ILLINOIS POLLUTION CONTROL BOARD

PROCEDURAL HISTORY
1. IT IS SO ORDERED.

November 17, 2005

DES PLAINES RIVER WATERSHED

ALLIANCE, LIVABLE COMMUNITIES

ALLIANCE, PRAIRIE RIVERS

NETWORK, and SIERRA CLUB,

Petitioners,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY and VILLAGE

(Third-Party NPDES Permit Appeal –

Water)

ORDER OF THE BOARD (by J.P. Novak):

On December 2, 2003, the Des Plaines River Watershed Alliance, the Livable

Communities Alliance, Prairie Rivers Network, and the Sierra Club (collectively, petitioners)

filed a petition seeking the Board’s review of an Illinois Environmental Protection Agency

(Agency) determination. The Agency granted a National Pollutant Discharge Elimination

System (NPDES) permit to the Village of New Lenox (Village) for expansion of one of its

sewage treatment plants in Will County.

Today the Board first decides a motion for summary judgment filed by petitioners on

February 4, 2005. For the reasons discussed below, the Board denies the petitioners’ motion for

summary judgment as to each of the three grounds stated: nutrient loadings, offensive conditions

water quality standard, and copper water quality standard. Having done so, the Board also today

decides issues relating to the scope of and schedule for discovery. The Board finds that

respondents have not justified their proposed protracted extensive discovery schedules and

directs the hearing officer to proceed to hearing consistently with this order.

This order first reviews the procedural history of this case before providing the applicable

statutes and standard of review. It then identifies the three issues raised in the motion for

summary judgment and summarizes the parties’ arguments on those issues. Next, the opinion

provides the Board’s analysis of and findings on those issues. The opinion then summarizes the

parties’ positions on the issue of discovery before stating its findings.

PROCEDURAL HISTORY

On December 2, 2003, petitioners filed a petition asking the Board to review an

October 31, 2003 determination of the Agency.

See

415 ILCS 5/40(e) (2004). The Agency

granted an NPDES permit to the Village for its sewage treatment plant located at 301 North

Cedar Road in New Lenox, Will County. In an order dated December 18, 2003, the Board

accepted the petition for hearing, finding that the third-party petitioners fulfilled all requirements

of Section 40(e) of the Environmental Protection Act (Act). 415 ILCS 5/40(e) (2004). On

January 23, 2004, the Village waived its right to a decision until it elects to reinstate the decision

period.

On January 5, 2004, the Agency filed the Record (R.) of its public hearing documents and

permit file documents. On January 26, 2004, the Agency filed a Motion For Leave To Amend

Record

Instanter

, accompanied by its Amended Record. In an order dated March 2, 2004, Board

Hearing Officer Bradley P. Halloran granted the Agency’s motion to file

instanter

and accepted

the amended record. On February 13, 2004, the Agency filed a Motion For Leave To Amend

Record

Instanter

, accompanied by its Amended Record 2. On August 24, 2005, Board Hearing

Officer Bradley P. Halloran granted the Agency’s motion to file

instanter

and accepted the

second amended record.

In the course of a status conference on March 2, 2004, Hearing Officer Halloran directed

the parties to submit proposed discovery schedules by March 11, 2004. On March 11, 2004, the

Illinois Chapter of the Sierra Club and the Prairie Rivers Network filed a submission stating “that

there should be no discovery in this case” under Section 40(e) of the Act and that six weeks

would be an adequate amount of time for any discovery that the Board might allow. Also on

March 11, 2004, the Village submitted its proposed discovery schedule:

60 days for issuance of written discovery and responses to written

discovery.

60 days for review of written discovery responses and issuance of deposition

notices.

60 days for completion of depositions.

60 days for completion of Requests to Admit.

Also on March 11, 2004, the Agency filed a proposed schedule with discovery continuing until

January 10, 2005, and a hearing occurring by March 10, 2005.

After discussion of the proposed discovery schedules at a status conference on April 1,

2004, the hearing officer directed the parties to submit briefs addressing issues including

justification of the proposed discovery schedules. Specifically, the hearing officer directed the

parties to file simultaneous opening briefs by April 21, 2004, and replies by April 30, 2004. On

April 26, 2004, the Board received three filings responding to the hearing officer’s direction: the

Memorandum of the Village of New Lenox on Proposed Discovery Schedule; the Petitioners’

Submission in Response to the Hearing Officer Order of April 1, 2004; and a Brief in Support of

Agency’s Position. On April 30, 2004, the Board received two replies: a Reply of The Village

of New Lenox on Proposed Discovery Schedule and the Petitioners’ Reply to the Submissions of

IEPA and New Lenox Made in Response to the Hearing Officer Order of April 1, 2004. The

Board has taken these pleadings under advisement and will address them in a later section of this

order.

See infra

at 33-40.

On February 4, 2005, petitioners filed a Motion for Summary Judgment (Mot. SJ),

Memorandum in Support of Summary Judgment (Memo. SJ), and Statement of Relevant Facts

from the Agency Record (Statement). On March 1, 2005, the Village filed a Motion for Stay of

Petitioner’s Motion for Summary Judgment. Petitioners’ Response to the New Lenox Motion for

Stay of Petitioners’ Motion for Summary Judgment was filed with the Board on March 3, 2005.

On March 8, 2005, the Village filed a Reply to Petitioners’ Response to Motion for Stay of

Petitioners’ Motion for Summary Judgment, accompanied for a Motion to File Reply

Instanter

In an April 21, 2005 order, the Board first granted the Village’s Motion to File Reply

Instanter

and accepted its reply. The Board then found that a stay of petitioners’ motion for

summary judgment was not appropriate and directed the hearing officer to establish a briefing

schedule regarding that motion. Accordingly, the hearing officer directed that respondents file a

response to the motion by May 25, 2005, and that petitioners file a reply by June 8, 2005.

On May 25, 2005, the Village filed The Village of New Lenox’s Memorandum of Law in

Opposition to Petitioner’s Motion for Summary Judgment (Village Memo.) and Response of

Village of New Lenox to Petitioners’ Statement of Relevant Facts From The Agency Record

(Village Statement). Also on May 25, 2005, the Agency filed Agency’s Response to Petitioners’

Motion for and Memorandum of Law in Support of Summary Judgment (Agency Resp.). On

June 8, 2005, petitioners filed Petitioners’ Reply Memorandum in Support of Summary

Judgment (Pet. Memo.) and Petitioners’ Reply Regarding Relevant Facts in the Agency Record

(Pet. Statement).

FACTUAL BACKGROUND

On June 10, 2002, the Agency received the Village’s application for expansion of its

existing wastewater treatment plant.

See

R. at 424-81. The Village proposes to expand the

plant’s design average flow from 1.54 million gallons per day (MGD) to 2.516 MGD. R. at 1,

354, 430, 460. The proposed expansion would increase the plant’s design maximum flow from

2.82 MGD to 5.103 MGD. R. at 1, 354. “The need for expansion is based on projected growth

in the community and because the plant is operating at 85 percent capacity.” R. at 354. The

population of New Lenox is projected to increase from 17,700 in 2000 to 48,568 in 2024. R. at

6. The Village also operates a second treatment plant that discharges to the Jackson Branch of

Jackson Creek and is constructing a third plant that will discharge to Spring Creek. R. at 354.

The Village’s treatment plant is located at 301 North Cedar Road, New Lenox, Will

County, R. at 1, 425, and was constructed in 1973. R. at 81. The plant discharges into Hickory

Creek, which is classified as a general use stream and which ultimately discharges into the Des

Plaines River. R. at 2. Hickory Creek has a flow of 2.4 cubic feet per second during critical

7Q10 flow and is rated a “C” stream under the Agency’s Biological Stream Characteristics

(BSC) system. R. at 5. Hickory Creek’s segment GG-02 appears on Illinois’ draft 2002 list of

impaired waters under Section 303(d) of the Clean Water Act.

Id.

see

33 U.S.C. § 1313(d).

“The sources associated with the impairment are municipal point sources, combined sewer

overflows, construction, land development, urban run-off/storm sewers, hydrologic/habitat

modification, and flow regulation/modification.” R. at 5. The Illinois Natural History Survey’s

publication

Biologically Significant Illinois Streams

does not include Hickory Creek as a

biologically significant body of water.

. That publication also does not report any endangered

or threatened species supported by Hickory Creek.

. Because the Village’s facility has been

expanded since the most recent facility-related stream survey in 1991, that survey “is not

representative of the stream conditions that exist at this time.” R. at 5, 564.

Beginning January 9, 2003, the Agency provided public notice of the application and

draft permit in the

Frankfort Star

. R. at 616-18. On March 6, 2003, the Agency mailed notices

of an April 24, 2003 public hearing to county and municipal officials, area legislators,

environmental organizations, and interested citizens. R. at 41-45. On March 16, 2003, the

Frankfort Star

published notice of the April 24, 2003 hearing. R. at 628-29. The Agency also

provided notice of the hearing on its Web site. R. at 51-52.

The Agency held the hearing on the permit application on the evening of April 24, 2003,

as indicated in the various forms of notice provided.

See

R. at 61-104 (transcript).

Approximately 25 persons attended the hearing. R. at 58, 354. Petitioners provided public

comments at the hearing. R. at 61-104. Petitioners also submitted written comments to the

Agency. R. at 105-19, 122-308. On October 31, 2003, the Agency approved and the Village’s

application and issued a permit. R. at 339-76.

NPDES REGULATORY PROVISIONS

Section 302.105 (c)(1) of the Board’s water quality rules provides

Except as otherwise provided in subsection (d) of this Section [Activities Not

Subject to a Further Antidegradation Assessment], waters of the State whose

existing quality is better than any of the established standards of this Part must be

maintained in their present high quality, unless the lowering of water quality is

necessary to accommodate important economic or social development. 35 Ill.

Adm. Code 302.105(c)(1).

Section 302.105(c)(2)(B)(iii) of the Board’s water quality rules provides:

The Agency must assess any proposed increase in pollutant loading

that necessitates a new, renewed or modified NPDES permit or any

activity requiring a CWA Section 401 certification to determine

compliance with this Section. The assessment to determine

compliance with this Section must be made on a case-by-case

basis. In making this assessment, the Agency must:

* * *

Assure the following:

The applicable numeric or narrative water quality

standard will not be exceeded as a result of the

proposed activity;

* * *

iii)

All technically and economically reasonable

measures to avoid or minimize the extent of the

proposed increase in pollutant loading have been

incorporated into the proposed activity. 35 Ill.

Adm. Code 302.105(c)(2)(B)(iii).

Section 302.203 of the Board’s water quality rules provides that “[w]aters of the State

shall be free from sludge or bottom deposits, floating debris, visible oil, odor, plant or algal

growth, color or turbidity of other than natural origin. The allowed mixing provisions of Section

302.102 shall not be used to comply with the provisions of this Section. 35 Ill. Adm. Code

302.203.

Section 302.208 of the Board’s water quality rules provides that:

The acute standard (AS) for the chemical constituents listed in subsection

(e) shall not be exceeded at any time except as provided in subsection (d)

[waters where mixing is allowed].

The chronic standard (CS) for the chemical constituents listed in

subsection (e) shall not be exceeded by the arithmetic average of at least

four consecutive samples collected over any period of at least four days,

except as provided in subsection (d) [waters where mixing is allowed].

The samples used to demonstrate attainment or lack of attainment with a

CS must be collected in a manner that assures an average representative of

the sampling period. For the metals that have water quality based

standards dependent upon hardness, the chronic water quality standard

will be calculated according to subsection (e) using the hardness of the

water body at the time the metals sample was collected. To calculate

attainment status of chronic metals standards, the concentration of the

metal in each sample is divided by the calculated water quality standard

for the sample to determine a quotient. The water quality standard is

attained if the mean of the sample quotients is less than or equal to one for

the duration of the averaging period.

* * *

Numeric Water Quality Standards for the Protection of Aquatic Organisms

= microgram per liter,

exp[x]

= base natural logarithms raised to the

x-power,

ln(H)

= natural logarithm of Hardness

(STORET 00900), and

= conversion factor multiplier for

dissolved metals. 35 Ill. Adm. Code

302.208.

Section 304.105 of the Board’s water quality rules provides that:

In addition to the other requirements of this Part, no effluent shall, alone or in

combination with other sources, cause a violation of any applicable water quality

standard. When the Agency finds that a discharge which would comply with

effluent standards contained in this Part would cause or is causing a violation of

water quality standards, the Agency shall take appropriate action under Section 31

[Notice; complaint; hearing] or Section 39 [Issuance of permits; procedures] of

the Act to require the discharge to meet whatever effluent limits are necessary to

ensure compliance with the water quality standards. When such a violation is

caused by the cumulative effect of more than one source, several sources may be

joined in an enforcement or variance proceeding, and measures for necessary

effluent reductions will be determined on the basis of technical feasibility,

economic reasonableness and fairness to all dischargers. 35 Ill. Adm. Code

304.105.

Section 309.141(d)(1) of the Board’s water quality rules provides:

In establishing the terms and conditions of each issued NPDES Permit, the Agency shall apply

and ensure compliance with all of the following, whenever applicable:

* * *

Any more stringent limitation, including those:

necessary to meet water quality standards, treatment standards, or

schedules of compliance, established pursuant to any Illinois

statute or regulation (under authority preserved by Section 510 of

the CWA). 35 Ill. Adm. Code 309.141(d)(1).

Section 122.44(d)(1)(i) of Title 40 of the Code of Federal Regulations provides:

In addition to the conditions established under §122.43(a), each NPDES permit

shall include conditions meeting the following requirements when applicable

* * *

(d) Water quality standards and State requirements

any requirements in addition

to or more stringent than promulgated effluent limitations guidelines or standards

under sections 301, 304, 306, 307, 318 and 405 of CWA necessary to:

(1) Achieve water quality standards established under section 303 of the CWA,

including State narrative criteria for water quality.

(i) Limitations must control all pollutants or pollutant parameters (either

conventional, nonconventional, or toxic pollutants) which the Director determines

are or may be discharged at a level which will cause, have the reasonable

potential to cause, or contribute to an excursion above any State water quality

standard, including State narrative criteria for water quality. 40 C.F.R.

122.44(d)(1)(i).

STANDARD OF DECISION

The Board has previously concluded that “Section 40(e)(3) of the Act unequivocally

places the burden of proof on the petitioner, regardless of whether the petitioner is a permit

applicant or a third-party.”

Prairie Rivers Network v. IEPA and Black Beauty Coal Co., PCB

01-112, slip op. at 8 (Aug. 9, 2001), citing 415 ILCS 5/40(e)(3) (2000). Petitioners thus bear

“the burden of proving that the permit, as issued,

would

violate the Act or Board regulations.”

. (emphasis in original).

Closely related to the issue of the burden of proof is the standard of review. “IEPA’s

decision to issue the permit in this instance must be supportable by substantial evidence. This

does not, however, shift the burden away from the petitioner, who alone bears the burden of

proof in this matter.”

Prairie Rivers Network v. IEPA and Black Beauty Coal Co., PCB 01-112,

slip op. at 9 (Aug. 9, 2001), citing

Waste Management v. IEPA, PCB 84-45, PCB 84-61, PCB

84-68 (consolidated), slip op. at 3-10 (Nov. 26, 1984).

While Section 40(e)(3) provides that “the Board shall hear the petition” according to the

Act and Board procedural rules governing permit denial appeals (415 ILCS 5/40(e)(3) (2004)),

Section 26 of the Act provides that the Board may provide by rule for the resolution of cases by

summary judgment prior to hearing. 415 ILCS 5/26 (2004). Specifically, Section 101.516(b) of

the Board’s procedural rules provides that, “[i]f the record, including pleadings, depositions and

admissions on file, together with any affidavits, shows that there is no genuine issue of material

fact, and that the moving party is entitled to judgment as a matter of law, the Board will enter

summary judgment.” 35 Ill. Adm. Code 101.516(b).

Summary judgment is appropriate “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 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), citing 735 ILCS 5/2-1005(c) (1996).

In ruling on a motion for summary judgment, the Board “must consider the pleadings,

depositions, and affidavits strictly against the movant and in favor of the opposing party.”

Id.

citing

Kolakowski v. Voris, 83 Ill. 2d 388, 398, 47 Ill. Dec. 392, 415 N.E.2d 397 (1980).

“Summary judgment ‘is a drastic means of disposing of litigation,’ and therefore it should

be granted only when the movant’s right to the relief ‘is clear and free from doubt.’”

Id.

, citing

Purtill v. Hess, 111 Ill. 2d 229, 240, 95 Ill. Dec. 305, 489 N.E.2d 867, 871 (1986). However, the

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, 203 Ill. Dec. 435, 639 N.E.2d 994, 999 (2nd Dist. 1994) (citations omitted).

ISSUES

In their motion for summary judgment, petitioners emphasize three specific issues.

Petitioners characterize these as “the three most salient ways in which the permit falls short of

Illinois requirements.” Memo. SJ at 2. First, petitioners argue that they are entitled to summary

judgment because “[t]he Agency did not assure that all technically and economically reasonable

measures were incorporated into the proposed discharge to prevent nutrient loadings to Hickory

Creek” in violation of the Board’s antidegradation water quality standards. Mot. SJ at 6-7;

Memo. SJ at 2;

see also

35 Ill. Adm. Code 302.105(c)(2)(B)(iii). Petitioners argue that the

Agency “did not even seriously consider” phosphorus controls when “phosphorus is known to be

a problem in Hickory Creek”. Memo. SJ at 2.

The petitioners also argue that the permit fails to assure that continued and increased

discharges from the Village’s sewage treatment plant will not cause violations of numeric water

quality standards for pH and dissolved oxygen. Memo. SJ at 2 n.2. Because petitioners believe

that violations of these standards are closely related to nutrient control, they believe that properly

addressing nutrients will also address the issues of protecting existing uses, pH, and dissolved

oxygen.

Second, petitioners argue that they are entitled to summary judgment because “[t]he

Agency did not assure that the applicable narrative ‘offensive conditions’ . . . water quality

standards will not be violated as a result of the proposed discharge to Hickory Creek.” Mot. SJ

at 6-7; Memo. SJ at 3;

see also

35 Ill. Adm. Code 302.203; 35 Ill. Adm. Code 304.105.

Petitioners argue that “it is apparent that the permit does not even pretend to control pollution

that may cause or contribute to violations of the narrative offensive conditions standard.” Memo.

SJ at 2.

Third, petitioners argue that they are entitled to summary judgment because “[t]he

Agency did not assure that the applicable . . . numeric copper water quality standards will not be

violated as a result of the proposed discharge to Hickory Creek.” Mot. SJ at 6-7; Memo. SJ at 3;

see also

35 Ill. Adm. Code 302.208(e).

SUMMARY JUDGEMENT MOTION AND DISCUSSION

On an issue-by-issue basis, the Board will first summarize the arguments made by the

petitioners’ motion for summary judgment before summarizing the Agency’s and Village’s

responses and the petitioners’ reply. The Board will then conclude each section with an analysis

and findings on that issue before reaching its conclusions on the motion for summary judgment

and issuing its order.

NUTRIENT LOADINGS

Petitioners’ Motion

Petitioners argue that the Village’s permit does not comply with the Board’s

antidegradation water quality standards “because IEPA did not assure that the permit

incorporated all reasonable measures to avoid or minimize the extent of the new pollution

loading.” Memo. SJ at 6. Petitioners characterize the language of those standards as “very clear

and plainly mandatory.”

. at 8. “Before granting a permit allowing new pollution loadings, the

reasonable measures to minimize the extent of the pollution

have been incorporated.”

., citing 35 Ill. Adm. Code 105(c)(2)(B)(iii) (emphasis in original).

Petitioners argue that the regulations at least require the Agency to determine reasonable levels

of nutrient removal and then to impose limits based on those levels. Memo. SJ at 9. In this

instance, however, they state that “the record is crystal clear that IEPA did essentially nothing to

determine if New Lenox could reasonably reduce the amount of its phosphorus pollution to

Hickory Creek.” Memo. SJ at 7.

Petitioners describe the policy considerations they view as underlying those

antidegradation regulations. They argue that, long before the Board adopted the current

regulations in 2002, “it was established Illinois policy that the state would not allow unnecessary

pollution even if that new pollution under consideration would not cause a violation of water

quality standards.” Memo. SJ at 9. From petitioners’ perspective, these regulations protect

better quality waters. They suggest that antidegradation regulations reject the position that new

pollution should be permitted up to a level beyond which water quality violations would occur.

Petitioners argue “that the [water quality] standards represent not optimum water quality but the

worst we are prepared to tolerate if economic conditions so require.” Memo. SJ at 9, citing

Water Quality Standards Revisions, R71-14, slip op. at 11 (Mar. 7, 1972).

Petitioners suggest that the Board continued to follow this policy in adopting the current

antidegradation regulations in 2002.

See

35 Ill. Adm. Code 302.105(c). They refer to an Agency

explanation of the current regulations sent shortly after those regulations took effect to design

engineers. In that explanation, the Agency states that “[t]he revised anti-degradation regulations

focus less on the requirements necessary to meet water quality standards . . . and more on what

kind of treatment system can be designed to have the least adverse impact on the receiving

water.” Memo. SJ, Appendix A at 1. Any degradation likely to occur “must be held to the

smallest amount practically achievable and such degradation must be fully justified by the

benefits of the project.”

. Petitioners also note the similarity of the Board’s regulation to the

federal rule allowing a reduction of water quality only where “necessary to accommodate

important economic or social development.” Memo. SJ at 9, citing 40 C.F.R. 131.12(a)(2).

Petitioners suggest that reducing water quality is not “necessary as long as it can practicably be

avoided.”

See

Memo. SJ at 9.

Petitioners argue that the law clearly requires that the Agency “should have carefully

considered the level of nutrient control that New Lenox could technically and economically

provide.” Memo. SJ at 7. Petitioners argue that the Agency, in issuing this permit, violated the

Board’s rules both by failing to obtain information on alternative nutrient controls and by failing

to analyze reasonable measures to avoid or reduce nutrient loadings. Memo. SJ at 10;

see also

35 Ill. Adm. Code 302.105(f)(1)(D); 35 Ill. Adm. Code 302.105(c). Petitioners state that the

Agency was asked repeatedly to consider nutrient limits. They further state that the Agency is

aware of phosphorus reductions to concentrations as low as 1 mg/L obtained by “numerous

Illinois communities.” Memo. SJ at 10 (citing 35. Ill. Adm. Code 304.123).

Petitioners refer to a 1971 publication of the Illinois Natural History Survey naming

Hickory Creek as the “outstanding stream” in the Des Plaines River system but also note that the

Agency in 2002 listed Hickory Creek as “impaired” in its list of impaired waters. Memo. SJ at 3.

Petitioners state that “[i]t is clear that the trend of water quality in Hickory Creek over the last 30

years has been downward.”

. The Agency listed phosphorus as one potential cause and named

municipal point sources as one potential source of that impairment. Memo. SJ at 3-4, citing

Statement at 2 (¶ 5). Petitioners argue that “it is clear that Hickory Creek has high levels of

phosphorus and that the New Lenox sewerage treatment plant discharge is a major source of

phosphorus.” Memo. SJ at 4, citing Statement at 2-4 (¶¶ 9-11).

Petitioners argue that the studies underlying the draft permit did not comply with

antidegradation rules protecting existing uses of Hickory Creek. Memo. SJ at 5, citing 35 Ill.

Adm. Code 302.105(a). Petitioners note that “[t]he most recent facility related stream survey

conducted by the Agency was on June 10, 1991.” Statement at 7 (¶ 16), citing R. at 5.

Petitioners state that that survey no longer represents stream conditions because the facility has

since been expanded.

. Petitioners acknowledge that a contractor for the Village conducted a

biological study in 2002 at the Agency’s request. Statement at 7 (¶ 17). Nonetheless, petitioners

cast doubt on that study by referring to language contained in internal Agency e-mails.

Statement at 7-8 (¶¶ 17-20), citing R. at 537, 556-58, 561, 661-98, 700. Petitioners argue that, in

spite of this language, the Agency relied on the study to conclude that “[p]ollution intolerant

organisms were found both upstream and downstream of the existing discharge.” Statement at 8

(¶ 20), citing R. at 562.

Petitioners note figures showing that the Village’s current plant releases a daily average

of 16.1 kilograms of phosphorus into Hickory Creek. Statement at 3 (¶ 11); citing R. at 303-05

(“Summary of Hickory Creek Water Quality Information by Professors Jenkins and Lemke).

Because current nutrient loads upstream include 22.7 kg total phosphorus, petitioners calculate

that the plant accounts for 41% of the total Hickory Creek phosphorus load.

., citing R. at 304.

Assuming that nutrient levels in plant discharge do not change, petitioners assert that the planned

new discharge will release a daily average of 26.3 kg of phosphorus into Hickory Creek and will

account for 53.7% of total phosphorus load. Statement at 4 (¶ 11), citing R. at 304. Petitioners

emphasize that “the same-sized receiving stream will be bearing . . . 216% of the total

P[hosphorus] levels upstream of the plant.” Statement at 4 (¶ 11), citing R. 304-05.

Petitioners state that “[p]hosphorus concentrations are high in the creek.” Statement at 2

(¶ 9). Relying on a U.S. Geological Survey (USGS) database, they further state that total

phosphorus levels exceeded the Agency’s trigger values in more than 20 percent of samples

between 1992 and 1997. Statement at 3 (¶ 9); citing R. at 67;

see also

R. at 129-59. Petitioners

further cite to data collected by the Village in August 2002 showing instream phosphorus

concentrations between 1.49 and 1.63 milligrams per liter. Statement at 3 (¶ 9); citing R. at 67,

522-29. “These concentrations are approximately 20 times the U[nited] S[tates] E[nvironmental]

P[rotection] A[gency] (USEPA)-recommended criterion and more than twice Illinois EPA’s

trigger.” Statement at 3 (¶ 9); citing R. at 67. Petitioners emphasize that this data also showed

that the phosphorus concentration of the plant’s effluent at that time was 2.76 mg/L, a level

nearly twice the upstream concentration that day and six times the average concentration for that

stream. Statement at 3 (¶ 10); citing R. at 68, 522-29.

Petitioners placed into the record a number of published treatises showing that “elevated

nutrient levels cause impairment of streams.”

See

Statement at 4-6 (¶ 12). One study states that

nutrient enrichment and associated proliferation of algae result in water management problems

including aesthetic degradation, loss of invertebrates, and fish kills. Statement at 4 (¶ 12), citing

R. at 187-201 (

J. North Am. Benthol. Soc

. 19: 17-31). Another states that growth of algae affects

fish populations by altering both the physical and chemical characteristics of a river. Statement

at 5 (¶ 12), citing R. at 209-19 (

Science of the Total Environment

263: 185-95). A third citation

suggests that managing nutrient supply could reduce the frequency and duration of the

proliferation of algae in streams. Statement at 5 (¶ 12), citing R. at 187-201. Another study

states that problems related to algae, including a deficit in dissolved oxygen and elevated pH,

affect the ability of a river or stream to support aquatic life. Statement at 6 (¶ 12), citing R. at

176-86 (

J. North Am. Benthol. Soc.

19:186-96). Specifically, where stream systems receive high

nutrient inputs, algae contribute to the variability of dissolved oxygen concentrations over 24-

hour periods. Statement at 6 (¶ 12), citing R. at 216. Finally, petitioners note that

“[p]hotosynthesis and respiration are the two important biological processes that alter the

concentration of oxygen and carbon dioxide. . . . [O]xygen is elevated and carbon dioxide is

reduced during the daytime, while the reverse occurs at night.” Statement at 5-6 (¶ 12), citing R.

at 163 (

Stream Ecology: Structure and Function of Running Waters

Petitioners further note that Hickory Creek violated pH standards by exceeding a pH

level of 9. Statement at 6 (¶ 15), citing R. at 126;

see also

R. at 129-59. As a basic matter, the

petitioners state that “[c]arbon dioxide associates with water to act as an acid.” R. at 126 (Prairie

Rivers Network post-hearing comments). Generally, the creek experiences higher levels of

oxygen and lower levels of carbon dioxide during daylight hours, indicating substantial

photosynthetic activity. R. at 67. The highest pH levels are expected in the afternoon when

carbon dioxide and the acids they form are generally at their lowest levels. R. at 126. Since an

elevated pH level generally corresponds to dissolved oxygen saturation, petitioners see further

evidence that nutrients have caused significant algal activity.

. They state that the Agency

acknowledged that it’s “very possible” that algae saturation photosynthesis contributed to

oxygen supersaturation in Hickory Creek. R. at 67. Ultimately, the petitioners conclude that the

plant’s nutrient discharges “are already adversely impacting Hickory Creek and that reductions

of nutrient discharges are needed to prevent further impact.” Statement at 6 (¶ 13), citing R. at

305.

Petitioners argue that, in spite of this evidence of elevated phosphors concentrations in

Hickory Creek, “the record does not contain any study of the potential effect of increased

discharges from the plant on Hickory Creek or the Des Plaines River.” Statement at 8 (¶ 21). In

addition, petitioners state that the Agency did not study alternatives to allowing the discharge

“other than to review a study of land treatment done by the applicant’s contractor.” Statement at

9 (¶ 26); citing R. at 73-74. Petitioners further state that the Agency did not study the cost of

removing phosphorus at the plant. Statement at 9 (¶ 26), citing R. at 74. Petitioners argue that

the record does not analyze the cost of treating phosphorus to any level other than 0.5 mg/L or

the cost of treating phosphorus without also treating nitrogen. Statement at 15 (¶ 40);

see

R. 358.

Ultimately, “the final permit did not place any limits on the discharge of phosphorus. . . .”

Statement at 14 (¶ 37); citing R. at 341-50.

In conclusion, petitioners argue that “[t]here is no doubt that the kind of algal growth and

pH and variations in dissolved oxygen levels that have been seen in Hickory Creek are generally

a result of high levels of nutrients in the water, particularly phosphorus.” Memo. SJ at 4.

Further, state petitioners, “it is clear in the record that Hickory Creek has high levels of

phosphorus and that the New Lenox sewerage treatment plant discharge is a major source of

phosphorus.”

. Petitioners state that “evidence in the record shows without dispute that the

nutrient pollution from facilities like New Lenox’s can practicably be reduced substantially.”

Memo. SJ at 7. Furthermore, argue petitioners, the Agency “went forward without getting

information on alternative controls from the applicant” and without analyzing reasonable

measures to avoid or minimize nutrient loadings. Memo. SJ at 10. Ultimately, petitioners state

that the Agency violated 35 Ill. Adm. Code 302.105(c)(iii) by failing to assure that all technically

and economically reasonable measures were incorporated into the proposed discharge to prevent

or minimize nutrient loadings into Hickory Creek. Mot. SJ at 6.

Petitioners accordingly request that the Board grant their motion for summary judgment

on this issue, revoke and remand the permit to the Agency, and direct that the Agency

incorporate into any future permit “all technically and economically reasonable measures to

avoid or minimize the extent of nutrient loadings to Hickory Creek.” Mot. SJ at 7; Memo. SJ at

2-3; Statement at 11 (¶29(a)).

Agency’s Response

The Agency disputes the petitioners’ view that Board regulations require the Agency to

include phosphorus treatment controls in the Village’s permit. Agency Resp. at 28;

see

35 Ill.

Adm. Code 302.105(c)(2). Specifically, the Agency does not accept petitioners’ argument that

Section 302.105 “requires that the Agency

must

assure that

all

reasonable measures to minimize

the extent of the pollution have been incorporated.” Agency Resp. at 28, citing Memo. SJ at 8

(emphasis in original). The Agency argues that the petitioner’s interpretation of Section

302.105(c)(2) would require controls in a permit wherever there is increased pollutant loading

resulting from an activity and a technology available to treat it. Agency Resp. at 29.

The Agency stresses the language of the regulation providing that assessment of any

increase in pollutant loading “must be done on a case-by-case basis.” Agency Resp. at 29,

see

Ill. Adm. Code 302.105(c)(2). In the Agency’s view, Section 302.105(c)(2) requires the Agency

in its assessment to consider reasonable technical and economical alternatives to an activity. The

Agency argues that “[t]he real objective of this assessment is to reduce the pollutant loading if it

is reasonable to do so.” Agency Resp. at 29. The Agency further argues that “water

quality may

be lowered if necessary to accomplish important economic or social development in the area in

which the waters are located.”

. (emphasis on original), citing Revisions to Antidegradation

Rules, R01-13, slip op. at 3 (June 21, 2001);

see also

35 Ill. Adm. Code 302.105(c)(1). The

Agency argues that petitioners have ignored this balancing test. Agency Resp. at 29.

The Agency also disputes the petitioners’ claim that the Agency did not rely on a recent

valid study to measure the effects of the Village’s existing discharge. Agency Resp. at 21. The

Agency states that, in addition to other information, it considered a study showing that the

discharge had no significant impact as measured by macroinvertebrates.

., citing R. at 368,

403-18, 512-21. The Agency also disputes petitioners’ claim that this study was deficient.

Agency Resp. at 21. The Agency acknowledges “that the procedures used by the Village’s

consultant were not exactly as the Agency would have used.” Agency Resp. at 22-23. The

Agency states that any e-mail discussion in the record “simply provides the views of various

Agency staff members who were involved in reviewing the Village’s study” (Agency Resp. at

21) and “is not the Agency’s final conclusion on the validity of the Village’s study for the

intended purposes.” Agency Resp. at 22. Ultimately, the Agency states that it “considers the

Village’s study as valid for its limited purpose to show that the existing discharge is not

adversely impacting Hickory Creek.”

The Agency states that it has conducted its assessment of alternatives to the increase in

pollutant loading proposed by the Village. Agency Resp. at 29;

see

R. at 5-7 (“Antidegradation

Assessment”); R. at 372-74 (“Alternatives to Discharge to Stream”). Specifically, the Agency

states that it considered land application of effluent. Agency Resp. at 29;

see

R. at 6. The

Village’s consultant estimated that land application required 425 acres, including approximately

270 acres for irrigation and the remainder for treatment and to serve as a buffer zone. Agency

Resp. at 29-30, R. at 374. The Agency noted that a system treating 0.93 million gallons per day

would cost more than $23 million, an amount more than eight times the cost of the proposed

expansion of the Village’s facility. R. at 6. The Village asked a neighboring golf course to

consider using its effluent, but the course declined the request because of high groundwater and

artesian wells feeding its ponds. R. at 374. Based on the costs of land, pumping, and

transmission, the Agency concluded that land application is not a feasible alternative.

see

also

R. at 6. Accordingly, the Agency argues that, contrary to the petitioners’ claims, it did

consider all technically and economically reasonable alternatives to minimize the Village’s

pollution loading to the receiving stream. Agency Resp. at 30.

The Agency also disputes the petitioners’ claim that the Village is a major source of

phosphorus in Hickory Creek. Agency Resp. at 30. The Agency also states that there is no basis

in the record to claim that phosphorus from the Village is having a detrimental effect on the

stream.

. The Agency notes that, in addition to non-point sources, there are at least twelve

wastewater treatment plants that discharge to Hickory Creek, nine of which are situated upstream

from the Village’s plant.

Furthermore, the Agency states that material facts remain in dispute and need to be

developed at hearing. Agency Resp. at 1, 8, 10. First, the Agency disputes the petitioner’s

statements with regard to the quality of Hickory Creek and questions whether the conditions

described by the petitioners prevailed throughout it. Agency Resp. at 10, 11,

see

Statement at 1.

Although petitioners state as fact that “Hickory Creek . . . was once known for its exceptionally

high water quality and biological integrity” (Statement at 1 (¶ 1)) and cite a survey describing it

as an “outstanding stream’ (

.; R. at 115 (1971 stream classification)), the Agency suggests that

this is not relevant to determining conditions in the immediate vicinity of the Village’s plant.

See

Agency Resp. at 10, 11. Specifically, the Agency notes that the Northeastern Illinois

Planning Commission found in 1981 that land downstream from the plant was primarily

residential and commercial in nature and featured “numerous sewers and Combined Sewers

Overflows in the Joliet area.” Agency Resp. at 11. The Agency states that, since 1986, its water

quality reports have shown the upper twelve miles of the creek as fully meeting aquatic life use

while the lower ten miles partially supported it. Agency Resp. at 10. While petitioners stress

municipal point sources as a source of impairment (Statement at 2 (¶ 5)), the Agency notes that

other factors include combined sewer overflows, urban runoff/storm sewers, land development,

and flow regulation and modification. Agency Resp. at 12. In addition, the Agency reports that

unusual species such as the rosyface shiner have been reported as recently as 2003 both upstream

and downstream from the Village’s plant. Agency Resp. at 10. Finally, the Agency states that

“Hickory Creek is not on the current list of biologically significant streams compiled by the

Illinois Department of Natural Resources” (

.), and that no endangered or threatened species

exist in the segment of the creek including the Village’s discharge. Agency Resp. at 10-11.

Second, the Agency states that material facts are in dispute with regard to phosphorus

levels in Hickory Creek.

See

Agency Resp. at 14-15. The Agency notes that two monitoring

stations used to assess Hickory Creek for the 2002 Illinois Water Quality Report showed “total

phosphorus concentrations that exceeded the Agency’s cause listing criterion of 0.61 mg/L.”

Agency Resp. at 15. Despite these concentrations, the assessment showed the station upstream

from the Village’s plant including full aquatic life based on biological data and the station

downstream as partially supportive based on water chemistry.

See

Agency Resp. at 14-15. The

Agency argues that 1997 concentrations at these two stations were “similar.” Agency Resp. at

15. The Agency again notes that, in addition to non-point sources, there are at least twelve

wastewater treatment plants that discharge to Hickory Creek, nine of which are situated upstream

from the Village’s plant. Agency Resp. at 14. The Agency states that “[p]hosphorus is only

listed as a possible cause of impairment if other data, biological and/or water quality standards,

indicate impairment.” Agency Resp. at 15. Since “national criteria recommendations are based

on statistical distribution and recurrence frequencies, not direct relationship to detrimental or

impaired stream conditions” (

.; R. at 365), the Agency argues that it correctly “concluded that

there is nothing unusual about stream phosphorus values such as those reported for Hickory

Creek.” Agency Resp. at 15, citing R. at 365. The Agency further argues that petitioners’

statement that “[p]hosphorus concentrations are high in the creek” (Statement at 2 (¶ 9)) is not a

fact but an opinion. Agency Resp. at 15.

Third, the Agency disputes statements offered by the petitioners with regard to the effects

of the Village’s discharge on Hickory Creek. Agency Resp. at 15-20:

see

Statement at 3-7 (¶¶

11-15). Specifically, the Agency states that comments regarding discharges from the Village’s

plant do not provide any proof that those discharges would cause violation of water quality

standards. Agency Resp. at 16;

see

Statement at 3-4 (¶ 11), R. at 304-05 (“Summary of Hickory

Creek Water Quality Information”). Similarly, the Agency disputes treatises cited by petitioners

on the effects of elevated nutrient levels on streams. Agency Resp. at 19;

see

Statement at 4-7

(¶¶ 11-15). The Agency states that these treatises do not establish that the discharge from the

Village’s plant would cause violation of water quality standards. Agency Resp. at 19. In

addition, the Agency states that these treatises are “directed at developing criteria for nutrients,

and not at developing effluent limits for a discharge.”

. Finally, the Agency also dispute

petitioners’ statement as fact that nutrient discharges are likely already affecting the creek and

that discharge reductions are necessary to prevent further effects. Agency Resp. at 19;

see

Statement at 6 (¶ 13); R. at 305. The Agency argues that this is an opinion in written comments

submitted after the permit hearing and is not a statement of fact. Agency Resp. at 20.

In conclusion, the Agency states that it is evident that there remain genuine issues as to

various material facts. Agency Resp. at 7. The Agency further states that “[p]etitioners are not

entitled to judgment as a matter of law.” Agency Resp. at 7-8. Accordingly, the Agency urges

the Board to deny the petitioners’ motion for summary judgment because there are genuine

issues of material fact and because “the permit, as issued, does not violate the applicable

provisions of the Act or Board regulations.” Agency Resp. at 8.

Village’s Response

The Village disputes petitioners’ contention that “Illinois EPA failed to comply with anti-

degradation regulations because it did not ensure that reasonable controls were put on nutrients.”

Vill. Memo. at 6. The Village notes that petitioners support this contention by referring to anti-

degradation regulations pertaining to high quality waters.

., citing Memo. SJ at 7;

see

35 Ill.

Adm. Code 302.105(c). The Village argues that “High Quality Waters are those whose existing

quality exceeds the state’s adopted water quality standards, which is not the case here, and

Hickory Creek does not meet this standard.” Vill. Memo. at 6. Arguing that the high quality

waters provisions do not apply to Hickory Creek, the Village states that the antidegradation

analysis should instead follow “the minimum level of protection at Section 302.105(a) applicable

to waters that meet existing uses.”

see

35 Ill. Adm. Code 302.105(a).

The Village stresses that Hickory Creek is not listed by the Illinois Department of Natural

Resources (DNR) as a biologically significant stream, a designation the Village states is relevant

to antidegradation assessment. Vill. Memo. at 5. The Village further notes that the stream is not

an Outstanding Resource Water and does not support threatened or endangered species in the

vicinity of the Village’s discharge.

see

R. at 5, 371. The Village states that the Agency in

reviewing its permit application examined the basis for including Hickory Creek on the 303(d)

list of impaired waters. Vill. Memo. at 5. The Village notes that the Agency concluded that

“only total dissolved solids can be implicated as a cause of whatever impairment may exist in

this stream segment outside the immediate area of the New Lenox effluent outfall.”

see

R. at

360 (Agency Responsiveness Survey). The Village reports that the Agency sought limits in the

permit on total dissolved solids and that the Village accepted those limits. Vill. Memo. at 5;

see

R. at 343.

The Village also addresses the biological study performed by its contractor. To the

extent that the record contains discussion of the study by Agency staff (R. at 537, 556-58, 561,

661-98), the Village characterizes that as “appropriate internal agency deliberation about the

information [the contractor] provided as well as general discussion about the manner in which

these studies are performed.” Vill. Statement at 13. The Village argues that the contractor

revised its study to reflect the Agency’s methodology and that the Agency properly relied upon

the study. Vill. Statement at 14, citing R. at 370.

The Village states that the Agency considered nutrient data in performing its

antidegradation analysis. Vill. Memo. at 6. On the date the Village sampled effluent, it showed

a total phosphorus concentration of 2.76 mg/L.

.; R. at 525. The Village also noted that four

downstream samples revealed phosphorus concentrations of 1.60 mg/L (R. at 526), 1.63 mg/L

(R. at 527), 1.47 mg/L (R. at 528), and 1.52 mg/L (R. at 529). The Village emphasizes that the

Agency concluded “there is nothing unusual about stream phosphorus values such as those

reported for Hickory Creek.” Vill. Memo. at 6;

see

R. at 365. Specifically, the Village notes that

the Agency determined that “the incremental nutrient loading anticipated to result from this

project is not expected to increase algae or other noxious plant growth, diminish the present

aquatic community or otherwise aggravate existing stream conditions.” Vill. Memo. at 6-7; R. at

The Village argues that “[t]he Agency also fully considered the economic and technical

feasibility of a range of alternatives.” Vill. Memo. at 7. Specifically, the Village evaluated the

alternative of treating the increased discharge at an off-site spray irrigation system. R. at 413-18

(Evaluation of Spray Irrigation). This alterative required 425 acres of land and resulted in

estimated costs of $23.2 million. R. at 413. The same evaluation determined that the costs

attributable to the increased discharge are $2.8 million.

. Ultimately, the Agency concluded

that “[l]and application is not considered feasible because the land costs and the pumping and

transmission costs would be prohibitive.” R. at 565. The Village also sought to use treated

wastewater in the irrigation of a golf course, but the course declined to implement this

alternative. R. at 634.

As a matter of policy, the Village notes that the Agency has acknowledged that there are

no numeric water quality standards for nutrients applicable to Hickory Creek.

See

R. at 357.

The Village argues that the “science concerning nutrients and their effect on waterbodies is both

complicated and uncertain.” Vill. Memo. at 7. While the Agency conducts an ongoing effort to

adopt water quality standards for nutrients, the Village argues that “it would be inappropriate to

set nutrient standards in the context of an NPDES permit.”

Furthermore, the Village argues that material facts remain in dispute, defeating

petitioners’ motion for summary judgment. Vill. Memo at 2. First, the Village disputes

petitioners’ statement that “[p]hosphorus concentrations are high in the creek.” Statement at 2 (¶

9). The Village notes that this conclusion is based in part on monitoring data obtained from a

station approximately seven miles downstream from New Lenox and obtained during a period

ending six years before the Agency issued the Village’s permit. Vill. Statement at 6. In

addition, the Village suggest that petitioners’ reliance on “trigger values” as evidence of high

phosphorus levels is misguided. The Village states that the trigger values are neither USEPA

criteria nor Illinois regulatory standards. The Village argues that the triggers are used to rank

streams and do not measure the impact of phosphorus upon them.

. The Village also stresses

that “the national criteria recommendations are based on statistical distribution and recurrence

frequencies, not direct relationship to detrimental or impaired stream conditions.

., citing R. at

365, 639.

Second, the Village agrees that, on August 20, 2002, a grab sample of its effluent showed

a total phosphorus concentration of 2.76 mg/L. Vill. Statement at 7;

see

R. at 525. The Village

further agreed that four downstream samples revealed phosphorus concentrations of 1.60 mg/L,

1.63 mg/L, 1.47 mg/L, and 1.52 mg/L. Vill. Statement at 7;

see

R. at 526-29. However, the

Village also suggests that these data also fail to show that the creek’s phosphorus level is high.

See

Vill. Statement at 7. The Village refers to its consultant’s statement that “[i]t is misleading

to compare concentrations in the creek and in the plant effluent when the flows are not the

same.”

., citing R. at 632. The Village argues that, considering both the results from

August 20, 2002 and average conditions, total phosphorus from the plant effluent was one-fourth

of the upstream total phosphorus. Vill. Statement at 7, citing R. at 632-33. Generally, the

Village stresses that, because the concentration of phosphorus in effluent can vary widely, the

results of a single grab sample yield limited information. Vill. Statement at 7. Particularly since

phosphorus is not an acute pollutant, the Village argues that long-term average values are more

significant.

See id

The Village also disputes statements made by Professors Jenkins and Lemke regarding

nutrient loading by the Village’s plant into Hickory Creek. The Village argues that the

professors erred by comparing data obtained from samples gathered more than two years apart

and by using incorrect figures for the flow of the creek. Vill. Statement at 7, citing R. at 635.

Generally, the Village states that the professors’ conclusions about nutrient loading rely on

“undisclosed scientific and mathematical support.” Vill. Statement at 7. The Village further

states that the Agency considered both the professors’ comments and the existence of point and

non-point sources before granting this permit.

. The Village particularly disputes the

professors’ statement that the Village needs to reduce nutrient discharges in order to prevent

further adverse impacts on Hickory Creek. Vill. Statement at 11, citing R. at 305. The Village

characterizes this statement as an unfounded conclusion that does not describe any adverse

impact and that was submitted to the Agency in an unsworn comment. Vill. Statement at 11.

The Village also disputes published treatises placed in the record with regard to the issues

of elevated nutrient levels and stream impairment. Vill. Statement at 10-11. The Village states

that these treatises are unsworn and do not refer specifically to Hickory Creek or the Village’s

effluent.

. Based on the source and nature of the treatises, the Village suggests that they

would be more appropriately considered in setting generally applicable standards than in

determining water quality standards for one discharger among many.

. The Village again

stresses that the Agency does not expect adverse effects from the nutrient loading resulting from

this expansion. Vill. Statement at 11, citing R. at 565.

In conclusion, the Village states that it is evident that there remain disputed issues of

material fact. Vill. Memo. at 2. The Village further states that petitioners’ “motion is an

inappropriate vehicle for resolution of a third party permit appeal.”

. Because it argues that

petitioners’ motion misstates the law and draws selectively from the record in this case, the

Village argues that the petitioners are not entitled to summary judgment on the issue of nutrient

loadings. Vill. Memo. at 1-2.

Petitioners’ Reply

Petitioners first claim that a “fundamental flaw” marks the Agency’s and Village’s

responses. Pet. Memo. at 1. Petitioners argue that the respondents treat this as an enforcement

case in which the petitioners must “indisputably” prove with sworn testimony that the Village

has caused violations of water quality standards.

. The petitioners state that this action “is a

permit review in which the question is whether IEPA followed the Environmental Protection Act

and the Board Rules in issuing the permit.”

. While acknowledging that respondents might

present issues of fact relevant to an enforcement action against the Village, petitioners claim that

“most of Respondents’ factual claims are simply not relevant to this permit appeal.” Pet. Memo.

at 7.

Petitioners also claim that “many” of respondents’ statements are not supported by the

record and that the Board should not accept any of the Village’s or Agency’s statements “without

carefully studying the record.” Pet. Memo. at 5. Petitioners claim that documents in the record

cited by the respondents often contain “simply a naked conclusion without any scientific or

factual basis.” Pet. Memo. at 6. Petitioners argue that “‘[b]ecause I say so’ is not a valid basis

for IEPA decision-making.”

. Petitioners further argue that “[r]espondents cannot properly

rely on blind trust in IEPA’s supposed scientific expertise.”

. Where, as petitioners argue, the

Agency has produced evidence by making an unsupported statement and then quoting that

statement, the Board should not accept that evidence on the basis of

ipse dixit

, or solely on the

Agency’s authority. Pet. Memo. at 7.

On the issue of nutrient loadings, petitioners summarize their position by arguing that

“IEPA never considered putting any limit on discharges of phosphorus although the public asked

that such limits be considered and it is indisputably feasible to remove much of the phosphorus

from New Lenox’s discharge.” Pet. Memo. at 2. Petitioners further argue that “nothing in the

record excuses this failure unless the Board accepts the proposition that the fact that IEPA is

working on developing numeric nutrient standards means it does not have to comply with 35 Ill.

Adm. Code 302.105(c) [Antidegradation – High Quality Waters].” Pet. Memo at 3.

Petitioners also claim that “[r]espondents do not contest the facts that are essential to

Petitioners’ motion.” Pet. Memo. at 4. Petitioners argue that, to establish that the Village’s

permit violates the Board’s rules with regard to nutrient loading, they must establish that “IEPA

did not find that it was necessary for New Lenox to discharge into Hickory Creek without

providing phosphorus removal.”

., citing Statement at 15 (¶ 40). Petitioners claim that the

Agency gave no consideration to the necessity of the proposed discharge, in spite of an

awareness that phosphorus posed “at least a potential problem in Hickory Creek.” Pet. Memo. at

8. The petitioners further argue that they “requested that IEPA consider placing some limit on

phosphorus discharges in the permit.” Pet. Memo. at 4, citing Statement at 12-14 (¶¶ 31-33, 36);

see

415 ILCS 5/40(e) (2004) (standing requirements). Petitioners place these facts “beyond

serious dispute” (Pet. Memo. at 5) and characterize the record as “crystal clear.” Pet. Memo. at

8. They argue that respondents “do not really try to contest them” and only “offer a number of

other denials and statements that are of marginal relevance or no relevance to the motion.” Pet.

Memo. at 5.

Petitioners argue that reviewing the objectives underlying the CWA and Illinois’

antidegradation rules illuminate “why the legal arguments of IEPA and New Lenox utterly fail.”

Pet. Memo. at 9. Petitioners first note that the purpose of the CWA is “to restore and maintain

the chemical, physical and biological integrity of the Nation’s waters.”

., citing 33 U.S.C. §

1251(a). Petitioners then argue that federal antidegradation rules require that states enact three

types of protection for their waters. Pet. Memo. at 9, citing 40 C.F.R. § 131.12. Petitioners

further argue that their motion for summary judgment is based on application of what they term

“Tier II” antidegradation protection. Pet. Memo. at 9;

see

40 C.F.R. 131.12(a)(2). The Board

adopted this level of protection in Part 302 of its regulations. Pet. Memo. at 9; 35 Ill. Adm. Code

302.105(c) (Antidegradation – High Quality Waters).

Petitioners argue that, with regard to Tier II protection, both the federal and Board

regulations require that new loadings must be “necessary to accommodate important economic or

social development.” Pet. Memo. at 11;

see

40 C.F.R. 131.12(a)(2); 35 Ill. Adm. Code

302.105(c)(1). In order to prove that a new or expanded discharge is necessary, petitioners claim

that “[i]t is not enough to show that the new pollution is reasonable, thought to meet a

cost/benefit test, or politically expedient.” Pet. Memo. at 10. Petitioners further claim that the

background of the antidegradation regulations demonstrates that “new or increased discharges

should only be allowed where they are indispensable.”

. In this case, however, petitioners

argue that “IEPA can point to nothing in the record that shows that it even considered whether

the increased phosphorus loading was necessary.” Pet. Memo. at 15. Petitioners note that the

Agency allows the discharge in part because the Village “is not a major source of phosphorus to

Hickory Creek.” Pet. Memo. at 16, citing Agency Resp. at 30. Petitioners dismiss Agency

reliance on this claim, arguing that it “is irrelevant to the question of whether the phosphorus

loading is necessary.” Pet. Memo. at 16.

Petitioners claim that meeting water quality standards and showing the necessity of the

phosphorus loading are independent permitting requirements. Pet. Memo. at 10-11, citing

Columbus and Franklin County Metropolitan Park Dist. v. Shank, 600 N.E.2d 1042, 1054 (Ohio

1992). In other words, petitioners argue that respondents must show that the proposed discharge

is “necessary” and that it will not cause a violation of the water quality standards. Pet. Memo. at

9, citing 35 Ill. Adm. Code 302.105(c)(1). In support of this conclusion, petitioners cite to the

Board order adopting the state’s original nondegradation policy: water quality standards do not

represent “optimum water quality but the worst we are prepared to tolerate if economic

conditions so require.” Pet. Memo. at 10, citing

Water Quality Standards Revisions, R 71-14,

slip. op. at 11 (Mar. 7, 1972).

Petitioners go on to characterize as “swinging for the fences” the Village’s argument that

the Board need not consider whether the Agency complied with Tier II protection requirements

as these apply only to high quality water listed on DNR’s list of biologically significant streams

and not to Hickory Creek. Pet. Memo. at 11, citing Vill. Memo. at 6, Vill. Statement at 1.

Petitioners claim that this argument “rams smack into the language” of the Board’s

antidegradation rules, which provide that “water of the State whose existing water quality is

better than

any

of the established standards . . . must be maintained in their present high quality

. . . .” Pet. Memo. at 11-12, citing 35 Ill. Adm. Code 302.105(c)(1) (emphasis in original).

Petitioners thus argue that, unless the body of water violates

all

standards, it is protected as a

high quality water under Section 302.105(c). Pet. Memo. at 12 (emphasis in original). In other

words, petitioners claim that Hickory Creek must be protected because “‘high quality waters’ is

determined on a parameter-by-parameter basis and a water can be ‘high quality’ as to one

pollutant even when it is impaired as to others.” Pet. Memo. at 13, citing

Amendments to 35 Ill.

Adm. Code 302.105; Proposed 35 Ill. Adm. Code 303.205, 303.206 and 35 Ill. Adm. Code

106.990 through 106.995, R01-13, transcript at 123-24 (Nov. 22, 2000).

Petitioners next argue that, although Board regulations require economically reasonable

technology to control phosphorus, the Agency never considered the cost of phosphorus removal

or whether the Village could bear that cost. Pet. Memo. at 13. Although they state that the

Agency claims to have considered alternatives including land treatment and sending the

discharge to a golf course, petitioners argue that the Agency only examined phosphorus removal

by citing a study that combined the costs of removing both nitrogen and phosphorus. Pet.

Memo. at 13-14, citing R. at 358 (estimating capital costs in excess of $5.4 million). Petitioners

characterize this citation as “just tossing out a cost figure.” Pet. Memo. at 14.

Describing the Village as a “wealthy and growing community,” petitioners claim that the

record contains no evidence that the Village is unable to pay the cost of phosphorus removal.

Pet. Memo. at 14. Without that evidence, petitioners suggest that it cannot be determined

whether it is “necessary” to allow the Village’s discharge without phosphorus removal.

See id

If it is “necessary” to lower water quality in order to accommodate development, then petitioners

argue that “it must be the case that the development cannot practicably go forward without

allowing lower water quality.” Pet. Memo. at 14. In a supplemental authority attached to its

memorandum, petitioners refer to interim water quality guidance supplied by USEPA. That

guidance provides that, if the total pollution control cost per household is less than 1.0 percent of

median household income, “then the requirements are not expected to impose a substantial

economic hardship on households and would not interfere with the development.” Pet. Memo. at

14, citing

Interim Economic Guidance for Water Quality Standards Workbook, p. 5-5 (Mar.

1995). Although petitioners acknowledge that this supplemental authority is “only guidance,”

they argue that the record does not contain the data needed to perform this calculation

determining whether it is necessary to allow nutrient loadings to Hickory Creek. Pet. Memo. at

14. “IEPA did not look at such factors.”

. If those data became available, petitioners argue, it

is “extremely unlikely” that the proposed discharge would be “necessary” in a large and

prosperous community such as the Village. Pet. Memo. at 14-15.

Petitioners further argue that respondents misunderstand the requirements of the Board’s

antidegradation regulations. Pet. Memo. at 15. Petitioners first claim that the Agency “passes

over the term ‘necessary’” in those regulations.

., citing 35 Ill. Adm. Code 302.105(c)(1).

They then claim that the Agency misstates the requirement of reasonableness, arguing that the

term “reasonable” must not be read in isolation but in the context of the entire subsection in

which it is contained.

See

Pet. Memo. at 15. Petitioners emphasize that the Board’s regulations

assure “[a]ll technically and economically

reasonable measures to

. . .

minimize

the extent of the

proposed increase in pollutant loading have been incorporated into the proposed activity.” Pet.

Memo. at 15-16, citing 35 Ill. Adm. Code 302.105(c)(2)(B)(iii) (emphasis in original). In this

context, petitioners argue that “minimize” requires action to “reduce to the smallest possible

number, degree, or extent.” Pet. Memo. at 16, citing

U.S. v. Focarile, 340 F. Supp. 1033 (D.Md.

1972) (addressing interception of communications under Omnibus Crime Control and Safe

Streets Act of 1968). Since petitioners argue that Congress established the goal of eliminating all

discharges to the nation’s waters by 1985 (Pet. Memo. at 9, citing 33 U.S.C. § 1251(a)(1)), they

claim that “reasonable to minimize” requires that “a measure should be used to avoid or

minimize pollution unless it has been shown to be economically unfeasible.” Pet. Memo. at 16.

In support of this conclusion, petitioners include in an appendix to their motion a 2002 letter in

which the Agency’s permit section manager states that “degradation must be held to the smallest

amount practically achievable and such degradation must be fully justified by the benefits of the

project.” Mot. SJ, App. A at 1.

Petitioners claim that the Agency actually provided only a single reason in the record for

not considering phosphorus limits: “that IEPA was working to develop numeric water quality

standards for phosphorus.” Pet. Memo. at 17. Petitioners also note that the Village added that

research into “the precise levels of nutrients that cause problems is not yet settled.”

., citing

Vill. Memo. at 7. Petitioners claim in response that the requirements imposed by numeric water

quality standards and by antidegradation are distinct. Pet. Memo. at 17. “The requirement that

unnecessary new pollution not be allowed applies even if all of the other water quality standards

are actually satisfied and it has been shown that the new pollution will not have an effect on

existing uses.” Pet. Memo. at 17-18. Petitioners claim that, if research on safe phosphorus

levels is unsettled, then unnecessary new phosphorus loadings should not be permitted. Pet.

Memo. at 18, Pet. Statement at 15.

Whatever the state of that Agency research, petitioners argue that the Board, relying on

existing technology, has found that “for systems of greater than 5000 population, a 1.0 mg/L

[phosphorus] limitation is economically reasonable.” Pet. Memo. at 16-17, citing

Village of

Wauconda v. IEPA, PCB 81-17, slip op. at 2 (May 1, 1981) (denying variance from phosphorus

limitation). Also, petitioners suggest that the Agency’s claim that it would not be reasonable to

require phosphorus controls is inconsistent with evidence submitted by the Agency in an open

rulemaking docket addressing interim phosphorus standards.

See

Pet. Memo. at 17, citing

Interim Phosphorus Standards Proposed 35 Ill. Adm. Code 304.123(g-k), R04-26. Petitioners

argue that that evidence favors a 1.0 mg/L phosphorus effluent limit for new or increased

discharges of more than 1 million gallons per day. Pet. Memo. at 17. Petitioners express

confidence that, if their motion is granted, “IEPA will find that it is not necessary for New Lenox

to discharge more than 1 mg/L of phosphorus into Hickory Creek.” Pet. Memo. at 17.

Petitioners emphasize that the Board is to hear and decide this permit appeal “exclusively

on the basis of the record before the Agency.” Pet. Memo. at 3, citing 415 ILCS 5/40(e)(3)(ii)

(2004). They thus argue that “summary judgment is an appropriate method for resolving this

case.” Pet. Memo. at 3. Petitioners claim that “[s]ummary judgment cannot be said to be a

drastic remedy and is likely to be appropriate in a proceeding in which there can never be a trial

in which new evidence is offered.”

. (citations omitted). Petitioners suggest that a hearing

would have no purpose other than “to further summarize the evidence and provide oral

argument.”

Board Analysis and Findings Regarding Nutrient Loading

The Board will first look to whether genuine issues of material fact exist concerning the

nutrient loading issue. Only if not will the Board turn to whether petitioners have proven they

are entitled to judgment as a matter of law. While petitioners argue that there is no issue of

material fact with regard to nutrient loadings and that they are entitled to judgment as a matter of

law (Memo. SJ at 1), both the Agency and the Village disagree that there are no genuine issues

of fact remaining to be decided.

While the Agency states that it considered land application as an alternative to nutrient

loading, petitioners characterize this consideration as

pro forma

. While the Agency argues that it

has correctly concluded that “there is nothing unusual about stream phosphorus values such as

those reported for Hickory Creek,” petitioners state that phosphorus concentrations are high

there. While the Agency states that comments regarding the Village’s discharges do not prove

that those discharges would cause a violation of water quality standards, petitioner state that

nutrient discharges already affect Hickory Creek and that discharges must be reduced to prevent

further effects. Also, while petitioners cite treatises on the effects of elevated nutrients on

streams, the Agency argues that these documents do not establish that that the discharge from the

Village’s plant would cause violation of water quality standards.

The Village also disputes petitioners’ statement that phosphorus levels are high in

Hickory Creek. The Village contends that this conclusion is based on data obtained some

distance from the plant years before the Agency issued this permit. The Village also contends

that the conclusion is based on “trigger values” that rank streams and do not have a direct

relationship to stream conditions. The Village further contends that a single grab sample of its

effluent fails to show that overall stream phosphorus levels are high. The Village also disputes

statements made by Professors Jenkins and Lemke concerning nutrient loading. While

contending that the professors’ statements are flawed by incorrect calculations and undisclosed

support, the Village nonetheless argues that the Agency considered their comments before

granting the permit. Finally, like the Agency, the Village disputes petitioners’ reliance on

published treatises, arguing that they make no specific reference either to Hickory Creek or to the

Village’s effluent.

Considering the pleadings as it must strictly against the petitioners (Dowd

& Dowd, Ltd.

v. Gleason, 693 N.E.2d at 370, citing 735 ILCS 5/2-1005(c) (1996)), the Board cannot conclude

that there is no genuine issue of material fact with regard to the issue of nutrient loadings.

Although the disputes listed in the preceding two paragraphs are not intended to be exhaustive,

they nonetheless indicate that significant factual issues remain unresolved with regard to matters

such as the present quality of Hickory Creek, the effects of the Village’s proposed discharge on

the creek, and the Agency’s consideration of alternatives to that discharge. As to the issue of

nutrient loading, petitioners’ motion for summary judgment is denied.

OFFENSIVE CONDITIONS WATER QUALITY STANDARD

Petitioners’ Motion

Section 302.203 of the Board’s water quality rules provides that “[w]aters of the State

shall be free from sludge or bottom deposits, floating debris, visible oil, odor, plant or algal

growth, color or turbidity of other than natural origin. 35 Ill. Adm. Code 302.203. Petitioners

argue that, in issuing the Village’s permit, the Agency “did not assure that the applicable

narrative ‘offensive conditions’ . . . standards will not be violated as a result of the proposed

discharge to Hickory Creek.” Mot. SJ at 6. Petitioners state that “the permit does not even

pretend to control pollution that may cause or contribute to violations of the narrative conditions

standard.” Memo. SJ at 2, citing 35 Ill. Adm. Code 302.203.

Petitioners argue that “[t]here is no dispute in the record that Hickory Creek is being

affected by severe vegetative growth.” Memo. SJ at 4. At the Agency’s March 2003 public

hearing, Kimberly Kowalski, president of the Livable Communities Alliance, reported seeing

algae in Hickory Creek. R. at 74-76;

see also

R. at 322 (“algae floating on top of the water”).

Brad Salamy, whose property adjoins Hickory Creek, observed during the summer preceding the

hearing that “the creek was greener than I had ever seen it.” R. at 82-83. Jim Bland,

representing Des Plaines River Watershed Alliance, described the stream as “covered almost

completely” with surface algae. R. at 80.

In addition to these accounts of algae, Petitioners cite to other evidence, including wide

swings in levels of dissolved oxygen and pH levels that violate Illinois’ water quality standards,

to show that Hickory Creek is experiencing unnatural vegetative growth. Memo SJ at 4. As

above in the discussion of phosphorus, petitioners suggest that the proliferation of algae results

in high rates of photosynthesis, which increases daytime levels of dissolved oxygen and also

increases pH levels in the stream. Since these results have been observed in Hickory Creek,

petitioners attribute them to “unnatural vegetative growth.” Memo. SJ at 4. “Nothing was

offered into the record by the applicant or IEPA to refute any portion of this record testimony

and other evidence.” Memo. SJ at 12.

Petitioners state that the Board’s regulations require that “any effluent or combination of

effluents [must] be regulated to insure that there is compliance with all applicable water quality

standards in all receiving or downstream waters that may be affected by the discharge.” Memo.

SJ at 11, citing 35 Ill. Adm. Code 304.105. Petitioners further note that federal regulations

require that NPDES permits control “all pollutants . . . which will cause, have a potential to

cause, or contribute to an excursion above any State water quality standard, including State

narrative criteria for water quality.” Memo. SJ at 11, citing 40 C.F.R. § 122.44(d)(1)(i) and

American Paper Institute v. USEPA, 996 F.2d 346, 350 (D.C. Cir. 1993). Petitioners also argue

that “these federal principles are fully applicable to Illinois NPDES permits under applicable

Board regulations requiring permits to meet any federal law or regulation.” Memo. SJ at 12,

citing 35 Ill. Adm. Code 309.141(d)(2).

Based on these authorities, petitioners argue that, although the Agency cannot issue a

permit that would cause or contribute to a violation of the state’s narrative offensive conditions

standard, the record is clear that they have done so. Memo. SJ at 12 (referring to 35 Ill. Adm.

Code 304.105 and 35 Ill. Adm. Code 309.141). Petitioners state that the permit includes no

limits to prevent violation of the narrative offensive conditions standard. Statement at 15,

see

at 341-50. In this regard, petitioners stress that the Agency stated it would only include nutrient

limits in the Village’s permit after specific standards are adopted. Statement at 15, citing R. at

356. Although the Agency acknowledges that a narrative standard forbids unnatural algal

growth, petitioners emphasize that the Agency stated that “[t]his is a very difficult standard to

apply to a permit.” Statement at 15, citing R. at 357. Petitioners characterize this statement as

merely an “excuse” offered in lieu of compliance with Board regulations. Memo. SJ at 2.

Petitioners accordingly request that the Board grant their motion for summary judgment,

revoke and remand the permit to the Agency, and direct that the Agency in any future permit to

assure that the Village’s discharges do not cause or contribute to violations of the “offensive

conditions” water quality standard. Mot. SJ at 7; Memo. SJ at 2-3; Statement at 11.

Agency’s Response

The Agency disputes the petitioners’ view that the Village’s permit does not assure

compliance with the narrative standard for offensive conditions. Agency Resp. at 31. The

Agency notes that “[w]aters of the State shall be free from . . . plant or algal growth, color or

turbidity of other than natural origin.” Agency Resp. at 31-32, citing 35 Ill. Adm. Code 302.203

(emphasis in the original). On the basis of this language, the Agency concludes that a violation

of the standard occurs only if algae of unnatural origin occurs in the receiving waters. Agency

Resp. at 32. “Mere presence of algal growth that is of natural origin is not prohibited by Section

302.203.” Agency Resp. at 33. In the Agency’s view, the petitioners’ statements suggest only

that witnesses observed algae in Hickory Creek. Agency Resp. at 32. “The record lacks any

evidence to suggest that unnatural algal growth exists below the Village’s discharge point.”

The Agency rejects any argument by petitioners that Section 302.203 prohibits the

discharge of any level of phosphorus into receiving waters. Agency Resp. at 32. The Agency

stresses that phosphorus is required for virtually all aquatic plant life and is an essential nutrient

for all aquatic life.

. Although phosphorus concentrations may limit plant growth, waters may

also have algae that is not limited by phosphorus but by another nutrient or by water quality

factors.

. Furthermore, the Agency notes that phosphorus and other nutrients occur in water as

a result of both natural and anthropogenic causes.

. The Agency thus argues that Section

302.203 does not and should not totally prohibit small discharges of phosphorus into receiving

streams. Agency Resp. at 32-33.

Furthermore, the Agency states that material facts remain in dispute and need to be

developed at hearing. Agency Resp. at 1, 8, 10-27. The Agency states that “[i]t is possible to

have excessive algal growth even if nutrients are not substantially elevated.” Agency Resp. at

12. Dams, stream flows, sunlight, and turbidity are all factors other than nutrient levels that can

contribute to excessive algal growth.

. To the extent that witnesses reported algae blooms in

Hickory Creek, the Agency argues that their statements do not clearly show whether those

occurred upstream or downstream from the Village’s plant or whether they occurred during high,

normal, or low flow conditions.

see

Statement at 2, R. at 76-83.

The Agency specifically disputes the petitioners’ statement with regard to comments

made at the Agency’s public hearing. Agency Resp. at 13; Statement at 2. The Agency suggests

that Jim Bland’s comment overlooks the existence of a dam and the role that dam may play in

generating algal growth.

See

Agency Resp. at 13. Since Bland’s comment did not locate the end

of the algal bloom, it may have extended upstream from the Village’s discharge. The Agency

argues that that extension would not have occurred if the bloom resulted from that discharge.

See

Agency Resp. at 13. Similarly, the Agency argues that Brad Salamy’s comments do not

situate algae in relation to the Village’s discharge. Agency Resp. at 14; Statement at 2; R. at 82-

83. The Agency suggests that Salamy’s comment overlooks the existence of water willows that

may play a role in algal growth.

See

Agency Resp. at 14.

The Agency also takes issue with the petitioners’ statement that the Village’s permit

requires but does not include limits to prevent a violation of the offensive conditions narrative

standard. Agency Resp. at 27; Statement at 15. The Agency responds that, based on information

in its record, it had determined that Hickory Creek does not show offensive conditions and that it

does support a healthy and diverse aquatic ecosystem. Agency Resp. at 26, 27. The Agency

specifically concluded that “the incremental loading of nutrients from the discharge is not

expected to increase algae or other noxious plant growth, or diminish the present aquatic

community or otherwise worsen the existing stream conditions.” Agency Resp. at 6, citing R. at

6. Accordingly, the Agency states that the permit did not require limits for offensive conditions.

. Finally, the Agency argues that the petitioners’ statement that the permit does not include

limits is not a fact but a statement of law. Agency Resp. at 27. The Agency suggests that the

petitioners have usurped the Board’s authority to determine whether the Agency properly issued

the permit.

See id

In conclusion, the Agency states that it is evident that there remain genuine issues of

material fact. Agency Resp. at 7. The Agency further argues that “[p]etitioners are not entitled

to judgment as a matter of law.” Agency Resp. at 7-8. Accordingly, the Agency urges the Board

to deny the petitioners’ motion for summary judgment because there are genuine issues of

material fact and because “the permit, as issued, does not violate the applicable provisions of the

Act or Board regulations.” Agency Resp. at 8.

Village’s Response

The Village disputes petitioners’ argument that algal growth in Hickory Creek constitutes

an offensive condition requiring nutrient limits in the Village’s permit. Vill. Memo. at 9. The

Village argues that algae is not itself the problem, as it is a vital part of aquatic life.

.; Vill.

Statement at 26-27; R. at 364. The Village further argues that algae must be assessed in relation

to levels of dissolved oxygen and fish populations. Vill. Memo at 9; Vill. Statement at 27.

Specifically, algal activity can result in nighttime dissolved oxygen depletion, which in turn may

adversely affect fish. R. at 361. However, the Village states that the Agency found “Hickory

Creek has fish populations that are not indicative of low dissolved oxygen concentrations.” Vill.

Memo at 9; R. at 361. The Village also stresses the Agency’s conclusion that “the incremental

nutrient loading anticipated to result from this project is not expected to increase algae . . . . “

Vill. Memo. at 9, citing R. at 565; Vill. Statement at 27. The Village argues that that the

Agency’s permitting decision should be upheld where the Agency has appropriately considered

petitioners’ arguments and assessed the water quality of Hickory Creek. Vill. Memo. at 9.

The Village further argues that, even if the Agency had accepted petitioners’ claims

regarding algae, the Agency still could reasonably have determined that nutrient limits are not

appropriate. Vill. Memo. at 9. The Village first notes that the Agency is aware that other entities

discharge into the stream.

see

R. at 68 (characterizing creek in hearing testimony as

“effluent-dominated stream”). The Village argues that, under these circumstances, nutrient

limitations should be applied to the entire stream and not to a single discharger. Vill. Memo. at

9, citing Communities for a Better Environment v. State Water Resources Control Board, 1 Cal.

Rptr. 3d 76 (Cal. 1st Dist. 2003). The Village further notes that the Agency has begun to

consider nutrient standards and argues that standards should not now be applied through the

Board’s determination of a permit appeal. Vill. Memo. at 10.

Furthermore, the Village argues that material facts relating to the offensive conditions

narrative water quality remain in dispute. Specifically, the Village disputes petitioners’

statement with regard to comments made at the public hearing. The Village first states that

petitioners have mischaracterized the comment of Kim Kowalski. Vill. Statement at 4.

Although petitioners state that she reported “algal blooms” (Statement at 2), the Village states

that she described “algae.” Vill. Statement at 4, citing R. at 76. The Village further argues that

any algae she observed may be attributable to low flow conditions or solar heating. Vill.

Statement at 4-5, R. at 639. The Village also questioned Jim Bland’s comments reporting algae

in the vicinity of Pilcher Park. The Village states that Pilcher Park, located approximately two

miles from New Lenox, is the site of a dam. Vill. Statement at 5. The Village notes that “[d]ams

are one aquatic feature that are associated with algae.”

. Regarding both Jim Bland and Brad

Salamy, the Village notes that their comments are unsworn and cannot be considered

“testimony.”

., citing Statement at 2.

The Village also disputes petitioners’ statement that the Agency acknowledged that

daytime dissolved oxygen levels in Hickory Creek resulted from algae photosynthesis saturation.

Vill. Statement at 12, citing Statement at 6. Elaborating on an answer provided by Agency

employee Bob Mosher, the Village states that it is “very possible that algae photosynthesis

had a

part

in levels of supersaturated dissolved oxygen levels during the period of 1979 to 1997.” Vill.

Statement at 12 (emphasis in original), citing R. at 67. The Village further notes that Mosher

refers to dissolved oxygen levels obtained from a gauge approximately seven miles downstream

from New Lenox. Vill. Statement at 12.

The Village also disputes petitioners’ statement that “Hickory Creek also violated pH

standards by exceeding a pH of 9, likely as a result of algal activity.” Vill. Statement at 12,

citing Statement at 6-7 and R. at 126 (post-hearing statement of Prairie Rivers Network). The

Village first characterizes this as a conclusory statement based on an unsworn comment. Vill.

Statement at 12. The Village also notes that the conclusion appears to be based on Agency

sampling at a gauge seven miles downstream from the Village’s discharge.

. The Agency

itself has cautioned that the monitoring station there may not have similar morphology to that in

the vicinity of New Lenox and that “drawing direct conclusions between sites may not be valid.”

., citing R. at 369. The Village also points to sampling revealing average pH of 7.8, with only

two samples showing a value of 9.0 and a single sample showing a value of 9.1. Vill. Statement

at 12, citing R. at 640;

see

R. at 129-54. The Village further states that its own water quality

report showed pH values between 6.77 and 8.21. Vill. Statement at 12.

Again, the Village concludes that there remain disputed genuine issues of material fact.

Vill. Memo. at 2. The Village further states that petitioners’ motion is an inappropriate vehicle

for resolution of a third party permit appeal.”

. Because it argues that petitioners’ motion

misstates the law and draws selectively from the record in this case, the Village argues that the

petitioners are not entitled to summary judgment on the issue of the narrative offensive

conditions water quality standard. Vill. Memo. at 1-2.

Petitioners’ Reply

On this issue, petitioners summarize their argument by stating that, “[d]espite evidence

(later confirmed by IEPA itself) that Hickory Creek is having unnatural algal blooms and that

discharges like those from New Lenox could contribute to such blooms, IEPA failed to consider

whether any permit limits or conditions were necessary to prevent discharges that could cause or

contribute to violations of the narrative ‘offensive conditions’ standard, 35 Ill. Adm. Code

302.203.” Pet. Memo. at 2. Petitioners further argue that “[r]espondents do bravely attempt to

argue that IEPA need not require compliance with narrative standards . . . .” Pet. Memo. at 3.

Petitioners suggest that failing to remand the permit to the Agency on this basis would indicate

that “IEPA may ignore regulations that are difficult to apply.”

Petitioners elaborate upon their argument that “many” of respondents’ statements are not

supported by the record and that the Board should not accept any of the Village’s or Agency’s

statements “without carefully studying the record.” Pet. Memo. at 5. As an example, Petitioners

claim that the Agency’s responsiveness summary does not support the Village’s statement that

the “Illinois EPA made the determination that no limits were required to address offensive

conditions.”

., citing R. at 357. That summary stated a conclusion that “the expansion will not

exacerbate any existing problems in Hickory Creek due to nutrients.” R. at 357. Petitioners

argue that this statement acknowledges the possibility of problems with algal growth and the

prospect of limits to address it. Pet. Memo. at 6. Petitioners also elaborate upon their claim that

documents in the record cited by the respondents often contain “simply a naked conclusion

without any scientific or factual basis.”

. Petitioners argue that respondents both claim that

“the incremental nutrient loading anticipated to result from this project is not expected to

increase algae or other noxious plant growth . . . .”

., citing Vill. Memo. at 6-7, Agency Resp.

at 6. Petitioners argue that the antidegradation assessment provides “[n]o scientific justification

or any reasoning for this conclusion.” Pet. Memo. at 6, citing R. at 565.

Petitioners argue that respondents offer only a series of failing legal arguments to excuse

the Agency’s failure to assure that the Village’s discharge would not cause or contribute to

violations of the narrative offensive conditions standard. Pet. Memo. at 18. While petitioners

claim that “[m]uch of Respondents’ argument seems based on the notion that narrative standards

do not really count,” petitioners state that “Board [r]ules explicitly treat the narrative standards as

independent standards that must be satisfied along with the [numeric] standards.”

., citing 35

Ill. Adm. Code 302.105(c)(2)(B)(i). Petitioners argue that “[t]he notion that it is good enough to

comply with numeric standards cannot be reconciled with the law.” Pet. Memo. at 19. In

support of this conclusion, Petitioners cite Board rules (35 Ill. Adm. Code 304.105), federal

regulations (40 C.F.R. § 122.44(d)(1)(i)), Board case law (People v. Chalmers

, PCB 96-111

(Feb. 3, 2000)), and federal case law (Sierra Club v. Hankinson

, 939 F. Supp. 865, 870 (N.D.Ga.

1996)).

Petitioners emphasize that “numerous persons stated in comments that unusual algal

blooms have occurred in Hickory Creek.” Pet. Memo. at 19, citing Statement at 2 (¶¶ 6-8).

Suggesting the respondents’ responses on this issue are mere quibbling, petitioners state that, if a

contractor reported no organic pollution on August 20, 2002, then the contractor “must have

either been there on a different day than the day that the reported algal bloom took place or the

contractor does not see well.” Pet. Statement at 8. Petitioners argue that respondents cannot

deny that the conditions described in the record are known to result from discharges like the

Village’s. Pet. Memo. at 19;

see

Pet. Statement at 7.

Petitioners claim that respondents cannot point to anything in the Village’s permit that

would prevent a violation of the narrative standard or assure that a violation would not worsen.

See

Pet. Memo. at 20. Petitioners argue that that Agency has not specifically concluded that the

permit does not require limits to prevent offensive conditions or that the Village’s discharges

could not wholly or partly cause offensive conditions.

., citing R. at 357. Petitioners stress

that the Agency’s responsiveness summary states that the narrative standard “is a very difficult

standard to apply to a permit.” Pet. Memo. at 20, citing R. at 357. Petitioners suggest that

respondents address these failures by shifting the burden of proof and requiring petitioners to

prove that violation of a water quality standard would result solely from the Village’s discharge.

See

Pet. Memo. at 20-21, citing Agency Resp. at 33. Petitioners characterize this as “try[ing] to

rewrite the Board’s rules.” Pet. Memo. at 20. In this proceeding, petitioners argue that they have

successfully met this burden by “show[ing] that the permit as issued violated the Act or the

Board rules.” Pet. Memo. at 21-22, citing Prairie Rivers Network v. PCB

, 781 N.E.2d at 380.

Petitioners also dispute the Village’s suggestion that it would be unreasonable to regulate

discharges that might contribute to algal blooms without controlling all sources. Pet. Memo. at

22, citing Vill. Memo. at 10. Petitioners argue that the Agency cannot issue a permit that “alone

or in combination with other sources” will violate standards. Pet. Memo. at 22, citing 35 Ill.

Adm. Code 304.105. “[T]he fact that IEPA could not completely control the problem by

controlling discharges by New Lenox is no justification for issuing a permit that will add to the

loading of pollutants known to cause algal blooms.” Pet. Memo. at 23.

Petitioners also dispute the Village’s claim that the Agency could not place limits in its

permit without setting numeric limits through a rulemaking proceeding. Pet. Memo. at 23, citing

Vill. Memo. at 10. Petitioners argue that they have not asked the Agency to adopt a rule without

following rulemaking procedures. Pet. Memo. at 24. Petitioners note that the offensive

conditions standard cannot be applied on a statewide basis through a numeric standard.

Instead, petitioners state that they seek to have the Agency consider site-specific permit

conditions that would prevent the Village from causing or contributing to a violation of the

narrative offensive conditions standard.

., citing 35 Ill. Adm. Code 302.203.

Board Analysis and Findings on Offensive Conditions Issue

The Board will first look to whether genuine issues of material fact exist concerning the

offensive conditions issue. Only if not will the Board turn to whether petitioners have proven

they are entitled to judgment as a matter of law. While petitioners argue that there is no genuine

issue of material fact with regard to the offensive conditions narrative water quality standard and

that they are entitled to judgment as a matter of law (Memo. SJ at 1), both the Agency and the

Village disagree that there are no genuine issues of fact remaining to be decided.

While petitioners argue that the Village is a major source of phosphorus and thus a cause

of algal growth, the Agency argues that unnatural algae blooms can result from causes such as

dams, stream flows, sunlight, and turbidity even if nutrient levels are not elevated. While

petitioners rely on descriptions of surface algae, the Agency argues that these descriptions either

did not specifically locate the algal growth or overlooked such factors as a dam or low flow

conditions. While petitioners argue that that the Agency’s permit does not even pretend to

control pollution that may cause or contribute to violation of the narrative standard, the Agency

states that Hickory Creek has a diverse fish population belying an offensive conditions violation.

Like the Agency, the Village also disputes comments made at the public hearing on this

permit by arguing that those comments have not considered the role of low flow conditions, solar

heating, or a dam in generating algae growth. While petitioners argue that pH violations in

Hickory Creek likely resulted from algal activity, the Village argues that this conclusion appears

to be based upon sampling conducted at a point seven miles downstream from the Village’s

discharge with results that do not match its own reports.

Considering the pleadings as it must strictly against the petitioners (Dowd & Dowd, Ltd.

v. Gleason, 693 N.E.2d at 370, citing 735 ILCS 5/2-1005(c) (1996)), the Board cannot conclude

that there is no genuine issue of material fact with regard to the issue of the narrative offensive

conditions standard. Although the disputes listed in the preceding two paragraphs are not

intended to be exhaustive, they nonetheless indicate that significant factual issues remain

unresolved with regard to matters such as the source of algae in Hickory Creek, the extent and

location of algae in the creek, any effects of algae on the creek, and the Agency’s consideration

of those effects. As to the issue of the narrative offensive conditions water quality standard,

petitioners’ motion for summary judgment is denied.

COPPER WATER QUALITY STANDARD

Petitioners’ Motion

Petitioners argue that the Agency in issuing the Village’s permit “did not assure that the

applicable . . . numeric copper water quality standards will not be violated as a result of the

proposed discharge to Hickory Creek. Mot. SJ at 6. They argue that, while the Agency “at least

purported to consider what limits were necessary to prevent violations of numeric water quality

standards” (Memo. SJ at 13), “their efforts fell far short of assuring that the copper limit would

not be exceeded.”

. Petitioners conclude that “the permit does not control discharges that may

cause or contribute to violations of the copper water quality standard.” Memo. SJ at 2.

In drawing these conclusions, petitioners rely upon the hearing testimony and written

comments of Cynthia Skrukrud, Ph.D., a Clean Water Advocate with the Illinois Chapter of the

Sierra Club. Ms. Skrukrud stated that, in analyzing the “reasonable potential” to exceed water

quality standards, USEPA in its

Technical Support Document for Water Quality Based Toxics

Control

(TSD) recommends the use of a multiplier to determine that potential when the analysis

is based on a small number of samples. R. at 70, 264-65;

see also

R. at 508 (providing multiplier

of 3.8). Ms. Skrukrud suggested that the use of the multiplier is needed to avoid a finding of no

reasonable potential to exceed standards that is based upon data that are few in number and not

fully representative of the receiving stream.

See

R. at 265.

In this case, however, Ms. Skrukrud argues that the Agency “abandoned” the method

including the use of a multiplier that is recommended by USEPA. R. at 265. In its reasonable

potential analysis of Hickory Creek, the Agency obtained only two samples with regard to

copper.

.; R. at 508. The highest concentration of the two samples was 20.5 mg/L, while the

chronic standard for copper at the hardness level found in Hickory Creek is 20.6 mg/L. R. at

265, 508. The Agency concluded that “no regulation of copper is necessary and that no

monitoring beyond the routine requirements is needed.” R. at 508. Petitioners state that the

record includes no explanation why the Agency did not follow USEPA’s recommendation in

determining whether there is a reasonable potential to violate water quality standards for copper.

Statement at 14. Based on the use of two samples and because the maximum concentration of

copper is “so close to a violation of the chronic standard,” Ms. Skrukrud believes that there does

exist a reasonable potential for violation and that it warrants further investigation. R. at 70;

Statement at 13. To determine whether there is a need for additional copper monitoring, “IEPA

should either use the multiplier in their analysis or require that more samples be collected.” R. at

70, 265.

Petitioners accordingly request that the Board grant their motion for summary judgment,

revoke and remand the permit to the Agency, and direct that the Agency incorporate into any

future permit assurance that “discharges from New Lenox STP #1 not cause or contribute to

violations of the numeric water quality standard for copper provided in 35 Ill. Adm. Code

Section 302.208(e).” Mot. SJ at 7; Memo. SJ at 2-3.

Agency’s Response

The Agency disputes the petitioners’ view that the Village’s permit does not comply with

Section 302.105 or 309.141 of the Board’s regulations because it does not limit all pollutants that

might cause or contribute to a violation of the copper water quality standard. Agency Resp. at

34; Memo. SJ at 14;

see

35 Ill. Adm. Code 302.105, 309.141. The Agency states that

“[p]etitioners’ argument is flawed in that it assumes that [a] copper limit was necessary in this

case.” Agency Resp. at 34.

The Agency notes that it uses the TDS as technical guidance to determine whether further

analysis of receiving water is necessary. Agency Resp. at 34. Because the TDS recommends the

use of a multiplier, the Agency does not believe that TDS procedure is valid where there exists

only a small number of water samples.

. When it has limited data, the Agency instead

“evaluates these substances against the water quality standards applicable to the receiving

stream.”

. The Agency argues that “[t]his approach is especially appropriate in cases where

the facilities have been previously identified through the pre-treatment program as having low

risk of high levels of metals and other industrial pollutants in treated domestic waste effluents.”

. In this case, the Agency states that it concluded that the Village’s plan had a low risk of

elevated copper levels.

See id

The Agency reports that the Village in 2001 reported copper samples of 0.0141 mg/L and

0.0205 mg/L, the average of which is 0.0173 mg/L. Agency Resp. at 35;

see

R. at 508. Since

this average concentration was less than the chronic copper water quality standard of 0.0206

mg/L, the Agency determined that the permit did not require a limit for copper. Agency Resp. at

24, 35. The Agency states that, if one of the samples or the average of the two samples had

exceeded the chronic water quality standard, it would have incorporated a copper limit into the

permit or required six months of monitoring. Agency Resp. at 35. The Agency notes that there

is no known source of copper discharging into the Village’s waste stream (

., R. at 361), and

land use in the area is not a source of copper. Agency Resp. at 6, citing R. at 361.

Furthermore, the Agency states that genuine issues of material fact remain in dispute and

need to be developed at hearing. Agency Resp. at 1, 8. Petitioners stated as fact that USEPA’s

method of calculation showed a reasonable potential for copper concentrations to exceed both

the chronic and acute water quality standards. Statement at 8-9, citing R. at 508. Because the

average copper concentration in two samples is less than the chronic water quality standard, the

Agency concluded that “there was no reason to incorporate permit limits for copper.” Agency

Resp. at 24. The Agency suggests that these samples did not indicate a reasonable potential to

exceed these standards.

See id

In conclusion, the Agency states that it is evident that there remain genuine issues as to

material facts. Agency Resp. at 7. The Agency further states that “[p]etitioners are not entitled

to judgment as a matter of law.” Agency Resp. at 7-8. Accordingly, the Agency urges the Board

to deny the petitioners’ motion for summary judgment because there are genuine issues of

material fact and because “the permit, as issued, does not violate the applicable provisions of the

Act or Board regulations.” Agency Resp. at 8, 27.

Village’s Response

The Village also disputes petitioners’ argument that the permit does not violate applicable

numeric copper water quality standards.

See

Vill. Memo. at 11; Mot. SJ at 6. The Village

argues that the Agency specifically considered whether the proposed discharge had the

reasonable potential to violate water quality standards for copper. Vill. Memo. at 11. The

Village notes that the Agency specifically considered whether to use USEPA methods to

determine reasonable potential to exceed standards.

.; R. at 509. The Agency concluded that

the USEPA method using a high multiplier did not provide valid results with a small number of

samples. Vill. Memo. at 11; R. at 508-09 (providing multiplier of 3.8 for copper). For the

Village, the Agency noted that “[a]ll copper samples were reported less than the acute and

chronic water quality standards.” R. at 509. The Village argues that the Agency correctly

considered the reasonable potential to exceed copper water quality standards on the basis of

sample results, the type of the Village’s facility, and the nature of its discharge. The Village

further argues that petitioners insist upon application of a USEPA analysis that is not appropriate

in this case and would produce “artificially high results.” Vill. Memo. at 11. The Village

concludes by arguing that its effluent would not violate the chronic standard for copper and that

“[n]o permit limit was necessary for copper.”

Furthermore, the Village argues that material facts relating to the numeric copper water

quality standards remain in dispute. Petitioners had stated as fact that, using USEPA

calculations, there existed a reasonable potential for copper levels to be more than double the

acute water quality standards and to be more than 3.7 times the chronic standard. Statement at 8-

9, citing R. at 508. The Village stresses that its facility has a low risk for high levels of metals in

its treated domestic effluent. Vill. Statement at 17, citing R. at 509. In addition, the Village

notes that the Agency, following its policy, did not evaluate reasonable potential to exceed

standards using the USEPA calculations. Because it had obtained five or fewer effluent samples,

the Agency determined that USEPA calculations would not yield valid results. Vill. Statement at

17; R. at 509. The Village specifically disagrees with Cynthia Skrukrud’s statement that the

Agency “should either use the multiplier in their analysis or require more samples.” Vill.

Statement at 24; citing R. at 264-65. Generally, the Village stresses that the Agency has

considered and addressed comments in its Responsiveness Summary and has properly concluded

that copper does not present a reasonable potential for exceeding water quality standards.

See

Vill. Memo. at 11.

Again, the Village concludes that disputed issues of material fact remain. Vill. Memo. at

2. The Village further states that petitioners’ motion is an inappropriate vehicle for resolution of

a third party permit appeal.”

. Because it argues that petitioners’ motion misstates the law and

draws selectively from the record in this case, the Village argues that the petitioners are not

entitled to summary judgment on the issue of the numeric copper water quality standard. Vill.

Memo. at 1-2.

Petitioners’ Reply

Petitioners summarize their argument on this point by stating that “IEPA failed to assure

that copper discharges will not cause or contribute to violations of the copper water quality

standard although testing by New Lenox’s contractor showed that there was a reasonable

potential that copper discharges would cause such violations.” Pet. Memo. at 2. Petitioners

argue that the Agency did nothing more than “go through the motions of considering placing

copper limits in the permit” and that the record does not support its decision. Pet. Memo. at 3.

Petitioners further argue that “copper limits or further testing is needed before the discharge can

be permitted properly.”

Specifically, petitioners note that respondents admit that the Agency performed analysis

recommended by USEPA but failed to follow the corresponding recommendations regarding

permit limits. Pet. Memo. at 25, citing Vill. Statement at 25, Agency Resp. at 34. Although the

Agency stated that it did not accept USEPA procedures applying a high multiplier to a small

number of samples (Agency Resp. at 34), petitioners argue that this “explanation does not make

sense.” Pet. Memo. at 25. Petitioners characterize as “common sense” the principle that a

limited amount of data increases the level of uncertainty.

. Petitioners further argue that the

solution to the problem of limited data is the acquisition of more data. Pet. Memo. at 25-26.

Petitioners also dispute the Agency’s statement that it considered the Village to be a low

risk for metals. Pet. Memo. at 26;

see

Vill. Statement at 34. “Whatever was reasonable to think

before testing was done, it was not reasonable to assume that New Lenox was a low risk for

metals after tests run by New Lenox’s contractor showed high copper levels.” Pet. Memo. at 26.

Petitioners further argue that the Agency’s practice with regard to the copper data appears to be a

general rule applied wherever there are limited data.

. As implementation rule, petitioners

state that it should go through rulemaking procedures and be submitted for approval to USEPA.

Board Analysis and Findings on Copper Issue

The Board will first look to whether genuine issues of material fact exist concerning the

offensive conditions issue. Only if not will the Board turn to whether petitioners have proven

they are entitled to judgment as a matter of law. While petitioners argue that there is no genuine

issue of material fact with regard to the copper water quality standard and that they are entitled to

judgment as a matter of law (Memo. SJ at 1), both the Agency and the Village disagree that there

are no genuine issues of fact remaining to be decided.

While petitioners argue that the Agency’s efforts failed to assure that the copper water

quality standard would not be violated, the Agency argues that two samples showed copper

concentrations less than the chronic water quality standard. While petitioner argues that USEPA

guidance recommends use of a multiplier to determine the potential to violate where there is a

small number of samples, the Agency argues that it has compared that limited data against

applicable water quality standards. While petitioners argues that the Agency should either apply

USEPA’s multiplier or obtain additional samples, the Agency argues that there is no known

source of copper discharging into the Village’s waste stream and that land use in the area is also

not a source of copper.

While petitioners argue that the Agency merely purported to consider copper limits, the

Village argues that the Agency specifically concluded that USEPA’s methodology would not

yield valid results. While petitioners conclude that that the permit does not control discharges

that would cause or contribute to a violation of the copper water quality standard, the Village

argues that the Agency correctly decided that issue on the basis of the Village’s samples, facility,

and discharges.

Considering the pleadings as it must strictly against the petitioners (Dowd & Dowd, Ltd.

v. Gleason, 693 N.E.2d at 370, citing 735 ILCS 5/2-1005(c) (1996)), the Board cannot conclude

that there is no genuine issue of material fact with regard to the issue of the copper water quality

standard. Although the disputes listed in the preceding two paragraphs are not intended to be

exhaustive, they nonetheless indicate that significant factual issues remain unresolved with

regard to matters such as the analysis of the Village’s samples, and the Agency’s consideration

of copper limits. As to the issue of the narrative offensive conditions water quality standard,

petitioners’ motion for summary judgment is denied.

DISCOVERY ISSUES

Having decided that this case cannot be decided on the basis of petitioners’ summary

judgment motion, the Board finds that discovery issues are ripe for its consideration.

Proposed Discovery Schedules

During a March 2, 2004 status conference, Board Hearing Officer Bradley P. Halloran

directed the parties “to submit proposed discovery briefing schedules on or before March 11,

2004.” On March 11, 2004, petitioners filed a submission (Pet. Sched.) stating “that there should

be no discovery in this case.” Petitioners argue that the Board hears the petition “exclusively on

the basis of the record before the Agency.” Pet. Sched. at 1, citing 415 ILCS 5/40(e) (2004);

Prairie Rivers Network v. IEPA and Black Beauty Coal Co.

, PCB 01-112, slip op. at 10 (Aug. 9,

2001).

Petitioners state that “the purpose of the hearing to be held in third party appeals is

generally limited to presentation and highlighting of the evidence in the Agency record.” Pet.

Sched. at 1. While acknowledging that there might appropriately be discovery regarding the

contents of the Agency record or where there was an allegation of tampering with that record,

petitioners stated that they were not aware of any issues of that nature.

. at 1-2. In the event

that the Board decided that there should be discovery in this case, petitioners requested that

discovery be limited to a period of six weeks.

. at 2.

Also on March 11, 2004, the Village submitted its proposed discovery schedule

commencing on issuance of the hearing officer’s order (Vill Sched.):

60 days for issuance of written discovery and responses to written

discovery.

60 days for review of written discovery responses and issuance of deposition

notices.

60 days for completion of depositions.

60 days for completion of Requests to Admit.

Vill. Sched. at 1.

Also on March 11, 2004, the Agency filed its proposed discovery schedule (Agency

Sched.):

Submission of written discovery request to parties involved by May 25, 2004.

Responses to written discovery by June 25, 2004.

Notification to deposition witnesses by August 25, 2004.

Completion of depositions by November 9, 2004.

Completion and submission of request to admit by December 9, 2004

Responses to request to admit by January 10, 2005.

The Illinois Pollution Control Board hearing by March 10, 2005.

Agency Sched. at 2.

Parties’ Briefing on Discovery Issues

At a status conference on April 1, 2004, the parties agreed that, before setting a final and

complete discovery schedule, the parties should submit briefs on the issues of what the Board is

to base its decision on and what constitutes the record before the Agency in this case. The

hearing officer directed the parties to file simultaneous briefs on or before April 21, 2004, and to

file replies, if any, on or before April 30, 2004.

The hearing officer’s order directed the parties, particularly those favoring a protracted

discovery schedule, to elaborate upon the information they believe is relevant, discoverable, and

admissible that was not before the Agency at the time the permit was issued.

See

Prairie Rivers

Network v. IPCB,

et al

., 781 N.E.2d 372, 379 (4th Dist. 2002),

aff’g.

Prairie Rivers Network v.

IEPA,

et al.

, PCB 01-112, slip op. at 10 (Aug. 9, 2001). The order stressed that, under Section

39 of the Act, the third-party petitioner has the burden of proving that the permit as issued would

violate the Act or the Board’s regulations. 415 ILCS 5/39 (2004). The order also stressed that

Section 40(a)(3)(ii) provides that the Board shall hear the petition for review “exclusively on the

basis of the record before the Agency.” 415 ILCS 5/40(a)(3)(ii) (2004);

see

Prairie Rivers

Network v. IEPA,

et al.

, PCB 01-112, slip op. at 10 (Aug. 9, 2001).

Petitioners’ Submission

In their submission (Pet. Sub.), Petitioners again stress that Section 40(e)(3) of the Act

provides that the Board hears this third-party petition “exclusively on the basis of the record

before the Agency.” Pet. Sub. at 1; 415 ILCS 5/40(e) (2004). Petitioners argue that “[i]t is

apparent that no party to this proceeding can use any document, testimony, or data that is not part

of the Agency record.” Pet. Sub. at 1. Petitioners note that the Board has affirmed a hearing

officer’s decision to limit evidence in a third-party appeal “to the record that was before IEPA at

the time the permitting decision was made.” Pet. Sub. at 2, citing Prairie Rivers Network v.

IEPA and Black Beauty Coal Co., PCB 01-112, slip op. at 10, 25 (Aug. 9, 2001).

Petitioners state that it might be argued that the Board under Section 40(e) can hear

testimony not contained in the record as long as that testimony addresses an issue that was raised

in the permit proceedings. Pet. Sub. at 2. However, petitioners argue that this claim ignores

statutory language: Section 40(e) “limits appeals to issues raised ‘during the public notice

period’ and

states that the Board should hear the appeal ‘exclusively on the basis of the record’

before the Agency.”

., citing 415 ILCS 5/40(e)(2)(A), 40(e)(3)(iii) (2004) (emphasis in

original). Petitioners conclude that the Board’s proceeding is limited both to issues and to

evidence contained in the record. Pet. Sub. at 2. With the record now complete, petitioners

argue that “[t]here is no need or possibility for discovery given that everything that is relevant is

already in plain view in the Agency record.” Pet. Sub. at 3.

On the issue of the burden of proof, petitioners acknowledge statutory language placing

that burden upon them. Pet. Sub. at 3, citing 415 ILCS 5/40(e)(3) (2004). “This means the

petitioners have the obligation to show that the permit was issued improperly either because

proper procedures were not followed in issuing the permit or because the permit as issued

violates the Environmental Protection Act or the regulations issued under that Act.” Pet. Sub. at

3, citing Prairie River Network v. Black Beauty Coal Co.

, 781 N.E.2d 372, 379-80 (4th Dist.

2002). With the Board limited exclusively to the Agency record and the burden of proof upon

them, petitioners argue that they “must show that it is more likely than not that the permit should

not have been issued on the basis of the Agency record.” Pet. Sub. at 4. “If the record does not

show that the applicant proved that the facility would not cause a violation of the Act or

regulations, the permit must be overturned.”

Agency’s Brief

Although acknowledging in its brief (Agency Brief) that the Act and the Board’s

regulations provide that “the Board shall hear the petition . . . exclusively on the basis of the

record before the Agency”, the Agency states that “this section is silent as to whether discovery

is allowed in a third party permit appeal.” Agency Brief at 4, citing 415 ILCS 5/40(e) (2004) and

35 Ill. Adm. Code 105.214(a).

In support of its view that discovery is allowed in this case, the Agency first notes that

Part 105 of the Board’s procedural rules applies to appeals from the Agency’s final decisions.

Agency Brief at 4 n.1, citing 35 Ill. Adm. Code 105.100. The Agency then quotes Part 105,

which states that, “[u]nless this Part provides otherwise, proceedings held pursuant to this Part

will be in accordance with the rules set forth in 35 Ill. Adm. Code 101.Subpart F.” Agency Brief

at 4 n.1, citing 35 Ill. Adm. Code 105.110 (Hearing Process). Subpart F of Part 101 provides the

Board’s general rules regarding hearings, evidence, and discovery. 35 Ill. Adm. Code 101.600 –

101.632. The Agency specifically relies upon Section 101.616(a), providing that “[a]ll relevant

information and information calculated to lead to relevant information is discoverable,” except

materials protected from disclosure. Agency Brief at 4, citing 35 Ill. Adm. Code 101.616

(emphasis in original). The Agency cites a number of cases and other authority in support of the

proposition that the scope of discovery in Illinois is broad.

See generally

Agency Brief at 5-6.

Turning specifically to this case, the Agency argues that discovery is “essential” in order

to learn the bases of the petitioners’ arguments and conclusions.

See

Agency Brief at 6. The

Agency further argues that discovery is needed in order to avoid surprise and as a matter of

“fundamental fairness.”

See id

. The Agency argues that, if it cannot conduct discovery, it would

have no means for testing petitioners’ opinions and would be disadvantaged at hearing. Agency

Brief at 6-7. The Agency cites Board precedent for the proposition that the Agency should be

able to admit into evidence at hearing documents that are “demonstrative only, and cumulative to

other information in the record.” Agency Brief at 8, citing Community Landfill v. IEPA

, PCB

01-48, 01-49, slip op. at 20 (Apr. 5, 2001).

The Agency also suggests that discovery is needed to overcome the shortcomings of the

informational hearing the Agency held in this case. That hearing is not adjudicatory in nature

and did not allow the Agency to cross-examine petitioners’ witnesses. Agency Brief at 6-7.

“The sole purpose of these hearings is to inform the public of a proposed Agency action or to

gather information or comments from the public prior to making a final decision on a matter.”

Agency Brief at 7, citing 35 Ill. Adm. Code 166.120.

Concluding, the Agency states that Section 40(e)(3) and Section 101.616(a) together

define the scope of discovery in a third-party permit appeal. Agency Brief at 7. In the Agency’s

view, the Agency’s record determines the scope of relevant information.

. “[N]ew

information is not discoverable.”

., citing 35 Ill. Adm. Code 101.616(a). If a fact or issue is

not found in the Agency record, it is new information that is not relevant and thus is not

discoverable.

Village Memorandum

In its Memorandum (Vill. Discovery Memo.), the Village first notes that that petitioners

rely upon Prairie Rivers Network v. IEPA and Black Beauty Coal Co.

, 781 N.E.2d 372 (4th Dist.

2002), in which the parties took discovery. Since the limited scope of the Board’s review “has

not precluded discovery on the substance and content of matters in the record,” the Village states

that discovery is both permissible and warranted in this case. Vill. Discovery Memo. at 1-2.

The Village further argues that many of petitioners’ claims are conclusory in nature and

that petitioner’s witnesses have not been cross-examined. Vill. Discovery Memo. at 2. The

Village argues that precluding discovery would be “fundamentally unfair and potentially

prejudicial to the Village’s ability to evaluate and challenge Petitioners’ witnesses and arguments

at hearing.” Vill. Discovery Memo. at 3. The Village cites cases in support of the general

proposition that allowing discovery in this case is consistent with the general purposes of

discovery.

. (citations omitted).

The Village further notes that the Board’s rules allow discovery on all “relevant

information and information calculated to lead to relevant information.” Vill. Discovery Memo.

at 2, citing 35 Ill. Adm. Code 101.616. The Village argues that “[d]iscovery of information in

the record before the Agency can only be helpful to the Board, as it will sharpen issues on appeal

and provide the substance necessary for the Board to make its own decision.” Vill. Discovery

Memo. at 3. Furthermore, the Village states that it “is not requesting discovery outside of the

matters that are in the record.”

Petitioners’ Reply

Petitioners’ Reply (Pet. Reply) suggests that the Agency and the Village have not

seriously challenged the statutory language providing that the Board is to hear this appeal

exclusively on the basis of the record before the Agency. Pet. Reply at 1, citing 415 ILCS

5/40(e) (2004). Petitioners argue that “[t]he general language on discovery in civil cases or in

other types of administrative proceedings cited by both respondents is clearly beside the point

given the clear language of 415 ILCS 5/40(e).” Pet. Reply at 2. Petitioners further argue that

proceedings such as review of an administrative decision do not necessarily include cross-

examination.

See id

. Again, petitioners emphasize Prairie Rivers Network v. IEPA and Black

Beauty Coal Co., PCB 01-112 (Aug. 9, 2001). In that case, petitioners claim that the Board

“decided that 40(e) meant what it says” and decided the appeal solely on the basis of the Agency

record. Petitioners acknowledge that discovery took place in that case but attributes its

occurrence to failure by petitioner’s counsel to object effectively to discovery or to the admission

of irrelevant material before the hearing.

Pet. Reply at 2. Petitioners argue that, after the time

and cost of depositions and other discovery, none of that discovery played a role in the Board’s

resolution of the case. Pet. Reply at 2-3.

Village Reply

In its Reply (Vill. Reply), the Village states that “Petitioners do not like the Board’s

procedure for third party appeals and argues that petitioners have unsuccessfully lodged their

position in previous Board proceedings. Vill. Reply at 1-2. Specifically, the Village argues that

petitioners have misinterpreted that Act and the Agency’s permitting procedures.

See

Vill. Reply

at 2-3. The Village argues that the informational hearing in this case does not require the

applicant or the Agency to justify a draft permit.

. The village submits that the hearing is for

the benefit of the public, as they receive information with which they can assess a permit

application and submit comments.

., citing 35 Ill. Adm. Code 309.109-309.113, 309.116-

309.119.

The Village argues, now that petitioners have launched what it considers a “shotgun

challenge” (Vill. Reply at 3), that it may explore issues raised by the petitioners both at hearing

before the Board and through discovery. The Village argues that the Act requires a hearing to be

held according to Section 40(a) and according to procedures in Section 32.

., citing 415 ILCS

5/32, 5/40(a) (2004). The Village further argues that the Act “must be read as a whole” and

allows discovery of the evidence and testimony relied upon by the petitioners.

. at 4.

Board’s Analysis and Findings

Section 40(e)(3) of the Act requires the Board to “hear the petition . . . exclusively on the

basis of the record before the Agency.” 415 ILCS 5/40(e)(3) (2004). The Board’s procedural

rules reflect this requirement: “[t]he hearing will be based exclusively on the record before the

Agency at the time the permit or decision was issued.” 35 Ill. Adm. Code 105.214(a). Board

cases have also reflected this requirement. “The Board has consistently held that, in permit

appeals, its review is limited to the record that was before IEPA at the time the permitting

decision was made.” Prairie Rivers Network v. IEPA and Black Beauty Coal Company

, PCB

01-112, slip op. at 10 (Aug. 9, 2001), citing Alton Packaging Corp. v. IPCB

, 516 N.E.2d 275,

280 (5th Dist. 1987) (disallowing introduction of new evidence not presented to the Agency in

the permit proceeding); Community Landfill Co. v. IEPA

, PCB 01-48, 01-49 (Apr. 5, 2001);

Panhandle Eastern Pipeline Co. v. IEPA

, PCB 98-102 (Jan. 21, 1999); West Suburban Recycling

and Energy Center, L.P. v. IEPA, PCB 95-125, 95-199 (Oct. 17, 1996). Furthermore, the

Board’s decision “is not based on information developed by the permit applicant, or the Agency,

after the Agency’s decision.” Community Landfill Co. and City of Morris v. IEPA

, PCB 01-48,

The Board notes that counsel for petitioners in this case also filed the petition for review of the

Agency’s decision in

Prairie Rivers Network v. IEPA and Black Beauty Coal Co., PCB 01-112

(Jan. 30, 2001).

01-49, slip op. at 3 (Apr. 5, 2001), citing Alton Packaging, 516 N.E.2d at 280. Consequently,

“evidence that was not before the Agency at the time of its decision is not admitted at hearing or

considered by the Board.” Community Landfill Co. and City of Morris v. IEPA

, PCB 01-48, 01-

49, slip op. at 3 (Apr. 5, 2001), citing Alton Packaging

, 516 N.E.2d at 280; Panhandle Eastern

Pipeline Co. v. IEPA, PCB 98-102 (Jan. 21, 1999); West Suburban Recycling and Energy

Center, L.P. v. IEPA, PCB 95-125, 95-199 (Oct. 17, 1996).

The Board’s procedural rules provide that “[t]he Agency must file its entire record of its

decision with the Clerk in accordance with Section 105.116.” 35 Ill. Adm. Code 105.212;

see

Ill. Adm. Code 105.116 (providing 30-day deadline for filing record). The procedural rules

further provide that “the record must include:

Any permit application or other request that resulted in the Agency’s final

decision;

Correspondence with the petitioner and any documents or materials

submitted by the petitioner to the Agency related to the permit application;

The permit denial letter that conforms to the requirements of Section 39(a)

of the Act or the issued permit or other Agency final decision;

The hearing file of any hearing that may have been held before the

Agency, including any transcripts and exhibits; and

Any other information the Agency relied upon in making its final

decision.” 35 Ill. Adm. Code 105.212(b).

The Board notes that, in one Agency permit appeal, “[d]iscovery in the action was extensive.”

Waste Management, Inc. v. IEPA

, PCB 84-45, PCB 84-61, PCB 84-68 (consolidated), slip op. at

1 (Oct. 1, 1984),

aff’d. sub nom.

IEPA v. IPCB

, 503 N.E.2d 343 (1986). The record in the Waste

Management case, however, shows significant difficulties in compiling and filing a voluminous

record.

. (including in record more than 2,000 pages of transcripts and ten boxes of

documents). A Board order on May 18, 1984, allowed the Agency additional time to file its

record. Board orders dated July 19, 1984, and August 10, 1984, allowed the Agency to file

additional materials in order to complete the required record. In this case, however, the Board

has before it no dispute about the contents of the Agency record. Particularly under those

circumstances, the Board finds there is no compelling reason to permit discovery to supplement

the Agency record with materials required by Section 105.212 of the Board’s procedural rules.

35 Ill. Adm. Code 105.212(b).

The Board notes that the Board’s rules allow the parties to agree to supplement the record

pursuant to Section 40(d) of the Act. 415 ILCS 5/40(d) (2004); 35 Ill. Adm. Code 105.214(a).

Section 40(d) of the Act refers specifically only to permits issued under Section 9.1(c) of the Act,

which relates to permits issued under the Clean Air Act. 415 ILCS 5/9.1(c) (2004). Because the

Act contains no specific means for supplementing the record in NPDES appeals, the Board must

limit its review to the record that was before that Agency and could not properly consider

evidence or testimony disclosed through discovery.

The issue in this case is whether the administrative record supports the Agency’s decision

to issue the Village’s permit. The Board cannot conclude under the circumstances of this case

that the respondents have persuasively identified any additional discoverable evidence. In a

permit appeal such as this, respondents do not have the same opportunity to engage in discovery

as they would in an enforcement case. Consequently, the Board directs the hearing officer to

proceed to hearing on terms consistent with this order.

CONCLUSION

For the reasons stated above, the Board denies petitioners’ motion for summary judgment

as to each of the three grounds stated: nutrient loadings, offensive conditions water quality

standard, and copper water quality standard. In addition, the Board determines that neither the

Agency nor the Village has justified the discovery sought in their respective submissions, and the

Board directs the hearing officer to proceed to hearing on terms consistent with this order.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on November 17, 2005, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board