REcE~V
RECEIVED

REcE~V

BEFORE THE

ILLINOIS‘POLLUTION CONTROL BOARD

CLERK’S OFF~O

BOARD OF TRUSTEES

OF SOUTHERN

)

APR

262005

ILLINOIS UNIVERSITY GOVERNING

)

STATE OF ILLINOI

SOUTHERN ILLINOIS UNIVERSITY

)

POllution Control Boa

EDWARDSVILLE,

)

Petitioner,

)

PCB No. 02-105

)

(NPDES

Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

NOTICE OF FILING AND PROOF OF SERVICE

TO:

Dorothy Gunn, Clerk, Illinois Pollution Control Board,

100 West Randolph Street,

James R. Thompson Center, Suite 11-500, Chicago, IL

60601-3218;

Carol Web, Hearing Officer, Illinois Pollution Control Board,

1021

North Grand Avenue

East, P.O.

Box 19274, Springfield,

IL 62794-9274

Sanjay K.

Sofat, Illinois Environmental Protection Agency,

1021 North Grand Avenue

East, P.O. Box

19276, Springfield, IL 62794-9276

PLEASE TAKE NOTICE that on April

25,

2005,

I filed with the Office ofthe Clerk of

the Pollution Control Board an original and nine copies of Petitioner SIUE’s Motion for

Summary Judgment by U.S. Mail.

The undersigned hereby certifies that a true and correct copy ofthis Notice ofFiling,

together with a copy ofthe document

described above, were today served upon the hearing

officer and counsel ofrecord of all parties to this cause by enclosing same in envelopes

addressed to such attorneys at their business addresses as disclosed by the pleadings ofrecord

herein, with postage fully prepaid, and by depositing same in the U.S. Mail in Springfield,

Illinois on the

25th

day of April, 2005.

Joel A. Benoit

MORAN, ALEWELT,

PRILLAMAN & ADAMI

North Old Capitol Plaza, Suite 325

Springfield,

62701-1323

Telephone:

(217) 528-2517

Facsimile:

(217) 528-2553

THIS FILING SUBMITTED ON RECYCLED PAPER

C;\Mapa\SIUE\Notice of Filing 042505.wpd/crk 4/25/05 3:33

RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

LERK S OFFICE

APR 26

2005

BOARD OF TRUSTEES OF SOUTHERN

)

ILLINOIS UNIVERSITY GOVERNING

)

STATE OF ILLINOIS

SOUTHERN ILLINOIS UNIVERSITY,

)

oHution

Control Board

EDWARDSVILLE,

)

Petitioner,

)

PCBNo.02-105

)

(NPDES

Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

)

Respondent.

)

PETITIONER SIUE’S MOTION FOR SUMMARY JUDGMENT

NOW COMES Petitioner, Board ofTrustees ofSouthern Illinois University Governing

Southern Illinois University, by and through its

attorneys, Mohan, Alewelt, Prillaman & Adami,

and respectfully submits its

Motion for Summary Judgment for the Illinois Pollution Control

Board’s consideration.

INTRODUCTION

The Illinois Environmental Protection Agency (“IEPA”) issued Southern Illinois

University Edwardsville (“SIUE”)

an NPDES permit for the discharge of non-contact cooling

water into Tower Lake.

Through this

permit appeal,

SIUE requests that the Board find that 35

Ill. Admin.

Code 302.211(e) is not applicable

to SIUE’s discharge;

Alternatively, if the Board

determines that Section 302.211(e) is applicable to SIUE’s discharge, SIUE requests that the

Board strike that portion of the NPDES permit requiring SIUE to monitor for compliance with

Section 302.2 11(e) at a point representative of the discharge but prior to entry into Tower Lake;

instead, SIUE requests that the Board direct IEPA to modify the permit so that

SIUE is required

to monitor for Section 302.211(e) compliance in Tower Lake.

II.

STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT

Summaryjudgment is appropriate when the pleadings, depositions,

admissions on file, and affidavits disclose that there is no genuine issue as to

any

material fact and the moving party

is entitled

to judgment as a matter oflaw.

Dowd & Dowd,

Ltd. v.

Gleason,

181 Ill.

2d 460,

483 N.E.2d 358, 370 (1998).

ruling on a motion for summaryjudgment, the Board “must consider the

pleadings, depositions, and affidavits strictly against the movant and in

favor of

the opposing party.” j~ Summaryjudgment “is a drastic means ofdisposing of

litigation,” and therefore should be granted only when the movant’s right to the

relief “is

clear and free from doubt.”

~4,

citing Purtill v. Hess,

111

Ill.2d 299,

240, 489 N.E. 2d 867,

871

(1986).

However, a party opposing a motion for

summary judgment may not 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 (2d Dist.

1994).

Jersey Sanitation Corp.

vs. IEPA, PCB No. 00-82, p.

(June 21, 2001)(Permit Appeal-Land).

III.

BURDEN OF PROOF IN

PERMIT

APPEAL

The Illinois Environmental Protection Act

.states that when granting permits, the IEPA “may impose such conditions

may be necessary to

accomplish the purposes ofthis

Act, and as are not

inconsistent with the regulations promulgated by the Board hereunder.”

415’

ILCS

5/39(a)

(West 2000).

prevail on its claim, the petitioner must show the

IEPA’s imposed modifications “were not necessary to accomplish the purposes of

the Act, or stated alternatively, the

petitioner

had to establish that its plan would

not result in any future violation of the Act and the modifications, therefore, were

arbitrary and unnecessary.”

Browning-Ferris,

179 Ill. App. 3d at 603, 534 N.E.2d

at 620.

JEPA v. Jersey Sanitation Corp., 336 Ill.

App.

3d 582,

593

(4th

Dist. 2003);

See also 35

Ill. Adm.

Code 302.21 1(j)(specific rules for “artificial cooling lakes”).

Section 30 1.440 defines “waters” as follows:

All accumulations of water, 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 ofIllinois, except that sewers and treatment

works are not included except as specially 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.

35111. Admin.

Code

301.440.

Ifthe Board had intended

Section 302.211(e) to

apply to all

waters of the State, it would not have used the word “river” repeatedly in the regulation.

The

Board knows how to enact regulations

which apply to

“Waters ofthe State”.

35111. Admin.

Code 302.2 10 (“Waters of the State

shall be free from any

substance or combination of

substances in concentrations toxic or harmful to human health, or to animal, plant or aquatic

life.”).

In the absence of a specific definition in the law in question, words used in legislation are

interpreted as having their ordinary and popularly understood meaning.

People v.

Dednam,

Ill.

565

(1973).

The popularly understood meaning of “river” does not include

lakes.

“river” is popularly understood to be “a natural stream ofwater ofconsiderable volume”.

Webster’s Seventh New Collegiate Dictionary 743

(1972).

The popularly understood meaning

of “stream” is “a body of running water (as a river or brook) flowing on the earth.”

Webster’s

Seventh New Collegiate Dictionary 868

(1972).

In contrast, a “lake” is popularly understood to

“a considerable inland body of standing water”.

Webster’s Seventh New Collegiate

Dictionary 472 (1972).

Section 302.21 1(e)’s use of the word “river”

should be given its

ordinary and popularly understood meaning, a meaning which excludes Tower Lake.

At a

minimum, Section 302.2 11(e). should not be held applicable to lakes or ponds, bodies ofwater

which have characteristics different than rivers or streams (e.g., flow, turnover, etc).

Section 302.104’s definition of “main rivertemperature”,

further defining the location in

a river where water temperature is to be monitored,

also requires that Section 302.211(e) be

interpreted as not applying to

discharges into Tower Lake’.

Ill. Adm.

Code 302.104 (“Main

river temperatures are temperatures ofthose portions of a river essentially similar to

and

following the same thermal regime

as the temperatures of the main flow ofthe river.”).

It is not

possible to apply Section 302.104’s directive to lakes: there is no “portion of a river” in a lake;

there is no “main river flow thermal regime” in

a lake.

Not only is Section 302.2 11(e) limited

in its

applicability to rivers, it does not even apply

all parts ofrivers.

“The month maxima apply to the main river and not to

shallow backwaters

where natural temperatures are likely to

exceed the prescribed limits on sunny days.”

~~ij~

Mississippi Thermal Standards, PCB No.

R70-16,

1971 Ill. ENV LEXIS 37 at *17 (November

23,

1971); 35 Ill.

Adm. Code

104.

This limitation further establishes that Section 302.211(e) is

not applicable to all

waters ofthe state, as the definition of “water” includes even “parts” ofany

accumulation of water.

35 Ill. Admin. Code 30 1.440.

Because Section 302.211(e) is inapplicable to

lakes, the IEPA’s inclusion in the NPDES

permit ofa provision requiring compliance with Section 302.2 11(e) is not necessary to

accomplish the purposes of the Act.

Instead, the IEPA’s action was arbitrary and unnecessary.

Wherefore, SIUE prays that the Board strike all portions of the NPDES permit requiring SIUE’s

discharge to comply with Section 302.211(e).

EVEN IF SECTION 302.211(e)

WERE APPLICABLE TO LAKES, SECTION

3.02.211(e) STATES

THAT THE POINT TO MONITOR FOR COMPLIANCE IS IN

THE

RIVER ITSELF, NOT AT THE POINT OF DISCHARGE.

Even if the Board determines that Section 302.211(e)

is applicable to

SIUE’s discharge

into Tower Lake, SIUE should not be required to comply with the NPDES permit’s requirement

that monthly maxima be met at a point representative ofthe discharge.

Section 302.2 11(e)

plainly states that it is “water temperature at representative locations in the main river that

shall

not exceed the maximum limits”.

The primary rule of statutory construction is to ascertain and effectuate the

legislature’s intent.

The initial source for determining legislative

intent is the

plain meaning of the language used, and where unambiguous, the plain meaning

ofthe language controls.

The courts

must take the words found in a statute in

their ordinary usual meaning and give them a sensible meaning consonant with

the context in which they are used.

Piatak v. Black Hawk College Dist., 269 Ill. App.

3d 1032,

1035 (3’~

Dist.

1995)(internal

citations omitted).

The rules ofconstruction

applicable to

statutes apply to

administrative

regulations.

Shell Oil Co.

v. Pollution Control Board, 37 Ill.

App.

3d 264, 273

(Sth

Dist.

1976).

Section 302.211(e)

is distinguishable from the majority of Subpart B

general use water

quality standards

because, by its own terms, it specifies the location of concern, i.e.,

“representative locations in the main river”.

Section

302.104 provides:

“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.”

By referring to

“portions ofthe river” and “thermal regime” (phrases inapplicable to

discharge points), Section

302.104 makes it clear that temperature is not to

be monitored at the discharge point.

That

portion ofthe NPDES permit directing SIUE to satisfy the monthly maxima at the discharge

point is at odds with these directives and makes no sense, because monitoring the temperature of

the discharge provides no

information as to

the temperature of“representative locations in the

main river”.

Based on the plain meaning of Section 302.211(e) and Section 302.104,

SIUE

requests that the Board remove those portions ofthe NPDES permit requiring SIUE to comply

with Section 302.2 11(e) at a point representative of the discharge point.

Further support for SIUE’s request is found in

the Board’s opinion concerning adopting

thermal regulations for Lake Michigan.

In the Matter ofThermal Standards.

Lake Michigan,

PCB No: R70-2,

1971

Ill. ENV LEXIS 383

(June 9,

1971).

There, the Board adopted monthly

maxima for Lake Michigan, as follows:

1(a)

All sources ofheated effluents in existence as of January

1971

shall

meet the following restrictions outside of a mixing zone which shall be no

greater than a circle with a radius of 1000 feet or an equal fixed area of’

simple

form:

(i)

There shall me no abnormal changes that may affect aquatic life.

(ii)

The normal daily and seasonal temperature

fluctuations that

existed before the addition of heat shall be maintained.

(iii)

The maximum temperature rise at any time

above natural

temperatures shall not

exceed

degrees F.

In addition, the water

temperature shall not exceed the maximum limits

(degrees F.)

indicated in the following table:

monthly

maxima listed

at *62.

(now codified at 35 Ill.

Adm.

Code 302.507).

Comparing Section

1(a)(iii)

and

Section 302.211(e), both concerning monthly maxima provisions enacted in the year 1971,

demonstrates that the Board chose specific monitoring locations for compliance with monthly

maxima based on the body of water at issue.

For rivers, the location chosen was representative

locations in the main river.

For Lake’ Michigan, the location chosen was outside a mixing zone

with a radius no greater than

1000 feet.

The Board chose the discharge point for neither.

Additional support for granting SIUE’s requested relief may be found in Board opinions

leading up to the codification of Section 302.211(e) in its present form.

This regulatory history

demonstrates that Section 302.2 11(e) is concerned with the temperature ofthe main river, not the

temperature of at the discharge point.

Before the creation ofthe Illinois Pollution Control

Board, the Illinois Sanitary Water

Board (“SWB”) Rules and Regulations governed the discharge ofheat into Illinois’

waters.

The

water quality criteria set forth in SWB-14 were “...applicable to all waters which

were

not

subject to the interstate water quality standards included in Rules and Regulations SWB-7

through

inclusive,

and SWB-

15).

(SWB-14, Water Quality Standards, Intrastate Waters

Exclusive of Interstate Waters,

1(1967, 1968). SWB-14 provided:

“Temperature: Not to

exceed 90 deg. F. at any time during the months ofApril through November, and not to exceed

60 deg. F. at any time during the months ofDecember to April.”

(SWB-14, Rule

1.05(c),

p. 4).

These temperature standards

were “applicable at any point in the stream except for areas

immediately adjacent to

outfalls.

In such areas cognizance will be given to opportunities for the

admixture ofwaste

effluents with river water.”

(SWB-14, Rule

1.05,

3).

SWB-14

also

provided:

“Drastic or sudden temperature changes will not be permitted.

The Board will insist

upon controlled changes in temperature not to exceed 2

deg. F. per hour, nor more than a

deg.

cumulative change from natural water temperature.”

(SWB-14, Rule

1.08, p.

5).

By way of example,

SWB-10, applicable to the Ohio River and the Saline River, was one

ofthe interstate water quality standards.

(SWB-10, Water Quality Standards, Interstate Waters,

Ohio River and Saline River (1966, 1968).

As to temperature,

SWB-10 provided: “Temperature:

Not to exceed 90

deg. F at any time during the months of April through November, and not to

exceed

60 deg.

F. at any time during the months ofDecember to

April.

(SWB-10, Rule

1.05(c),

p. 3).

All Rule

1.05

criteria, including

the temperature criteria, were “applicable at any point

the stream except for areas immediately adjacent to outfalls.

In such areas cognizance will be

given to opportunities

for the admixture of waste effluents with river water.”

(SWB-10, Rule

1.05,

p. 3):

Thus,

1968, at least as to thermal regulations,

SWB-14 and SWB-10 were

identical.

The Sanitary Water Board Rules and Regulations remained in effect until superceded or

altered by the Illinois Pollution Control Board.

In the Matter ofWater Quality and Effluent

Standards Amendments, Cooling Lakes,

1975 Ill. ENV LEXIS 475

at *2, PCB No. R75-2

(September 2~9,1975).

The first changes to

the SWB

Rules and Regulations governing

temperature occurred when the Illinois Pollution

Control Board arrived at thermal standards for

specific rivers,

sections of rivers, and Lake Michigan.

Illustrative of this process was the Board’s consideration oftemperature criteria to

set for

the Ohio River.

There, the Board stated:

How much heat is too much is ofcourse

a critical and much disputed question,

bound up not only with the temperature ofa heated discharge but also with the

area of the stream affected, which in turn depends upon the relative volumes of

the effluent and of the receiving body.

And in determining what portions ofa

stream, if any, may be raised above temperatures desirable for the natural biota,

the Board must under the statute consider the often considerable costs of

providing alternatives to the use of stream water for cooling purposes in power

generation and in industry generally.

In the Matter of Ohio-Wabash Thermal Standards,

PCB # R71-12,

2-563

(September 30,

1971).

The Board retained the Sanitary Water Board provision forbidding temperature rises

above

degree F. above natural temperatures.

The Board rejected a suggestion that no mixing

zone be

allowed, and instead adopted an interpretation of the Technical

Secretary ofthe Sanitary

Water Board previously issued which provided that the5 degree F. standard must be met within

no more than 600 feet from the discharge. j~at 2-565-566.

The Board set

monthly maximum

temperatures, and deemed it

.wise to permit moiithly maximum temperatures to be

exceeded by not more that

degrees, so long as the

degree rise limit is adhered to,

for time periods too

brief to have biological significance, and we have added a provision to that effect.

Id. at 2-567.

Immediately following this statement, and critically important for the present appeal, the

Board stated:

We have also,

for reasons given in the Mississippi case, added a provision

specifying that the monthly maxima are

to be

met

in the main part of the river,

believing this will afford adequate protection against excessive temperatures in

the naturally warmer shallow backwaters.

IcL at p.

2-5

67.

In the interest of a complete understanding ofthe thermal rules,

it is important to

review

certain aspects ofthe Mississippi case, including the reasoning behind the rule that monthly

maxima are to be met in the main part ofthe river. In re Mississippi Thermal Standards,

PCB

No. R70-16,

1971

Ill. ENY LEXIS 37 (November 23,

1971)

is helpful in that it explains why the

thermal regulations contain a

degree above natural temperature standard and a “monthly

maxima” temperature.

The Mississippi opinion concerns a federal proposal to

revise the temperature standards

by inserting monthly maxima. j~at

The federal position is, as the federal agency has also argued as to the Ohio River

and as to

Lake Michigan (## R

7 1-12, R 70-2), that the present standard is

inadequate to

protect aquatic life against temperature ‘extremes

during various

seasons of the year.

Monthly maximum temperatures, it is argued, are necessary

in order to avoid temperatures (which may be

less than 5

degrees above natural)

that are high enough to endanger the viability of any

species (Jan. 20. p.

93).

The

maxima proposed are based upon the biological needs ofthe fish

actually present

in each section ofthe river and on actual

high temperatures occasionally

encountered, on the ground that these are the temperatures to which the local fish

are adapted (id., pp.

37, 83).

A single

90 degrees limit, a witness

from the Bureau

of Sport Fisheries

and Wildlife explained, is inadequate, partly because there are

much lower critical temperatures for fish reproduction during cooler times of the

year (Mar.

3. pp.

145 et seq.).

j~At*7..*8

The Board agreed with the federal position:

in the Lake Michigan and Ohio River proceedings, ## R70-2 and R71-12, we

find the federal argument in

favor of monthly maxima highly persuasive, for the

reasons given.

Ifwe were dealing with a small fraction of the river volume, we

might be content with a limit of

degrees

above natural temperatures at the edge

of a mixing zone, anticipating that further dilution would rapidly reduce

temperatures in the river as a whole to near normal levels.

But the Quad-Cities

evidence makes plain that that

is not what is at stake here.

At low flow this

single

plant will utilize one-fifth to one-fourth of the river for cooling purposes, and

after complete mixing the entire

volume ofthe river below the plant will be raised

four to five degrees above intake temperature.

Complete mixing will be achieved

600’ downstream, but the temperature reached at the edge ofthis zone will persist

for a considerable

distance downstream,

since there is no additional water for

further dilution.

Elevated temperatures across the entire river will therefore

remain until relatively slow processes such as evaporation dissipate the excess

heatto

the atmosphere.

Edison’s witnesses could not say how far downstream

temperatures would remain above normal (Permit hearing, 840); an Izaak Walton

League witness, extrapolating from the experience ofthe upstream Genoa plant,

estimated that recovery would take ten miles (Feb. 24, pp.

81,

88); a federal

witness quoted a Commonwealth Edison study showing that two and

a half miles

would be

required (Apr. 23,

p. 77); Edison itself in oral argument June 21

estimated that at low water a 3

degrees rise over natural temperatures would

persist for twelve miles.

While the evidence falls short of conclusive proof that serious harm could

necessarily result if the present standard were retained, we think no such showing

is required.

The day is past when contamination ofthe environment will be

allowed until gross injury occurs; we think it important to avoid substantial

and

unnecessary risks of harm, and therefore agree that monthly maxima should be

adopted.

Id. at **10_13

The Board explained the purpose and application ofthe newrule as follows:

The intent of the temperature regulations is to

determine the “natural” highs by

month and to permit, in general,

degrees F. above these highs,

except when the

resulting temperature would adversely affect aquatic life.

The standard is then set

to not permit the full

degrees F. envelope to be used if damage

will occur.

Obviously it is then ofcritical importance to know the “natural” high

temperatures.

The data analysis revealed that

degrees F. in July and August

and 86 degrees F. in June and September were more realistic “natural highs” at

Alton (the southern and warmest portion ofits

zone).

It is clear that what is to

be feared is the warming ofthe river over a biologically

significant period oftime.

An expert witness favoring the federal proposal testified that

4 degrees rise above natural conditions for as much as a week on rare occasions would

not injure even the sensitive northern pike (Permit hearing, p. 2114).

No one testified to

the contrary, and

a federal spokesman suggested that provision might reasonably be

made

to allow the maxima to be

exceeded for briefperiods (March

3, pp.

221).

We have so

provided, by analogy to

the existing provisions that require water quality standards

generally to be met except during conditions of lowest flow.

We believe on the present

record that ample protection will be afforded during these short periods by requiring

adherence to the 5 degrees-above natural limitation and by providing that the maxima

themselves never be exceeded by more than 3

degrees.

Id. at *14*15

The Board then made the statements referenced in the Ohio river opinion as the “reasons”

the monthly maxima applied in the main river.

The month maxima apply to the main river and not to shallow backwaters where

natural temperatures are likely to exceed the prescribed limits on sunny days.

The

degrees above-natural limit applies everywhere, and to

meet the maxima in the

main river should assure that temperatures in shallow areas, which are naturally

higher, are not excessive.

Id. at *17.

The Board specifically rejected a proposal that the monthly maxima apply to the effluents

dischargedto

rivers themselves, noting that even the proponents ofsuch an effluent standard

“...recognize that the addition of very small volumes of high-temperature water to a big river

have no

significant effect and that the costs ofprohibiting such discharges would

far exceed the

observable benefits.

Id. at *18*19

Through these opinions, the Board adopted regulations for the

Ohio and Mississippi

Rivers that restricted temperature rise to

degree F. at the edge of a 600 foot mixing zone and

set monthly maxima river temperatures to be met

in the main river.

In the Matter of Ohio-

Wabash Thermal Standards, PCB # R71-12, p.

2-569

(September 30,

1971); In re Mississippi

Thermal Standards,

PCB No. R70-16,

1971 Ill. ENV LEXIS 37 at *23*26 (November 23,

1971)

At the time of the publishing ofthe July,

1973, Water Pollution Regulations of Illinois,

that portion of the thermal rules

specifying a 600

foot mixing zone had been removed from the

Board’s water regulation governing temperature.

(Rule

203(i), July,

1973).

Instead, Rule 20 1(a)

contained a mixing zone provision, stating that mixing zones would be applied on a case-by-case

basis, and none would exceed the area ofa circle with a radius of600 feet.

(Rule 201(a), July,

1973).

On August 20,

1981,

the Board issued an order concerning revising the Chapter 3 Water

Pollution regulations

to conform with the codification regulations adopted by the Secretary of

State.

In re Matter of: Rulemaking for Codification of Chapter 3: Water Pollution, R8 1-3

(August 20,

1981).

In explanation of the codification process, the Board stated:

The old rules specifying water quality standards in Part II have been made

subparts ofPart 302.

Explanatory sections have been addedto

introduce subparts.

Site specific rules and water use designations have been moved to Part 303.

These have been grouped with the existing water use designations ofPart III and

arranged geographically by river basin.

This is in anticipation ofa pending

proposal to adopt water quality

standards by river basin throughout the state

(R79-6).

The Secretary of State’s Rules provide a method for codification of rules

without substantive changes (1111. Admin. Code Sec.

160.1103).

The Board

proposes to follow this abbreviated procedure.

Id.

After public notice,

the Board made minor changes to

its draft ofthe proposed codified

rules, and its clerk was directed to file the text for publication in the Illinois register pursuant to

the provisions for codification without substantive change.

In re Matter of:

Rulemaking for

Codification of Chapter 3: Water Pollution,

R81-3

(January 21,

1982).

This codification resulted

in the removal ofmonthly maxima for named rivers from Rule 203(i), which was codified as 35

Ill.

Admin. Code

302.211(e) and printed in Title

35:

Environmental Protection,

Subtitle C: Water

Pollution, Chapter I: Pollution Control Board, August

1982, in the same manner as it appears

today.

As the Mississippi opinion makes clear, the Board determined that the

degree rule,

measured. in that instance at the edge of the mixing zone, was insufficient to protect the main

river.

The “monthly maxima” rule was adopted to provide additional protection to the main

river.

It prohibits dischargers, even those who meet the

degree above natural temperature rule,

from raising the temperature ofthe main river itself above the allowed “monthly maxima”,

possibly resulting,

as the Board stated, in not “...permiting

the full

degrees

F. envelope to be

used ifdamage will occur.”

In re Mississippi Thermal Standards, PCB No. R70-16,

1971

Ill.

ENV LEXIS 37 at *14.

Monitoring at the point of discharge, as required by the present NPDES

permit, provides absolutely no

information as to whether the “monthly maxima” regulation is

being violated;

monitoring at a representative location in the main river does provide the relevant

information.

The point being, the regulations

require monitoring at the point ofdischarge or on

the edge of any allowed mixing zone for compliance with the

degree rule (Section 302.2 11(d))

and further requires testing

at representative locations in the main river to

determine compliance

with the monthly maxima (Section 302.211(e)).

The NPDES permit issued to SIUE ignores this

distinction.

Under the terms ofthe NPDES permit as issued, if SIUE discharged one gallon of94

degrees Fahrenheit water into Tower Lake in August when Tower Lake’s natural temperature

and main river temperature were both 89 degrees Fahrenheit, the

degree Fahrenheit above

natural temperature permit requirement would not be violated, but the monthly maxima permit

requirement would be, although no measurable increase in the temperature of Tower Lake would

occur.

A permit violation would occur, but

a violation of Section 302.211(e) would not occur, as

Section 302.211(e) allows main river temperatures, under the assumed facts, to be as high as 93

degrees Fahrenheit for briefperiods oftime.

35 Ill.

Adm. Code 302.21 1(e)(”Moreover, at no

time shall the water temperature at such locations exceed the maximum limits in the following

table by more that

1.7 C (3 degrees F).”).

The NPDES permit as issued, then, deprives SIUE of

the use ofthe assimilative capacity ofTower Lake for heat which is

specifically allowed by

Section 302.211.

Board opinions concerning

Section 302.211(e) also demonstrate that compliance with

Section 302.211(e) is

not determined by measuring water temperature at the point ofdischarge.

In Illinois Power Company (Clinton Power Station), PCB No. 92-142, 1993 Ill. ENY LEXIS

855

(August 26,

1993), to demonstrate compliance with Sections 302.211(e)

regarding water

discharged from an

artificial cooling lake into Salt Creek, IPC used “data collected from Salt

Creek”.

j4~

at *10.

Based in part of this showing that

Section 302.211(e)’s temperature

limits

were met

Salt Creek, the Board granted IPC specific thermal

standards to be

applied to

IPC’s

discharge into Clinton Lake. j~at

*1516.

In Deere and Company, John Deer Foundry v. IEPA, PCB No. 81-163,

1982 Ill. ENV

LEXIS

(October

1982), in addition to other relief sought, Deere requested a variance from

Section 302.211(e) concerning cooling water it discharged into unnamed tributaries ofSugar

Creek, which in

turn flowed into the Mississippi River.

As to the thermal component ofthe

discharge, the Board noted that

“data indicating maximum temperatures of 89.6 degrees F and

96.8

degrees F summer

would cause violation ofthe 60/90 degrees F standards of Section

302.211(e) under low flow conditions.”

*5•

This statement, limited to low flow

conditions, recognizes that a violation of Section 302.2 11(e) does not automatically occur simply

because the discharge temperature exceeded 90

degrees Fahrenheit if low flow conditions are not

present because monitoring would occur at representative ‘locations in the main river, not at the

discharge point.

That monitoring for compliance with Section 302.211(e) is not to

occur at the

point of discharge is also

demonstratedby certain options under consideration, discussed in a

related Board opinion, to avoid violations ofSection 302.211(e) by Deere in the unnamed

tributaries: piping the heated discharge under pressure directly into the Mississippi River; or

discharging directly into Sugar Creek.

In re matter of: John Deer Thermal Discharge (East

Moline), PCB No. R81-26,

1983

Ill. ENV LEXIS 659

at *7 (November

18,

1983).

Ifthe

concern of Section 302.211(e) were

the temperature ofDeere’s discharge, diverting the thermal

discharge to

a different body of water would not reduce the likelihood of a violation ofSection

302.2 11(e); the temperature of that discharge would be

the same regardless ofthe body ofwater

it was discharged into.

It is because Section 302.2 11(e) is concerned with temperatures in the

“main river” that these options were potentially viable (e.g., these bodies ofwater had greater

assimilative capacities).

See id. (Discussing the likelihood of violations of Section 302.211(e)

dependent upon whether Deere discharged into the ditches (i.e., the tributaries to

Sugar Creek),

Sugar Creek, or the Mississippi River).

Another opinion on point is CIPS

(Hutsonville Power Station) v. IEPA, PCB No. 78-108,

1978 Ill. ENV LEXIS 582

(October

19,

1978).

There, the Board stated:

The Board notes that the above table indicates that CIPS has the potential to cause

a violation of Rule 203(i)(4) ofChapter 3.

Thus it would be required to derate its

Hutsonville Power Station whenever the thermal discharge would raise ~

Wabash River temperature

above the permitted maximum temperatures.

j~at **6..7

(emphasis added)..

Rule 203(i)(4), now 35

Ill.

Admin. Code 303.32 1, sets forth the

monthly maxima “at representative locations in the main river of the Wabash River” using

language substantially identical to

Section 302.2 11(e).

And, as demonstrated by the above-

quoted language, monitoring for compliance with Rule 203(i)(4), like Section 302.211(e),

requires monitoring at representative locations in the main river.

Thus, the plain language of Section 302.211(e), the history ofthe promulgation of

Section 302.211(e) and the Part 303 regulations using substantially identical language to govern

the temperature ofnamed rivers,

previous Board opinions, and,

most importantly, the purpose of

the monthly maxima rule, all

demonstrate that the location to monitor for compliance with

Section 302.211(e) is not the point ofdischarge, but

instead is representative locations

in the

main river.

Accordingly, the IEPA’s inclusion of a monitoring requirement for compliance with

Section 302.2 11(e) at a point representative of the discharge is arbitrary, unnecessary to

accomplish the purposes ofthe Act, and should be

stricken.

VI.

CONCLUSION

Wherefore, Petitioner, Board of Trustees of Southern Illinois University Governing

Southern

Illinois University, prays that the Board grant this

Motion for Summary Judgment and

strike all requirements that SIUE

comply with Section 302.211(e)

from the NPDES permit.

Alternatively, if the Board determines that Section 302.211(e) is applicable to

SIUE’s discharge,

SIUE requests that the Board strike that portion ofthe NPDES permit requiring SIUE to monitor

for compliance with Section 302.2 11(e) at a point representative ofthe discharge but prior to

entry into Tower Lake;

instead, SIUE requests that the Board direct IEPA to modify the permit

so that SIUE is required to monitor for Section 302.211(e) compliance in Tower Lake.

BOARD

OF TRUSTEES OF SOUTHERN

ILLINOIS UNIVERSITY GOVERNING

SOUTHERN ILLINOIS UNIVERSITY,

EDWARDSVILLE, Petitioner,

BY:

MOHAN, ALEWELT, PRILLAMAN & ADAMI

Its attorneys,

BY:

_________

Joel A. Benoit

MORAN, ALEWELT, PPJLLAMAN & ADAMI

1 N.

Old Capitol Plaza, Suite 325

Springfield,

IL 62701

Telephone: (217) 528-2517

Facsimile:

(217) 528-2553

\\JoeI\joel\mapa\Siue\SIUE Motion for Summaiy Judgment 042305.wpd/crk

4/25/05

3:39 pm