RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
JUN
16
2005
BOARD OF TRUSTEES OF
SOUTHERN
)
ILLINOIS UNIVERSITY GOVERNING
)
S
Pollution Control Board
SOUTHERN ILLINOIS UNIVERSITY
)
EDWARDSVILLE,
)
)
Petitioner,
)
)
v.
)
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 June
14, 2005, I filed with the Office ofthe Clerk of
the Pollution Control Board an original and nine copies ofPetitioner SIUE’.s Reply to IEPA’ s
Response Memorandumby U.S. Mail.
The undersigned hereby certifies that a true and
correct copy ofthis Notice of Filing,
together with a copy ofthe document described above, were today served upon the hearing
officer and counsel of record ofall 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
14th
day ofJune, 2005.
•
~7c,~PORe
/
Joel A. Benoit
•
MOHAN, ALEWELT, PRILLAMAN & ADAMI
1
North Old Capitol Plaza, Suite 325
Springfield, IL 62701-1323
Telephone:
(217) 528-2517
Facsimile:
(217) 528-2553
THIS FILINGSUBMITTEDONRECYCLED PAPER
C:\Mapa\SIUE\Notice of Filing 06 1405.wpdlcrk 6/14/05 4:38 pm
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
BOARD OF
TRUSTEES OF
SOUTHERN
)
JUN
162005
ILLINOIS UNIVERSITY GOVERNING
)
SOUTHERN ILLINOIS UNIVERSITY
)
PoH~t~~~d
EDWARDSVILLE,
)
)
•
Petitioner,
)
•
)
v.
)
PCB No. 02-105
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITIONER SIUE’S REPLY
TO IEPA’S
RESPONSE MEMORANDUM
NOW COMES Petitioner, Board ofTrustees of Southern Illinois
University Governing
Southern Illinois University, by and through its attorneys, Mohan, Alewelt, Prillaman & Adami,
and respectfully submits this Reply to IEPA’s Response Memorandum.
I.
NOT
EVERY GENERAL USE
WATER OF THE STATE
MUSTMEETALL
GENERAL
USE STANDARDS OF SUBPART
B OF PART 302
•
A significant portion ofIEPA’s Response is devoted to the IEPA arguing, without
citation
to
legal authority, that all general use waters must meet the general use standards of
Subpart B ofPart 302.
After arguing that such an iron clad rule exists, the IEPA’s Response
admits to
an exception to
the rule:
“The Agency agrees the language of Section
302.205 clearly
limits the applicability ofthis Section to lakes and reservoirs.”
(IEPA Response, p.
8).
Another exception to the IEPA’s iron clad rule is Section 302.211(j), which applies only
to artificial cooling lakes.
Section
302.211(j) is also found in
Subpart B of Part 302.
The IEPA
recognized this exception when it informed SIUE that Section 302.211(j)
is inapplicable to
Tower Lake.
(Record, p.
47).
Thus, the parties are in
agreement that not all general use waters must meet all ofthe
general use standards of Subpart B
of Part 302.
The issues before the Board are:
(a) whether
Section 302.211(e), which refers to “water temperature at representative
locations in the main
river”, applies to Tower Lake? and (b) if Section 302.211(e) is
found to apply to
Tower Lake,
whether SIUE must monitor for compliance at the discharge point?
II.
SECTION 302.211(e) IS INAPPLICABLE TO
LAKES
Nothing in the IEPA’s
Response supports a Board finding that Section 302.2 11(e) applies
to Tower Lake.
Without identifying the reference, the IEPA’s Response states:
“There is no
discussion in the Board’s adopting opinion for Section 302.211
that sugjests that the Board
intended to limit the applicability of this section to rivers only.”
(IEPA Response, p.
8).
The
Board’s focus on rivers is evident throughout the several opinions referenced in SIUE’s Motion
for Summary Judgment relevant to the adoption of Section 302.211.
The IEPA’ s Response states, without explanation, that giving Section 302.211(e) its plain
meaning would be “absurd”.
(IEPA Response, p.
8).
With all due respect to the IEPA, what is
“absurd” is the IEPA’s attempt to apply a rule applicable to rivers to Tower Lake.
Tellingly, the
IEPA never explains how SIIJE
is to
find the “main river temperature”, defined by Section
302.204 as “...temperatures ofthose portions ofa river essentially similar to and following the
same thermal regime as the temperatures ofthe main flow ofthe river”, in Tower Lake.
The IEPA’s Response states that a determination that Section 302.211(e) does not apply
to Tower Lake is not supported by the Board’s opinion concerning the adoption of the
regulations governing artificial cooling lakes.
(IEPA Response, p.
8).
The opinion cited,
however,
states that “...the coverage ofthis regulation is narrow; it applies only to the thermal
effluents from steam-electric generating plants.”
In the Matter ofWater Quality
and Effluent
2
Standards. Amendments. CoOling Lakes, PCB No. R75-2,
1995
Ill. ENV LEXIS 475
at *49
(Sept. 29,
1975).
The Board was focusing on
a specific problem:
the huge amounts ofhot water
discharged by steam-electric generating plants into artificial cooling lakes.
Thus, while the
opinion does not provide direct support to
SIUE’s position, neither does it undermine SIUE’s
position.
The IEPA’s Response claims that “under
SILIE’s incongruous reading of Section
302.211(e), Illinois will not have a water quality standard for thermal discharge into lakes.”
(IEPA Response, p.
8).
This is false.
Sections 302.211(a), (b), (c), (d), (f), (g), (h), and (i) apply
to SIUE’s discharge into Tower Lake.
Further, even if, as the IEPA asserts, the IEPA has been
consistently applying Section 302.2 11(e) to lakes, this is a “fact” not in the record and should not
be considered by the Board.
Even if this “fact” were in the record, it is irrelevant.
Simply
because the IEPA has been mis-applying a regulation does not mean the IEPA should be allowed
to continue to do so.
~
People v. Agpro, 214 Ill.2d 222 (2005) (Although prosecutors had
obtained mandatory injunctions for years pursuant to 415 ILCS
5/42(e),
Section 42(e) did not
support the granting ofsuch relief until it was recently amended).
The IEPA’s Response argues that “if
Section 302.211
standards are applicable to
artificial cooling
lakes, how could SIUE argue that the Board did not intend these standards to
apply to Tower Lake, a water of the State.”
(IEPA Response, p.
10).
Section 302.21 1(j),
however, states that “all
effluents to an artificial cooling lake must comply with the applicable
provisions ofthe thermal water quality standards set forth in
this
Section and 35
Ill. Adm. Code
303, except when all ofthe following requirements are met
“
35
Ill. Admin. Code
302.21 1(j)(emphasis added).
Thus, by regulating the temperature of the effluent, the rule
applicable to artificial cooling lakes is more stringent than Section 302.211(e) unless
the listed
3
exceptions are met and the discharger obtains its own thermal standards.
This makes sense given
the huge amounts ofheated water generated by electric plants.
Accordingly, based on the undisputed facts and the applicable law, SIIJE prays that the
Board find that SIUE’s discharge to Tower Lake is not subject to
Section
302.211(e).
III.
TEMPERATURE MONITORING FOR COMPLIANCE WITH SECTION
302.2 11(e) IS TO
OCCUR AT REPRESENTATIVE LOCATIONS IN THE
MAIN
RIVER
Both Section 302.211(e) and Section 302.104 (“Main river temperatures are temperatures
ofthose portions ofa river essentially similar to and following the same thermal regime as the
temperatures of the main flow ofthe river.”), along with the case lawcited in SIUE’s Motion for
Summary Judgment, conclusively establish that monitoring for compliance with Section
302.211(e) is to occur at representative locations
in the main river.
In its Response, the IEPA
never addresses the plain language used by the Board to identify the monitoring point.
Further,
the IEPA argues that the regulatory history leading up to the codification ofSection 302.211(e),
and which history confirms that monitoring is not to occur at the discharge point, is
irrelevant.
(IEPA Response, p.
13).
By ignoring the plain language chosen by the Board and the Board’s
opinions leading up to the codification of Section 302.211(e), the JEPA has, in reality,
conceded
the point.
Undeterred, the IEPA argues that there are only two possible monitoring points:
(a) the
discharge point; or (b)the edge of a mixing zone.
(IEPA Response, pp.,
11-12).
The IEPA
argues that no mixing zone was granted to SIUE, so SIUE must monitor at the discharge point.
Whether or notthis
is the general rule, and whether or not Section 302.2 11(e) itself includes a
mixing zone
(~
SIUF’s Reply to
IEPA’s Motion for Summary Judgment, p. 2), IEPA’s general
rule is inapplicable to Section 302.211(e) which contains an explicit directive regarding where
•
4
water monitoring must occur.
The IEPA’s insistence ofmonitoring for compliance with Section
302.2 11(e) at the discharge is inconsistent with
Section 302.21 1(e)’s purpose because it provides
no information concerning main river temperatures—the concern ofSection 302.211(e).
(~
SIUE’s Motion for Sunmiary Judgment, p.
15).
The IEPA’s
Response repeatedly recognizes that the JEPA must apply Board regulations
as written.
(IEPA Response, pp.
12-14).
Thatis
all SIUE is
asking here.
SIUE’s burden is to
show that monitoring for compliance with Section 302.211(e)
at the discharge point is
inconsistent with Section 302.211(e).
Based on the undisputed facts and applicable
law, SIUE
has carried its burden.
Accordingly, if the Board determines that Section
302.211(e) is
applicable to discharges into Tower Lake, summary judgment should be granted in SIUE’s favor
as to where monitoring for compliance with
Section 302.211(e) is to
occur.
IV.
“FACTS” NOT INCLUDED IN
THE
RECORD
SHOULD BE
STRICKEN FROM
IEPA’S RESPONSE
The IEPA’s motion and memorandum contained several statements of“fact” that are not
included in the record.
The IEPA’s Response suffers from the same defect, and SIUE requests
that the following “facts” found in the Response similarly be stricken from the Response:
pg.
2
“Clearly, SIUE knows the ways to
reduce the total
heat input to Tower Lake, and
therefore, has the capability to meet the temperature limiits as specified in the
permit.”
pg.
9
“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 discharger was
unable to meet these standards, they requested regulatory relief from the Board.”
5
pg.
10
“The Board had many opportunities to define the applicability of Section
302.211(e) to lakes.
Ifthe Board had intended Section 302.211(e) not to apply to
lakes, the Board would have stated so in these cases.”
p.10
“....it also
receives a discharge from SIUE’s sewage treatment plant.”
p.12
“The Agency’s decision to not assign a mixing zone is based on the determination
that SlOE failed to meet the requirements of the mixing zone regulations at 35 Ill.
Adm. Code 302.102.”
Accordingly, SIUE requests that the Board not consider these unsupported statements of
“fact” and that the Board strike them from the IEPA’s Response.
V.
CONCLUSION
Wherefore, Petitioner, Board of Trustees of Southern Illinois University Governing
Southern Illinois University, prays that the Board strike
all statements of“fact” offered by the
IEPA which are not supported by the record.
Additionally,
Petitioner prays that the Board grant
Petitioner’s Motion for Summary Judgment and strike all requirements that Petitioner comply
with Section 302.211(e) from the NPDES permit or, alternatively, and only if the Board
determines that Section 302.2 11(e) is applicable to Petitioner’s discharge, strike that portion of
the NPDES permit requiring SlOE to monitor for compliance with Section
302.211(e) at a point
6
representative ofthe discharge but prior to entry into Tower Lake and direct the IEPA to modify
the permit so that Petitioner 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:
£2 i8a~
Joel A. Benoit
MOHAN,
ALEWELT, PRILLAMAN &
ADAMI
1
N.
Old capitol Plaza, Suite 325
Springfield, IL
62701
Telephone: (217) 528-2517
Facsimile:
(217) 528-2553
C:\Mapa\SIUE\Notice ofFiling 061405.wpd/crk
6/14/05
4:41 pm
7
