SUE plant discharges into an artificial cooling lake.
ii.
Section 302.211
Paragraph J applies to this facility.
iii.
Special Condition 2.A requires that maximum temperature rise above
natural temperature must not exceed
5°F.
However, due to the circulating
nature ofan artificial cooling lake, the temperature ofthe body of water
will rise more than
5
degrees.
Also, what would be the “natural
temperature” ofthe lake without the heat source.
.
iv.
Special Condition 2B.
SIUE’s argues
that due to the nature of an artificial
cooling nature as opposed to a stream, once the temperature ofthe body of
water rises above the limit it will remain there for a long period oftime.
If
the lake temperatures rise in August it will not be appreciably cool until
November.
.
v.
It is not clear how Special Condition
2 would be applied to
a lake.
Agency Record at 43-44.
3
10. On January 2, 2002, the Agency issued the final NPDES permit for discharge of
non-contact cooling
water into Tower Lake.
As no changes were made to the
draft permit language, the final NPDES permit contains the draft language for
flow and temperature conditions.
In the cover letter, the Agency addressed the
issued raisedby SIUB during the 30-day comment period.~
Specifically, the
Agency instructed that Tower Lake is not an artificial cooling lake, but rather is a
waters of the state as defined in 35
Ill. Adm.
Code 301.440.
The letter further
clarified that temperature monitoring will be required at a point representative of
the discharge but prior to entryinto Tower Lake.
Agency Record at 47.
11. After receiving the extension of time withinwhich to appeal the Agency’s final
decision, on May 6, 2002, SIIJE filed a petition asking the Board to review the
terms and conditions ofthe NPDES permit issued on January 2, 2002.
12. In its petition, SIUE raised the following legal and technical
arguments:
A.
SUE’s non-contact cooling water is not subject to Section
302.211(e) of
the Board regulations;
B.
SITJE is not required to satisfy the temperature requirements of35
Iii.
Adm. Code 302.211(d) or (e);
C.
Section 302.211(d) does not apply to SIUE because Tower Lake is a man-
made lake which has always been affected by the cooling and heating
plant, and that Tower Lake has no “natural temperature”;
D.
Permit conditions directed at rivers and not lakes are not applicable to
.
SIUE discharge;
B.
SUE has no means to assure compliance with 35 Ill. Adm. .Code
302.211(d) or (e);
,
F.
The permit requires SUE to utilize two inconsistent methods of
monitoring; and
,
.
.
G.
The permit monitoring requirements are inconsistent because it requires
“monthly average”, “daily maximum”, and “monthly maximum value”
reporting for a single reading taken each month.
.
.
13. As a relief, SIUB requests the Board to determine that SIIJB’s discharge is not
covered under an NPDES permit or that the NPDES permit as issued requires the
4
Petitioner to comply with conditions not required by the Board’s regulations or
that permit conditions are inapplicable to SUJE.
SIUE Petition, Requested Relief.
14.
In its Order ofMay 16, 2002, the Board
found that SIUE’s petition meets the
requirements of 35
Iii. Adm.
Code 105.210.
.
15. The Board should grant the Agency’s summary
judgment.
SUE has no real legal
basis to
appeal this permit as the Agency’s final decision is
consistent with the
mandates of Section 39 ofthe Illinois Environmental Protection Act (“Act”).
16.
Under Section 39(a), it is the SIUE’s duty to apply for a permit.
This section,
however,
makes it the Agency’s duty to
ensure that the permit, as issued, “will not
cause a violation ofthis Act or ofregulations thereunder.”
415
ILCS
5/39(a)
(2004).
17. Section 309.102(a) requires that, “the discharge of any contaminant or pollutant
by any person into the waters ofthe state from a point source or into a well shall
be unlawful.”
35 Ill.
Adm. Code 309.102(a).
18. Pursuant to
Section 309.102, an NPDES permit is required if SIUE is discharging
a pollutant from a point source into the waters ofthe state.
19. The discharge ofheat from SIUE’s Heating & refrigeration Plant falls with the
definition ofa “pollutant” as defined in Section 301.340.
35 Ill. Adm. Code
301.340.
20. The discharge ofnon-contact water by a submerged discharge line or by a flume
is
a discharge of a pollutant from a point source’.
.
..
...
.
.;
Point
source means: any discernible, confined, and discrete conveyance, includingbut.not limited.to, .any
pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal
feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants
are or may be discharged.
40 CFR 122.2.
5
21. Tower Lake not a perched lake and thus not exempt from the definition ofwaters
ofthe state.
22. Therefore,
the discharge ofnon-contact cooling water from the SIUE’s Heating &
Refrigeration plant must be regulated by an NPDES permit.
.
.
.
23.
Section
39(a) ofthe Act also mandates that the Agency niust ensure that the
permitted discharge “will not cause a violation ofthis Act or regulations
thereunder.”
415
ILCS 5/39(a) (2004).
24. Tower Lake is a general use waters ofthe
State.
The Board regulations require
that the general use water quality standards must be met in waters ofthe state for
which there is no specific designation.
35 Ill. Adm.
Code 302.201.
The general
use standards are designed to protect the “State’s water for aquatic life.”
35
Ill.
Adm. Code 302.202.
25. Section 302.211
contains temperature standard that is applicable to the general
use waters.
To
comply with the Section 39(a) mandate, the Agency issued SUE
an NPDES permit that is consistent with the temperature standard provided in
Section 302.211.
Special Condition 2A is identical to Section 302.211(d)
language.
Arid Special Condition 2B
is identical to Section 302.211(e) language.
.
26. The NPDES permit requires SUE to meet the Section 302.211
temperature
standard at the end ofpipe because no mixing zone is provided for in the permit.
27. Section 302.211
applies to
all general use waters, whetherthe waterbody.is a
..
.
stream or a lake.
Though the Section 302.211
language makes references to
.
,
streams, it applies to both the rivers and streams.
6
28. Also, as the permit only requires a single reading per month, SIUB only needs to
report the single reading under the headings, “monthly average”, “daily
maximum”, and “monthly maximum value”.
29. The Act provides
limited authority to the Agency in authorizing discharge of
pollutants in the waters ofthe state.
The Agency must
follow the Board
regulations in authorizing discharge ofnon-contact cooling water into Tower
Lake.
Therefore, the Agency has no authority to either not require SIUE to obtain
an NPDES permit, or relax the temperature standards that apply to SUE’s
‘discharge.
WHEREFORE, the Agency respectfully requests that the Board GRANT
its’ summaryjudgment, as the permit as issued to SUE, contains conditions and limits
necessary to protect Tower Lake, assures protection ofapplicable water quality standards,
complies with the Federal Water Pollution Control Act, and Illinois law.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
_______________________
SanjayK.
Sofat
Assistant Counsel
Special Assistant Attorney General
DATED:
April 25, 2005
.
.
1021 North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794-9276
(217) 782-5544
7
STATEMENT OF FACTS
On March 8, 2001, the Agency received SIIJB’s application for a once
through cooling water discharge from its Heating & Refrigeration Plant into Tower
Lake.
Agency Record at
1.
The permit application concerned an
existing source that
came into operation in
1965
to provide cooling water for refrigeration units.
However, SIUE did not seek an NPDES permit for this existing source until March
2001.
This Heating & Refrigerationplant has two absorption and two centrifugal
chillers to provide SIUE campus with cool air.
Agency Record at
6.
Water
withdrawn from
Tower Lake is used to cool the chillers.
This operation is performed
on a once-through basis and water is returned to Tower Lake.
Id.
Tower Lake serves
as a reservoir forproviding cooling water for the Heating & Refrigeration Plant
operations.
SUE does not allow recreational,boating or swimming activities in
Tower Lake.
Id.
The chillers are operated depending upon ambient temperatures.
Usually in the month ofAugust, the air conditioning needs ofthe SUE campus are at
peak due to the n’iaximum student population and still higher ambient temperatures.
Id.
At peak demand, cooling water flows are approximately
19.5
MGD.
The cooling
water flowing through the condensers gains about
10 Fahrenheit degrees from the
ambient temperatures.
The water is returned to
Tower Lake.
The difference in
.
temp erature ofthe cooling water drawn from the lake to the water returned to the lake
ranges from 2
to
8 degrees Fahrenheit.
Id.
On March 23, 2001, SIUE filed supplement information on cooling flume,
profile; flume cross-sections; aerial view ofwaterintake structure, location ofpumps
‘
that draw water from the lake, the Heating &
Refrigeration Plant, the flume, and the
8
return ofwater to the lake via the rip-rapped slope; and map showing flume’s location
with respect to SIUE.
Agency Record at
7.
The engineer notes that the facility is
permitted to discharge through two outfalls.
Outfall 001 is a non-contact cooling
water discharge point with an average flow of 15 MGD and a maximum flow of 19.5
MGD.
Outfall 2
is classified as a non-contact cooling water discharge point though
used only for flume discharge during
summermonths.
Agency Record at 13.
The
flume is
1750 feet long.
Agency Record at 17.
Tower Lake is
not listed on the
Illinois’
impaired water list.
On January 2, 2002, the Agency issued the
SITJE’s NPDES permit for
discharge ofnon-contact cooling water into Tower Lake.
Agency Record at 47.
On
May 16, 2002, the Board accepted the SUE’s petition.
In order to find resolution to
the pending issues, the Agency asked SIUE
to perform a thermal monitoring study of.
Tower Lake.
The basic objective of the study was to determine if the lake conditions
will allow the Agency to assign a mixing zone in SUE’s NPDES permit.
In
December 2003, SUE filed the results ofits thermal study.
The study found that:
1)
discharge from the Heating & Refrigeration Plant met the current NPDES permit
limits during 2003;
2) the surface temperatures at the Heating & Refrigeration Plant
did not vary much from the surface temperatures at the far end ofTower Lake;
3)
During high summer temperatures, SUE will have difficulty complying with the
temperature limits in the permit; and 4) there was not much difference between the
surface water temperatures and the temperatures at the condenser inlet,’ which is
at
four meter depth.
.
9
On June 6, 2001, the
Agency issued
an NPDBS permit
to
SIJE
for its
sewage treatment plant.
The permit incorporate
limits for CBOD5 Suspended Solids,
pH, Fecal Coliform, Chlorine residue, Ammonia Nitrogen,
,
and Phosphorus.
Tower
Lake is listed as the receiving waters in this permit.
..
10
BEFORE
THE
ILLINOIS POLLUTION
CONTROL BOAR)
BOARD
OF TRUSTEES OF SOUTHERN
)
ILLiNOIS UNTVERSITY GOVERNING
)
SOUTHERN ILLINOIS UNIVERSITY,
)
EDWARDSVILLE
.
)
)
Petitioner,
)
)
v.
)
PCB
02-105
)
(NPDES
Permit
Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
AGENCY’S
MEMORANDUM OF LAW IN SUPPORT OF SUMMARY
JUDGMENT
NOW COMES the Respondent, Illinois Environmental Protection Agency
(“Illinois EPA” or “Agency”) by and through its attorney, Sanjay K.
Sofat, Assistant
Counsel and Special Assistant Attorney General, pursuant
to 35
Ill. Adm.
Code
101.516,
and 105.202,
105.204,
105.206,
and
105.212, hereby submits this Agency’s
Memorandum ofLaw in Support of Summary Judgment to the Illinois Pollution Control
Board (“Illinois PCB” or “Board”).
The Illinois EPA respectfullyrequests that the
Illinois PCB AFFIRM the Agency’s decision to grant a National Pollution Discharge
Elimination System (“NPDES”) permit, IL00753 11
to the Southern Illinois University at
Edwardsville’s (“SUE” or “Petitioner”) to discharge non-contact cooling water into
‘
Tower Lake, and DISMISS the Petitioner’s petition filed on May 6, 2002, asking for the
Board’s review ofthe Agency determination.
The Illinois EPA states as follows:
11
MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT
The
“purpose ofa summaryjudgment proceeding is to determine whether there
are any genuine issues of triable fact.”
Kobus v. FormjIt
Co.,35
Ill.2d
533, 538,
221
N.E.2d
633
(1966).
The courts have granted a motion for summaryjudgment when “the
pleadings, depositions, and admissions on file, together with the ,affidavits, if any,
show
that there is no genuine issue as to any material fact and that the movingparty is
entitled
to
a judgment as a matter oflaw.”
735
ILCS
5/2-1005(c), also see, Fooden v. Board of
Governors,
48 Ill.2d 580,
586-87,
272 N.E.2d 497 (1971),
cert. denied
(1972), 408
U.S.
943, 92 S.Ct.
2847
(emphasis added’).
“While use ofthe summaryjudgment procedure is
to be encouraged as an aid in the expeditious disposition ofa lawsuit, it is a drastic means
ofdisposing oflitigation and therefore should be allowed only when the right ofthe
moving party is clear and
free from doubt.”
Purtill v. Hess,
ill
Ill.2d 229, 239,
489
N.E.2d 867,
871
(1986)
(emphasis added), citing Allen v. Meyer,
14
I1l.2d 284, 292,
152
N.E.2d 576
(1958); Beverly Bankv. Alszp Bank,
106 I1l.App.3d 1012,
1016,62111.
Dec.
572, 436 N.E.2d
598(1982); Schnabel v.
County ofDu Page,
101
Ill.App.3d
553,
560, 57
Ill.Dec. 121, 428 N.E.2d 671
(1981).
However, a party opposing a motion for summary
judgment maynot rest on its pleadings, but must “present a factual basis which would
arguably entitle it
to a judgment.”
Gauthier
v.
Westfall,
266 Ill. App. 3d 213, 219, 639
N.E.2d 994, 999
(2fld
Dist.
1994).
‘
,
In this case, there are no genuine issues ofmaterial
fact and the Agency is
entitled..
to judgment as a matter oflaw.
Further, the Agency’s right is clear’ and free ‘from doubt.
By granting the Agency’s motion
for summary judgment; the Board will encourage the
‘
.
‘
12
expeditious disposition of the permit appeal that has no legal basis.
Therefore, the
Illinois PCB should GRANT the Agency’s motion for summaryjudgment.
I.
Summary Judgment
is Appropriate as No
Genuine Issue ofMaterial Fact
‘
‘
“
Exists
And
the Agency is Entitled
to
the Judgment as a
Matter of Law
.
‘
SUE’s arguments can be grouped into the following two issues:
1.
Whether an NPDES permit is required for SUE’s discharge ofnon-
contact cooling water into Tower Lake; and
2.
Whether the effluent standards and monitoring requirements in the SIUE’s
NPDES, as issued,
are based on the applicable law.
Ifthe Board determines that the an NPDES permit was required forthe SIUE’s
discharge,, and that the permit conditions
are as per the applicable law, the Board must
grant the Agency’s summaryjudgment.
In support ofits position, the Agency states as
follows:
A.
NPDES Permit Is Required For SIUE’s
Discharge OfNon-Contact Cooling
Water Into Tower Lake
Section 39(a) ofthe Illinois Environmental Protection Act (‘.‘Act”) states that,
.
.
.
“when
the Board has by regulation required a permit for the construction, installation,
or operation ofany type offacility
...
the applicant shall applyto the Agency for such
permit and it shallbe the duty ofthe Agency to issue such a permit upon proofby the
applicant that the facility
...
will not cause a violation ofthis Act or ofregulations
thereunder.”
415 ILCS 5/39(a)
(2004)
(emphasis added).
“
.
.
.
13
Under the Clean Water Act as well as the Act, a National Pollution Discharge
Elimination System (“NPDES”) permit is required for a discharge ofa pollutant from a
point source into the waters ofthe state.
The Board regulations require that, “the discharge of any contaminant or pollutant.
by any person into the waters ofthe state from a point source or iiito a well shall be
unlawful.”
35
Ill. Adrn. Code 309.102(a).
Thus, pursuant to Section 309.102, anNPDES
permit is required if SIIJE is discharging a pollutant from a point source into the waters
ofthe state.
Pollutant is defined by Section 301.340 ofthe Board regulations as “dredged
spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials,
~
wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste
discharged into water.”
35
Ill.
Adm.
Code 301.340.
Thus, discharge ofheat from
SIIJE’s Heating & Refrigeration plant clearly falls within the definition of “pollutant”.
Point source means: any discernible, confined, and discrete conveyance, including
but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated
animal feeding operation,
landfill leachate
collection system, vessel or other floating craft from which pollutants are or may be
discharged.
40 CFR
122.2.
The discharge of non-contact water by a submerged
discharge line or by a flume is a discharge ofpollutant
from a point source.
..“
.
Section 301.440 defines “waters” as:
.‘
all accumulations ofwater, surface and
underground, natural, and
artificial, public
and private, or parts thereof, which are wholly or partially
within, flow through, or border upon the
State of Illinois, except that
sewers and treatment works are not included except as specially’
14
mentioned;
provided, that nothing herein contained shall authorize the use
ofnatural or otherwise protected waters
as sewers or treatment works
except that in-stream aeration under Agency permit is allowable.
35 Ill.
Adm.
Code 301.440.
The definition ofwaters in the Board regulations is more limited than the
statutory definition.
Citizens For A Better Environment v. Illinois Environmental
Protection Agency,
PCB 73-245; PCB 73-248, July
18,
1974.
The Board has consistently
maintained that it will decide the “waters” cases on a case-by-case basis.
The Board’s
definition of“waters” includes both public and private waters.
However, the Board
excludes “treatment works” from the definition of“waters” in the Act.
This exemption
was placed in the Rules at the suggestion ofDr. Wesley Pipes’ testimony.
(R71-14).
At
that rulemaking proceeding, Dr.
Pipes testified that the statutory definition would tend to
include water in wastewater treatment facilities, including cooling ponds, oxidation
ponds, tertiary treatment lagoons, and farm ponds.
To exclude these waters,
the Board
provided for the two exemptions- the treatment works; and industrial ditch.
The net effect ofproviding the two exceptions is that:
1) it allows setting the
downstream limit for application ofthe effluent standard; and 2) it determines the point
ofapplication ofthe water quality standards.
Revere Copper And Brass Corp.
v. Illinois
Environmental Protection Agency,
PCB
80-117, September 23,
1983.
The underlying issue here is where Tower Lake is an “artificial cooling lake” or a
‘
‘
‘
“perched lake andlor treatment works.”
Ifthe Board determines that Tower Lake is an
H
.
artificial cooling lake, it is subject to the temperature standards
of’Section 302.211, and’
therefore, SUE must comply with the temperature
limits’ i’n ‘i’ts permit.
On’ the other
‘
hand, if the Board determines that Tower Lake is a treatment work or a perched lake it is
15
exempt from the water quality standards, and therefore, STUB is not subject to the
temperature standard of Section 302.211: See
Environmental Protection Agency v.
Central Illinois Light Company,
54111. App. 3d 155,
156,
369 N.E.2d 389 (3’~
Dist.
1977).
The Board defines artificial cooling lake as “any manmad~
lake, reservoir or other
impoundment, constructed by damming the flow of a stream, which is used to cool the
water discharged from the condenser ofa stream-electric generating plant for.
recirculation in substantial part to the condenser.”
35
Ill.
Adm. Code 301.225.
For
determining whether a waterbody is a perched lake, the Board provides the following
criteria:
the
distinction, in summary, is based upon the way a cooling-water
impoundment is constructed.
Where artificial diking is erected,
and water
to fill the resulting enclosure is largely obtained~by
withdrawing from a
nearbynatural body ofwater such as a lake or river, the enclosure
constitutes a treatment works.
Commonly known as “perched” or “side-
channel” lakes, these bodies ofwater are, as treatment works, exempt from
the Board’s water quality standards, and discharges into them are not
subject to the thermal effluent
standards.
In theMatter of Water Quality
& Effluent Standards Amendments,
Cooling Lakes,
Docket No. R75-2, pg.
3 (September29, 1975)
The Board criteria lists the following elements in identifying perched lakes:
1)
the purpose ofthe waterbody is to
cool the waters discharged from the condensers; 2) the
impoundment is constructed by artificial diking;
and 3) the water to fill the impoundment
is largely obtained by withdrawing from a nearby natural waterbody.’
Tower Lake is not a perched‘lake as it fails to satisfy the requirements
‘
‘
‘
‘
‘
identifiedby the Board in
In theMatter of Water Quality
& Effluent Standards
‘
‘
.
Amendments,
CoolingLakes,
Docket No. R75-2, pg.
3 (September 29,
1975).
16
According to SUE, Tower Lake2 was built to provide cooling water for its
Heating and Refrigeration Plant.
However, as Tower Lake was not constructed
by artificial diking, and the waterto fill Tower Lake is not obtained by
withdrawing from a nearby natural waterbody, Tower Lake is .not a perched lake.
.
.
‘
In sum, Tower Lake falls within the definition ofthe wateis ofthe state.
As SIEJE
is discharging a pollutant from a point source into the waters ofthe state, an NPDES
permit is warranted pursuant to Section 309.102.
B.
.
Effluent Standard For Temperature and Monitoring Requirements In
SIUE’s NPDES
Permit Are Required By the Board Regulations’
As the discharge ofnon-contact cooling water from the SUE’s Heating &
Refrigeration plant must be regulated by
an NPDES permit, pursuant to Section 39(a), the
Agency must ensure that the permitted discharge “will not cause a violation ofthis Act or
regulations thereunder.”
Also, Section 304.105 ofthe Board regulations requires that,
“no effluent shall alone or in combination with other sources, cause a violation ofany
applicable water quality standard.”
35 Ill.
Adm. Code 304.105.
Tower Lake falls within the general use water category.
The Board regulations
provide that the general use water quality standards must be met in waters ofthe State for
which there is no specific designation.
35
Ill.
Adm. Code 302.201.
Further, the general
use standards are designed to protect .the “State’s water for aquatic life.”
35
ill. Adm..
.
Code 302.202.
:
.
..
‘
2
SITJE’s claim ignores the fact that its Sewage Treatment
Plant
discharges into the same Tower Lake.
17
Section 302.211 contains temperature standard that
is applicable to the general
use waters.
To comply with the Section 39(a) mandate, the Agency issued SUE an
NPDES permit that
is consistent with the temperature standard provided in Section
302.211.
Special Condition 2A is
identical to Section 302.211(d) language..
And Special
Condition 2B
is identical to Section 302.211(e) language.
The NPDES
permit requires SUE to meet the Section 302.211
temperature
standard at the
end ofpipe because no mixing zone is granted in the permit.
The Board
regulations on mixing zones providethat “an opportunity shall be allowed for compliance
with 35 Ill. Adm. Code 304.105 by mixing of effluent with its receiving waters, provided
the discharger has made every effort to comply with the requirements of 35
III. Adm.
Code 304.102~.”35 Ill.
Adm.
Code 302.102
(emphasis added).
The Board regulations
clearly provide that mixing zones
are to be granted only in cases where the discharger has
made every effort to provide the best degree oftreatment possible.
SIIJE has made no
effort to find alternatives to
lower the temperature ofthe lake.
In fact, this is the first
time that SIUB has applied for an NPDES permit for the discharge ofnon-contact cooling
water.
Based on the temperature conditions ofthe lake, the Agency concluded that since
there is not much difference between the surface temperatures and the temperatures at
four meter depth, the aquatic life in the lake is being subjected to
very high temperatures.
The Agency further concluded that giving any kind ofmixing zone in this case would
only impair the existing aquatic. life use ofthe lake.
Therefore, ‘the Agency concluded~
that SUE must meet the water quality based effluent limit for temperature standard.
.As
~a)
Dilution of the
effluent from a rteatment works or from any wastewater source
is notacceptable as
a method of treatment of wastes in order to meet the
standards set forth’in this Part. ‘Rather, it
shall be the
obligation of any person discharging contaminants of any kindto the
waters of the state to provide the best
18
the Board regulations demand, SILTE must make every effort to
find alternatives to reduce
the lake temperatures.
For example, the Agency believes that SUE can lower the lake
temperatures by lowering the condenser inlet
and also by discharging in the
hypolimnion4
part ofthe lake.
The Board regulations do not
allow the Agency to
grant mixing zones in
.
cases where the whole lake is
subjected to high temperatures and th~
applicant has not
even attempted to
find alternatives to lower the lake temperatures.
Under Section 39(a)
ofthe Act, it is the Agency’s duty to ensure that the permit as issued is
consistent with
the Act and the Board regulations.
Therefore, the Agency cannot grant a mixing zone to
SIUE’s discharge ofnon-contact cooling waterinto Tower Lake.
The phrase “mixing zone” appears in Special
Condition 2 because the permit
writer used standard template to write this permit.
To clarify the meaning ofSpecial
Condition
2 and to address the concerns raised by
STUB in its August 24, 2001
letter, the
Agency specifically mentioned in the cover letter that, “temperature monitoring will be
required at a point representative ofthe discharge(s) but prior to
entryinto Tower Lake.”
The plain meaning of Special Condition
2 was conveyed to SIUE during a meeting held
between the Agency and STUB representatives.
Also, during the discovery phase, the
Agency made another attempt to clarify the meaning ofthe Special Condition 2.
After all
the dialogue on the meaning ofSpecial
Condition 2, now, SUE can not claim that the
permit language is so confusing that it impairs SIUE’s ability to properly understand the
‘
meaning and
application ofSpecial Condition 2.
Simply; SUE knows what it needs’to
...
do to comply with the Special Condition
2 requires.
‘
.
.
.
‘
degree oftreatment of wastewater consistent with
technological feasibi1ity~
economic reasonableness and
.
sound engineering judgment....
~The layer ofwater in a thermally stratified lake that lies below the thermocline, is noncirculating,
and
remains perpetually cold.
19’
‘
The general use waters contain both rivers and streams.
Therefore, Section
302.211
applies to all general use waters, whether the waterbody is a stream or a lake.
Though the Section 302.211
language makes references
to’ streams, itwas not the Board’s
‘
intent to limit the application ofthe temperature standard of 302.211
to
streams only.
Thus, permit condition referencing to rivers simply means that the condition applies to
the general use water, which in this case is Tower Lake.
Further, as the permit only requires a single readingper month, STUE only needs
to
report the single reading under the headings, “monthly average”, “daily maximum”,
and “monthly maximum value”.
CONCLUSION
For the reasons and arguments provided above, the Agency respectfully requests
that the Board GRANT the Agency’s motion for summaryjudgment.
Respectfully submitted,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
By:
_______________________
SanjayK.Sofat
Special Assistant Attorney General
1021 North Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
(217)782-5544
.
‘
‘
‘
.
.
20

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STATE OF ILLINOIS
)
COUNTY OF SANGAMON
)
)
PROOF OF SERVICE
I,
the
undersigned, on oath state that I have served the attached the
AGENCY’S
MOTION FOR
AND
MEMORANDUM OF LAW IN SUPPORT OF SUMMARY”
JUDGMENT
upon thepersons to whom it is directed, by placing a copy in an envelope
addressed to:
Dorothy Gunn, Clerk
Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
1021
N. Grand Ave. East
P.O. Box
19274
Springfield, IL 62792-9274
Joel A. Benoit
MORAN, ALEWELT, PRILLAMAN & ADAMJ
First of America Center
1
N. Old Capitol Plaza, Ste.
325
Springfield, IL 62701
KimL.Kirn
Southern Illinois University Edwardsville
Office ofthe General Counsel’
Rendleman Hall, Room 3311
Edwardsville, IL
62026-1019
and mailing it from
Springfield, illinois on April 25, 2005, by U.S. Mail with sufficient
postage affixed.
SUBSCRIBED A~DSWORN BEFORE ME
THIS
DAY OF APRIL, 2005.
THIS FILING PRINTED ON RECYCLED PAPER
SS
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