BOARD OF TRUSTEES OF SOUTHERN
ILLINOIS UNIVERSITY GOVERNiNG
SOUTHERN ILLiNOIS UNIVERSITY,
EDWARDS VILLE
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
PCB 02-105
(NPDES Permit Appeal)
CL.ERK’S OFFICE
MAY 1,? 2005
STATE OF ILLINOIS
Pollutto,-, Control Board
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
Bearing Officer
Illinois Pollution Control Board
1021 N. Grand Ave. East
P.O. Box 19274
Springfield, IL 6~794-9274
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 RESPONSE
TO
SOUTHERN ILLINOIS UNIVERSITY
AT
EDWARDSVILLE’S MOTION
FOR
SUMMARY
JUDGMENT of the Illinois Environmental Protection Agency, a copy of which is herewith served
upon you.
ILLINOIS ~
AGENCY
Sanjay K. Sofat, Assistant Counsel
Division of Legal Counsel
Dated: May 16, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
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)
)
)
)
)
)
)
)
)
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THIS FILING PRINTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
MAY
1?
OFFICE
2005
BOARD OF TRUSTEES OF SOUTHERN
)
PoUt
ILLINOIS UNIVERSITY GOVERNiNG
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SOUTHERN ILLINOIS UNIVERSITY,
)
EDWARDSVILLE
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Petitioner,
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v.
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PCB02-105
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
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Respondent.
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AGENCY’S RESPONSE TO SIUE’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
Ill. Adm. Code 101.516,
hereby submits this Agency’s Response to the Southern Illinois University at
Edwardsville’s (“SILJE” or “Petitioner”) Motion For Summary Judgment to the Illinois
Pollution Control Board (“Illinois PCB” or “Board”). The Illinois EPA respectfully
requests the Board to GRANT the Agency’s Motion For Summary Judgment, and
DISMISS
the SIUE’s petition filed on May 6, 2002. The Agency provides the following
arguments in support of its request:
1
AGENCY DISPUTES SIUE’S STATED FACTS
Though the Agency disputes some ofthe facts stated by SIUE, it does not
consider them to be ofmaterial nature, and thus not pertinent to the resolution of this
motion. However, some ofthe facts stated by STTJE in its Motion For Summary
Judgment (hereinafter “SIUE Mot”) are not founded in the Record. Citing to page 6 of
the Record, SIUE states that, “the temperature of the water drawn from Tower Lake for
cooling purposes varies widely.”
SIUE Mot at 3.
The Record doesn’t contain any such
statement at page 6. The Agency requests the Board to consider the above stated quote as
SIUE’s conclusion rather than an undisputed fact stated in the Record.
Next, SIUE states that, “Tower Lake’s surface typically reaches its maximum
temperature in August, and it does not appreciably cool until November.”
SIUE Mot at 3.
The stated fact is partially correct. This phenomenon only occurs if the lake warms up in
August ofthat year. The actual statement on page 44 ofthe Record is, “while the lake
will be well under the temperature limits forApril through July, if the lake warms in
August it will not appreciablycool until November.”
SIUE claims that, “improvements to plant since SIUE submitted its permit
application are expected to reduce the total heat input to Tower Lake by fifty percent,
(Record, p.43), but even with these plant improvements, there is no assurance SIUB can
meet that portion ofSpecial Condition 2.B. ofthe NPDES permit derived from Section
302.211(e) if SIIJE is required to monitor for compliance with Section 302.211(e) ofthe
point of discharge.”
SIUE Mot at
4. This is not an undisputed fact; rather, it is SIUB’s
claim based on diminutive evidence. There is no engineering or scientific evidence
presented by SIUIE in the Record to support its claim. The Agency is not aware of any
2
reason why afterreducing that total heat input to Tower Lake by fifty percent, SIUB
would not be able to meet the thermal permit limits at the end ofthe discharge pipe. The
Agency issued this permit to SIUE in January 2002, therefore, SIIJE had more than three
years to work on its claim ofreducing the total heat input to Tower Lake by fiftypercent.
Has SIIJE achieved this objective? if so, SIUB should be barred from seeking any mixing
zone or a regulatory relief from the Board. Clearly, SIUE knows the ways to reduce the
total heat input to Tower Lake, and therefore, has the capability to meet the temperature
limits as specified in the permit. As the permit limits are in accordancewith the Board
regulations, SIUE’s petition must be dismissed.
-
The Agency believes that the material facts for this motion are that Tower Lake is
water ofthe State, and that SlOE is discharging heat as pollutant from a point source into
Tower Lake.
BURDEN OF PROOF
Section 39 ofthe Illinois Environmental Protection Act (“Act”) provides the
directive for the issuance ofthis permit. Section 39(a) states in part:
When the Board has by regulation required a permit for the construction,
installation, or operation of any type of facility
...
the applicant shall apply
to the Agency for suchpermit and it shall be the duty ofthe Agency to
issue such a permit upon proofby the applicant that that facility
...
~yffl
not cause a violation ofthis Act or ofregulations hereunder. 415 ILCS
5/39(a)
(2004)
(emphasis added).
The Act also states that when grantingpermits, the Agency, “may impose such
conditions as maybe necessary to accomplish the purposes ofthis Act, and as are not
inconsistent with the regulations promulgated by the Board hereunder.” 415 ILCS
3
5/39(a) (2004). Thus, when appealing conditions imposed in a permit, the petitioner must
prove that the conditions in the Agency issued permit are not necessary to accomplish the
purposes of the Act and Board regulations; and therefore, must be deleted from the
permit.
Noveon v. Illinois EPA,
PCB 9 1-17, September 16, 2004, citing
City ofRock
Island v. IEPA,
PCB 00-73, slip op. at 2 (July 13, 2000);
Browniizg-Ferris,
179 Ill. App.
3d 598;
Jersey Sanitation Corp v. IEPA,
PCB 00-82 (June 21, 2001);
aff’dIEPA v. Jersey
Sanitation Corp and PCB,
336 Iii. App. 3d 582, 784 N.E.2d 867
(4th
Dist. 2003).
To prevail on its claim, SITJE must prove that the temperature conditions in its
NPDES permit are not necessary to accomplish the purposes ofthe Act and Board
regulations.
STANDARD OF REVIEW
The Board has consistently held that the appropriate standard ofreview in a
permit appeal proceeding is limiting the Board’s review to the record before the Agency
when it made the decision. 415 ILCS 5/40(e) (2004). 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 of law.
Dowd & Dowd, Ltd. v. Gleason,
181 Ill.2d 460, 483, 693 N.E.2d 358, 370
(1998). For the purposes ofthe motions pending before the Board, therefore, the Board
must construe the pleadings, depositions, and affidavits strictly against the petitioner on
its motion for summary judgment.
Roger Stone v. Illinois EPA and Naperville Park.
District,
PCB 01-68 (January 18, 2001).
4
ARGUMENTS
SIUE makes two arguments in its motion for summary judgment. First, the
language in Section 302.211(e) is specific to rivers. Therefore, the temperature standard
contained in Section 302.211(d) does not apply to Tower Lake. Second, Section
302.211(e) requires the point ofmonitoring for compliance to be in the river itself, and
not at the point of discharge.
SIUB’s arguments are not a reasonable interpretation ofthe Board regulations,
and fail to establish that the Section 302.211(e) conditions in its NPDES permit are not
necessary to accomplish the purposes ofthe Act and Board regulations.
Noveon v.
Illinois EPA,
PCB
9
1-17. Further, as there are no genuine issues of material fact, and the
Agencyis entitled to judgment as a matter oflaw, the Agency requests the Board
GRANT the Agency’s motion for summary judgment. To support its claim, the Agency
provides the following arguments:
I. SECTION 302.211(e) OF THE BOARD REGULATIONS APPLIES TO TOWER LAKE
Rules and regulations promulgated by the Board have the force and effect oflaw,
are presumed to be valid....
Granite City Division ofNational Steel Co. v. Illinois
Pollution Control Board, 155
Ill.2d 149, 162, 184 Ill.Dec. 402, 613 N.E.2d 719, 724
(1993).
.
SIIJE argues that Section 302.211(e) is not a general use water quality standard
applicable to all waters ofthe State.
SIUEMot at 6.
In support ofits argument, SlOE
argues that, “Section 302.211(e) is specifically directed toward rivers.”
Id.
Further,
SlOE states that, Section 302.211(e) is inapplicable to all other waters of the State per the
5
exclusionary language ofSection 303.201, which provides, “Except as otherwise
specifically provided, all waters ofthe State must meet the general use standards of
Subpart B ofPart 302.”
Id.
SIUE’s argument shows a fundamental misunderstanding of the applicability of
the Board regulations. The purpose of the Board regulations is “fo protect the water
quality standards required to sustain the designated uses to establish effluent standards to
limit the contaminants discharged to the waters and to prescribe additional regulations
necessary to implementing, achieving and maintaining the prescribed water quality.” 35
Ill. Adm. Code 301.102
(emphasis added).
“Designated uses”, are the uses that are
identified by the Board in Part 302 and Part 303 ofits regulations. Designate use is a
term of art.
In Part 303, the Board provides an outline ofvarious designated uses assigned to
the waters ofthe State. The Board divides the Part 303 into four subparts. Subpart A
provides the general provisions. In this subpart, the Board under Scope and Applicability
section states that “Part 303 contains water use designations which determine for a given
body ofwater which set ofPart 302 water quality standards applies.” 35 Ill. Adm. Code.
303.100.
Therefore, the first step ofthe analysis is to determine the water use designation~
for a given waterbody. To help determine the water use designation, Part 303 ofthe
Board regulations divides the waters ofthe State into Nonspecific water use designations,
under Subpart B, and Specific use designation under Subpart C. Subpart B lists General
use waters; Public and Food Processing water supplies; Underground waters; and
Secondary Contact and Indigenous Aquatic Life waters as nonspecific water use
6
designations. 35 Ill. Adm. Code Subpart B, Part 303. Subpart C lists all specific
designated uses applicable to the waters ofthe State. Subpart C also contains some site-
specific water quality standards. 35 Ill. Adm. Code Subpart C, Part 303. Subpart D
contains site specific water quality based thermal discharge standards. 35 Ill. Adm. Code
Subpart D, Part 303.
In determiningwhich water quality standards apply for a given water body, the
first step is to determine whether the waterbody falls under Subpart B, C, or D ofPart
303. Ifthe given water body is a general use water, then pursuant to Section 303.201, the
waterbody must meet the general use standards ofSubpart B ofPart 302. 35 Ill. Adrn.
Code 303.201. Unlike what SIUB claims, the exclusionary language of Section 303.201
refers to Section~303.202, 303.203 and 303.204, and Subpart C of Part 303. ofthe Board
regulations. Subpart B together with the specific designations ofSubpart C determine
which set ofwater quality standards ofPart 302 apply to a given body ofwater.
Tower Lake does not have a specific designation nor does it have any site-specific
standard under Subpart C ofPart 303. Therefore, Subpart B of Part 303 determines the
applicable designation. Since Tower Lake neither falls under Public and Food Processing
Water Supplies designation nor under Secondary Contact and Indigenous Aquatic life
designation, it must be the general use waters of the State. Whichmeans, Tower Lake
must meet the general use standards ofSubpart B ofPart 302. Stated differently, Section
302.211(e) applies to Tower Lake. The general use designation is the default designation
for all waters ofthe State. Tower Lake falls into this default designation.
SlOE contends that use ofterm “rivers” in Section 302.2 11(e) means that this
section does not apply to all waters ofthe State.
SIUEMot at 6.
Section 302.201
7
mandates that, “Subpart B contains general use water quality standards which must be
met in waters of the State for which there is no specific designation.” 35 Ill. Adm. Code
302.201. Again, the phrase “specific designation” refers to specific designations
provided under Subpart C ofPart 303, and does not refer to some isolated use ofthe word
“rivers” in the rule language.
The Agency is not arguing that the Board does not have the authority to adopt
water quality standards based on the type of the waterbody. SIUB’s argument is based on
semantics and lacks any support in the Board’s adopting opinion for Section 302.211.
The Agency agrees the language ofSection 302.205 clearly limits the applicability ofthis
Section to lakes and reservoirs.
See
In the Matter ofWater Quality Standards revisions,
R71-14 (December 21, 1971). There is no discussion in the Board’s adopting opinion for
Section 302.2 11 that suggests that the Board intended to limit the applicability ofthis
section to rivers only. Concluding that Section 302.211(e) only applies to rivers is an
absurd reading of the regulations and must be rejected. The Board “has the power to
construe its ownsules and regulations to avoid absurd or unfair results.”
Village ofFox
River Grove v. Pollution Control Board, 299
Ill. App. 3d 869, 880, 234 Ill. Dec. 316, 702
N.E.2d 656, 664 (1998).
Further, SIUE’s interpretation ofSection 302.211(e) is not supported by the
discussion in the Board’s adopting opinion in R75-2.
In the Matter of Water Quality and
Effluent Standards Amendments, Cooling Lakes,
R75-2 (September 29, 1975). The R75-
2 rulemaking was proposed by the Commonwealth Edison Company, seeking revision of
the Board’s thermal standards as applied to artificial cooling lakes, associated with
steam-electric generating plants. Specifically, Commonwealth Edison argued that the
8
application of water quality standards in Rule 203(i) to artificial cooling lakes is
unnecessary for the protection ofthe environment. Id. at 5. It should be noted that Rule
203(i) was codified as 35 Ill. Adm. Code 302.211(e), August 1, 1982. Commonwealth
Edison further argued that because the thermal conditions are unnecessary, it is not
economically reasonable to apply them to artificial cooling lakes.
-
As regulatory
amendment, Commonwealth Edison offered the following amendment, “the preceding
temperature provisions shall not apply to discharges into an artificial cooling lake.” Id. at
5.
The Board rejected the Commonwealth Edison’s request to exempt cooling lakes from
thermal standards. Instead, the Board adopted a case-by case approach to the situation.
The Board concluded that, “the record indicates that there is no question that excessive
thermal inputs can be damaging to the aquatic environment ofan artificial cooling lake.
Each artificial cooling must be judged on its own merits. No individual factor can justify
the complete de-regulation ofthese lakes, and no individual factor, (such as recreational
use), can by itselfprovide the test ofacceptability for an artificial cooling lake.” Id at 25
(emphasis added).
The above discussion clearly shows that the Board intended the
Section 302.211(e) requirements to apply to lakes.
Under SlOE’s incongruous reading of Section 302.211(e), Illinois will not have a
water quality standard forthermal discharge into lakes. The Agency has been
consistently applying Section 302.211(e) to both lakes and streams. The Agency has
been applying this thermal standard in the permits issued to cooling lakes across the
State. In some cases, where the dischargerwas unable to meet these standards, they.
requested regulatory relief from the Board. One such example is
Illinois Power
Company(Clinton Power Station),
PCB 92-142 (August 26, 1993), involved a petition for
9
hearing to determine specific thermal standards pursuant to 35 Ill. Adm. Code 302.211(j).
The Board’s opinion specifically states that, “Section 302.2 11 sets for the standards for
temperature levels in artificial cooling lakes.”
Id.
at 3. IfSection 302.211 standards are
applicable to artificial cooling lakes, how could SlOE argue that the Board did not intend
these standards to apply to Tower Lake, a water ofthe State. Th~Board had many
opportunities to define the applicability of Section 302.211(e) to lakes. Ifthe Board had
intended Section 302.2 11(e) not to apply to lakes, the Board would have stated so in
these cases. The Board’s intent that Section 302.211 applies to lakes is clear from the
Board’s opinion in
Commonwealth Edison v. EPA.
Tower Lake is a general use waterbody. Along with the thermal discharge, it also
receives a discharge from SlOE’s sewage treatment plant. It is irrational to argue that the
Board did not intend Section 302.211(e) to apply to a waterbody like Tower Lake when
the Board’s adopting opinion in R75-2 expressly rejected the Commonwealth Edison’s
request to exempt artificial cooling lakes from Section 302.211(e) thermal standard.
Instead the Board adopted a case-by-case approach to address thermal discharges. In that
rulemaking, the Board provided for an individual regulatory proceeding to set specific
thermal standards applicable to an individual cooling lake.
Id.
at 26.
-
In sum, Section 302.211 applies to all waters ofthe State unless the Board has set
specific thermal standard applicable to that waterbody through a regulatory proceeding.
II. REQUIRiNG SlOE TO MEET SECTION 302.211(e) THERMAL STANDARD AT
THE END OF DISCHARGE PIPE IS CONSISTENT WITH THE ACT AND THE
.
BOARD REGULATIONS
•10
.
SlOE contends that it should not be required to comply with the NPDES permit’s
requirements at a point representative ofdischarge.
SIUE Mot at 8.
SlOE believes that
Section 302.104 language clearly provides that temperature is not to be monitored at the
discharge point.
Id.
at 8. SlOE misses the real issue. The real issue here is whether the
Agency’s inclusion ofa monitoring requirement is consistent with the requirements ofthe
Act and Board regulations. To prevail on this issue, SIUE must prove that requiring the
thermal standard be met at the discharge point is not necessary to accomplish the
purposes ofthe Act and Board regulations.
The Board regulations provide the Agency with the authority to establish
reporting and monitoring requirements.
See
35 Ill. Adm. Code 309.146. In establishing
the terms and conditions ofan NPDES permit, the Board regulations require the Agency
to apply and ensure compliance with “any more stringent limitation, including those
necessary to meet water quality standards
...
established pursuant to any Illinois statute
or regulations.”
See
35 Ill. Adm. Code 309.141(d)(1). Under Section 309.142, in
establishing permit terms and conditions, the Agency must determine and verify that the
discharge authorized by the permit “will not violate applicable water quality
standards....”
See
35 Ill. Adm. Code 309.142
(emphasis added).
Here, the Agency issued an NPDES permit that requires SlOE to meet the Section
302.2 11(e) limits at the dischargepoint. This was necessary to ensure compliance with
the Section 309.142 requirement that “the authorized discharge will not violate applicable
water quality standards.” In other words, the permit conditions must be such that the
discharge will not cause violation of applicable water quality standards. This can only be
established by either requiring the permittee to meet the standard at the discharge point or
11
in the receiving stream if mixing zone is granted. As no mixing zone is assigned to
SlOE’s discharge, SlOE must meet the applicable standards at the discharge point. The
Agency’s decision to not assign a mixing zone is based on the determination that SILJB
failed to meet the requirements ofthe mixing zone regulations at 35 Ill. Adm. Code
302.102. In making its permit decisions, the Agency is required to apply the Board
regulations as written, and does not have the authority. to negotiate the applicability of
regulations on a permit-by-permit basis.
The Agency is without any authority to impose permit conditions inconsistent
with the applicable Board regulations. Only the Board has the authority to grant
variances from standards, limitations, and requirements imposed by the NPDES permits
upon a showing that compliance would impoSe an arbitrary and unreasonable hardship on
the applicant or permittee. Only upon the Board’s order, the Agency has the authority to
issue ormodify an NPDES permit consistent with the Board Order, the Clean Water Act,
Federal NPDES regulations and the Act. See 35 Ill. Adm. Code 309.184.
In support ofits argument, SlOE cites to the Board’s adopting opinion on thermal
regulations for Lake Michigan.
In the Matter ofThermal Standards, Lake Michigan,
PCB R70-2, 1971.
SIUEMot at 9-10.
SlOE contends that the Board’s regulatiOns
require compliance outside a mixing zone, and not the discharge point. SlOE’s
argument, in fact, strengthens the Agency’s contention. The Agency is required to issue
permits consistent with the applicable Board regulations. Section 302.507 language
specifically directs that “aJll sources ofheated effluents
~..
shall meet the following
restrictions outside a mixing zone which shall be no greater than a circle with a radius of
1000 feet
“
35 Ill Adm Code 302 507 As the Board regulation specifically directs
12
that all dischargers are to meet applicable standard outside a specified mixing zone, the
Agency must issue a permit that requires heated effluent source to meet the applicable
standard outside the mixing zone. For permits covered under the Section 302.507
requirement, the Agency does not have the authority to include a permit condition that
requires compliance at the discharge point. However, if the Board regulation does not
specify a mixing zone, compliance is required at the discharge point, absence any mixing
zone assigned to the discharge or any specific regulatory relief. Section 302.211(e)
language gives the Agency no such directive. As Section 302.211(e) does not specify
any mixing zone, and the Agency has determined that a mixing zone is not appropriate in
the case, then the Agency must issue an NPDES permit that requires the discharger to
meet the applicable standards at the end ofpipe to ensure that the authorized discharge
will not violate thermal standards.
SIUE then cites to the regulatory history leading up to the codification ofSection
302.211(e). The discussion is irrelevant here as the issue here is whether the Agency
followed the mandates ofthe Act and Board regulations in issuing this permit. The
proper review is whether the Agency has the authority to issue NPDES permits with
water quality based effluent limits. Above discussion makes it clear that the Agencyhas
the duty to ensure that the permitted discharge will not violate applicable standards.
Therefore, where such circumstances exist, the Agency may incorporate water quality
based effluent limits.
SlOE next argues that “under the terms ofthe NPDES permit as issued, if SlOE
discharged one gallon of 94 degrees Fahrenheit water into Tower Lake in August when
Tower Lake’s natural temperature and main river temperature were both 89 degrees
13
Fahrenheit, the
5
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 ofTower Lake would occur.”
SIUEMot at 18.
SlOE again provide an absurd reading ofthe regulations. The general principle is that the
Board regulations are construed and applied to avoid absurd and unfair results.
See
Village ofFox River Grove v. Pollution Control Board,
299 Ill. App. 3d 869, 880, 234 Ill.
Dec. 316, 702 N.E. 2d 656, 664 (1998). Another general principle embedded in the Act
is that the Agency is required to apply the Board regulations as written, and does not have
the authority to negotiate the applicability ofregulations on a permit-by-permit basis.
Here, we are not dealing with a case where application ofSection 302.211(e)
requirements will result in absurd or unfair result. SlOE’s discharge is ofsubstantial
nature. Outfall 1 of the SlOE’s discharge has an average flow of 15 MGD, and a
maximum flow of 19.5 MGD.
Agency Record at 13.
In further support to its position, SlOE then cites to several Board cases to point
out that Section 302 211(e) temperature standard applies in streams The fundamental
flaw with SlOE’s reasoning is that these cases are regulatory relief cases. In regulatory
relief cases the permittee sought specific relief from application of the applicable
-
regulations. The instant case involves an appeal ofthe application ofSection 302.211(e)
in the permit context. Regulatory cases presume the general applicability ofthe
regulation. Permit appeals challenge the conditions based upon application of the
regulation. The standard ofreview for SlOE in the permit appeal is whether the
condition reasonablyrelates to application ofthe regulation SlOE cases are, therefore,
inapplicable here.
.
14
.
Illinois Power Company(Clinton Power StatiOn),
PCB 92-142 (August 26, 1993),
involved a petition for hearing to determine specific thermal standards pursuant to 35 Ill.
Adm. Code 302.211(j). SIIJE’s reliance on
Illinois Power
to argue that Agency cannot
require it to meet the Section 302.211(e) requirements at the discharge point is misplaced.
Illinois Power
does not involve the Board’s review ofpermit conditions, but rather is a
regulatory relief proceeding under Section 302.211 (j).
Similarly,
Dëére and Company, John DeerFoundry v. IEPA,
PCB 81-163
(October
5,
1982), does not stand for the position that, in no circumstances, the Agency
has the authority to require Section 302.211(e) compliance at the discharge point.
Deere
and Company
involves a variance request from water quality standards for temperature,
and is not a case involving the Board’s review ofpermit conditions.
Central illinois Public Service (Hutsonville Power Station) v. IEPA,
PCB 78-108
(October 19, 1978), also is not a case involving the Board’s review ofthe Agency’s
decision. But involves a proceeding for the Board’s determination pursuant to Rule
203(i)(5).
-
-
-
Just like
Illinois Power, Deere and Company,
and
CIPS,
SlOE can also ask the
Board to grant it specific thermal standard. But the Board, not the Agency, has the
-
authority to grant such relief. SlOE must file a separate petition with the Board to seek
specific thermal standard as the Board does not grant such specific thermal standard relief
as part ofa permit appeal.
In sum, the Agency issued the SlOE’spermit consistent with the mandates of the
Act and Board regulations. As the permit conditions are necessary to accomplish the
15
purposes ofthe Act and Board regulations, the Agency requests the Board to GRANT its
motion for summary judgment.
-~
CONCLUSION
It is evident from the above discussion that SlOE has filedto prove that the permit
conditions, as written, in the permit are not necessary to accomplish the purposes ofthe
Act and Board regulations. As there are no genuine issues ofmaterial fact, therefore, the
Agency is entitled to judgment as a matter oflaw. Further, the Agency’s right is clear and
free from doubt.
For the reasons and arguments provided above, the Agency respectfully requests
that the Board GRANT the Agency’s motion for summary judgment.
-
-
Respectfully~submitte4,
ILLINOISPROTECTIONENVIRONMENTALAGENCY
-
By:________
SanjayK.Sofat
Special Assistant Attorney General
1021 North Grand Avenue East
-
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
16
STATE OF ILLINOIS
COUNTY OF SANGAMON
)
)
)
SS
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached the
AGENCY’S
RESPONSE TO SOUTHERN ILLINOIS UNIVERSITY AT ED
WARDS
VILLE’S
MOTION FOR SUMMARY JUDGMENT
upon the persons 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
MOHAN, ALEWELT, PRJLLAMAN & ADAMI
First ofAmerica Center
1 N. Old Capitol Plaza, Ste. 325
Springfield, IL 62701
Kim L. Kim
Southern Illinois University Edwardsville
Office ofthe General Counsel~
Rendleman Hall, Room 3311
Edwardsville, IL 62026-1019
OFFICIAL SEAL
BRENDA BOEHNER
~ NOTARY PUBLIC, STATE OF ILLINOIS
~:MYCOMMISSION EXPIRES 11-14-2005i:
and mailing it from Springfield, Illinois on May 16, 2005, by U.S. Mail with sufficient
postage affixed.
SUBSCRIB~DAND SWORN BEFORE ME
THIS
I(~,i~’
DAY OF MAY, 2005.
THIS
FILING PRINTED ON RECYCLED PAPER
18
