RECEIVEDCLERK'S
OFFICE
FEB 2 7 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Poll'itinn Control Board
PRAIRIE RIVERS NETWORK and
)
SIERRA CLUB
)
Petitioners
)
V.
)
PC13 06 - 124
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY and PRAIRIE STATE GENERATING )
COMPANY, LLC
)
Respondents
)
AMERICAN BOTTOM CONSERVANCY and )
DALE WOJTKOWSKI
)
Petitioners
)
v.
)
PC13 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
Now come Petitioners American Bottom Conservancy (ABC) and Dale Wojtkowski to
reply to Respondent Prairie State Generating Company's (PSGC) Motion to Dismiss and
respectfully request the Board to DENY the Motion .'
1
ABC and Wojtkowski filed their Petition in this case on January 9, 2006 . PSGC filed its Motion to Dismiss on
February 6, 2006, with service by U .S. mail, with service presumed on February 10, 2006
. ABC has 14 days from
service to file a response . Therefore, this response is timely filed . 35 Ill . Admin . Code § 101 .300(c)
. 35 III . Admin.
Code § 101 .500(d) .
The Motion to Dismiss filed by Respondent Prairie State Generating Company, LLC
(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
Petitions of Petitioners ABC and Wojtkowski and Prairie Rivers Network (PRN) and Sierra Club
(SC) are clearly proper and sufficient
. Further, the Petitions detail 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 to Dismiss .
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
ABC's Petition .
PSGC did not move to dismiss the daim ABC and Wojtkowski raised in
paragraph 7(a) (regarding the discharge of harmful chlorinated organics)
. Moreover, respondent
Illinois Environmental Protection Agency (IEPA) has not moved for dismissal of any of
Petitioners' claims
. None of Petitioners' 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 (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.
2
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 (Mar. 6, 2003).
Case law is consistent in finding that pleading
requirements for administrative review are less exacting than for other causes of action
. Sierra
Club v. City of Wood River,
PCB 98-43 (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)
.
ABC and Wojtkowski'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
."
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 limitdions 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
2
This petition was brought under 35 Ill . Admin . Code § 105
.204(b), so subsection (d) applies .
3
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.
ILROO at 3 .
In their Petition, ABC and Wojtkowski 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 Petitioners' claims related to the Stormwater Pollution
Prevention Plan (SWPPP) that is that is required as part of Permit 1L0076996
. 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
. This approach ignores the fact that the Clean
Water Act requires 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
4
comply with "good housekeeping" provisions in SWPPP sufficient for district court to exercise
jurisdiction) .
B .
PSGC Failed to Include the Stormwater Pollution Prevention Plan in the
Permit Application
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
permits to assure compliance with [all applicable requirements] ." 33 U.S.C. § 1342(a)(2) and
(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, since there is nothing in the record to demonstrate
compliance with any of the requirements .
PSGC incorrectly 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 PSGC did not cite relevant case law to support its position .
Under the CWA, therefore, IEPA must "ensure compliance" with each of the
requirements noted above as well as with any other applicable requirements
. In the case at hand,
however, IEPA has already issued Permit 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
evidence in the record demonstrating PSGC's intent or ability to comply with any of the
requirements .
D. Failure to Account for Withdrawals from the Kaskaskia River between the
Vened Station Gau
ant Outfall No . 001
ABC and Wojtkowski'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
5
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
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 (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 .3
E.
Multiple Permit Issue
PSGC misstates ABC's position with regard to evaluating the cumulative impacts to the
Kaskaskia River from the various discharges associated with the facility
.
PSGC states that
."obtaining a single NPDES permit" for all of the discharges, including this permit, the storm
water permits, the mine NPDES and the coal combustion waste NPDES "is not feasible because
the applicable regulations require permit applicants to follow different standards and procedures
for these discharges ." Mot. To Dismiss at 19
. ABC did not in its Petition request a "single"
'
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
.
6
permit, but, rather, requested that all the discharges be considered for their cumulative impact on
the River.
The Clean Water Act states
: "Whenever a facility or activity requires a permit under
more than one statute covered by these regulations, processing of two or more applications for
those permits may be consolidated."
40 CFR 124 .4(a)(1) .
Section 2 of the Illinois Environmental Protection Act 415 ILCS 5/1 Section 2a(iii) states
that " . . .air,
water, and other resource pollution, public water supply, solid waste disposal, noise
and other environmental problems are closely interrelated and must be dealt with
as a unified
whole
in order to safeguard the environment
." (emphasis added) The terms and provisions of the
Act shall be "liberally construed so
as to effectuate the purposes of the Act,"
i.e., to restore,
protect and enhance the quality of the environment, and to assure that adverse effects upon the
environment are
fully considered and borne by those who cause them
." (emphasis added .) See
415 ILCS 5/2(b) and
(c).
"Water pollution" is defined in the Act
as such alteration of the physical,
thermal,
chemical,
biological
or radioactive properties of any waters of the State, or such discharge of any
contaminant into any waters of the State, as
will or is likely to create a nuisance or render such
waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic,
commercial, industrial, agricultural, recreational, or other legitimate uses, or to livestock, wild
animals, birds, fish, or other aquatic life
." (emphasis added) 415 ILCS 5/3 .55.
PSGC declares that "there will be no cumulative effects from these discharges" because
each will meet water quality standards
. While that may be the case in some instances, it is not
universally true
. Petitioners' pleadings are sufficient to show that the potential to violate water
quality standards does indeed exist .
7
F
. Water Withdrawal Issues/Impacts on Water Quality
The permit allows PSGC to withdraw up to 30 million gallons of water per day from the
River, while returning 1
.7 million gallons per day.
It is unlawful for an NPDES permit to
increase the effluent loading of a water of the state, without
proper
analysis. 35 Ill. Adm . Code
302.105 (emphasis added)
PSGC admits that "it is true that IEPA must consider the effects of water withdrawal on
water quality when it issues an NPDES permit
." Mot. to Dismiss at 24 .
PSGC further states
: "IEPA adequately considered
the impact of the volume Prairie
State's withdrawal of water from the River to the extent that such consideration is required by
the Clean Water Act and its implementing regulations
." (emphasis added)
. Mot. to Dismiss at 25 .
IEPA'S anti-degradation analysis that determined that the discharge from the Facility
would not otherwise unlawfully adversely affect the quality of the receiving waters was
performed before the May 10th
public hearing
. The permit was issued on December 5, 2005-
nearly seven months later
. Despite comments from Petitioners that the area was in a drought
both during and following the public hearing and despite requests to IEPA from ABC and others
to rely on updated
drought and river level information, there is nothing in the record to indicate
the Agency revisited its anti-degradation assessment in order to consider the extremely low
levels of the River beginning on May 10 and continuing until December 5th, the date the permit
was issued
. Furthermore, the Agency failed to address how water quality at such low levels
would be impacted by the PSGC discharges
.
ABC and Wojtkowski also question how PSGC's 16-inch discharge pipe, which is to
have two feet of water above the pipe, can function properly when, for most of 2005, beginning
on the date of the May 10
th
public hearing, the river depth at the Venedy Station was three feet or
less. In fact, during much of that time, the river was below two feet deep, according to the
USGS Real-Time Water Data website .4
G. Failure to Consider Dry Cooling as an Option
Dry cooling is a technology that would have greatly reduced PSGC's need for water
withdrawal from the River and thus greatly diminished the PSGC discharge and its potential to
violate water quality standards . There is no evidence that IEPA Bureau of Water considered dry
cooling for the facility . The CWA requires that "the location, design, construction, and capacity
of cooling water intake structures reflect the best technology available for minimizing the
adverse environmental impact" from such structures . 33 U.S.C. 1326(b) . In fact, at the public
hearing, IEPA admitted it that he had not heard of dry cooling . Record at 84 . The next reference
to dry cooling in the record, other than that from Petitioners and other members of the public,
appears to be just days before the permit was issued in an email exchange between the Bureau of
Water (BOW) and the Bureau of Air's Chris Romaine, who was asked to provide a reason for the
Responsive Summary as to why dry cooling was not considered to be best available technology
for the facility
. Record at 126. The decision on dry cooling was for the air permit, which is
under appeal by ABC and others before U .S.EPA's Environmental Appeals Board (EAB) . It
was not for the air permit
. In fact, ABC submitted its comments on the air permit to IEPA and
the Petition to the EAB as part of its public comment on the NPDES permit . Included in the
submission was a description of dry cooling and its advantages . The Sierra Club also submitted
comment requesting the Agency consider dry cooling
. Record at 634 . Several commenters
suggested dry cooling. But, the BOW does not appear to have considered this technology, which
could have greatly reduced the amount of water withdrawal and discharge, and therefore,
negative impacts to the River, in both quantity and quality .
4
http ://nwis
.waterdata.usgs .gov/il/nwis/dv?format=html&period=365&site no+05594100
III. Conclusion
The petition that ABC and Dale Wojtkowski 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, ABC and Dale Wojtkowski 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 and failure to adequately assess
PSGS's potential to violate water quality standards in the Kaskaslda River
ABC and Dale Wojtkowski therefore respectfully request the Board to DENY the Motion
to Dismiss .
DATED
: February 23, 2006
4Penni 'Q"~S
. Livingston
Attorney #06196480
Livingston Law Firm
4972 Benchmark Centre, Suite 100
Swansea, IL 62226
618/628-7700
penni@livingstonlaw .biz
10
Respectfully submitted,
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
)
PCB 06- 127
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and PRAIRIE STATE GENERATING
)
COMPANY, LLC
)
Resondents
)
CERTIFICATE OF SERVICE
I, Kathy Andria, certify that on February 23, 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 .
hKa~QAndria
Carol Webb, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601-3218
Sanjay Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276 -
Springfield, IL 62794-9276
Albert Ettinger
Environmental Law and Policy Center
35 E. Wacker Dr ., Suite 1300
Chicago, IL 60601
W.C
. Blanton
Alison M. Nelson
Blackwell Sanders Peper Martin, LLP
4801 Main Street, Suite 1000
Kansas City, MO 64112
SERVICE LIST
