BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PRAIRIE RIVERS NETWORK and
)
SIERRA CLUB
)
Petitioners
)
V.
)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY and PRAIRIE STATE GENERATING
)
COMPANY, LLC
)
Respondents
)
RECEIVE®
CLERK'S OFFICE
FEB 2 3 2006
PCB 06 -
124
(NPDES Permit Appeal)
Pollution
STATE OF
Control
ILLINOIS
Board
AMERICAN BOTTOM CONSERVANCY and )
DALE WOJTKOWSKI
)
Petitioners
)
v.
)
PCB 06 - 127
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY and PRAIRIE STATE GENERATING )
COMPANY, LLC
)
Respondents
)
NOTICE OF FILING
PLEASE TAKE NOTICE that Prairie Rivers Network and Sierra Club have filed the
attached RESPONSE TO RESPONDENT PRAIRIE STATE GENERATING COMPANY,
LLC'S MOTION TO DISMISS
.
Albert F. Ettinger
(Reg. No. 3125045)
Counsel for Prairie Rivers Network and Sierra Club
DATED
: February 23, 2006
Environmental Law and Policy Center
35 E
. Wacker Drive, Suite 1300
Chicago, Illinois 60601
312-673-6500
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PRAIRIE RIVERS NETWORK and
)
PECEftVE
SIERRA CLUB
)
CLERK'S OFFICE
)
Petitioners
FEB 2 3 2006
)
STATE OF ILLINOIS
V.
)
PCB 06 -
124
Pollution Control Board
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY and PRAIRIE STATE GENERATING
)
COMPANY, LLC
)
Respondents
)
AMERICAN BOTTOM CONSERVANCY and
)
DALE WOJTKOWSKI
)
Petitioners
J
v.
)
PCB 06 - 127
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY and PRAIRIE STATE GENERATING )
COMPANY, LLC
)
Respondents
)
RESPONSE TO RESPONDENT PRAIRIE STATE GENERATING COMPANY, LLC'S
MOTION TO DISMISS
The Motion to Dismiss filed by Respondent Prairie State Generating Company (PSGC)
largely ignores the relevant federal and Illinois law regarding the requirements for issuance of a
valid National Pollutant Discharge Elimination System (NPDES) permit and the rules for
appealing the improper issuance of such a permit
. Under the law and regulations, the entire
Petition of Petitioners Prairie Rivers Network (PRN) and Sierra Club (SC) is clearly proper and
sufficient
. Further, the Petition details numerous ways in which the NPDES permit issued by the
Illinois Environmental Protection Agency (IEPA) violated the requirements of the federal Clean
Water Act (CWA) as implemented under Illinois law
. Accordingly, the Board should DENY the
Motion.
I.
The Board Rules Preclude Dismissal of the Petition
PSGC's Motion to Dismiss attacked the claims raised in paragraphs
7(b), 7(c), and 7(d)
of PRN and SC's Petition
. PSGC did not move to dismiss the claim PRN and SC raised in
paragraph 7(a) (regarding the discharge of harmful chlorinated organics)
. Moreover, Respondent
Illinois Environmental Protection Agency has not moved for dismissal of any of Petitioners'
claims
. None of PRN and Sierra Club's claims should be dismissed
.'
A.
Motions to Dismiss Have a
Very High Burden
For purposes of ruling on a motion to dismiss, all well pled facts contained in the
pleading must be taken as true, and all inferences from them must be drawn in favor of the non-
movant . People v
. Pattison Assoc., PCB 05-181, 2005 111
. ENV LEXIS 580, at *9 (Sep . 15,
2005). A complaint should not be dismissed for failure to state
a
claim unless it clearly appears
that no set of facts could be proven under the pleadings that would entitle the complainant to
relief. Id.
B.
The Pleading Requirements Applicable to the Petition Are Lenient
The contents of a pleading are governed by PCB rules and precedent
. Lone Star Indust
. v.
Illinois EPA, PCB 03-94, 2003 Ill
. ENV LEXIS 133, at *6 (Mar. 6, 2003)
. Case law is consistent
in finding that pleading requirements for administrative review are less exacting than for other
1
PRN and SC filed their Petition in this case on January 6, 2006
. PSGC filed its Motion to
Dismiss on February 6, 2006, with service by U .S
. mail, with service presumed on February 10,
2006
. 35 Ill. Admin. Code § 101 .300(c)
. PRN and SC have 14 days from service to file a
response
. 35 111 . Admin. Code § 101 .500(d)
. This response is therefore timely.
2
causes of action . Sierra Club v
. City of Wood River, PCB 98-43, 1997 Ill
. ENV LEXIS 632, at *4,
(Nov . 6, 1997) . The requirements the PCB has set for the contents of a petition challenging an
IEPA permit are that it include :
a) The Agency's final decision or issued permit ;
b) A statement specifying the date of issuance or service of the Agency's final decision
or issued permit . . . ;
c) A statement specifying the grounds of appeal ; and
d) For petitions under Section 105
.204(b) of this Subpart, a demonstration that the
petitioner raised the issues contained within the petition during the public notice
period or during the public hearing . . . and a demonstration that the petitioner is so
situated as to be affected by the permitted facility.2
35 Ill . Admin
. Code § 105 .210 (emphasis in original removed)
PRN and SC's Petition plainly contains all four elements
. In fact, PSGC nowhere claims
that the Petition lacks any of the Section 105 .210 elements
. PSGC instead broadly argues that the
Petition is somehow "legally insufficient." Mot . to Dismiss at 3 .
II
.
The Petition Properly Alleges that Issuance of the NPDES Permit at Issue Violated
Applicable Law
A.
The Clean Water Act
Illinois law
requires that permits only be issued with limitations that conform to the
requirements of the federal Clean Water Act . 415 ILCS §5/12; 35 Ill . Adm
. Code § 309 .141(d).
Under the CWA, 33 U .S.C. § 1251 et seq.,
stormwater permits, like all NPDES permits, must
contain various provisions to protect the chemical, physical, and biological health of receiving
waters. 33 U .S .C. § 1342(p)
. Some stormwater permittees are allowed to discharge after filing
notices of intent to comply with a properly issued general permit
. As PSGC acknowledges,
however, its proposed facility is
ineligible for coverage under any general permit and must
receive an individual permit
. See Mot. to Dismiss at 9, n
. 7 and General NPDES Permit No .
2 This Petition was brought under 35 Ill . Admin
. Code § 105 .204(b), so subsection (d) applies .
3
ILROO at 3 .
In their Petition, PRN and SC state that :
By allowing stormwater discharges before a SWPPP is implemented, the permit
violates 33 U .S.C
. § 1311 and 415 ILCS ,§ 5/12 . The procedures used in the
issuance of the permit prevent meaningful public participation in the review of the
SWPPP, and fail to give notice of proposed effluent limits in violation of 35 Ill
.
Adm
. Code §§ 309 .108(b) and 309 .113
. Further, by failing to contain an adequate
SWPPP, the permit fails to contain necessary effluent limits and monitoring in
violation of 35 Ill
. Adm. Code §§ 309 .141(d) and 309 .146
. See also 33 U .S.C. §
1342.
PSGC urges dismissal of PRN and SC's claims related to the Stormwater Pollution
Prevention Plan (SWPPP) that is required as part of Permit No
. IL0076996
. PSGC's arguments
are all essentially variations on a single theme
: PSGC believes that CWA's oversight and public
review provisions apply to SWPPPs only if the words "stormwater pollution prevention plan"
explicitly appear in the statute
. In fact the Clean Water Act and Illinois law implementing the
CWA require all permit elements -
SWPPPs and otherwise - to be reviewed by the permitting
authority and subject to public review prior to permit issuance
. No parts of the permit are
exempted in the laws or the regulations from the requirements of being approved by the agency
after allowing public participation
. Certainly, a SWPPP is not properly seen as some separate
element of little consequence of the NPDES permit but is an integral part of the pollution control
limits. See
Natural Resources Defense Council v . Southwest Marine, Inc
.; 236 F .3d 985, 997 (9th
Cir
. 2000) (plaintiff's 60-day notice letter regarding defendant's failure to comply with "good
housekeeping" provisions in SWPPP sufficient for district court to exercise jurisdiction)
.
B .
Failure to Include the Stormwater Pollution Prevention Plan in the Permit
The CWA requires NPDES permits to "apply, and insure compliance with, any
applicable requirements" and further provides that the EPA "shall prescribe conditions for such
4
permits to assure compliance with [all applicable requirements]
." 33 U.S.C
. § 1342(a)(2) an
(b)(1)(A) .
There are many applicable requirements for industrial stormwater discharges, so
Permit No
. IL0076996 must, to comply with the CWA, ensure compliance with them
. The
permit does not, and indeed it could not ensure compliance since there is nothing in the record to
demonstrate compliance with any of the requirements
. PSGC believes that SWPPPs can be
excluded from a permit and are exempt from agency review requirements, but there is nothing in
the CWA to indicate so and relevant case law resoundingly rejects such a position
.
1 .
The CWA requires the SWPPP be subject to IEPA oversight and in the
permit,
a.
NPDES permits must ensure compliance with stormwater
requirements
The CWA demands regulation in fact, not only in principle
. "Under the [CWA],
permits . .
. may issue only where such permits ensure
that everyy discharge of pollutants will
comply with all applicable effluent limitations and standards ."
Waterkeeper Alliance v. U.S.
EPA, 399 F .3d 486, at 498 (2" d
Cir. 2005) (emphasis in original)
. For example, state NPDES
programs must issue permits that
"apply,
and insure compliance with,
any applicable
requirements
." 33 U.S.C. § 1342(b)(1)(A) (emphasis added)
. The CWA further provides that the
EPA "shall prescribe conditions for such permits
to assure compliance with [all applicable
requirements]
." 33 U.S.C
. § 1342(a)(2) (emphasis added) .
What are these requirements? In general, the CWA requires states to ensure that NPDES
permits include certain provisions, such as requirements related to limits on discharges,
monitoring, inspection, and so on
. 33 U.S.C. § 1342(b) and
(c). Specifically in the case of
stormwater, dischargers meet the bulk of these requirements through developing an SWPPP
. It is
only in the SWPPP that steps to "ensure the implementation of practices
. . . to reduce the
pollutants in storm water discharges" are actually developed
. See
NPDES Permit No .
5
1L0076996, Special Condition 21(A), p
. 12 .
Most specific to the case at hand, individual permits for stormwater discharges from
industrial sites have extensive requirements . These requirements include :
(A) A
site map showing topography . . of the facility including: each of
its drainage and discharge structures ; the drainage area of each storm
water outfall; paved areas and buildings
.
. . . each past or present area
used for outdoor storage or disposal
of significant materials, each existing
structural control measure
to reduce pollutants in storm water runoff,
materials loading and access areas, areas where pesticides, herbicides,
soil conditioners and fertilizers are applied, each of its
hazardous waste
treatment, storage or disposal facilities . . . ; each well where fluids from
the facility are injected underground ; springs, and other surface water
bodies which receive storm water discharges from the facility ;
(B) An estimate of the area of impervious surfaces . . .
and the total area
drained by each outfall . . . and a narrative description of the following :
Significant materials that . . have been treated, stored or disposed in a
manner to allow exposure to storm water;
method of treatment, storage or
disposal of such materials ; materials management practices employed . . .
to minimize contact by these materials with storm water runoff;
materials
loading and access areas;
the location, manner and frequency in which
pesticides, herbicides, soil conditioners and fertilizers are applied ; the
location and a description of existing structural and non-structural control
measures to. reduce pollutants in storm water runoff
; and a description of
the treatment the storm water receives . . . ;
(C) A certification that all outfalls
. . . have been tested or evaluated for
the presence of non-storm water discharges . . . The certification shall
include a description of the method used, the date of any testing, and the
on-site drainage points that were directly observed during a test;
(D) Existing information regarding significant leaks or spills of toxic or
hazardous pollutants at the facility . . . ;
(E)
Quantitative data based on samples collected during storm events . . .
from all outfalls containing a storm water discharge associated with
industrial activity for the following parameters :
(1) Any pollutant limited in an effluent guideline . . . .
(2) Any pollutant listed in the facility's NPDES permit for its
process wastewater
. . . ;
(3)
Oil and grease, pH, BOD5, COD, TSS, total phosphorus, total
Kieldahl nitrogen, and nitrate plus nitrite nitrogen
; . . .
(5) Flow measurements or estimates of the flow rate, and the total
amount of discharge for the storm event(s) sampled, and the
method of flow measurement or estimation ; and
(6) The date and duration (in hours) of the storm event(s)
sampled, rainfall measurements or estimates of the storm event . .
(0) Operators of new sources or new discharges
. . . must include
estimates for the pollutants or parameters listed in paragraph
(c)(1)(i)(E)
of this section instead of actual sampling data, along with the source of
each estimate . Operators of new sources or new discharges . . . must
provide quantitative data for the parameters listed in paragraph
(c)(1)(i)(E)of this section within two years after commencement of
discharge. . . .
40 CFR § 126.22(c)(1) (emphasis added) . These requirements
. are in addition to further
requirements in 40 CFR § 122 .21 and elsewhere. Even a cursory glance at these requirements
reveals that they are substantial, detailed, and the very heart of the stormwater permitting
program. PSGC will fulfill these requirements, if at all, by developing an SWPPP that includes
the necessary limits, monitoring, and tests .
b.
Permit No . IL0076996 does not ensure-compliance with
stormwater requirements
Under the CWA, therefore, IEPA must "insure compliance" with each of the
requirements noted above as well as with any other applicable requirements .3 In the case at hand,
however, IEPA has already issued Permit No . IL0076996 without any provisions to ensure
compliance with these requirements ; IEPA has also failed to review any plans, documents, or
other information to see if the preceding requirements will be fulfilled or not
. In fact, there is no
3 Some may claim that PRN and SC are here requesting IEPA to perform an impossible feat,
i.e.,
to write a permit in the present that ensures compliance in the future with
all requirements .
Clearly, that cannot be done, and we do not claim otherwise
. However, it is still very possible-
and indeed is
required by the plain language of the CWA - for IEPA to write a permit in the
present that includes requirements that, if followed, will lead to compliance in the future
. Any
ruling that allows IEPA to omit requirements needed for compliance renders meaningless
CWA's mandate that permits "apply, and insure compliance with, any applicable requirements"
and "assure compliance" with NPDES provisions . 33 U.S.C. § 1342(a)(2), (b)(1)(A) . Under the
CWA, requiring stormwater monitoring and reduction in a permit is no different than requiring
effluent monitoring and reduction .
7
evidence in the record demonstrating PSGC's intent or ability to comply with any of the
requirements
. The approach that PSGC advocates is tantamount to saying "If you issue us a
CWA permit now, we promise to develop a plan to comply with the CWA later." This is
precisely the sort of self regulation that courts have rejected as incompatible with CWA's
stormwater permitting requirements . In issuing Permit No
. 1L0076996, IEPA had no idea
whether compliance would occur -
and certainly did not "insure compliance" with the
requirements as the CWA mandates . For all IEPA knows, PSGC might choose never to develop
an SWPPP
. Or it might develop an SWPPP that omits some or most of the requirements noted
above
. Because IEPA never asked for information on these points before issuing the permit, and
because it need never review the SWPPP in the future, 5 it may never find out .
PSGC replies that the public is free to request a copy of the SWPPP in the future and
petition the IEPA to intervene if the SWPPP is deficient
. Mot. to Dismiss at 14-15 . But this is not
enough to satisfy the CWA
. The CWA requires IEPA to "insure compliance" now, in the
present
; it does not allow IEPA to omit review of the permit's operational provisions and hope
that citizens will later follow up to see if the applicant actually complied with the law
. Certainly,
by declining to ask for the SWPPP and by making its own review optional, IEPA has not
"insured" that PSGC's stormwater plans comply with the law - or even exist
.
2.
Case law requires the SWPPP be subject to IEPA oversight and in the
permit
PSGC's claim that provisions related to stormwater monitoring and reduction are exempt
from the CWA's oversight requirements
for NPDES permits is completely without support and
4 See Environmental Defense Center v
. U.S. EPA, 344 F.3d 832 (9`h Cir. 2003) and
Waterkeeper
Alliance v. US. EPA, 399 F
.3d 486 (2' Cir ..2005), both discussed below, as well as
NRDC v.
EPA, 966 F .2d 1292 at 1305 (9`h Cir. 1992).
5
The permit only provides that the SWPPP shall be made available to IEPA "upon request
."
NPDES Permit No
. 1L0076996, Special Condition 21(B), p. 12 .
8
contradicted by relevant case law .
a.
Environmental Defense Center
In Environmental Defense Center v . U.S. EPA, 344 F.3d 832 (9th Cir. 2003), the Ninth
Circuit considered the United States Environmental Protection Agency (U.S . EPA) "Phase II"
stormwater rule establishing NPDES requirements for stormwater discharges from small
municipal separate storm sewer systems and small construction sites between one and five acres
.
One provision of the rule would have allowed dischargers to be covered under a general permit
without the permitting agency ever reviewing the substantive materials 6 - a situation extremely
similar to the present case . Environmental groups filed suit, protesting that the rule
impermissibly allowed the development of stormwater pollution control plans without adequate
review by the permitting agency or public participation .
Id. at 852.7
The court agreed with the environmental plaintiffs and struck down the provision because
it provided insufficient oversight by the permitting agency . Id. at 856. Specifically, the court held
that "stormwater management programs . . . must, in every instance, be subject to meaningful
review by an appropriate regulating entity ."8 Id. (emphasis added)
. In the absence of agency
review, the court feared, "nothing prevents the operator . . . [from] proposing a set of minimum
6 Because the rule addressed a general permitting scheme, the relevant document at issue was the
Notice of Intent ("NOI") to be covered by the general permit. In the present case, since PCGS is
ineligible for coverage under the general permit, the relevant document is the SWPPP . However,
the reasoning used by the Ninth Circuit would apply no less to an SWPPP than to an NOT
.
Indeed, the case is more compelling in the context of an individual permit, because the reasons
one court cited for not requiring review of an SWPPP (see discussion of Texas Independent
Producers and Royalty Owners Assoc. below) apply only to general permits .
7
The portion of Environmental Defense Center
that addresses public participation is discussed
below.
8
.
It is primarily for this reason that PSGC's attempt to invoke Prairie Rivers Network v . IEPA,
PCB 01-112, 2001111 . ENV LEXIS 366 (Aug. 9, 2001), is unconvincing . That decision, which
predates both Environmental Defense Center and Waterkeeper Alliance (see below), fails to
consider the CWA mandate that permits ensure compliance with applicable regulations and
therefore require agency review of relevant provisions such as SWPPPs .
9
[stormwater control] measures that would reduce discharges by far less than the maximum extent
practicable," and thereby violate the CWA .9 Id.
at 855. Because "no one will review that
operator's decision [on stormwater controls] to make sure that it was reasonable, or even good
faith," the rule was "contrary to the clear intent of Congress" in the CWA
. Id. at 855-56.
The court also held that the mere fact that the permitting agency might review the
program in the future was not enough to satisfy the CWA
. Noting that the CWA requires "every
permit" to comply with applicable standards, the court held that unless
every program is
reviewed by the permitting agency, "there is no way to ensure that such compliance has been
achieved ." Id. at 855, n
. 32.
b.
Waterkeeper Alliance
In Waterkeeper Alliance,
the Second Circuit considered a challenge to a U
.S . EPA rule
for concentrated animal feeding operations (CAFOs)
. The rule required CAFOs to develop
nutrient management plans to control how and when livestock waste would be spread over farm
fields
. These plans are intended in
large part to reduce polluted stormwater runoff after rain
events and are, in that sense, very similar to the SWPPP at issue here
.
10
As in
Environmental Defense Center,
the CAFO rule proposed to allow permit coverage
to applicants without U.S
. EPA or the state agencies ever needing to review the nutrient
management plans or including them in the permit
. The plaintiffs sued, claiming that the CWA
requires meaningful review of the plans and the inclusion of the plans in the NPDES permit, as
9
The "maximum extent practicable" language does not apply to PSGC, since it is peculiar to
CWA requirements for discharges from small municipal separate storm sewer systems
. The
underlying point is the same, however
: absent EPA review, a regulated entity might develop a
stormwater plan that falls short of CWA standards
.
10
In fact, the Second Circuit held that, for its analysis, the distinction between stormwater
management plans and nutrient management plans was a "distinction without a difference
."
WaterkeeperAlliance, 399 F
.3d at 500, n . 18.
10
well as adequate public participation . Waterkeeper Alliance,
399 F .3d at 498, 503 . 11
The court agreed with the plaintiffs, holding that "fbiv failing to provide for permitting
authority review" of the plans, the rule
"plainly violates these statutory commandments and is
otherwise arbitrary and capricious ."12 Id. at 499 (emphasis added)
. In other words, the court
found that U .S
. EPA could not fulfill its statutory duty of ensuring compliance with all
applicable CWA requirements if it never reviewed the nutrient management plans to see whether
they contained all the necessary elements
. In the absence of mandatory agency review, "the
CAFO Rule does nothing to ensure
that each Large CAFO has, in fact developed a nutrient
management plan that satisfies [CWA] requirements ." Id (emphasis in original)
. The court
further held that the only real restrictions on discharges under the CAFO rule were the
restrictions imposed by the nutrient management plan itself, meaning that the plans were in
effect non-numeric effluent limitations that must be included in the NPDES permit itself
. Id. at
502.
C.
Failure to Provide for Public Review or a Public Hearing on the Stormwater
Pollution Prevention Plan
When the CWA states that every state NPDES program must ensure that "the public
. . .
receive notice of each application for a permit and . . . provide an opportunity for public hearing
before a ruling on each application," 33 U .S.C
. § 1342(b)(3), there is no exception. No parts of
the permit application - whether they are related to SWPPPs, monitoring, effluent limits, or any
other matter -
are carved out from this overarching requirement . Permit No . IL0076996 provided
no such public notice or opportunity for a public hearing on the SWPPP provisions and therefore
failed to meet CWA requirements
. Case law also finds that public review should apply in cases
I I
The portion of Waterkeeper Alliance that addresses public participation is discussed below
.
12
By "these statutory commandments," the court was referring to parts of the CWA that require
NPDES permits to assure compliance with applicable regulations
.
11
such as this . This result is
also dictated by the Board's regulations that require that the terms and
limitations of draft permits be subject to public comments and potentially a public hearing . 35 Ill .
Admin. Code §§ 309 .108(b), 309 .113.
1 .
The CWA requires public review and a public hearing on the SWPPP
a.
NPDES permits must ensure compliance with public participation
requirements
Congress clearly intended to guarantee the public a meaningful role in the
implementation of the CWA . Waterkeeper Alliance, 399 F.3d at 503 . For example, the CWA
strongly states that "public participation
in the development, revision, and enforcement of any
regulation, standard, effluent limitation, plan, or program . . . under this Act
shall be provided
for, encouraged, and assisted by the Administrator and the States
." 33 U.S.C. § 1251(e)
(emphasis added). More specifically, in the context of
NPDES permits, the CWA requires that
there be an "opportunity for public hearing" before any NPDES permit issues, 33 U.S.C. §
1342(a)(1), (b)(3)
and that a "copy of each permit application and each permit issued under
[Section 1342] shall be available to the public," 33 U .S.C. § 1342(j) .
As explained above, Permit No. IL0076996 must include, an SWPPP in order to ensure
compliance with all applicable requirements, as the CWA mandates
. As a necessary part of the
NPDES, the SWPPP is subject to public participation and hearing requirements just like every
other part of the NPDES permit . Indeed, for a stormwater NPDES permit, it is more important to
solicit public review of the SWPPP than any other part of the permit, for it is only in the SWPPP
that the steps to "ensure the implementation of practices . . .
to reduce the pollutants in storm
water discharges" are described
. To exempt the SWPPP from public scrutiny and leave its
development until after permit issuance would be like exempting effluent limits in an
NPDES
permit from public review with an explanation that the applicant would develop the limits on its
12
own later
.
b.
Permit No
. IL0076996 does not ensure compliance with public
participation requirements
An SWPPP must therefore be available for public review and a public hearing before
permit issuance, and indeed is the most important element of a stormwater permit
. In the case at
hand, however, IEPA has already issued Permit IL No
. 0076996 without making an SWPPP
available for review or a hearing
. In fact, IEPA could not have done so because there was no
SWPPP in the record.
By shielding the SWPPP from public scrutiny, IEPA prevented the public from knowing
what stormwater controls would be used to reduce stormwater pollution at PSGC's facility, much
less whether those controls would be adequate or appropriate
. This clearly frustrated the CWA's
intent that the public be involved in developing permits and plans
. It meant little that the public
was allowed review and a hearing on Permit No
. IL0076996 without the SWPPP, for the SWPPP
is the substance of Permit No
. IL0076996's stormwater provisions .
PSGC replies that there has been no harm because the public is free to request a copy of
the SWPPP in the future and petition the IEPA to intervene if the SWPPP is deficient
. Mot. to
Dismiss at 14-15
. But this misses the point
. The CWA requires public participation p or to
permit issuance because that is the point at which review and comments can be most effective
.
The PSGC approach would relegate public participation to a post hoc
attempt to remedy
mistakes rather than the integrated and proactive input that the CWA envisions
. Courts recognize
that technical issues relating to NPDES permits should be decided in "the most open, accessible
forum possible, and at a stage where the [permitting authority] has the greatest flexibility to
make appropriate modifications to the permit ." Environmental Defense Center,
344 F .3d at 856-
57 (citing 44 Fed
. Reg. 32854 at 885 (June 7, 1979))
. Withholding important terms of the draft
13
permit from public review is not allowed under the Board regulations developed to implement
the federal requirements . These terms must be part of the permit seen by the public
. 35 Ill .
Admin. Code §§ 309 .108(b), 113, 146(c) .
2 .
Case law requires public review and a public hearing on the SWPPP
PSGC believes that provisions related to stormwater monitoring and reduction are
.
somehow exempt from the CWA's public participation requirements for NPDES permits
.
Relevant case law, however, takes the opposite position.
a.
Environmental Defense Center
In Environmental Defense Center, the Ninth Circuit also considered whether the U
.S.
EPA "Phase II" stormwater rule allowed the development of stormwater pollution control plans
without adequate public participation . 344 F.3d at 852
. After reviewing CWA's public
participation requirements, the court agreed with plaintiffs and struck down the provision as
failing to guarantee sufficient public participation
. Id. at 858 . Specifically, the court held that
"clear Congressional intent requires that fstormwaterl NOIs be subject to the Clean Water Act's
public availability and public hearings requirements
."
13
Id. at 856 (emphasis added). Finding that
public participation rights are a "critical means of advancing the goals of the Clean Water Act,"
the court overturned U .S
. EPA's attempt to exempt NOIs from public review and hearing
provisions
. Id. at 856-57 . The court also cited the U .S
. Supreme Court's holding that the "general
policy of encouraging public participation is applicable to the administration of the NPDES
permit program
." Costle v. Pacific Legal Foundation, 445 U .S . 198, 216 (1980)
.
13 Again, in Environmental Defense Center the oversight of the program was to occur through
review of the NOI and in the present case it is to occur through review of the SWPPP, but the
principle is the same in each case .
14
b.
Waterkeeper Alliance
The Second Circuit also considered the adequacy of public participation in the CAFO
rule at issue in Waterkeeper Alliance . 399 F .3d at 503-04
. In a rebuke of U .S. EPA's attempt to
allow NPDES permit coverage without submitting nutrient management plans to public review,
the court wrote "[t]he CAFO Rule
deprives the public of the opportunity for the sort of
regulatory participation that the Act guarantees because the Rule effectively shields the nutrient
management plans from public scrutiny and comment
."
Id.
at 503 (emphasis added) . Such an
approach frustrates the CWA's public involvement goals and "forestalls -
rather than `provides
for, encourages, and assist[s]' - public participation in the development of nutrient management
plans." Id. at 504, quoting 33 U .S.C. § 1251(e)
. In fact, the Second Circuit held that the nutrient
management plans constituted non-numeric effluent lim is that must be subject to public
review.
t4 Id. at 502.
c.
Texas Independent Producers and Royalty Owners Association
The Seventh Circuit recently issued a decision that, while coming to a different
conclusion than Environmental Defense Center
and Waterkeeper Alliance, did so for a reason
inapplicable to the present case. In
Texas Independent Producers and Royalty Owners Assoc . V.
EPA, 410 F.3d 964 (7th Cir. 2005), the court considered a challenge to a U
.S . EPA rule
permitting stormwater discharges from construction sites without public availability and a public
hearing for notices of intent (NOIs) and SWPPPs .15
The court held that the CWA was ambiguous
as to whether NOIs and SWPPPs were subject to public participation requirements
. The court
14
This refutes PSGC's argument that SWPPPs do not contain "effluent limitations
." Mot. to
Dismiss at 17. The Second Circuit cogently demonstrates that the substantive provisions of
nutrient management plans, much like SWPPPs, meet the CWA definition of "effluent
limitation
."
15
The plaintiffs also appeared to raise the question of insufficient permitting agency oversight,
id. at 969-70, but the court's opinion never addresses that issue .
15
therefore deferred to the judgment of U.S. EPA that the requirements did not apply because to
have them apply would undermine the administrative efficiency inherent in the general
permitting concept . Id. at 978. However, that rationale does not apply here . Permit No .
IL0076996 is an individual permit, not a general permit, and applying public participation
requirements in this case would not affect the efficiency of a general permitting scheme
.
16
D.
Failure to Account for Withdrawals from the Kaskaskia River between the
Venedy Station Gauge and Outfall No . 001
PSGC makes much of the fact that PRN and SC's Petition states that Kaskaskia River
withdrawals below the Venedy Station Gauge "may" (rather than "will") result in violations of
permit limits . Mot. to Dismiss at 27 . PSGC, focusing on semantics rather than substance,
erroneously states that the word "may" renders the claim legally insufficient .
A claim that a threat exists of a future violation, however, is entirely cognizable under
Illinois law and Board precedent . PRN and SC's Petition alleges a violation of 35 Ill . Admin.
Code § 309 .142, which requires the IEPA to have "determined and verified" that the discharge
will not violate water quality standards
. Failing to evaluate an important factor (the flow of the
Kaskaskia River at the point of discharge) that, if too low, could easily cause a violation of water
quality standards is obviously a failure to determine and verify that no such violations will occur .
Nothing in this section requires Petitioners to prove or even allege that such violations will
certainly occur
; all that is needed is a showing that IEPA failed to determine and verify that they
will not occur . In addition, Petitioners allege a violation of 415 ILCS § 5/12 which states that no
one shall "cause
or threaten or allow the discharge of any contaminants into the environment . . .
so as to cause or tend to cause
water pollution . . . or so as to violate regulations or standards
16
PRN and SC do not agree with the Seventh Circuit's conclusion that the CWA does not clearly
subject SWPPPs developed under general permits to public participation requirements, but, in
any event, that conclusion is not relevant to the individual permit at issue here
.
16
adopted by the Pollution Control Board under this Act
. " 415 ILCS § 5/12 (emphasis added) .
Again, nothing in this section requires Petitioners to prove or allege a certainty of violations
;
alleging a violation "may" occur is enough
. See People v. Pattison, 2005 111
. ENV LEXIS at *13-
16 (rejecting a motion to dismiss where the People had not alleged that respondent had actually
caused air pollution but instead alleged that the respondent had "caused or threatened to cause
the discharge of asbestos
. . . so as to tend to cause
air pollution" (emphasis in original)) .
Petitioners have clearly raised a cognizable claim in their Petition
.
17
17
PSGC also attempts to argue that IEPA really did consider such withdrawals and, at any rate,
that the withdrawals will be offset by other inputs to the River . Mot
. to Dismiss at 27-28, n . 13 .
Such arguments are, of course, factual disputes that cannot be resolved (and are not supposed to
be raised) in a motion to dismiss
. In a motion to dismiss, all facts are to be construed
in favor of
the non-moving party.
17
III.
Conclusion
The Petition that PRN and SC filed meets all the requirements for a pleading under 35 Ill
.
Admin
. Code § 105 .210
. PSGC's arguments that the Petition is somehow otherwise legally
insufficient fail
. The CWA unambiguously mandates that NPDES permits ensure compliance
with all applicable requirements, including public participation requirements, and case law
clearly supports these CWA mandates
. Finally, PRN and SC have adequately pled all that is
necessary to show a violation relating to IEPA's failure to consider water withdrawals
downstream of the Venedy Station Gauge.
PRN and SC therefore respectfully request the Board to DENY the Motion to Dismiss
.
DATED
: February 23, 2006
Environmental Law and Policy Center
35 E. Wacker Drive, Suite 1300
Chicago, Illinois 60601
312-673-6500
18
Albert F. Ettinger
(Reg
. No. 3125045)
Ac er
(Reg. No. 6271838) .
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PRAIRIE RIVERS NETWORK and
)
SIERRA CLUB
)
Petitioners
)
V.
)
PCB 06 -
124
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY and PRAIRIE STATE GENERATING )
COMPANY, LLC
)
Respondents
)
AMERICAN BOTTOM CONSERVANCY and )
DALE WOJTKOWSKI
)
Petitioners
)
v.
)
PCB 06 - 127
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY and PRAIRIE STATE GENERATING )
COMPANY, LLC
)
Respondents
)
CERTIFICATE OF SERVICE
I, Albert F . Ettinger, certify that on January 6, 2006, I filed the attached RESPONSE TO
RESPONDENT PRAIRIE STATE GENERATING COMPANY, LLC'S MOTION TO
DISMISS. An original and 9 copies was filed, on recycled paper, with the Illinois Pollution
Control Board, James R
. Thompson Center, 100 West Randolph, Suite 11-500, Chicago, IL
60601, and copies were served via United States Mail to those individuals on the included
service list.
DATED: February 23, 2006
Environmental Law and Policy Center
35 E
. Wacker Drive, Suite 1300
Chicago, Illinois 60601
312-673-6500
Albert F . Ettinger
(Reg. No. 3125045)
Counsel for Prairie Rivers Network and Sierra
Club
Carol Webb, Hearing Officer
Illinois Pollution Control Board
James R
. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601-3218
Penni S. Livingston
Livingston Law Firm
4972 Benchmark Centre, Ste . 100
Swansea, IL 62226
Sanjay Sofat
Division of Legal Counsel .
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
SERVICE LIST
