RCLERK'S
EtEIVEDOFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL 21 2006
STATE OF
ILLINOIS
DES PLAINES RIVER WATERSHED ALLIANCE,
)
Pollution Control Board
LIVABLE COMMUNITIES ALLIANCE,
)
PRAIRIE RIVERS NETWORK, and SIERRA CLUB,
)
Petitioners,
)
PCB 04-88
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF NEW LENOX
)
Respondents.
)
NOTICE OF FILING
PLEASE TAKE NOTICE that the Des Plaines River Watershed Alliance, the Livable
Communities Alliance, Prairie Rivers Network, and the Sierra Club have filed the attached
PETITIONERS' POST HEARING REPLY MEMORANDUM .
DATED
: July 21, 2006
Environmental Law and Policy Center
35 E. Wacker Drive, Suite 1300
Chicago, Illinois 60601
312-795-3707
Albert F . Ettinger (Reg
. N 3125045)
Counsel for Des Plaines River Watershed Alliance, Livable
Communities Alliance, Prairie Rivers Network and Sierra
Club
RaoejVIED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
21
2006
DES PLAINES RIVER WATERSHED ALLIANCE,
STATE OF ILLINOIS
)
Pollution
Control Board
LIVABLE COMMUNITIES ALLIANCE,
)
PRAIRIE RIVERS NETWORK, and SIERRA CLUB,
)
Petitioners,
)
V.
)
PCB 04-88
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF NEW LENOX
)
Respondents
.
)
PETITIONERS' POST HEARING REPLY MEMORANDUM
Albert Ettinger
Environmental Law and Policy Center
35 East Wacker Drive, Suite 1300
Chicago, Illinois 60601
312-795-3707
July 21, 2006
TABLE OF CONTENTS
Page
I.
Respondents misunderstand the proper application of the burden of proof
and the fundamental principles applicable to review permit decisions 3
A.
Plaintiffs met their burden by showing that the permit as issued does
not comply with the requirements for permit issuance established by
the Act and the Board's regulations
4
B.
Respondents misapply the "substantial evidence" standard
7
C.
Respondents further confuse the standard to prevail post-hearing
with the standard applied by the Board in considering summary
judgment
9
D.
The agency decision must be justified in the Responsiveness Summary
and it must be supported by facts in the record
10
II.
Respondents did not show that IEPA assured that all reasonable technical
measures to minimize pollution were implemented, that the new or total
discharge would not cause or contribute to the violation of narrative and
numeric water quality standards, or that existing uses were protected 13
A.
Respondents identified no evidence showing the necessity of the
increased phosphorus and nitrogen loadings at the levels permitted
and no evidence that IEPA assured that technically reasonable
measures to avoid or minimize phosphorus or nitrogen loadings were
required, and the arguments IEPA offers to excuse these failures are
without merit
13
1 .
IEPA is correct that a "basic directive of Section 302
.105(c)(2)
is that the Agency must consider all non-degrading or less
degrading alternatives that are technically and economically
available in a given situation"(IEPA Resp . p. 38) and this
requires that the permit be remanded for such consideration
14
2.
Respondents offer no valid excuse for IEPA's failure to
consider the technical and economic availability of nutrient
removal
15
B.
The record does not contain substantial evidence that the Agency
complied with its duties to "assure" that the water quality standards
regarding "offensive conditions," dissolved oxygen, and pH will not be
violated as a result of the new or total discharge 18
C.
IEPA failed to assure that that discharge would not cause violations of
the acute or chronic copper standard
22
D.
Respondents misunderstand their duties with respect to existing uses
. ... 23
III .
The Illinois Environmental Protection Act's requirement that review be
limited to the administrative record does not violate due process
25
A.
The Village's application for an NPDES permit does not carry with it
a "property right" subject to the protections of due process 27
B.
Even if New Lenox could claim a property right to pollute Hickory
Creek, the Board's regulations provide all the "process" that is
"due." .. 28
IV.
Conclusion
30
CASES
Big Fork Mining Co . v. Tennessee Water Quality Control Bd.,
620 S.W.2d 515 (Tenn.
App. 1981)
29
Board of Regents of State Colleges v
. Roth, 408 U.S . 564 (1972) 27
Bradd v
. Illinois EPA, PCB No. 90-173,1991 Ill . Env. LEXIS 367 (May 1, 1991)
7
Citizens Utils. Co. of Ill. v. Pollution Control Bd.,
265 111 . App. 3d 773, 639 N .E .2d 1306
(3' Dist . 1994)
27
City ofKankakee v. County ofKankakee,
PCB No. 03-125, 2003 III . Env
. LEXIS 462
(Aug. 7, 2003)
8
Dorothy v. Flex-N-Gate Co ., PCB No. 05-49, 2005 111
. Env. LEXIS 599 (Oct . 20, 2005)
. . . .8, 9
Ex parte Fowl River Protective Association, Inc ., 572 So.2d 446 (Ala
. 1990) 6
Goldberg v. Kelley, 397 U .S. 254 (1970)
28
Heavner v. Illinois Racing Board,
103 111 . App. 3d 1020, 432 N .E.2d 290 (2°d
Dist. 1982) 5
Holland v. Quinn,
67 III . App. 3d 571, 385 N .E.2d 92 (1" Dist
. 1978) 5
Hughey v. Gwinnett County, 278 Ga
. 7403, 609 S.E.2d 324 (Ga . 2004) 15
IEPA v. PCB,
115 Ill . 2d 65, 503 N .E.2d 343 (111. 1986)
8
IEPA v. PCB, 86 III
. 2d 390,427 N .E.2d 162 (III. 1981)
5
Illinois Ayers Oil Co
. v. Illinois EPA, PCB No. 03-214, 2004 Ill
. Env. LEXIS 195 (April
1, 2004)
7
In re City of Marlborough, Mass
. Easterly Wastewater Treatment Facility, NPDES
Appeal No
. 04-113, 2005 EPA App . LEXIS 14 (EAB Aug
. 11, 2005) 19
In the Matter of::
Site-Specific Phosphorus Limitation for the City of Shelbyville,
No .
R83-12, 1984111. Env. LEXIS 129 (Dec
. 20, 1984)
16
Matthews v. Eldridge, 424 U.S. 319 (1976)
28
TABLE OF AUTHORITIES
Page
iii
Mattoon Community Unit School District No. 2 v
. Illinois Educational Labor Relations
Board, 193 Ill . App
. 3d 875, 550 N .E .2d 610 (4`h Dist. 1990)
5
Miners Advocacy Council, Inc . v. State ofAlaska, Dept
. of Env'tal Conservation, 778
P .2d 1126 (Alaska 1989)
6
Minnesota
696 N.W.2d
Center
95 (Minn
for
.
Environmental
App. 2005)
Advocacy v
. Minnesota Pollution Control Agency,
6
Moss-American,
317 N.E
.2d 343 (5"
Inc.
Dist
v
.
.
Illinois
1974)
Fair Employment Practices Comm'n
., 22 Ill. App. 3d 248,
8
Motor Vehicle Manufacturers Assn v. State Farm Mutual Auto
. Ins. Co., 463 U.S. 29
(1983)
11
Noveon, Inc . v
. IEPA, PCB No. 91-17, 2004 111. Env
. LEXIS 593 (Nov . 4, 2004) 8
Panhandle Eastern Pipe Line v. Illinois EPA, 314 111
. App. 3d 296, 734 N .E. 2d 18 (4m
Dist. 2000)
5
Peabody
Dist. 1976)
Coal
Co. v. Pollution Control Board,
36111. App. 3d 5, 344 N.E.2d 279 (5`h27,
28, 29
Purtill v
. Hess, 111 111 . 2d 229, 489 N .E.2d 867 (Ill
. 1986) 10
Saline County Landfill v. Illinois EPA, PCB No
. 04-117, 2004 Ill . Env. LEXIS 255 (May
6, 2004)
8
SEC v. Chenery Corp ., 332 U.S. 194 (1947)
11
Service v. Dulles, 354 U .S. 363 (1957)
4
Springwood Associates v
. Health Facilities Planning Bd., 269 Ill. App
. 3d 944, 646
N.E .2d 1374 (4`h Dist. 1995)
4
Union Electric Co
. v. Department of Revenue, 136 Ill
. 2d 385, N .E.2d 236 (111. 1990) 5
United States Steel Co
. v. Pollution Control Bd., 52 111 . App. 3d 1, 367 N
.E.2d 327 (2°d
Dist. 1977)
29
United States v
. Chicago, M. St. P. & Pac . R.R., 294 U.S
. 499 (1935) 11
Village ofLake Barrington v
. IEPA, PCB Nos. 05-55, 05-58, 05-59, 2005 111
. Env. LEXIS
341 (April 21, 2005)
:
2
iv
Waste Management, Inc . v. (EPA, PCB 84-45, PCB 84-61, PCB 84-68 (consolidated),
slip op
. (Oct. 1, 1984)
10
Watts v. Ill. EPA,
PCB No. 94-243, 1996 Ill . Env. LEXIS 243 (Mar . 21, 1996) 7
West Suburban Recycling and Energy Center v. 111. EPA, PCB No
. 95-119, 1996 111 . Env.
LEXIS 718 (Oct . 17, 1996)
11
Wisconsin v
. Constantineau, 400 U.S . 433 (1971)
28
STATUTES AND REGULATIONS
40 C.F.R. § 122.4(d)
19
40C.F.R. § 122.44(d)(1)
19
40 C.F.R. § 122.41(g)
19
40 C.F.R. § 123 .25
12,27
40 C.F.R. § 123 .25(a)(12)
27
40 C.F
.R . § 124.17
12
35 111 . Adm. Code 105 .210(d)
11
35 III . Adm. Code 166 .192
12
35
35
111Ill
.
.
AdmAdm
.
. Code
Code 302302.105.105(c)(1)
6,191
35 111 . Adm. Code 392
.105(c)(2)
5, 14, 15
35 Ill . Adm . Code 302
.105(c)(2)(B)
9
35
35
IllIll
.
.
AdmAdm.
.
Code
Code
302302.105(c)(2)(B)(ii).105(c)(2)(B)(i)
: 2, 3, 9,
2324
35
3511135
111Ill
.
.
. AdmAdmAdm
.
.
. Code
Code
Code
302302302.105(t)(1)(D)(i).105(c)(2)(B)(iii).203
1, 14,
211515
35 111 . Adm
. Code 304 .105
23
35 111 . Adm. Code 309
.141(d)
19, 23, 25
415 ILCS 5/39
4
415 ILCS 5/40(e)(2)(a)
11
415 ILCS 5/40(e)(3)
3,26
OTHER AUTHORITIES
U.S . EPA's
Water Quality Standards Handbook (4th ed . 1994)
6
v
PETITIONERS' POST HEARING REPLY MEMORANDUM
Petitioners in their initial Post Hearing Memorandum ("Pet
. Post Hearing Mem .")
demonstrated, first, that the permit as issued violated the antidegradation regulations because the
record did not contain substantial evidence showing that the Illinois Environmental Protection
Agency ("IEPA") had assured that the increased phosphorus and nitrogen loadings allowed by
the permit were necessary and did not consider ways to minimize those loadings through
phosphorus or nitrogen treatment. (Pet. Post Hearing Mem . at 29-33)
IEPA's Response does not point to any place in the record where it considered
phosphorus or nitrogen removal at the plant and does not identify any substantial evidence
showing that it assured that phosphorus or nitrogen removal is infeasible
. Instead, IEPA pretends
that the antidegradation requirement that new pollutant loadings be allowed only if they are
"necessary," 35 Ill . Adm. Code 302 .105(c)(1), does not exist and attempts to write out of the
code the requirement that IEPA "assure" that "all technically and economically reasonable
measures for minimizing
the new loading be incorporated." 35 Ill. Adm. Code
302 .105(c)(2)(B)(iii) .
The Petitioners further showed that the permit as issued violated the Environmental
Protection Act and the Board regulations because the record does not contain substantial
evidence showing that the applicant proved and IEPA ensured that discharges allowed by the
permit would not cause or contribute to the violation of the offensive conditions, dissolved
oxygen, or copper water quality standards . (Pet. Post Hearing Mem . at 33-9)
IEPA's Response consists mainly of repeated accusations that Petitioners are trying to
"shift the burden of proof' and then arguing that the permit should be upheld unless Petitioners
1
proved by "undisputed facts" that discharges from the plant will be the sole cause of violations of
the water quality standards . IEPA's arguments ignore the fact that this is a permit appeal, not an
enforcement case, and so Petitioners' burden is only to show that IEPA failed to do what it must
do to issue a permit under the regulations . IEPA can only issue a permit if it has ensured that
discharges under the permit will not cause violations of any water quality standards . Petitioners'
victory in this case would not be to penalize New Lenox but to get IEPA to do what it should
have done before issuing the permit . Further, the "undisputed fact" standard is only applicable to
motions for summary judgment.
While discussing some (very weak) evidence that suggests that the New Lenox
discharges, as they existed in 2002, were not then the sole cause of water quality problems in
Hickory Creek, IEPA identifies nothing in the record showing that it ensured that the new
loadings it permitted would not contribute to violations of water quality standards . Indeed, IEPA
now admits that the study it relied on to show that the increased discharge would not cause
violations of water quality standards does not go that far
. (IEPA Br . at 7) Unlike Village of Lake
Barrington v. IEPA, PCB Nos. 05-55, 05-58, 05-59, 2005 Ill . Env. LEXIS 341, at *28 (April 21,
2005), where a phosphorus limit was put into the permit to address problems raised by experts
and others in public comments, IEPA did not place any limit on nutrients in the New Lenox
permit . IEPA offers nothing to refute Petitioners' showing that IEPA did not assure that the
expanded discharge would not contribute to a violation of the offensive conditions standard
.
Petitioners also showed that IEPA did not assure that existing uses would be protected as
it was required to do under 35 111
. Adm. Code 302 .105(a) and 302 .105(c)(2)(B)(ii) . (Pet. Post
Hearing Mem. at 39-40)
2
As to this point, IEPA argues essentially that all of 35 Ill . Adm. Code 302
.105(a) and
302
.105(c)(2)(B)(ii) are redundant and inoperative by claiming that if is good enough if IEPA
issues permits that comply with other water quality standards
. IEPA further tries to explain away
the internal IEPA emails showing that the agency officials who studied Hickory Creek knew full
well that they had not ensured protection of the existing uses and claims to have fulfilled its
responsibilities by pointing to raw conclusory statements unsupported by any evidence in the
record.
In addition, IEPA makes arguments that conflict with the basic principles of law
regarding agency decision-making and review of administrative decisions
.
The Village of New Lenox ("New Lenox") in its response endorses IEPA's fallacies and
adds its own argument that it has a constitutional right to take discovery
. (New Lenox Br. at 10-
12)! There is no merit to New Lenox's constitutional argument
. Because the Act unambiguously
requires permit challenges to be heard "exclusively on the basis of the record before the
Agency," 415 ILCS 5/40(e)(3), New Lenox is claiming that the statute is unconstitutional
because it deprives New Lenox of property without due process
. In fact, NPDES permits convey
no property rights, 40 C
.F.R. § 122.41(g), and even if they did, the Board's existing rules would
provide all the process that is "due
."
I.
Respondents misunderstand the proper application of the burden of proof and the
fundamental principles applicable to review permit decisions
.
Respondents' theory of this case is characterized by a fundamental misunderstanding that
1
New Lenox also reargues its position that it must be allowed discovery because the Board rules
allow for discovery although the statute makes plain that only the materials in the agency record
are relevant
. Petitioners will not repeat here the law, already applied by the Board in its
November 17, 2005 Order, that there is no right to discovery in cases where anything discovered
would be inadmissible.
3
carries through the entirety of their briefs and renders the majority of their arguments irrelevant
to the core issue in this case
. All parties agree that Petitioners bear the burden of proving that the
permit as issued "would violate" the Act or Board regulations
. (Pet . Post Hearing Mem . at 18).
Respondents, however, incorrectly contend that this burden requires the Petitioners to prove that
the discharge allowed by the permit will cause water quality standard violations
. (See e .g. IEPA
Br
. at 44-45)
. Respondents' contention misconceives what is reviewed in permit review
proceedings .
A. Plaintiffs met their burden by showing that the permit as
issued does not comply with the requirements for permit
issuance established by the Act and the Board's regulations .
Respondents err by treating this matter like an enforcement suit against New Lenox
rather than a third-party permit challenge
. The permit as issued violates the Act and the Board's
regulations because New Lenox did not prove under 415 ILCS 5/39 that it was entitled to the
permit as issued and [EPA failed to comply with five different statutory and regulatory
provisions that require the Agency to
"assess" and "assure"
that permitted discharges will not
cause or contribute to water quality violations and that all reasonable measures to avoid or
minimize the extent of the pollution are incorporated into the activity
.
(See Pet. Post Hearing
Mem. at 1-3 (describing violations))
.
Permit applicants and IEPA are bound to comply with the law and the regulations issued
by the Illinois Pollution Control Board
. Where duly promulgated regulations limit the discretion
of an administrative agency, "the agency is bound by those rules and regulations and cannot
arbitrarily disregard them ." Springwood Associates v
. Health Facilities Planning Bd.,
269 Ill.
App
. 3d 944, 948, 646 N .E.2d 1374, 1376 (4
m Dist. 1995) (citing Service v. Dulles, 354 U.S
. 363
(1957))
. Indeed, [EPA acknowledges that "[flhe Agency, just like any other administrative
4
agency, is . . . required to apply [its] rules as written ..
." (IEPA Br . at 36, citing Panhandle Eastern
Pipe Line v. Illinois EPA,
314 111 . App. 3d 296, 303, 734 N .E. 2d 18, 24 (4" Dist. 2000)) ; see
also Mattoon Community Unit School District No
. 2 v. Illinois Educational Labor Relations
Board, 193 Ill. App
. 3d 875, 881, 550 N .E.2d 610, 614 (4`h Dist. 1990); Union Electric Co. v.
Department of Revenue, 136 Ill. 2d 385, 391, 556 N .E.2d
236, 239 (Ill . 1990); Heavner v. Illinois
Racing Board, 103 III . App
. 3d 1020, 1025, 432 N .E.2d 290, 294 (2°d Dist. 1982); Holland v.
Quinn,
67 Ill . App. 3d 571, 574,385 N
.E.2d 92, 94 (1 s` Dist. 1978) .
Contrary to Respondents' arguments, (IEPA Br . at 28; New Lenox Br . at 6), focusing on
whether the permit applicant and IEPA have complied with the requirements for permit issuance
does not "shift the burden of proof." See IEPA v. PCB,
86 III . 2d 390, 404-05, 427 N .E.2d 162,
169 (111
. 1981) (finding IEPA's complaint that the Board "shifted the burden of proof' by
holding the Agency to its regulatory duties to be "without merit") . Petitioners are not "shifting
the burden of proof' in this appeal by seeking to require Respondents to meet the legal
requirements for permit issuance .
As explained in Petitioners' opening brief and in Section II below, Petitioners have met
their burden of proof by demonstrating that Respondents have not satisfied the applicable
regulations
. Those regulations, among other things, required that IEPA "assess" Hickory Creek
and "assure" that the discharge it permitted would not violate water quality standards or harm
existing uses. 35 Ill. Adm . Code 302 .105(c)(2)
. Thus, IEPA's statements that there remain
"unresolved issues" as to the cause of algal blooms and other problems in Hickory Creek (IEPA
Br. at 30, 44-45) actually constitute frank admissions by IEPA that it did not do the work it
needed to do to issue the permit and that the permit must be remanded so that it can perform the
5
required assessments and assure that the discharge will not contribute to water quality problems .2
A decision by the Minnesota Court of Appeals,
Minnesota Center for Environmental
Advocacy v
. Minnesota Pollution Control Agency, 696 N.W.2d 95 (Minn . App
. 2005)
("MCEA"),
makes clear the distinction between a permit appellants' burden to show that the
applicable regulations had not been followed in issuing a permit and the burden of permit
applicants and permit writing agencies to comply with applicable law . Just as under Illinois law,
in Minnesota the "party challenging the decision of the agency has the burden of proof,"
MCEA
at 102, and the Court examined the record using a "substantial evidence" standard, MCEA at 100.
Applying this law, the Court explicitly distinguished petitioners' burden of proof from the
applicant's and agency's duties under the Minnesota nondegradation policy, noting that "the
burden of demonstrating that there is no prudent and feasible alternative is
on the permit
applicant." MCEA
at 102 (emphasis added) . As here, the regulatory agency tried to argue on the
basis of "burden of proof' that it did not have to show that it had assured that all feasible
methods to avoid or minimize the increased discharge had been required .3
In that case, the
2
Contrary to IEPA's representation (IEPA Br . at 28), this case is exactly like
Ex parte Fowl
River Protective Association, Inc .,
572 So.2d 446 (Ala . 1990) and Miners Advocacy Council, Inc
.
v. State of Alaska, Dept. of Env'tal Conservation,
778 P .2d 1126, 1139 (Alaska 1989) in that,
like those cases, the record here makes clear that the permitting agency failed to assess facts it
needed to ascertain before issuing the NPDES permit . In both cases, the NPDES permits were
remanded.
3
IEPA's regulatory burden on this point was to "assure" that all reasonable alternatives to avoid
or minimize pollution have been incorporated into the permitted activity
. 35 Ill . Adm . Code
302.105(c)(2)(B)(iii) ; see also U.S . EPA's
Water Quality Standards Handbook (4th ed. 1994)
(explaining that the lowering of water quality is allowed only where it is clearly justified as
"necessary," and "the burden of demonstration on the individual proposing such activity will be
very
high") (available at Appendix
of Authorities B at 4-7 and
www.epa.gov/waterscience/standards/handbook) .
6
respondents argued specifically that the petitioners had failed to prove that the alternative of
using a decentralized sewage system was feasible . MCEA rejected this argument, stating :
"The [Agency's] Issue Statement submitted to the board most
directly responds to the decentralized alternative by explaining that
the city developed a plan to meet its population requirements, and
that [Petitioners] did not lay out specific enough treatment amounts
for the decentralized alternative
.
But the burden of showing that
downsizing was not feasible and prudent is on the city, not
[Petitioners]."
MCEA, 696 N.W .2d at 105 (emphasis added) .
The Act and the Board regulations squarely place the responsibility for issuing a valid
permit on the applicant and IEPA. They can not shift that burden to the public.
B.
Respondents misapply the "substantial evidence" standard
Contrary to Respondents' apparent belief, the fact that petitioners in permit appeals have
the burden of proof does not mean that respondents always win
. IEPA's decision to issue the
permit "must be supportable by substantial evidence ." (Bd . Nov. 17, 2005 Order at 7) This
standard is less deferential than the "arbitrary and capricious" standard
. Watts v
. Ill. EPA,
PCB
No. 94-243, 1996 Ill
. Env . LEXIS 243, at *13-15 (Mar . 21, 1996) (declining to adopt the
"arbitrary and capricious" standard because it would "severely limit" the Board's review of the
Agency's permitting decisions) .
The "substantial evidence" standard has been applied many times by the Board to strike
down IEPA decisions that were not supported by the agency record . See, e.g., Illinois Ayers Oil
Co
. v. Illinois EPA,
PCB No . 03-214, 2004 Ill . Env
. LEXIS 195, at *41-43 (April 1, 2004)
(IEPA's reliance on "one statement" in the record for support of its position outweighed by the
"ample evidence" to the contrary) ; Bradd v. Illinois EPA, PCB No . 90-173, 1991 111 . Env . LEXIS
367, at *34-35 and *37-38 (May 1, 1991) (IEPA's unsupported conclusions inadequate in light
7
of unrebutted testimony to the contrary) ; IEPA v
. PCB, 115 Ill . 2d 65, 71, 503 N .E.2d 343, 346
(111
. 1986) (dismissing IEPA statements that are "conclusory" or "fail to cite authority")
. In
Noveon, Inc. v. IEPA, PCB No
. 91-17, 2004 111. Env. LEXIS 593, at *5 (Nov . 4, 2004), the Board
stated that a permit applicant met his burden of proof by merely showing that a "preponderance
of the evidence" supported issuing the permit .4
For the Board then to apply the "substantial
evidence" standard to third party appeals the same way it applies it to appeals by permit
applicants, Petitioners here need only to show by a preponderance of the evidence that the record
does not favor finding that the permit was properly issued under the Act or the Board
regulations . 5
Moreover, Agency conclusions of law are reviewed de novo by this Board
. Saline County
Landfill v . Illinois EPA, PCB No. 04-117, 2004 111
. Env. LEXIS 255, at *38-39 (May 6, 2004)
;
City of Kankakee v
. County of Kankakee, PCB No. 03-125, 2003 Ill. Env
. LEXIS 462, at *34-35
(Aug
. 7, 2003) . The distinction between a "finding of fact" not supported by substantial evidence
and an "error of law" that is reviewed de novo was employed in
MCEA, 696 N .W.2d at 106-07
.
4
Preponderance of the evidence, as defined in Moss-American, Inc
. v. Illinois Fair Employment
Practices Comm'n., 22 111
. App . 3d 248, 259, 317 N .E.2d 343, 351 (5`h
Dist. 1974), means,"[T]he
greater weight of the evidence, not necessarily in numbers of witnesses, but in merit and worth
that which has more evidence for it than against it is said to be proven by a preponderance
.
Preponderance of the evidence is sufficient if it inclines an impartial and reasonable mind to one
side rather than the other ."
5
In another bizarre formulation of what it believes that Petitioners must prove to prevail, IEPA
argues that "Petitioners must identify the lack of substantial evidence in the record to prove that
the issued permit would violate the Act and/or the applicable regulations
." (IEPA Br
. at 28) This
is like asking Petitioners to prove the existence of an invisible cat
. C.S
. Lewis, The Four Loves
("We are arguing like a man who should say, `if there were an invisible cat in that chair, the
chair would look empty
; but the chair does look empty
; therefore there is an invisible cat in it."').
Such an attempt to force parties in Board proceeding to prove a negative already has been
rejected by the PCB .
See Dorothy v. Flex-N-Gate Co., PCB No
. 05-49, 2005 Ill . Env. LEXIS
599, at *35-36 (Oct
. 20, 2005)
. Anyway, unless written in invisible ink, no basis in the record
appears for any of the IEPA decisions challenged here .
8
There the Court found that the Minnesota permitting agency had focused on the wrong factors
under its nondegradation policy and had "ignored the clear mandate of the CWA and
nondegradation rules" because the Agency's "restrictions on the discharge were set only to
prevent degradation below ordinary water quality standards rather than to protect the existing
high quality of the water
." This constituted an "error of law," requiring remand of the permit
.
As will be discussed further below, IEPA made errors of law in failing to require
reasonable controls on phosphorus or nitrogen, as required by 35 Ill
. Adm. Code
302.105(c)(2)(B)
or to examine carefully whether the expanded discharge would harm existing
uses under 35 Ill . Adm
. Code 302 .105(a) and (c)(2)(B)(ii)
based on its theory that it need not
comply with those sections of the Board rules if it complied with other standards
.
C.
Respondents further confuse the standard to prevail post-hearing with the
standard applied by the Board in considering summary judgment
.
Respondents repeatedly argue that "undisputed facts" are necessary to overturn the
Agency's decision
(E .g.
IEPA Br, at 43-45, 49), but the substantial evidence standard does not
require Petitioners to produce "undisputed facts" resolving all "unresolved factual issues
."
Respondents are confusing the Board's standard of review for deciding motions for summary
judgment with the Board's "substantial evidence" standard
.6
The Board in denying Petitioners' motion for summary judgment made clear that it was
doing so because summary judgment is a "drastic" means of disposing of litigation and that the
Board only grants summary judgment where "the movant's right to relief `is clear and free from
6
Petitioners would not have to present "undisputed facts" even if we were bringing an
enforcement case against New Lenox
. It would only have to show the violation by a
LEXIS
preponderance
599, at *35
of the
(Octevidence
. 20, 2005)
.
Dorothy
.
v. Flex-N-Gate Co ., PCB
No. 05-49, 2005 Ill
. Env.
9
doubt ."' (PCB Ord
. at 7, citing Purtill v. Hess, 111 111 . 2d 229, 240, 489 N.E.2d 867, 871 (III
.
1986)). The Board only denied summary judgment because it was applying that very strict
standard. Basically, by denying Petitioners' motion for summary judgment while reaffirming that
the case had to be heard strictly on the basis of the administrative record, the Board required all
the parties carefully to present the evidence in the record so that the Board could apply the rules
regarding post hearing decisions .
Related to this point, Respondents' attack on Petitioners because they "made no attempt
to establish lack of substantial evidence in the record through testimony at the Board hearing" as
well as their claim that Petitioners "waived" a right to cross examine agency witnesses and
present a case-in-chief (New Lenox Br . at 7, IEPA Br
. at 29) seems designed to amuse. Nobody
offered evidence at the hearing held in this case because, under the Board Nov . 17, 2005 Order,
it would have been futile.
D.
The agency decision must be justified in the Responsiveness Summary and it
must be supported by facts in the record
.
It is well established that an agency's decision can only be upheld based on rationales
actually offered by the agency at the time of its decision, and not on the basis of post-hoc
rationalizations offered by counsel
. (See Pet's . Post Hearing Mem . at 21)
. Respondents claim
that Petitioners are "coining a new requirement" (IEPA Br
. at 34) by pointing out that the Board
can only uphold IEPA's decision based on reasons offered by IEPA in its Responsiveness
7 Contrary to (EPA's suggestion in a footnote (IEPA Br
. at 29, n.1),
Petitioners have not claimed
that the Act prohibits testimony being given at the hearing
. The Act, however, prohibits any
testimony in the hearing being taken into account by the Board in making its decision except in
so far as such testimony might show that documents had been left out of the agency record .
(See
Bd. Nov. 17, 2005 Order at 39,
citing Waste Management, Inc. v. (EPA, PCB 84-45, PCB 84-61,
PCB 84-68 (consolidated)
. Given that there was no dispute about the content of the record in this
case, giving testimony at the hearing would have been wasted breath .
10
Summary, but the principle that an agency action can only be affirmed on the same bases
articulated by the agency is one of the most well-established principles of administrative law
.
United States v. Chicago, M
. St. P. & Pac. R.R., 294 U.S
. 499, 511 (1935) (Agency must set
forth clearly the grounds on which it acted so that court can "know what a decision means before
the duty becomes ours to say whether it is right or wrong
."); SEC v. Chenery Corp.,
332 U .S .
194, 196, (1947) ("simple but fundamental rule of administrative law" is that court must evaluate
an administrative action "solely by the grounds invoked by the agency")
;
Motor Vehicle
Manufacturers Assn v
. State Farm Mutual Auto
. Ins . Co., 463 U .S
. 29, 43, 50 (1983) ("an
agency's action must be upheld, if at all, on the basis articulated by the agency itself')
. Contrary
to the representations by IEPA (IEPA Br
. at 34), there is nothing in Section 40(e) that
"specifically mandates" or even permits the agency to now rumble through the whole record to
try to find a basis for its decision that was not articulated in the Responsiveness Summary
.8
Indeed, in
West Suburban Recycling and Energy Center v
. 111. EPA, PCB No
. 95-119,
1996 Ill . Env
. LEXIS 718 at *36, *74 (Oct
. 17, 1996), the Board held that the right to challenge
an Agency decision would be "rendered empty" unless the Agency "accurately, clearly, and
completely" stated the reasons for its action
. Similarly in IEPA v
. PCB, 86 Ill . 2d at 405-406, the
Court held that the IEPA must give "specific reasons" for its decision in order to "frame the issue
of fact or law in controversy"
.
The Board's regulations requiring a Responsiveness Summary serve the function of
8
In attempting to overturn a basic principle of administrative law, IEPA offers the practical
concern that it will not have an opportunity to articulate the basis for its decision in a
Responsiveness Summary in cases where "no public hearing was held or no public comments
were received." (IEPA Br
. at 34) This concern is groundless
. In cases in which there has been no
415
hearing
ILCS
or
5/40(e)(2)(a)public
comments,
; 35 Illthere
. Admwill
. Code
be no
105parties
.210(d)with
.
standing to challenge IEPA's decision
.
11
requiring IEPA to articulate the reasons for its decisions . 35 Ill . Adm. Code 166
.192 incorporates
the requirements of 40 C.F.R . § 124.17
by requiring the Agency's "specific response to all
significant comments, criticisms, and suggestions
."9 Therefore, the Board should examine only
the reasons given by the Agency in its Responsiveness Summary, and should not sift through the
entire record to reconstruct a rationale that the Agency did not rely on. See Motor Vehicle
Manufacturers, 463 U .S. at 43 ("We may not supply a reasoned basis for the agency's action that
the agency itself has not given .")
. IEPA can use the entire record to support the decision
rationales presented in the Responsiveness Summary but it is not free to offer new rationales for
its decision that were not, in the words of the Board, "accurately, clearly and completely" set
forth in the Responsiveness Summary
. IEPA attempts to do that in its Response Brief most
glaringly in its revisionist theories for why it did not have to consider phosphorus or nitrogen
removal at the plant (IEPA Br
. at 39-40) and for why it actually did seek to protect against
violations of the "offensive conditions" standard although the Responsiveness Summary only
offers that compliance with the standard is "very difficult ." (FIR 357)
Moreover, statements in the Responsiveness Summary may only be used to uphold the
Agency decision to the extent they are supported by facts in the record
. (Pet . Post Hearing Mem.
at 22)
. In a remarkable passage, IEPA sets forth Petitioners' claim "that the Agency's statements
must be supported by facts and logic" and then purports to refute this claim as though it is free to
make permit decisions based on agency conclusions that are not supported by facts or logic
.
9
Contrary to the implication of the IEPA's statement that 40 C .F .R. § 124
.17 and cases decided
under it are not applicable to this case (IEPA Br . at 32), 40 C.F.R. § 124
.17 actually is
specifically applicable to delegated state NPDES programs like that of Illinois . 40 C .F.R. §
123.25
and Board regulation 35 Ill . Adm. Code 166.192 was obviously designed to track 40
C.F.R
. § 124.17.
12
(IEPA Br
. at 35-36) IEPA's attempt to free itself from the constraint of basing its decision on
facts in the record and logic naturally fails
.
II.
Respondents did not show that IEPA assured that all reasonable technical measures
to minimize pollution were implemented, that the new or total discharge would not
cause or contribute to the violation of narrative and numeric water quality
standards, or that existing uses were protected
.
A.
Respondents identified no evidence showing the necessity of the increased
phosphorus and nitrogen loadings at the levels permitted and no evidence
that IEPA assured that technically reasonable measures to avoid or minimize
phosphorus or nitrogen loadings were required, and the arguments IEPA
offers to excuse these failures are without merit
.
IEPA essentially admits that the record does not contain substantial evidence that it even
considered phosphorus or nitrogen removal at the plant although such removal is feasible
. To try
to avoid the conclusion that the permit must be remanded so that the agency can consider
whether nutrient removal should be required, IEPA offers a number of reformulations of the
antidegradation regulation, most of which actually support Petitioners
. In addition, IEPA offers a
number of mischaracterizations of Petitioners' position, repeats its mistaken view that Petitioners
must meet their burden with "undisputed facts," and offers a variety of excuses, not offered in
the Responsiveness Summary, for why IEPA believes it was reasonable for it not to even
consider nutrient removal for this permit. (IEPA Br
. at 37-41) The excuses offered by IEPA are
neither consistent with 35 Ill . Adm
. Code 302
.105(c) or factually supported by the record
.
Further, it cannot go without mention that IEPA's argument
-
that it would have been
unreasonable to require phosphorus controls on New Lenox with regard to its increased
discharge from 1
.54 to 2
.516 million gallons per day -
approaches surrealism given that in
R2004-026 the IEPA presented evidence, found persuasive by the Board, that a 1
.0 mg/L
phosphorus effluent limit should be required of all new or increased discharges totaling over I
13
million gallons per day.
1
.
IEPA is correct that a "basic directive of Section 302.105(c)(2)
is that
the Agency must consider all non-degrading or less degrading
alternatives that are technically and economically available in a given
situation"(IEPA Resp
. p. 38) and this requires that the permit be
remanded for such consideration .
In the middle of a number of formulations and reformulations of the antidegradation
regulations, IEPA states that "the basic directive of Section 302
.105(c)(2) is that the Agency
must consider all non-degrading or less degrading alternatives that are technically and
economically available in a given situation
."(IEPA Br . at 38) Except for the fact that formulation
actually only covers the requirements of 35 III . Adm. Code 302
.105(c)(2)(B)(iii), IEPA got it
exactly right here .
And because IEPA does not claim to have considered whether phosphorus or
nitrogen removal from the New Lenox plant were technically and economically available as a
way to reduce the degradation of Hickory Creek, a remand is clearly mandatory
. 10
Other IEPA reformulations of the regulation are less accurate . After getting it right on
page 38, IEPA states that "Section 302
.105(c)(2)(B)(iii) does not require the Agency to consider
technology controls as reasonable measures to avoid or minimize the proposed increase in
pollutant loading ." (IEPA Br
. at 39) Actually, that is almost precisely
what the plain language of
10 Contrary to (EPA's claim (See
IEPA Br. at 38), Petitioners do not believe that "anytime there
is an increased pollutant loading from a proposed activity, and a technology to treat that pollutant
is available, the Agency must incorporate such controls in the permit
.'." Petitioners agree with
IEPA that treatment technologies must be incorporated if they are "technologically and
economically available."
As explained in federal guidance, this requires a consideration of what
technologies are available and imposing those technologies that would reduce degradation
without requiring technological controls that are so expensive that they are inconsistent with the
economic or social development
. (See Pet. Post Hearing Mem . at 24-5)
. Degradation that could
only be avoided through use of technologies that are inconsistent with the proposed development
can be said to be necessary
. Here, placing I mg/L phosphorus limits would certainly not affect
New Lenox's growth and IEPA should consider the technical and economic feasibility of
nitrogen removal .
14
35 111 Adm. Code 302
.105(c)(2)(B)(iii) requires by stating that the Agency must "assure" that
"[aJll 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"
(emphasis added)
. In order to "assure" that all reasonable measures to avoid or minimize
pollution have been taken, IEPA must demonstrate that it has considered alternatives and explain
why those alternatives are not "reasonable ."
See also 35 Ill . Adm. Code 302 .105(f)(1)(D)(i).
2.
Respondents offer no valid excuse for IEPA's failure to consider the
technical and economic availability of nutrient removal .
IEPA also jumps the track in its consideration of "necessity" as required by the
antidegradation regulations . It states that the "record reflects that [sewage treatment plant]
expansion was necessary to accommodate the future growth of the area" and in a blatant
non
sequitur
argues "[t]hus, the lowering of water quality was necessary in this case to accommodate
an important social need
." (IEPA Br. at 39) However, just because the
expansion may be
necessary does not mean that the
lowering of water quality or that the full lowering of water
quality allowed by the permit was necessary . Obviously the whole point of the antidegradation
alternatives analysis is to determine whether alternative pollution control measures are available
to avoid or minimize water quality degradation while accommodating important development
.
See e.g. Hughey v
. Gwinnett County, 278 Ga. 740, 743, 609 S .E.2d 324, 328 (Ga. 2004)
(reversing permit for new wastewater discharge where agency had violated antidegradation
provision by failing to require the "highest and best level of treatment practicable" although
court agreed that plant expansion was necessary) .
IEPA also states that "the Village's plant is not a major source of phosphorus to Hickory
Creek" (See IEPA Br
. at 41) as though there were an exemption from antidegradation
15
requirements for unnecessary new pollution that is not major
. Such exception, of course, does
not exist
. Anyway, the claim is factually preposterous
. New Lenox's documents and IEPA itself
acknowledges that the New Lenox discharge will make up over 25% of the total phosphorus
loading to the creek no matter how one juggles the numbers
. (IEPA Br. at 9) . No one denies that
the New Lenox discharge is a substantial portion of the total stream flow" and that, without
phosphorus removal, the New Lenox discharge is discharging at a much higher concentration
than the upstream concentration and at a considerable multiple of both the Illinois figure for
water bodies potentially affected by phosphorus and the U .S . EPA suggested stream criteria for
phosphorus in the region of Hickory Creek . The Board has required phosphorus limits in cases
where the discharger was only 7% of the loading to the water body
. In the Matter of Site-
Specific Phosphorus Limitation
.for the City of Shelbyville, No. R83-12, 1984 III . Env
. LEXIS
129 (Dec . 20, 1984) .
Respondents also imply that IEPA was excused from considering alternatives because
there are other sources of phosphorus discharging into the Hickory Creek
. (IEPA Br. at 41)
However, the fact that some other sources may contribute to the nutrient problems in the Creek is
no excuse to allow unnecessary new pollution from New Lenox
. 35 Ill. Adm
. Code
302.105(c)(2)
does not only apply to new or increased discharges that are the sole source of
pollution in the receiving water and the fact that there is already much pollution in a water body
1 1
IEPA attacks Professor Lemke and Jenkins for using the stream flow at Joliet to calculate the
percentage of the stream flow made up by the discharge and claims that they should have instead'
used the stream flow at New Lenox . (IEPA Br. at 13)
. Obviously, however, using the lower
stream flow at New Lenox yields the conclusion that the permitted New Lenox discharge is an
even higher percentage of the total stream flow than the 11% figure calculated by Jenkins and
Lemke
. (HR 304) The New Lenox discharge then makes up at least 11% of the stream flow and
25% of the phosphorus.
16
is certainly no excuse for adding new unnecessary pollution
. The purpose of the Clean Water Act
is to "restore and maintain" our waters, 33 U
.S.C. §1251(a), and neither restoration nor
maintenance are furthered by allowing unnecessary new pollution into troubled waters
.
Despite a subheading in which IEPA claims to have considered "all alternatives" to
minimize pollution (IEPA Br
. at 14-15, subheading D.1),
IEPA's brief and the record make clear
that the only alternative considered was land application at a neighboring golf course
. (IEPA Br.
at 40, HR 372-74) The Responsiveness Summary notes that the question of phosphorus and
nitrogen removal at the plant was raised but never purports to show that such wastewater
treatment was infeasible or unreasonable for New Lenox
. (See Pet's Post Hearing Mem
. at 15,
citing
HR 357) The Board antidegradation rules and common sense dictate that the Agency
consider all feasible alternatives, particularly those raised by members of the public in the record
.
The present situation is virtually indistinguishable from that facing the Minnesota
Appellate Court in MCEA . There, the
. court found that the Minnesota agency had violated the
state's nondegradation policy by failing to adequately analyze feasible alternatives to increased
discharges before issuing a permit for an expanded wastewater treatment facility
. Specifically it
was found that the agency's "purported examination" of an alternative that would have required
downsizing the expansion and providing some decentralized treatment consisted merely of
"asserting narrative reasons why the alternative need not be analyzed" and made "no attempt at a
cost/benefit analysis or specific information" about the alternative as compared to the proposed
discharge. MCEA, 696
N.W. 2d at 103
. This was not good enough. Finding that there was "not
substantial evidence in the record to support rejection of the alternative," the Court remanded the
issue to the Agency with instructions to "actually analyze the prudence and feasibility" of the
alternative.
MCEA, 696 N.W. 2d at 105 .
17
The permit should be remanded to allow IEPA to actually analyze the prudence and
feasibility of phosphorus and/or nitrogen removal at the New Lenox sewage treatment plant
.
B.
The record does not contain substantial evidence that the Agency complied
with its duties to "assure" that the water quality standards regarding
"offensive conditions," dissolved oxygen, and pH will not be violated as a
result of the new or total discharge .
The Petitioners demonstrated that IEPA failed to comply with its legal duty to assure that
the New Lenox permit would not lead to violations of water quality standards regarding
offensive conditions, dissolved oxygen, and pH . (Pet. Post Hearing Mem. at 33-7) . IEPA
responds that Petitioners have failed to show that New Lenox's existing
discharges have caused
water quality violations . (IEPA Br
. at 42-3). That response is factually incorrect, but, more
importantly, irrelevant
. The applicable legal standard is whether New Lenox proved and IEPA
assured that the new discharge combined with the existing discharge would not cause or
contribute to violations of water quality standards in the future
. On this point, IEPA offers
nothing
. Indeed, IEPA now candidly admits that the study it relies on in the Responsiveness
Summary to prove compliance with the regulations concerning compliance with water quality
standards is only "valid for its limited purpose to show that the existing discharge is not
adversely impacting Hickory Creek ." (IEPA Br . at 7) 12
Petitioners do not believe that the Earth Tech study proves even as much as IEPA claims,
but it is now clear that no one believes that the sole study of Hickory Creek required by IEPA
assures that the increased discharge would not cause or contribute to a violation of water quality
standards
. Certainly, the study does not support the conclusion drawn in the IEPA
antidegradation analysis that the "incremental nutrient loading" from the New Lenox expansion
12 This is the same thing IEPA personnel said before the permit was issued
. (HR 660 .5, 667)
18
is "not expected to increase algae or other noxious plant growth, diminish the present aquatic
community or otherwise aggravate existing stream conditions
." (HR 6) .
The regulations require the Agency to "assure" that environmental damage will not take
place prior to
issuing the permit . Respondents' implicit argument that the Agency need not
establish permit limits until someone else conclusively proves to the Agency that a discharge will
violate water quality standards is not consistent with the Board's regulations, including the
federal regulations incorporated into the Board's regulations by reference . These regulations
require the Agency
to "assure" and "ensure" that the discharges it permits will not cause
violations of water quality standards
. 35 III . Adm. Code 302 .105, 309 .141(d); 40 C .F.R. §§
122 .4(d), 122
.44(d)(1); cf
. In re City of Marlborough, Mass . Easterly Wastewater Treatment
Facility, NPDES Appeal No. 04-113, 2005 EPA App . LEXIS 14, at *40 (EAB Aug
. 11, 2005)
(holding that Agency must actually "demonstrate that the Permit, as written, will ensure
compliance with water quality standards" or must modify the permit) .
Because IEPA has essentially conceded that it had no basis for concluding that the new
and total discharge would not cause or contribute to violations of water quality standards, IEPA's
efforts to minimize the apparent effects that the New Lenox discharge were having in 2002 are
irrelevant . The Board should not be left, however, with a misimpression regarding the state of
Hickory Creek . In particular, IEPA makes a number of factual claims that are wrong or likely to
be misunderstood :
Hickory Creek in 2002 had a "balanced healthy assemblage" of fish species
(IEPA Br . at 3) - Actually it was rated a "C" stream and clearly had degraded
from the days when it was one of the outstanding streams in the region.
According to the Earth Tech study, Hickory Creek had Biotic Index Values that
showed "some organic pollution" and the Creek subsequently was listed as
19
impaired based on biological studies
. (HR 5, HR 115, 514, 519 ,520, Pet. Post
Hearing Mem. at 6 n .3)
Hickory Creek had "typical levels of nutrients" (IEPA Br . at 14) - Actually, as
IEPA itself acknowledges, Hickory Creek had "elevated" levels of phosphorus
(IEPA Br . at 8), which is a typical condition for an "effluent dominated stream"
(IEPA Br . at 12). Earth Tech and USGS found levels of phosphorus and nitrogen
in the stream that were far in excess of what would be expected of an Illinois
stream that was not receiving numerous municipal discharges that were not
treated to remove nutrients
. (HR 304, 526) IEPA found Hickory Creek to be
"chemically disturbed" by total phosphorus and other pollutants as early as 1997 .
(HR 661) As of 2002, IEPA listed Hickory Creek as potentially affected by
nutrients in its 2002 303(d) list because it was at or above the 85
th
percentile for
nutrients . (Pet
. Post Hearing Mem . at 4, IEPA Br . at 2).
JEPA opines that the algal growth reported by numerous persons may have been
natural (IEPA Br. at 42) - Actually, as found by IEPA (HR 357), numerous area
residents "have observed excessive and offensive [algal] blooms . (HR 76, 80, 82-
3, 110) Only one of those observers was a professional limnologist, but
subsequently, IEPA itself listed the water as impaired by "excess algal growth ."
(Pet. Post Hearing Mem . at 4 n.2) Hickory Creek was known to experience wild
dissolved oxygen swings that IEPA agreed were probably the result of algal
activity. (HR 67) Further, two University of Illinois scientists provided comments
that the stream conditions caused by the discharges from New Lenox and other
dischargers were conducive to algal blooms . (HR 303-09)
IEPA urges that conditions immediately below the New Lenox plant are not worse
that those above the plant and that the observed algal bloom may have extended
above the plant. (IEPA Br. at 8, 11) - Actually, there is some evidence collected
immediately below the plant of degradation caused by the plant, although Earth
20
Tech did not think it was "definitive" (HR 514, 561)
. Tn any case, everyone
agrees that there are also numerous nutrient above New Lenox . The scientific
treatises recognize that nutrient pollution often has a effect well below the
discharge point where flow and other conditions cause the excess nutrients to
cause algal blooms
. (HR 125, 255-63) This was recognized by the Board years
ago when it established limits for phosphorus discharges up to 25 miles above a
lake
. 35 111. Adm. Code 304 .123 .13
Finally, Petitioners must respond to (EPA's misrepresentation of Petitioners' position
regarding phosphorus discharges
. IEPA claims that Petitioners consider the "discharge of even a
small amount" of phosphorus to be a violation of 35 Ill . Adm. Code 302
.203 and argues that
Petitioners' "narrow and literal interpretation" of that section would result in a "total prohibition"
of phosphorus and other "absurd and unfair results
." (IEPA Br, at 42) Actually, Petitioners ask
that IEPA assure that it does not allow new or increased phosphorus discharges that can be
avoided through means that are "technologically and economically available"
(see IEPA Br. at
38) and that IEPA ensure that it not permit phosphorus discharges that may cause or contribute to
violations of the narrative "offensive conditions" standard or the dissolved oxygen or pH
standards . This is also what the law requires . .
C .
IEPA failed to assure that that discharge would not cause violations of the
13
IEPA attempts to make much of the fact that some testimony is consistent with the possibility
that the reported offensive algal bloom extended above the New Lenox plant insofar as the
witness said that the bloom extended "almost" to Cedar Road and the New Lenox plant is below
Cedar Road . (IEPA Br . at 11). It is unnecessary here, however, to spend much time on the issue
of whether "almost" gets as far upstream as the plant both because nutrient pollution may have
its effect miles below the discharge and, as everyone agrees, there are dischargers above New
Lenox. The New Lenox discharge of nutrients probably is having its affect well below the New
Lenox discharge point where the algae have had time to use the phosphorus from New Lenox
and there are suitable sunlight and flow conditions . The question here is not whether Petitioners
proved that New Lenox is the sole cause of problems in Hickory Creek . The question is whether
IEPA assured that New Lenox will not contribute to "offensive conditions" in Pilcher Park and
other sites perhaps many miles below the discharge point .
21
acute or chronic copper standard .
IEPA in its response admits that it did not follow US E
.P.A. technical guidance and
declined to take more samples to determine whether the New Lenox discharge had a "reasonable
potential" to violate copper standards, even though one of the only two data points in the record
essentially equaled the chronic standard and the technical guidance showed a reasonable
potential for violation of both acute and chronic standards .
14
IEPA offers several arguments to
excuse this, but they all fail .
IEPA's primary argument is to state in various ways that the few tests done did not show
a violation of acute or chronic water quality standards . (IEPA Br . at 47-8). That's true but misses
the whole point of the US E .P .A . guidance that when only a few tests are taken, it is statistically
necessary to multiply the pollutant figures found in order to take into account uncertainty and
assure that there will not be a violation
. IEPA did not offer any refutation of this mathematical
truth in the Responsiveness Summary and it does not offer one in its brief
.
IEPA also argues that it just knows that the copper levels found in the tests of New
Lenox's discharge are not a problem based on its experience that copper levels over 30 ppb are
what may be considered elevated levels. However, the facts regarding IEPA's "experience" do
not appear in the permit record and, in any case, IEPA's experience that only levels of 30 ppb are
elevated does not override the Board-established chronic copper standard which is .0206 mg/L .
If IEPA believes the copper standard is too stringent, it should petition the Board to change it .
14
The sample indicated a level of copper in the New Lenox effluent that was 0 .0001 mg/L lower
than the chronic water quality standard for copper of 0 .0206 mg/L . To put this in perspective -
the mass of one grain of sand averages between
0.3 and 13
mg.
http ://www.reference.com/browse/wiki/Order s of magnitude %28mass%29 (accessed July 10,
2006).
22
Moreover, as mentioned, under the Technical Guidance there was also a danger of violating the
acute standard .
IEPA also mentions that it suspects that the copper found by the tests "are from erosion
of pipes within homes and houses
." (IEPA Br. at 47)
. While this may be reasonable speculation,
there is no exemption from the copper standards provided in the Board rules for violations
caused by pipe erosion
.
Finally, IEPA argues that had it developed a site specific metal translator or allowed for
dilution in a mixing zone it might well have come to the conclusion that no copper limit was
necessary . (IEPA Br
. at 48)' Well, maybe that is true, but IEPA cannot just assume the results of
studies that it has not bothered to do and then claim that it has assured that there will be no
problem
. Moreover, the dilution and metals translator rationales for not including a copper limit
are not included in the Responsiveness Summary and, thus, are not available here
.
Since the Agency had a duty to ensure that the discharge would not cause violations of
water quality standards, and one of the two samples available indicated copper levels virtually
equaling the chronic standard, IEPA should have required some reasonable monitoring or taken
other steps under 35 Ill . Adm
. Code 302 .105(c)(2)(B)(i), 304
.105, and 309.141(d).
D.
Respondents misunderstand their duties with respect to existing uses
In their initial brief Petitioners showed that IEPA did not conduct a study or analysis of
any kind regarding the potential effects of the
increased
discharge, even though the increased
discharge makes up a large portion of the flow of the creek during critical low flow conditions
.
(See Pet. Post Hearing Mem
. at 40)
. As such, IEPA failed to assure that both water quality
standards and existing uses would be protected, as required by 35 Ill
. Adm. Code 302 .105(a). In
its response, TEPA basically has agreed that the one study that was conducted was "valid for its
23
limited purpose to show that the existing discharge is not adversely impacting Hickory Creek ."
(IEPA Br. at 7)
Respondents' only real argument that it complied with 35 111
. Adm. Code 302.105(a) and
(c)(2)(B)(ii) is to claim that it is sufficient if "there is substantial evidence in the record to show
that the final permit complies with all water quality standards." (IEPA Br . at 20). In other words,
Respondents essentially assert that IEPA had no duty to protect existing uses of Hickory Creek
except to limit discharges so as to prevent violations of standards other than the existing use
standard.
This argument is flawed for several reasons . First, it conflicts with the plain language of
35 111 . Adm . Code 302 .105(a) in several places and, indeed, interprets the Section out of
existence . Section 302 .105(a) states that "[u]ses actually attained in a surface water body . . .
whether or not they are included in the water quality standards,
must be maintained and
protected ." (emphasis added) . Furthermore, Section 302
.105(a) gives specific examples of
prohibited "degradation of existing uses" that make clear that the focus of the section is on
protecting the actual
existing uses in the water body, not a proxy for existing uses based on
attainment of water quality standards
.
The Agency cites the Board's June 21, 2001 Proposed Rule regarding revisions to the
Illinois antidegradation rules (RO1-13) as support for its argument
. (IEPA Br. at 20). However, it
is not clear what part of this document Respondents intended to refer to, and in any event this
document does not support the proposition that Section 302.105(a)
only protects water quality
standards and not actual existing uses
. In fact, at page 3 of the Proposed Rule, the Board notes
that the "Agency's proposal provides that existing uses
actually attained in the water body must
be maintained and protected
." Proposed Rule, RO1-13 at 3 (emphasis added) .
24
Finally, the Agency's argument that Section 302
.105(a) only requires the Agency to
focus on water quality standards would render the entire section "mere surplussage
." 35 Ill.
Adm. Code 309 .141(d)(1) already
requires the Agency to ensure that NPDES permits include
limits "necessary to meet water quality standards
." Therefore, Respondents' interpretation of
Section 302.105(a) reads it out of existence
. Because the Agency never evaluated the potential
for the increased discharge at New Lenox to degrade the existing recreational and aquatic life
uses of Hickory Creek, the permit must be remanded
. (See Pet
. Post Hearing Mem. at 39) .
III.
The Illinois Environmental Protection Act's requirement that review be limited to
the administrative record does not violate due process
.
New Lenox, in an argument not joined by IEPA, devotes a significant portion of its brief
to rearguing the discovery issues decided by this Board on November 17, 2005 and mounting a
constitutional attack on the statutory framework for PCB proceedings
.
(See New Lenox Br. at 8-
13)
. As New Lenox has noted, this issue has already been "thoroughly briefed by the parties,"
(New Lenox Br
. at 4) . It has also been conclusively decided by the Board
.
New Lenox's constitutional argument is fundamentally unsound
. Before showing this,
three observations are in order
.
First, a number of New Lenox arguments regarding discovery and due process appear to
stem from the same fundamental misunderstanding that has characterized the entirety of
Respondents' arguments
-
their attempt to treat this case as an enforcement case against New
Lenox, rather than a third-party permit appeal
. (See 11/17/05 Bd . Order at 40 ("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.")). New Lenox will not be punished or lose anything tangible as a
direct result of anything that could happen in this permit appeal proceeding
. Petitioners seek only
25
a remand to the IEPA so that it can look again at some potential permit requirements that will
comply with applicable regulations and better protect Hickory Creek .
Second, no one has identified anything that could possibly be found through discovery
that would strengthen Respondents' case in this proceeding . For example, even if somehow New
Lenox convinced all of the witnesses at the hearing to recant their testimony that they observed
offensive algal blooms in Hickory Creek, the fact would remain that IEPA had failed to assure
that the increased discharges allowed by the permit would not create offensive algal blooms .
IEPA's failure itself to follow up on the reports of offensive algal blooms before issuing the
permit would be one of the ways it had failed to assure that the increased discharge it permitted
would not be a problem .
15
Third, New Lenox did not attempt to ask any of the membe s of the public any questions
at the hearing that was held and did not offer any testimony of its own
. Having sat out the
opportunities to participate in the process that the rules do provide, New Lenox is in a poor
position to claim that those opportunities were inadequate
.
In any event, New Lenox's due process arguments fail because a NPDES permit, much
less the Village's mere application
for a NPDES permit, does not convey "property rights of any
sort, or any exclusive privilege," 40 C .F.R. § 122.41(g) . Furthermore, even if the Village could
claim some kind of property right to pollute Hickory Creek, the Board's rules would provide all
the "process" that was "due," especially given the State's significant interests in preventing
pollution.
15 Of course, IEPA did not do this in part because it knew full well that the reports were accurate
and IEPA itself listed Hickory Creek as impaired by unnatural algal blooms the following year .
26
A.
The Village's application for an NPDES permit does not carry with it a
"property right" subject to the protections of due process .
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) . In its November 17 th, 2005
Order, the Board found that because there was "no dispute about the contents of the Agency
record" in this case, there was "no compelling reason to permit discovery
." (Bd . Ord. at 39). The
Village argues that this decision, coupled with the Agency's inability under the Act and the
Board's rules to cross-examine members of the public that offer testimony at IEPA's public
hearings, impinges on the "Village's rights" and the Illinois Constitution
. (New Lenox Br . at 12-
13) .
In
Board of Regents of State Colleges v. Roth,
the Supreme Court explained the types of
benefits that create "property rights" subject to the protections of due process
:
To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it. He must have more than
a unilateral expectation of it . He must, instead, have a legitimate
claim of entitlement to it
.
408 U.S. 564, 577 (1972)
. Here, the Village of New Lenox clearly has no "legitimate claim of
entitlement" to pollute Hickory Creek .
See Citizens Utils. Co. of Ill. v. Pollution Control Bd ., 265
Ill. App
. 3d 773, 781, 639 N.E.2d 1306, 1312 (3" Dist
. 1994) ("The grant of a permit does not
insulate violators of the Act or give them a license to pollute."); Peabody Coal Co. v. Pollution
Control Board, 36 111. App. 3d 5, 17, 344 N.E.2d
279, 288 (5th Dist. 1976) (court is "not
convinced" that Peabody has a "statutory entitlement" to pollute) . This is made perfectly clear by
the federal regulations setting the ground rules for the NPDES permitting program . See 40 C.F.R .
§ 122 .41 (g) (stating that NPDES permits
"[do] not convey any property rights of any sort, or
27
any exclusive privilege")
.
16
At most, the Village can claim an "abstract need or desire" for its
expanded permit, which does not convey a property right subject to due process protections .
Therefore, the Village's due process arguments fail .
B.
Even if New Lenox could claim a property right to pollute Hickory Creek,
the Board's regulations provide all the "process" that is "due ."
Even where there is a "property right" in a government benefit, a reviewing court must
perform a balancing test to determine how much process is "due ." See Matthews v
. Eldridge, 424
U.S. 319 (1976)
. This balancing test takes into account the public's interest in a specific outcome
as well as the government's interest in its efficient adjudication . Id.
In Peabody Coal Co., 36 Ill. App
. 3d at 16-19, the Fifth District Appellate Court was
faced with a due process claim remarkably similar to the one here
.
17
Assuming for the sake of
argument that Peabody did possess a right to pollute, the Court found that the Board's rules
provided all the process that was due
. The Court of Appeal first held that while the Board's
permitting process is like an adjudication,
"[i]t does not follow . . .
that a permit holder is entitled
to a `full-dress' hearing before a permit becomes effective ." Id.
at 17 . Instead, the court "must
weigh the interest of the State against the seriousness of the deprivation to the applicant in
determining whether the procedural safeguards are adequate
." Id.
After performing this balancing test, the Court of Appeals found that Peabody's interest
16 40 C.F.R. § 122
.41(g) is made applicable to state programs by 40 C .F.R. § 123 .25(a)(12) ("All
State Programs under this part must have legal authority to implement each of the following
provisions . . . [including] Section 122.41(a)(1)
and (b) though (n) - (Applicable permit
conditions) .").
17
Peabody argued that the Board regulations' lack of a provision for an automatic stay of an
IEPA permitting decision pending appeal to the Board, and the failure of the rules to provide a
"full dress" hearing before the permit becomes effective, constituted a denial of procedural due
process. Peabody Coal Co ., 36111 . App. 3d at 16 .
28
in polluting Illinois water was "not as compelling" as interests alleged in other due process cases .
Id.
at 18 (citing Goldberg v
. Kelley, 397 U .S. 254 (1970) and
Wisconsin v. Constantineau, 400
U.S. 433 (1971))
. On the other hand, "[t]he government's interest in making permits effective
when issued is great, as it allows the government to restrict the amount of pollutants being
discharged into the waters of Illinois
." Peabody Coal Co
., 36 Ill. App. 3d. at 19. Given the
State's significant interest in "protecting the public health and the environment," the Court found
Peabody's due process argument "without merit
." Id.
The Second District followed Peabody
the following year in rejecting a due process
challenge to the Board's NPDES permitting rules
. United States Steel Co . v
. Pollution Control
Bd., 52 Ill. App. 3d 1, 9, 367 N.E
.2d 327, 333-34 (2" d Dist
. 1977) (holding that U .S. Steel "has
not demonstrated a sufficiently great hardship to outweigh the interests of the State in protecting
its waters, health and environment")
. For substantially the same reasons articulated by the Court
in
Peabody and U.S. Steel,
New Lenox's due process arguments would fail
even ifit could claim
a "property right" or "entitlement" to pollute Illinois waters
.
Finally, New Lenox's argument that it has a constitutional right to cross-examine
members of the public that offer comments at IEPA public hearings (New Lenox Br
. at 10-12)
was considered and rejected by the Tennessee Court of Appeals in
Big Fork Mining Co. v .
Tennessee Water Quality Control Bd.,
620 S.W .2d 515, 521 (Tenn . App
. 1981). In Big Fork
Mining,
the Tennessee Board denied plaintiff's application for a permit, finding that the permit
would violate the State's antidegradation policy
. Big Fork was concerned that the Board had
relied on "evidence presented at the hearings" that was "composed of opinions not based on
facts." Id.
However, the Court dismissed applicant's concerns, explaining that:
"[t]his was an administrative proceeding and not a court
29
proceeding," so "strict rules of evidence do not apply
." Therefore,
the opinions in the administrative record constituted "valid
evidence" that "may support a decision of an administrative
tribunal ." The "trier of fact" could determine the "weight to be
given the testimony ." Id.
As in Big Fork, New Lenox cannot support their argument that due process requires a
full-dress hearing in this case, with full opportunities to cross-examine persons giving public
comment
. New Lenox could have presented evidence itself at the March 30, 2006 hearing (or 30
days thereafter) or ask questions of persons who testified at the hearing .
IV.
Conclusion
The Board should remand the permit to the Agency so that a revised permit can be issued
in compliance with the Act and the Board rules . In addition, the Board should clarify the
standards applicable to permitting and review of permits by the Board so that IEPA can issue
proper permits based on a properly documented agency decision
.
A bert F . Ettinger (Reg . o. 3125045)
Counsel for Des Plaines River Watershed Alliance,
Livable
Communities Alliance, Prairie Rivers
Network and Sierra Club
DATED
: July 21, 2006
Environmental Law and Policy Center
35 East Wacker Drive, Suite 1300
Chicago, Illinois 60601
312-795-3707
30
CERTIFICATE OF SERVICE
I, Albert F
. Ettinger, certify that on July 21, 2006, I filed the attached PETITIONERS' POST
HEARING REPLY MEMORANDUM
. 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: July 21, 2006
Environmental Law and Policy Center
35 E
. Wacker Drive, Suite 1300
Chicago, Illinois 60601
312-795-3707
Albert F. Ettinger (R No
. 3125045)
Counsel for Des Plaines River Watershed Alliance, Livable
Communities Alliance, Prairie Rivers Network and Sierra
Club
Bradley P
. Halloran
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Roy M . Harsch
Sheila H
. Deely
Gardner Carton & Douglas LLP
191 N. Wacker Drive, Suite 3700
Chicago, IL 60606-1698
Sanjay K . Sofat
Illinois Environmental Protection Agency
1021 N
. Grand Avenue East, Mail Code #21
Springfield, IL 62794-9276
SERVICE LIST (PCB 04-88)
